Supreme Court of India
MANOHAR NATH KAULversusSTATE OF JAMMU & KASHMIR
- Citation
- 1983 INSC 42
- Decided
- 19 April 1983
- Disposal
- Dismissed
- Bench
- D A DESAI
Holding
Sanction under s.197 of the CrPC is not required where the offence of cheating is not committed while the public servant is acting or purporting to act in discharge of official duties.
Summary
Manohar Nath Kaul, a Regional Officer of the Directorate of Field Publicity, obtained air tickets in lieu of exchange orders and, contrary to rules, included the ticket costs in his travel allowance bills, receiving payment. He was prosecuted for cheating under IPC s.420 and argued that prosecution required prior sanction under CrPC s.197(1) because he was a public servant. The trial court and High Court rejected this plea. The Supreme Court examined whether the offence of cheating was committed while Kaul was acting or purporting to act in discharge of his official duties. It held that the act of submitting false bills was not integrally connected with his official functions; thus the protection of s.197 did not apply and sanction was unnecessary. Consequently, the appeal was dismissed and the trial was directed to proceed expeditiously.
Issues considered
- Whether prosecution of a public servant for cheating under IPC s.420 requires prior sanction under CrPC s.197(1).
- Whether the act of submitting travel allowance bills with ticket costs is connected with the official duties of the public servant.
Legislation cited
- Code of Criminal Procedures. 197(1)
- Indian Penal Code, 1860s. 420
Subjects
Section 197public servantsanctioncheatingIPC 420official dutycriminal proceduretravel allowance
Judgment
MANOHAR NATH KAUL
A
v.
STATE OF JAMMU & KASHMIR'
April 19, 1983
B
[0.A. DESAI AND RANGANATH MISRA, JJ.]
Crin1inal Procedure Code-s. 197 (1)- Public Servant charged wlth the
offence of cheating-When sanction for prosecution necessary?
Section 197 (1) of the Code of Criminal Procedure provides that when a
c
public servant is accused of any offence alleged to have been committed by him
while acting or purporting to act in the discharge of his official duties no court
shall take cognizance of such offence without the previous sanction of the
appropriate govern_ment.
The appellant. who was Regional Offi~er of the Directorate of Field D
Publicity of the Governn1ent of India, travelled by air by obtafning air tickets
in lieu of exchange orders. Under the rules, the cost of the~e tickets was
requir~d to be ex.::luded from the T.A. bills.On the allegation that the appel-
lant submitted T.A. bills including the cost of these tickets and received pay-
ment for the same, a prosecttion report was submitted against him for the
offence of cheatirig under s. 420, l.P.C. The~ appellant pleaded that in the
absence of sanction under s. 197 of the Code of Criminal Procedure the
E
prosecution was not maintainable. Trial Court rejected the contention. High
Coutt upheld the order in revision.
On appeal the appellant contended that the furnishing of the bills and
the drawing of the allowance were integrally connected with his status of being
a public servant and must, therefore, be taken to be covered by sub-s. (1) of s.
F
197.
Dislnissing the appeal,
HELD : The appellant was not entitled to claim'~ the protection of S. G
197 (!). [799 a,
800 A]
The umbrella of protection under s. 197(1) is av~ilable to a public servant
in respect of offences alleged to have been committed while acting or purpor-"l-
ting to act in the discharge of his official duty. A public servant can only be
said to act or to purport to act in the discharge of his official ·duty, if his act H
is such as to lie within the scope of his official duty. The test may well be whe-
ther the public servant, if challenged, can reasonably, claim that, what he does,
he does in virtue of his office, [793 G, 797 B-D)
792 SUPREME COURT REPORTS [1983) 2 s.c.R.
If the acts complained of are so integra11y connected with the duties
attaching to the office as to be inseparable from them, then sanction under
A s.197(1) would be necessary; but if there was no necessary connection between
them and the-performance of those duties, the official status furnishing only
the occasion or opportunity for the acts, then no sanction would be required.
I [795 B-C]
Where a public servant co~n1its the offence of cheating or abets another
to cheat, the offence committed by him is not one while he is acting or pur..
B porting to act in the discharge· of his official_ duty, as such offence has no
necessary connection behveen it and the performance of the duties of a public
servant. [799 F]
, · Srivastava v. Misra, [1970] 2 S.C.C. 56; An1rik Singh v. State of Pepsu,
[1955] I S.C.R. 1302; K. Satwant Singh v. The State of Punjab, [1960] 2 S.C.R.
c 89; Baijnath Gupta & Ors. v. The State of Madhya Pradesh, [1966] I S.C.R. 210;
Hori Ram Singh v. EmperJr, [1939] F.C.R. 159; Bakhshish Singh Dhaliwal v.
State of Punjab, [1967] I S.C.R. 211; Hariha1 Prasad etc. v. State of Bihar,
[1972] 3 S.C.C. 89; B. Saha & Ors. v. M.S. Kochar, [1980] I S.C.R. Ill,
referred to.
In the instant case, drawing of T.A. bills cannot be said to have been
D directly and reasonab1Iy c;nnected with appellant's duty as Regional Officer of
the DireCtorate and the official status furnished the opportunity for doing the
acts whic.:h co-i:istitute ingredients of the offence. [799 _I-I]
CRIMINAL APPELLATE JuR1so1cnoN : Criminal Appeal No.
677 of 1680.
E
Appeal by Special leave from the Judgment and ·Order dated
the 7th August, 1980 of the Jammu & Kashmir High Court in
Criminal Revision No. 6 of 1979. ·
T.C. Mehta and Meera Agarwal for the Appellant.
