Paragraph numbers below are the court’s original numbering, recovered from the source text.
14. The Court thereafter observed that whether an offence had been committed in the course of official duty or not, color of office cannot be answered hypothetically and would depend on the facts of each case. The Court referred to the decisions in Hori Ram Singi1 (supra) and the observations made in Gill's case for the purpose of appreciating what should be the broad test. The Court reproduced a passage from the Constitution Bench in Matajog Dube (supra) which states about reasonable connection between the act and the discharge of official duty, and that 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. We have ingeminated the same, though we had earlier reproduced the same.
15. After so stating, the Court adverted to the facts. The Court noticed that the fact complained of is dishonest misappropriation for conversion of the goods by the appellants which they had seized, and as such, were holding in trust to be dealt with in accordance with law. The Court opined there can be no dispute thatthe seizure of the goods by the appellants being entrusted with the goods or dominion over them was an act committed by them while acting in the discharge of their official duty, but the act complained of subsequent dishonest misappropriation or conversion of those goods by the appellants,.which is the second necessary element of the offence of criminal breach of trust under.Section 409 IPC, and hence, it could not be said that the act was committed in the course of performance of their official duty. It was observed by the Court that there was nothing in the nature or quality of the act complained of which attaches to or partakes the official character of the appellants who allegedly did it nor could the alleged act of misappropriation or conversion reasonably said to be imbued with the color of the office held by the appellants. The Court referred to the test in Hori Ram Singh (supra) and_ th~reafter stated thus:- PUNJAB STATE W AREHOUSI"IG CORP. v. BHUSHAN CHANDER & ANR. [DIPAK MISRA, J.] "This, however, should not be understood as ari invariable proposition of law. The question, as already explained, depends on the facts of each case. Cases are conceivable where on their special facts it can be said that the act of criminal misappropriation or conversion complained of is inseparably intertwined with the performance of the official duty of the accused and therefore, sanction under Section 197 (1) of the Code of Criminal Procedure for prosecution of the accused for an offence under Section 409, Indian Penal Code was necessary".
16. The three-Judge Bench distinguished the decision in Shreekantiah Ramayya Munipalli (supra) and also Amrik Singh (supra). The ultimate conclusion of the Court reads thus:- "There are several decisions of this Court, such as, Om Prakash Gupta v. State of U.P.; Baijnath v. State of MP. (supra) and Harihar Prasad v. State of Bihar26, wherein it has been held that sanction under Section 197, Criminal Procedure Code for prosecution for an offence under Section 409, Indian Penal Code was not necessary. In Om Prakash Gupta case (supra) it was held that a public servant committing criminal breach of trust does not normally act in his capacity as a public servant. Since this rule is pot absolute, the question being dependent on the facts of each case, we do not think it necessary to burden· this judgment with a survey of all those cases". On the aforesaid analysis, the appeal was dismissed. We will advert to the appreciation of the ratio of the aforesaid decision by the learned Single Judge after we take note of certain other authorities.
17. In State of Maltaraslttra v. Dr. Budltilota Subbarao27, the Court referred to the authority in B. Salw (supra), Aru/swami (supra) and stated that the concept of sanction has been widened by extending protection to even those acts or omissions which are done in purported exercise of official duty and that is under the colour of office. Proceeding further, the Court stated that official duty implies that the act or omission must have been done by the public servant in course of his service and such act or omission must have been performed as a part of duty which further must have been official in nature. As has been stated by the "(1972) 3 sec 89 "< 1993) 3 sec 339 c c Court, the provision has to be construed strictly while determining its applicability to any act or omission in course of service and its operation has to be limited to those duties which are discharged in course of duty. It has been held that:- "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".
18. The facts in the said case are absolutely different but we have only referred to the said authority to appreciate that it has reiterated the principle that an act must bear a relation to the duty that the accused could lay a reasonable claim that the act has been in exercise of official duty or duty that has been done has the colour of office.
