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2004 DIGILAW 194 (MAD)

George v. State of Kerala

2004-02-13

J.M.JAMES, K.A.ABDUL GAFOOR

body2004
JUDGMENT K.A.Abdul Gafoor, J. The appellant faced a prosecution under the provisions of Prevention of Corruption Act on the allegation that using his position as public servant, he forged documents and misappropriated various amounts payable as unemployment assistance to various persons and thereby derived undue pecuniary advantage and committed the offences punishable under Sec.13(2) read with Sec.13(1) (c) of the Prevention of Corruption Act, 1988 and also under Ss.409, 465, 471471 and 477(A) of the Indian Penal Code. The petitioner attempted to interdict the prosecution launched against him by filing O.P.No.10181 of 1999 contending that he being a public servant sanction under Sec.197 ought to have been obtained for launching the prosecution. Therefore, the prosecution should have been dropped and he could not have been proceeded with. 2. The contention urged by him before the learned Single Judge was that as a public servant he was not removable from his office except by or with the sanction of the Government. Accordingly prosecution ought to have been launched only if Government sanctioned it. 3. Admittedly by him the authority to impose the penalty of removal on him as per statutory rules governing conditions of service is not Government, but the Director of Employment. That means he could directly be removed or dismissed from service without any orders from Government, but upon an order by the Director. In such circumstances, merely because the Government is also having ultimate power to dismiss him being a superior authority, it could not be contended that sanction under Sec.197 of Cr.P.C. is required to prosecute him. If this contention is accepted, everyone employed in the Government Service can be prosecuted only with sanction from the Government as ultimately Government has also the power to remove him from service. This is not what is intended by Sec.197. Had it been so it would have been made clear in simple words that no Government servant shall be prosecuted in any case except with the sanction of the Government. The wording in the section is clear that sanction is required only in respect of a public servant “not removable from his office save by or with the Government”. 4. The learned Single Judge while considering the issue had also referred to an earlier Division Bench decision of this Court in Sarojini v. Prasannan, (1996(2 K.L.T.859. The wording in the section is clear that sanction is required only in respect of a public servant “not removable from his office save by or with the Government”. 4. The learned Single Judge while considering the issue had also referred to an earlier Division Bench decision of this Court in Sarojini v. Prasannan, (1996(2 K.L.T.859. In that case a Sub-Inspector of Police removable from service only upon the order of a Deputy Inspector General and not by the Government faced prosecution. This Court held that in such situation they are not public servants not removable from service save by or with sanction of the State Government. The benefit of S.197 of Cr.P.C. as well as S.19(1) (c) of the Prevention of Corruption Act also would not be therefore claimed. Accordingly we are in full agreement with the view taken by the learned Single Judge. Appeal fails. V.S.-----Appeal dismissed.