TMI Blog1965 (5) TMI 41X X X X Extracts X X X X X X X X Extracts X X X X ..... e and in this judgment I will deal only with this matter. The appellants Gupta and Kale were respectively the Chief Accountant-cum-Office Superintendent and Assistant Cashier of the MAdhya Bharat Electric Supply, an enterprise run by the Government of Madhya Bharat. It Is not disputed that Gupta was a public servant who was not removable from his office save by the sanction of the Madhya Bharat government. The only point is whether in regard to the charge under s. 409 he was accused of an offence alleged to have been committed by him while acting or Purporting to act in the discharge of his official duty. If he was, then in view of S. 197 of the Code of Criminal Procedure no court could take cognizance or the offence without the sanction of the government of Madhya Bharat and his conviction under s. 409 of the Indian Penal ('ode cannot be upheld. It appears that in fact a sanction under S. 197 of the Code of Criminal Procedure was obtained but IS this was done after cognizance had been taken, it was of no use. It is clear from the language of S. 1 97 that the sanction has to be taken before cognizance has been taken. This indeed is not disputed. It is also clear from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gupta can be said to have been accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty . It is said on behalf of the prosecution that in respect of an offence of criminal breach of trust no sanction is necessary as such an offence can never be said to be so committed because it is no part of the official duty of a public servant to misappropriate moneys of his employer. With that proposition, I am unable to agree. It was rejected by this Court in Shreekantiah Ramayya Munipalli v. The State of Bombay [1955] 1 S.C.R. 117 and Amrik Singh v. The State of PEPSU 1955] 1 S.C.R. 1302. I think on the authorities as they stand, it is now clearly established that whether an offence was committed in the course of official duty will depend on the facts of each case. In Hori Ram Singh's case(1) Sulaiman J. stated at p. 180, The question whether a criminal breach of trust can be committed while purporting to act in execution of duty is not capable of being answered hypothetically in the abstract, without any reference to the actual facts of the case. In the same case, in discussing the test to be applied in d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 s. 197(1) of the Code of Criminal Procedure before the appellant could be prosecuted under s. 409 and the absence of such sanction is fatal to the maintainability of the prosecution. The conviction should, therefore, be quashed. I find it impossible to distinguish the facts of that case from the present. Regarding the defalcation of ₹ 21,450 the chalan that I have already quoted would show that the defalcation had been committed by the making of certain false entries in the books by Gupta and Kale acting in conspiracy. Whether these entries correct or not is not a matter for investigation when the question of the necessity for sanction arises. Applying the test down by the Privy Council in Gill's case [1948] F.C.R. p. 194 the necessity for had to be determined by putting the question, could the accused have reasonably stated that what he had done, he had done 'the course of his official duty? In the present case when ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e were the same as of this case. K. Satwant Singh's case) [1960] 2 S.C.R. 89 was concerned with the offence of cheating under S. 420 of the Indian Penal Code. Inam J. in delivering the judgment of this Court in that case approved of the test formulated in Amrik Singh's case[1960] 2 S.C.R. 89 that the offence ,charged must have necessary connection with the performance of the duties of a public servant. What had happened there was that Satwant Singh, a contractor, had entered into conspiracy with a government official, Henderson, and obtained from him a false certificate of work done by him for the government and on the basis of it received money from the government by cheating the government. As the two had been tried jointly, it was contended that the charge against Henderson was in respect of an act done in the course of his official duty in issuing the certificate and the trial was bad as no sanction had been obtained. Imam J. pointed out that Henderson had not been prosecuted for any offence concerning his act of certification and had been prosecuted for abetting the appellant in the act of cheating. All that the case decided was that that abetment by Henderson was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear 1938 and worked in that capacity till June, 1948 and thereafter he was appointed as Office Superintendent-cum- Chief Accountant of the Power House. At that time Shri Sibhal was the Chief Electrical Engineer and General Manager of the Power House while Shri Narsingh Venkatesh Murti was the Assistant General Manager. Appellant Kale was working as a Cashier in the relevant period. In the Power House there was a practice of having two daily account-books, one rough and the other fair and according to the practice, the daily transactions of receipt of cash and expenditure used to be entered in the rough cash book by the Cashier, Kale. Each day he would strike the balance and the appellant Gupta and the Assistant General Manager Murti would check and countersign the entries in the rough cash-books. A part of the cash balance used to be deposited in the Government Treasury and the remaining cash used to be kept in the safe of the Power House under lock and key. According to the prosecution case the key of the safe always remained with appellant Gupta and he had the dominion over the cash in the sale. Accounts in the rough cash-book were written by appellant Kale and, as already stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the safe to Sadashiv Bapat (P.W. 5) and after that he had nothing to do with the cash of the Power House. He also denied having abetted the offence of falsification of account said to have been committed by Kale. The case of Kale was that he did make all the entries in the rough cash-book with regard to the items of ₹ 21,450 and ₹ 10,000 but Kale alleged that he made those entries at the instance of appellant Gupta who was his Office Superintendent. It was pleaded by Kale that he did not abet appellant Gupta in the criminal misappropriation of the amounts. The trying Magistrate held that appellant Gupta was in charge of the cash, the safe and its key at the relevant period and that he was entrusted or had dominion over the cash of the Power House and that he committed criminal breach of trust in regard to the two sums of ₹ 21,450 and ₹ 10,000. He also held that in respect of these two sums appellant Gupta abetted the offence of falsification of accounts under S. 477-A, Indian Penal Co by appellant Kale who made false entries in the rough Cash- Book. Accordingly he convicted appellant Gupta under S. 409 and 477-A/109, Indian Penal Code and sentenced him on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... milar to s. 197(1) of the Code of Criminal Procedure in its purpose and intent. The facts in that case were that a Sub-Assistant Surgeon was charged under s. 409 