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Madhya Pradesh High Court · body

2001 DIGILAW 866 (MP)

D. R. Longre v. State of M. P.

2001-11-28

N.S.AZAD

body2001
Judgment ( 1. ) THIS order shall dispose of M. Cr. C No. 2691/99 Filed on behalf of D. R. Longre and M. Cr. C. No. 1362/2001 filed on behalf of Sylvester Ekka. ( 2. ) THESE petitions are filed, seeking the relief of quashment of proceedings in Criminal Case No. 387/94, pending in the Court of J. M. F. C. , Baihar, Distt. Balaghat, on the ground of lack of sanction for prosecution as provided in Section 197 of Cr. PC. ( 3. ) THE facts leading to the prosecution of these two petitioners may be summarised as follows:-D. R. Longre and Sylvester Ekka were working and in control of relief work, which was being carried out at Singhbagh, Jalgaon and Manikpur stop dam in the capacity of S. D. O. and Sub-Engineer respectively in the Department of Water Resources under the State Government of Madhya Pradesh. It is alleged against both of these petitioners that while disbursing the payment to the labourers, which were engaged to carry out the work, these two petitioners prepared the forged muster rolls and by showing the false disbursement of money to the labourers, which were shown to have been engaged in those muster rolls, these two petitioners misappropriated Rs. 1,96,091/- and Rs. 61,798/- respectively. For committing Criminal Breach of Trust in respect of aforesaid amounts, both of these petitioners are facing Criminal Trial No. 387/95 in the Court of J. M. F. C. , Baihar, for offences punishable under Sections 409 and 420 of the IPC. ( 4. ) IT is submitted on behalf of these petitioners that whatever amount is alleged to have been misappropriated by preparing the forged muster rolls and showing a false disbursement, it was all done in discharge of official duty because these petitioners were posted as S. D. O. and Sub-Engineer in Water Resources Department of State Govt. , which was carrying out the relief work. It is also argued on behalf of these petitioners that if anything is done, which constitutes an offence, in discharge of public duty, the sanction under Section 197 (1) of the Cr. PC is mandatory for the prosecution. In support of this contention, my attention has been drawn to a decision, in the case of B. Purchiba Ao. vs. R. K. Atoshe Sema and Ors. , reported in 1992 Cr. LJ 1420. PC is mandatory for the prosecution. In support of this contention, my attention has been drawn to a decision, in the case of B. Purchiba Ao. vs. R. K. Atoshe Sema and Ors. , reported in 1992 Cr. LJ 1420. My special attention has been drawn to Paragraphs 20 and 21 of this cited case, which read as under:- "20. The Court examined the facts of case before it in the light of the aforesaid legal proposition and observed- "in this view, we have to examine whether the acts with which the appellant is charged directly bear on the duties which he has got to discharge as a public servant. The appellant received the sum of Rs. 51/- alleged to have been misappropriated, as Sub-Divisional Officer, and he admits receipt of the same. Then it was his duty to pay that amount to the Khalasi Parma, and take his signature or thumb impression in acknowledgment thereof. The accused does claim to have paid the amount to Parma, and the acquittance roll records the payment, and there is in acknowledgment thereof a thumb impression as against his name. If what appears on the face of the roll is true and whether it is true or not is not a matter relevant at the stage of sanction then the acts with which the appellant is charged fall within the scope of his duties, and can be justified by him as done by virtue of his office. Clearly, therefore, sanction was required under Section 197 (1), Cr. PC before the appellant could be prosecuted under Section 409, and the absence of such sanction is fatal to the maintainability of the prosecution. The conviction should, therefore, be quashed. " 21. The ratio of the aforesaid decision of the Supreme Court, in my opinion, clearly governs the present case. The allegations in this case are also identical to those in the case before the Supreme Court, Here also the petitioner against whom the complaint was filed was a Sub-Divisional Officer in the P. W. D. The allegation against him also is that he misappropriated Government money by falsely issuing appointment letters to unknown persons as labourers, drawing pay on their behalf and appropriations the same to himself. Evidently all those acts were integrally connected with the duties attaching to his office as S. D. O. It was his duty to appoint labourers, draw their pay and disburse the same to them. All these acts were done in performance of his duties as S. D. O. They are inseparable from his office. While doing so, if he committed an offence, it was undoubtedly an offence committed in performance of his duties as a public servant and, as such, sanction under Section 197 (1) of the Cr. PC was mandatory for his prosecution. " In support of aforesaid argument, the learned counsels, appearing on behalf of the petitioners have cited a decision, in the case of Mohd. Iqbal Ahmed vs. State of Andhra Pradesh, reported in AIR 1979 SC 677 . ( 5. ) IN Criminal Revision No. 63/96, filed on behalf of petitioner D. R. Longre, challenging order dated 31st December, 1995 of J. M. F. C. , Baihar, wherein, the aforesaid objection raised on behalf of this petitioner was disallowed and rejected the learned First Addl. Sessions Judge, Balaghat gave weight to this point also that to commission of a criminal act or an offence, cannot fall in the category of public duty, and hence no sanction was required to prosecute petitioner D. R. Longre. But it is found explained by Supreme Court in Pukhraj vs. State of Rajasthan, reported in AIR 1973 SC 2591 , that the benefit of provision contained in Section 197 of the Cr. PC, is not confined to cases where the act, which constitutes the offence, is the official duty of the official concerned, else such an interpretation would lead to a contradiction because an offence can never be an official duty. The well settled position of law on the point of necessity of sanction, is explained by the Supreme Court in Paragraphs 2 and 3 of the aforesaid judgment, which runs as follows:- "2. The law regarding the circumstances under which sanction under Section 197 of the Code of Criminal Procedure is necessary is by now well settled as a result of the decisions from Hori Ram Singhs, 1939 FCR 159 = (AIR 1939 FC 43) case to the latest decision of this Court in Bhagwan Prasad Srivastava vs. N. P. Misra, (1971) 1 SCR 317 = ( AIR 1970 SC 1661 ). While the law is well settled the difficulty really arises in applying the law to the facts of any particular case. The intention behind the section is to the prevent public