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2009 (5) TMI 973 - SC - Indian LawsCommission of Offence Punishable u/s 409, 420, 461 and 468 IPC - framing of wrong charges - appropriate questions not put while the accused was examined u/s 313 - Question of authority of the person granting sanction - nature of power exercised by the Court u/s 197 - Ld Counsel for the appellant submitted that no part of the alleged offence is protected u/s 197 of the Code, and the effect of Section 464 of the Code has to be seen. Prior to examining whether the Courts below committed any error of law in discharging the accused it may not be out of place to examine the nature of power exercised by the Court u/s 197 of the Code and the extent of protection it affords to public servant, who apart, from various hazards in discharge of their duties, in absence of a provision like the one may be exposed to vexatious prosecutions. HELD THAT:- For instance a public servant is not entitled to indulge in criminal activities. To that extent the Section 197 has to be construed narrowly and in a restricted manner. But once it is established that act or omission was done by the public servant while discharging his duty then the scope of its being official should be construed so as to advance the objective of the Section in favour of the public servant. Otherwise the entire purpose of affording protection to a public servant without sanction shall stand frustrated. For instance a police officer in discharge of duty may have to use force which may be an offence for the prosecution of which the sanction may be necessary. But if the same officer commits an act in course of service but not in discharge of his duty then the bar u/s 197 of the Code is not attracted. To what extent an act or omission performed by a public servant in discharge of his duty can be deemed to be official was explained by this Court in Matajog Dobey v. H.C. Bhari [1955 (10) TMI 3 - SUPREME COURT]. If on facts, it is prima facie found that the act or omission for which the accused was charged had reasonable connection with discharge of his duty then the act must be held as official to which applicability of Section 197 of the Code cannot be disputed. The contention of the respondent that for offences u/s's 406 and 409 r/w Section 120B of IPC sanction u/s 197 of the Code is a condition precedent for launching the prosecution is equally fallacious. It was held in Harihar Prasad, etc. v. State of Bihar [1971 (9) TMI 186 - SUPREME COURT] as follows: ''As far as the offence of criminal conspiracy punishable u/s 120B, r/w Section 409, IPC is concerned and also Section 5(2) of the Prevention of Corruption Act is concerned, they cannot be said to be of the nature mentioned in Section 197 of the CrPC. To put it shortly, 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 u/s197 of the CrPC is, therefore, no bar.'' The error in charge also does not vitiate the order. Finally, it is submitted that the question relating to Section 313 of the Code loses significance when considered in the background as to whether there was any need for sanction. Apparently the first Appellate Court and the High Court have not kept this aspect in view. As the provision itself mandates that no finding sanction or order by a court of competent jurisdiction becomes invalid unless it is so that a failure of justice has in fact been occasioned because of any error omission or irregularity in the charge including in misjoinder of charge. Obviously, the burden is on the accused to show that in fact failure of justice has been occasioned. We set aside the impugned order of the High Court and direct that leave to appeal shall be granted and the appeal shall be heard on merits. We make it clear that we have not expressed any opinion on the merits of the case which shall be decided in the appeal before the High Court. The appeal is allowed.
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