19. In Slwmb/100 Nath Misra v. State of U.P.~ , a private complaint was filed by the appellant therein against the second respondent for the offences punishable under Sections 409, 420, 465, 468, 477-A and I 09 IPC. The learned Magistrate had dismissed the complaint holding that sanction under Section 197 CrPC was not obtained. The High Court accepted the view of the learned Magistrate. Be it stated, the learned Judge had relied upon the judgment of Hori Ram Singh (supra), B. Salta (supra) and Gill's case. The Court observed that the requirement of the sanction by competent authority or appropriate Government is an assurance and protection to the honest officer who does his official duty to further public interest. However, performance of official duty under colour of public authority cannot be camouflaged to commit crime. The Court further stated that to proceed further in the trial or the enquiry, as the case may be, it has to apply its mind and record a finding that the crime and the official duty are not integrally connected.
20. Thereafter, the Court held:- "It is not the official duty of the public servant to fabricate the false records and misappropriate the public funds etc. m "(1997) s sec 326 PUNJAB STATE WAREHOUSNG CORP. v. BHUSHAN CHANDER & ANR. [DIPAK MISRA, J.] furtherance of or in the discharge of his official duties. The official capacity only enables him to fabricate the record or misappropriate the public fund etc. It does not mean that it is integrally connected or inseparably interlinked with the crime committed in the course of the same transaction, as was believed by the learned Judge. Under these circumstances, we are of the opinion that the view expressed by the High Court as well as by the trial court on the question of sanction is clearly illegal and cannot be sustained". Being of this view, the Court allowed the appeal and set aside the order of the Magistrate and directed restoration of the complaint.
21. In State of Kera/a v. V. Padmanabilan Nai~ 9 it has been held that when no sanction under Section 197 is necessary for taking cognizance in respect of the offences under Section 406 and Section 409 read with Section 120-B IPC. Similar principle has been laid down in State of H.P. v. M.P. Gupta30• In Parkaslt Singlt Badal and another v. State of Pun]ab and otlters3' it has been ruled that the offence of cheating under Section 420 or for that matter offences relatable to Sections 467, 468, 471 and 120-B can by no stretch of imagination by their very nature be regarded as having been committed by any public servant while acting or purporting to act in discharge of official duty. In such cases, official status only provides an opportunity for commission of the offence. Similar principle has been reiterated in Cltoudlmry Parveen Sultana v. State of West Bengal and anotlter3' wherein the Court referred to the authority in Blwgwan Pnisad Srivastava v. N.P. Mishra33 and ruled thus:- "12. It was also observed in Bhagwan Prasad Srivastava (supra) that Section 197 has been designed to facilitate effective and unhampered performance of their official duty by public servants by providing for scrutiny into the allegations of commission of offence by them by their superior authorities and prior sanction for their prosecution was a condition precedent to the taking of cognizance of the cases against them by the courts. It was finally observed that the question whether a particular act is done by a public servant in the discharge of his official duties is substantially " ( 1999) s sec 690 '" (2004 l 2 sec 349 " (2007) 1 sec 1 " (2009) 3 sec 398 "(1970) 2 sec 56 c [2016) 4 S.C.R. one of the facts to be determined in the circumstances of each case." c
22. A survey of the precedents makes it absolutely clear that there has to be reasonable connection between the omission or commission and the discharge of official duty or the act committed was under the colour of the office held by the official. If the acts omission or commission is totally aliert to the discharge of the official duty, question ofinvoking Section 197 CrPC does not arise. We have already reproduced few passages from the impugned order from which it is discernible that to arrive at the said conclusion the learned Single )udge has placed reliance on the authority in B. Salta's (supra). The conclusion is based on the assumption that the allegation is that while being a public servant, th~ alleged criminal breach of trust was committed while he was in public service. Perhaps the learned Judge has kept in his mind some kind of concept relating to dereliction of duty. The issue was basically entftftltfnent and missing of the entrusted items.
There is no dispute that the prosecution had to prove the case. But the public servant cannot put forth a plea that he was doing the whole act as a public servant. Therefore, it is extremely difficult to appreciate the reasoning of the High Court. As is noticeable he has observed that under normal circumstances the offences under Sections 467, 468 and 471 IPC may be of such nature that obtaining of sanction under Section 197 Cr PC is not necessary but when the said offences are interlinked with an offence under Section 409 IPC sanction under Sectiqn 197 for launching the prosecution for the offence under Section 409 is a condition precedent. The approach and the analysis are absolutely fallacious. We are afraid, · though the High Court has referred to all the relevant decisions in the field, yet, it has erroneously applied the principle in an absolute fallacious manner. No official can put forth a claim that breach of trust is connected with his official duty.