servants from being unnecessarily harassed. The section is not restricted only to cases of anything purported to be done in good faith, for a person who ostensibly acts in execution of his duty still purports so to act, although he may have a dishonest intention. Nor is it confined to cases where the act, which constitutes the offence, is the official duty of the official concerned. Such an interpretation would involve a contradiction in terms, because an offence can never be an official duty. The offence should have been committed when an act is done in the execution of duty or when an act purports to be done in the execution of duty. The test appears to be not that the offence is capable of being committed only by a public servant and not by any one else, but that it is committed by a public servant in an act done or purporting to be done in the execution of his duty. The section could not be confined to only such acts as are done by a public servant directly in pursuance of his public office, though in excess of the duty or under a mistaken belief as to the existence of such duty. Nor need the act constituting the offence be so inseparably connected with the official duty as to form part and parcel of the same transaction. What is necessary is that the offence must be in respect of the act done or purported to be done in the discharge of an official duty. It does not apply to acts done purely in a private capacity by a public servant. Expressions such as the "capacity in which the act is performed", "cloak of office" and "professed exercise of office" may not always be appropriate to describe or delimit the scope of the section. An act merely because it was done negligently does not cease to be one done or purporting to be done in execution of a duty. Expressions such as the "capacity in which the act is performed", "cloak of office" and "professed exercise of office" may not always be appropriate to describe or delimit the scope of the section. An act merely because it was done negligently does not cease to be one done or purporting to be done in execution of a duty. In Hori Ram Singh s case (supra) Sulaiman, J. , observed: "the section cannot be confined to only such acts as are done by a public servant directly in pursuance of his public office, though in excess of the duty or under a mistaken belief as to the existence of such duty. Nor is is necessary to go to the length of saying that the act constituting the offence should be so inseparably connected with the official duty as to form part and parcel of the same transaction. " In the same case Varadanchariar, J. , observed "there must be something in the nature of the act complained of that attaches it to the official character of the person doing it". In affirming this view, the Judicial Committee of the Privy Council observed in Gills case, 75 Ind App 41 = (AIR 1948 PC 128) : "a public servant can only be said to act or purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty. . . . . The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office. " In Matajog Dobey vs. H. C. Bard, (1955) 2 SCR 925 = ( AIR 1956 SC 44 ) the Court was of the view that the test laid down that it must be established that the act complained of was an official act unduly narrowed down the scope of the protection afforded by Section 197. After referring to the earlier cases the Court summed up the results as follows:- "there must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty. " Applying this test it is difficult to say that the acts complained of i. e. , of kicking the complainant and of abusing him, could be said to have been done in the course of performance of the 2nd respondents duty. At this stage all that we are concerned with is whether on the facts alleged in the complaint it could be said that what the 2nd respondent is alleged to have done could be said to be in purported exercise of his duty. Very clearly it is not. We must make it clear, however, that we express no opinion as to the truth or falsity of the allegations. 3. We must also make it clear that this is not the end of the matter. As was pointed out in Sarjoo Prasad vs. King Emperor, 1945 FCR 227 = (AIR 1946 FC 25) referring to the observations of Sulaiman, J. , in Hod Ram Singhs case (supra) the mere fact that the accused proposes to raise a defence of the act having purported to be done in execution of duty would not in itself be sufficient to justify the case being thrown out for want of sanction. At this stage we have only to see whether the acts alleged against the 2nd respondent can be said to be in purported execution of his duty. But facts subsequently coming to light during the course of the judicial inquiry or during the course of the prosecution evidence at the trial may establish the necessity for sanction. Whether sanction is necessary or not may have to depend from stage to stage. The necessity may reveal itself in the course of the progress of the case [sec observations in (1955) 2 SCR 925 = ( AIR 1956 SC 44 ) (supra)]. In (1971) 1 SCR 317 = ( AIR 1970 SC 1661 ) (supra) also it was pointed out that it would be open to the appellant (the 2nd respondent in this case) to place the material on record during the course of the trial for showing what his duty was and also that the acts complained of were so inter-related with his official duty so as to attract the protection afforded by Section 197, Cr. PC. " ( 6. PC. " ( 6. ) A perusal of report of Naib Tehsildar R. K, Singh, which forms part of the record of the Lower Court, discloses that for disbursal of labour charges, to the labourers of these relief works, one disbursement officer Shri Singh was appointed and hence acts of withdrawal of money and its disbursal to the labourers, did not fall in the public duty of the petitioners, as pointed out by Naib Tehsildar R. K. Singh in his report. The learned J. M. F. C. has also taken into account this fact in his order dated 21st December, 1995, while disallowing the petition, moved on behalf of petitioner D. R. Longre under Section 197, Cr. PC and concluded that the fact as to who was incharge of and competent to withdraw and disburse the amount to the labourers, may be considered on taking evidence only and hence, it can not be held that the prosecution is not maintainable in the absence of sanction. ( 7. ) SINCE the fact as to whether these petitioners were competent to withdraw and disburse the amount to the labourers for carrying out the relief works at Jalgaon, Singhbagh and Manikpur, may be decided on taking evidence only hence these petitions are found not maintainable at this stage, which are being disposed of as premature. The record of the Lower Court be sent back immediately as the progress in Criminal Case No. 387/95, was arrested on account of stay granted by this Court, which now stands vacated.