2009 (5) TMI 973 - SC - Indian Laws

Commission 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.

Summary

Issues Involved:
1. Authority of the person who granted sanction for initiation of criminal proceedings.
2. Validity of charges framed under Sections 218, 219, and 220 of the Code of Criminal Procedure, 1973.
3. Adequacy of questions posed during examination under Section 313 of the Code of Criminal Procedure, 1973.
4. Applicability of Section 197 of the Code of Criminal Procedure, 1973 concerning protection to public servants.
5. Impact of errors in charge framing under Section 464 of the Code of Criminal Procedure, 1973.

Detailed Analysis:

1. Authority of the Person Who Granted Sanction:
The High Court dismissed the appeal primarily on the ground that the person who granted sanction for the initiation of criminal proceedings was not authorized to do so. The trial court had convicted the accused under Sections 409 and 468 IPC, but the V Additional Sessions Judge, Sitapur, acquitted the accused, noting that the sanctioning authority was inappropriate. The Supreme Court emphasized that the question of whether the sanctioning authority was appropriate must be carefully examined, especially considering the mandatory nature of the protection afforded to public servants under Section 197 of the Code.

2. Validity of Charges Framed:
The V Additional Sessions Judge, Sitapur, also acquitted the accused on the grounds that charges could not be framed for transactions spanning more than one year, as per Sections 218, 219, and 220 of the Code. The Supreme Court noted that the effect of Section 464 of the Code, which deals with errors in charge framing, had not been properly considered. According to Section 464, an error in the charge does not vitiate the trial unless it results in a failure of justice. The Court highlighted that the burden is on the accused to show that such an error caused a failure of justice.

3. Adequacy of Questions Posed During Examination:
The appellate court observed that appropriate questions were not put to the accused during the examination under Section 313 of the Code. The Supreme Court indicated that this issue loses significance when considered in the context of whether there was a need for sanction under Section 197 of the Code.

4. Applicability of Section 197 of the Code:
The Supreme Court extensively discussed the nature of protection under Section 197 of the Code, which requires prior sanction for prosecuting public servants for acts done in the discharge of their official duties. The Court clarified that the protection is mandatory and absolute, barring any court from taking cognizance of such offences without prior sanction. The Court cited various precedents to elucidate that the protection extends to acts directly connected with official duties but does not cover acts of criminal conspiracy or misconduct, which are not part of official duties.

5. Impact of Errors in Charge Framing:
The Supreme Court referred to Section 464 of the Code, which states that errors in charge framing do not invalidate a trial unless they cause a failure of justice. The Court emphasized that the accused must demonstrate that such errors led to a failure of justice. The Court directed that the appeal should be heard on merits, setting aside the High Court's order, and clarified that it had not expressed any opinion on the merits of the case, which would be decided in the appeal before the High Court.

Conclusion:
The Supreme Court allowed the appeal, setting aside the High Court's order and directing that leave to appeal be granted. The case was remanded to the High Court for a decision on merits, emphasizing the need to consider the applicability of Section 197 of the Code and the impact of any errors in charge framing under Section 464 of the Code.