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1999 DIGILAW 303 (KER)

State of Kerala v. Padmanabhan Nair

1999-07-14

K.T.THOMAS, M.B.SHAH

body1999
Judgment :- 1. Leave granted. 2. In July 1989, respondent retired from Government service as Superintending Engineer of the PWD under the Government of Kerala. About three years thereafter he was arraigned along with certain other persons before a Special Judge for offence under S.5(2) of the Prevention of Corruption Act, 1947 (for short 'the P.C. Act') and S.406,409 & 201 read with S.120B and 109 of the Indian Penal Code. A learned single Judge of the High Court of Kerala quashed the criminal proceedings against the respondent for want of sanction under S.197 of the Code of Criminal Procedure (for short'the Code'). State of Kerala, aggrieved by the said order of the High Court, has come up with this appeal by special leave. 3. The case against the respondent, in short, is that while he was working as Executive Engineer at the Moovattupuzha Valley Irrigation Project Division, he joined himself into a criminal conspiracy with four other accused for defrauding the Government by misappropriating about 600 tonnes of steel rods (costing Rs. 1,26,000/-). When respondent was charge sheeted for the aforesaid offences, he appeared before the Special Judge's Court and filed a petition to discharge him on the ground that no prior sanction, as contemplated in S.197 of the Code, has been obtained. Respondent, however, conceded before the Special judge that no previous sanction is necessary under S.6 of the P.C. Act 1947. But the Special Judge overruled his contention and held that "there is no necessity at all to obtain a sanction under S.197 of the Code to proceed against the petitioner under the provisions of the P.C. Act, 1947." 4. As the matter was taken up before the High Court the decision of this Court in Harihar Prasad v. State of Bihar (1972 (3) SCC 89) was cited before the learned single judge, who heard the matter. It was held in the said decision that: "As far as the offence of criminal conspiracy punishable under S.120B, read with S.409 of the Penal Code is concerned and also S.5(2) of the Prevention of Corruption Act are concerned, they cannot be said to be of the nature mentioned in S.197 of the Code of Criminal Procedure. It is no part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct. It is no part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction under S.197 of the Code of Criminal Procedure is, therefore, no bar to a prosecution under S.120B, read with S.409 of the Penal Code." Learned single judge tried to distinguish the said decision by observing thus: "But here he is charged under S.406 and 409 also which relate to criminal breach of trust by a public servant. Therefore, sanction is necessary to prosecute the petitioner (respondent)". 5. In S.A. Venkataraman v. State (1958 SCR 1040) and in C.R. Bansi v. State of Maharashtra (1970 (3) SCC 537) this Court has held that: "There is nothing in the words used in S.6(1) to even remotely suggest that previous sanction was necessary before a Court could take cognizance of the offence mentioned therein in the case of a person who had ceased to be a public servant at the time the court was asked to take cognizance, although he had been such a person at the time the offence was committed". When the newly worded section appeared in the Code (S. 197) with the words "when any person who is or was a public servant" (as against the truncated expression in the corresponding provision of the old Code of Criminal Procedure 1898) a contention was raised before this Court in Kalicharan Mahapatra v. State of Orissa JT 1998 (5) SC 269 that the legal position must be treated as changed even in regard to offences under the P.C. Act also. The said contention was, however, repelled by this Court in Kalicharan Mahapatra (cited supra) wherein a two Judge Bench has held thus: " A public servant who committed an offence mentioned in the Act, while he was a public servant, can be prosecuted with the sanction contemplated in S.19 of the Act if he continues to be a public servant when the court takes cognizance of the offence. But if he ceases to be a public servant by that time, the court can take cognizance of the offence without any such sanction." 6. But if he ceases to be a public servant by that time, the court can take cognizance of the offence without any such sanction." 6. The correct legal position, therefore, is that an accused facing prosecution for offences under the P.C. Act cannot claim any immunity on the ground of want of sanction, if he ceased to be a public servant on the date when the court taking cognizance of the said offences. So the High Court was at any rate wrong in quashing the prosecution proceedings in so far as they related to offences under the P.C. Act. 7. That apart, the contention of the respondent that for offences under S.406 and 409 read with S.120-B of the IPC sanction under S.197 of the Code is a condition precedent for launching the prosecution is equally fallacious. This Court has stated the correct legal position in Shreekantiah Ramayya Munnipalli v. State of Bombay (AIR 1955 SC 287) and also Amrik Singh v. State of Pepsu (AIR 1955 SC 309) that it is not every offence committed by a public servant which requires sanction for prosecution under S.197 of the Code, nor even every act done by him while he is actually engaged in the performance of his official duties. Following the above legal position it was held in Harihar Prasad (supra) as follows: "As far as the offence of criminal conspiracy punishable under S.120B, read with S.409 Indian Penal Code is concerned and also S.5(2) of the Prevention of Corruption Act, are concerned they cannot be said to be of the nature mentioned in S.197 of the Code of Criminal Procedure. To put it shortly, it is no part of the duty of a public servant, while discharging his official duties, to enter in to a criminal conspiracy or to indulge in criminal misconduct Want of sanction under S.197 of the Code of Criminal Procedure is therefore, no bar". 8. Learned single judge of the High Court declined to follow the aforesaid legal position in the present case on the sole premise that the offence under S.406 of the IPC has also been fastened against the accused besides S.409 of the IPC. We are unable to discern the rationale in the distinguishment. S.406 and 409 of the IPC are cognate offences in which the common component is criminal breach of trust. We are unable to discern the rationale in the distinguishment. S.406 and 409 of the IPC are cognate offences in which the common component is criminal breach of trust. When the offender in the offence under S.406 is a public servant (or holding any one of the positions listed in the section) the offence would escalate to S.409 of the Penal Code. When this Court held that in regard to the offence under S.409 of the IPC read with S.120B it is no part of the duty of the public servant to enter into a criminal conspiracy for committing breach of trust, we find no sense in stating that if the offence is under S.406 read with S.120B IPC it would make all the difference vis-a-vis S.197 of the Code. 9. For the aforesaid reasons, we have no doubt that the High Court has committed a grave error in quashing the prosecution proceedings. The case against the respondent has to go to trial in accordance with law. Accordingly, we allow this appeal and set aside the judgment of the High Court and direct the Special Judge concerned to proceed with the trial.