Be it noted the three-Judge Bench in B. Salta (supra) has distinguished in Sltreekallfiah Ramayya Munipalli (supra) keeping in view the facts of the case. It had also treated the ratio in Amrik Sing/I (supra) to be confined to its own peculiar facts. The test to be applied, as has been stated by Chandrasekhara Aiyar, J. in the Constitution Bench in Matajog Dube (supra) which we have reproduced hereinbefore. The three-Judge Bench in B. Saha (supra) applied the test laid down in Gill's case wherein Lord Simonds has reiterated that the test may well be whether the public servant, if challenged, can reasonably claiin, that what he does, he does in virtue of his office. PUNJAB STATE W AREHOUSNG CORP. v. BHUSHAN CHANDE&& ANR. [DIPAK MISRA, J.]
23. Tested on the touchstone of said principles, it cannot be said that in the obtaining factual matrix, sanction under Section 197 CrPC was necessary. We are compelled to obs_srve that the High Court should have been ~ore vigilant in understanding the ratio qf ~he decisions of this Court.
24. Another line of argument was advanced on behalf of the appellant-Corporation that even if the respondents are treated as public servants, they being the employees of the Corporation, they do not get the protective shelter of Section 197 CrPC. In Laksltmansinglt Himatsinglt Vagltela (supra), a three-Judge Bench dissecting the anatomy of Section 197( 1) Cr PC opined that the said provision clearly intends to draw a line between public servants and to provide that only in the case of the higher ranks should the sanction of the government to their prosecution be necessary. While a public servant holding an office of the kind mentioned in the section is as such public servant appointed to another office, his official acts in connection with the latter office will also relate to the former office. Thereafter, the Court ruled:- "The words "removable from office" occurring in Section 197 signify removal from the office he is holding. The authority mentioned in the section is the authority under which the officer is serving and competent to terminate his services. If the accused is under the service and pay of the local authority, the appointment to an office for exercising functions under a particular statute will not alter his status as an eniployee of the local authority".
25. In the said case, the appellant was admittedly a laboratory official in the ser¥ice and pay of Municipal Corporation of Ahmedabad. His appointment as Public Analyst by the Government, as held by this Court, did not confer him the status of a public servant or an officer under service and pay of the Government. Being of this view, the Court opined he was not a public servant removable only by the State Government and accordingly allowed the appeal.
26. In Md. Hadi Raja v. Stltte of Bilwr3~ the question arose whether Section 197 CrPC was applicable for prosecuting officers of the public sector undertakings or the Government companies which can be treated as State within the meaning of Article 12 of the Constitution oflndia. The Court referred to Section 197 Cr PC, noted the submissions " AIR 1998 SC 1945 c c and eventually held that the protection by way of sanction under Section 197 Cr PC is not applicable to the officers of Government Companies or the public undertakings even when such public undertakings are 'State' within the meaning of Article 12 of the Constitution on account of deep and pervasive control of the government.
27. The High Court has not accepted the submission of the Corporation in this regard. We are constrained to note that the decision in Md. Hadi Raja (supra) has been referred to in the grounds in this appeal. There is nothing on record to suggest that the said decision was cited before the High Court. It has come to our notice on many an occasion that the relevant precedents are not cited by the Corporations and the government undertakings before the High Court. We should, as advised at present, only say that a concerted effort should be made in that regard so that a stitch in time can save nine.
28. In view of the aforesaid analysis, the irresistible conclusion is that the respondents are not entitled to have the protective umbrella of Section 197 CrPC and, therefore, the High Court has erred in setting aside the conviction and sentence on the ground that the trial is vitiated in the absence of sanction. Consequently, we allow the appeal and set aside the judgment and order passed by the High Court and remit the matter to the High Court to decide the revision petition in accordance with law. Kalpana K. Tripathy Appeal allowed.