with having dishonestly removed certain medicines from a hospital which was under his charge, to his own residence, and under s. 477-A, with having failed to enter them in the stock book. The sanction of the Government had not been obtained 'or the prosecution under s. 270 of the Government of India Act. The question for decision in that case was whether such sanction was necessary. It was held by the Federal Court that the charge under s. 477-A required sanction, as the official capacity is involved in the very act complained of as amounting to a crime'; but that no sanction was required for a charge under s. 409, because 'the official capacity is material only in connection with the entrustment and does not necessarily enter into the later act of misappropriation or conversion, which is the act complained of'. In the course of the judgment, Varadachariar, J. discussed the scope of s. 197(1) of the Criminal Procedure Code and after observing that the decisions on that section were not uniform, proceeded to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on arose directly with reference to s. 197(1 ) of the Criminal Procedure Code. In that case the accused was charged under s. 161 with taking bribes, and under s. 120-B with conspiracy. On the question whether sanction was necessary under s. 197(1) it was held by the Judicial Committee that there was no difference in scope between that section and section 270 of the Government of India Act, 1935, and approving the statement of the law by Varadachariar, J. in Hori Ram Singh v. Emperor,(1) Lord Simonds observed in the course of his judgment at page 40 of the Report : In the consideration of s. 197 much assistance is to be derived from the judgment of the Federal Court in Hori Ram Singh v. The Crown ([1939] F.C.R. 159), and in particular from the careful analysis of previous authorities which is to be found in the opinion of Varadachariar, J. Their Lordships, while admitting the cogency of the argument that in the circumstances prevailing in India a large measure of protection from harassing proceedings may be necessary for public officials, cannot accede to the view that the relevant words have the scope that has in some cases been given to them. A public servant can only be s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nciple to the present case, we are of opinion that sanction of the State Government was not necessary for the prosecution of Gupta under S. 409 of the Indian Penal Code, because the act of criminal misappropriation was not committed by the appellant while he was acting or purporting to act in the discharge of his official duties and that offence has no direct connection with the duties of the appellant as a public servant, and the official status of the appellant only furnished the appellant with an occasion or an opportunity of committing the offence. With regard to the other charge under ss. 477-A/109 of the Indian Penal Code the legal position is different and, in our opinion, the sanction of the State Government is necessary for the prosecution of the appellant on this charge because it was committed within the scope of official duties, though in dereliction of them. On behalf of the appellant Mr. Chari referred to the decision of this Court in Amrik Singh v. The State of Pepsu [1955] 1 S.C.R. 1302. and submitted that even with regard to the charge under s. 409, Indian Penal Code the sanction of the State Government would be necessary. In that case the appellant was a Sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not necessary since the public servant is not acting in his official capacity in committing criminal breach of trust. In the other case, Satwant Singh v. The State of Punjab(5), the appellant-Satwant Singh-submitted claims totalling several lakhs of -rupees to the Government of Burma on the allegation that he had executed works and supplied materials. These claims were sent by the Government of Burma to Major Henderson at Jhansi in March and May, 1943, for verification as he was the officer who had knowledge of these matters. The officer certified many of these claims to be correct and sent the papers back to Simla. On the certification of the claims by Henderson, the Finance Department of the Government of Burma sanctioned the same and the Controller of the Military Clain-is at Kolhapur was directed to pay the amounts sanctioned. On the request of Satwant Singh cheques were drawn on the Imperial Bank of India at Lahore and these cheques were encased at Lahore. In all Satwant Singh was paid ₹ 7,44,865 and odd. Subsequently, suspicions of the Government of Burma were aroused and it was discovered that many of the claims, including some of those of Satwant Singh, were false ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .R. 925]. It was urged, however, that in the present case the act of Henderson in certifying the appellant's claims as true was an official act because it was his duty either to certify or not to certify a claim as true and that if he falsely certified the claim as true he was acting or purporting to act in the discharge of his official duty. It is, how- ever, to be remembered that Henderson was not prosecuted for any offence concerning his act of certification. He was prosecuted for abetting the appellant to cheat. We are firmly of the opinion that Henderson's offence was not one committed by him while acting or purporting to act in the discharge of his official duty. We consider that the present case falls within the principle laid down by this Court in Satwant Singh v. The State of Punjab [1960] 2 S.C.R. 89 by which we are bound and the view we have taken is supported by the decisions of the Federal Court in Hori Ram Singh v. Emperor [1960] 2 S.C.R. 89 and of the Judicial Committee in Gill v. The King [1960] 2 S.C.R. 89. It was argued by Mr. Shroff on behalf of the respondent that sanction of the State Government was given for the prosecution of the appellant on J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the entries were made by him at the instance of the appellant Gupta who was Superintendent of his office and superior to the appellant in official position. It was also contended on behalf of the appellant that he did not make the false entries wilfully and with intent to defraud the Power House and that he had no knowledge of the criminal intent of appellant Gupta. The case of the appellant has been rejected by the lower Courts and we do not propose to review the evidence on this aspect of the case because the question raised is essentially one of fact and there is a concurrent finding of the lower Courts that the appellant made the false entries in the account-books wilfully and with intent to defraud the Power House and that he abetted appellant Gupta in committing criminal breach of trust with regard to both the amounts in question. It also appears from the evidence of Laxman, P.W. 6, and Joshi, P.W. 3, that when the audit party arrived the appellant Kale approached Mhaskar for the issue of a blank cash book without any indent. The evidence of Joshi-P.W. 3- also shows that Gupta had, in the presence of the appellant, asked the witness to write the accounts in the rough cash ..... X X X X Extracts X X X X X X X X Extracts X X X X
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