F
Alta/ Ahmed for the Respondent.
The Judgment of the Court was·delivered by
RANGANATH MISRA, J. Jn this appeal by special leave, the
G short question for consideration is, if sanction under section· 197,
Code of Criminal Procedure ('Code' for short) is necessary for the
prosecution of the apJ?ellant for an offence of cheating punishable
under section 420 of the Indian Penal Code .
H .Appellant was Regional Officer of the Directorate of Field Publi·
'city of the Government oflndia in 1972. He travelled by air from
Srinagar to Delhi to and fro on one ·occasion and from Srinagar to
Jammu to and fro on two other occasions by obtaining air tickets in
:.M.11. KAUL v. J. AND K. (Ranganath Misra, J.). 19~'
lieu of exchauge orders. The cost of the tickets obtained by the appel
'-'~r~ !ant was.debitable to the account of the Directorate and under the A
rules the appellant was required to exclude the same from the bills for
travelling allowance. On the allegation that the appellant submitted
bills including the air fare and received payment for the same, a
prosecution report was submitted against him for the. offence of
cheating under s. 420, I.P.C. in the Court of the ·Chief Judicial B
Magistrate of Srinagar. The appellant took the plea that in the
absence of sanction under s. 197 of the Code, the prosecution was
not maintainable. The trying Magistrate rejected the contention and
the High Court upheld the order in a revision at the instance of the
appellant.
c
Section 197 (1) of the Code provides :
"When any person who is or was a Judge or
Magistrate or a public servant not removable from his
office save by or with the sanction of the Government is
accused of any offence alleged to have been committed by D
·him while aclirtg or purporting to act in the dischai·ge qf
his official duty, no Court shall take cognizance of such
offence except with the previous sanction_ -
(a) in the case of a person who is employed or, as
E
the case may be, was at the time of commission of the
alleged offence employed, in connection with the affairs of
the Union, of the Centra 1 Government . "
Undoubtedly, the. section is designed to facilitate an effective
and unhampered performance of official duty by public servants by F
making provision for scrutiny into ·allegations against them by
superior authorities and prior sanction for prosecution as a condition
precedent to the cognizance of cases against them by courts so that
protection may be available from frivolous, vexatious or false prose·
cutions for offences alleged to have been committed by them while
acting or purporting to act in the discharge of their official duty. As G
pointed out b;t tbis Court in Srivastava v. Misra,(') the umbrella of
protection is available in respect of offences alleged to have b~en
committed while acting or purporting to act in the discharge of official
duty. It is the contention of the appellant that qua public officer· the
appellant submitted. the impugned bills and has drawn the travelling H
(!) [1970] 2 s.c.c. 56,
1!>4 StlPREMB COURT REPORTS 1198~) 2 s.c.11..
allowance. According to him, the furnishing of the bills and the
A
being a public servant and must, therefore, be taken to be covered 1
drawing of the allowance are integrally connected with his status of -. .--,___~
by the two phrases occurring in sub·s. (!) ofs. 197 of the Code.
We are of the view that the submission advanced on behalf of
B the appellant is totally without any basis and has to ·be rejected. The
state of the Jaw as laid down by this Court in several precedents may
usefully be referred to in support of this conclusion. In Amrik Singh
' v. State of Pepsu,(') the accused was a sub-Divisional Officer in the
Public Works Department of Pepsu. It was a part of his duties to
disburse the wages to workmen employed in certain works at a place
c called Karhali. The procedure usually followed was that he drew
the amount required from the Treasury and disbursed the amount to
the employees against their signatures or thumb impressions in the
monthly acquittan.ce roll. Payment was shown to have been made
to one Parma for the month of April 1951. The Sub-Divisional
D Officer was prosecuted on the allegation that Parma was non-existent
· and the thumb impression in the acquittance roll was of the accused
himself; This had been done with a view to misappropriating the
wages said to have been paid to the workman. Before a three Judge
Bench of thi·s Court on behalf of the appellant the conviction was
challenged for want of sanction under s. 197 (I) of the Code in res~
E pect of the offences punishable under ss.. 409 and 465 of the Penal
Code. Referring to _certain decided cases, Venkatarama Ayyar, J.
spoke for the Court thus :
"The result of th~ authorities may thus be summed
F up : It is not every offence committed by a public servant
that requires sanction for prosecution under section 197
(I) of the Code of Criminal Procedure; nor even every
act done by him while he is actually engaged in the per·
formance of his official duties;_ hut if the act complained
of is directly 6oncerned with his official duties so· that, if
G questioned, it could be claimed to have been done by
virtue of the office, then sanction would be necess!'ry; and
that would be so, irrespective of whether it was, in fact, a
proper discharge of his duties, because that would really
be a matter of defence on the merits, which would have
H to be investigated at the.trial, and could not arise at the
(1) (1955] 1 S.C.R. 1302,
M.N. KAUL Ji. i. AND K. (11.anganath Misra, J.) 7'>S.
stage of the grant of sanction, which must precede the
institution of the prosecution".
A
It was further said :
"Iu our judgment, even when the charge is one of
misapropriation by a public servant, whether sanction is B
required under section 197 (1) will depend upon the facts
of each case. If the acts complained of are so integrally
connected with the duties attaching to the office as
to be inseparable from them, then sanction under
section 197 (!) would be necessary; but if there was
no necessary connection between them and the perfor-
c
mance of those duties, the official status furnishing only
the occasion or opportunity for the acts, then no sanction
• would be required".
The conviction was set aside in that case on a finding that the D
preparation of the acquittance · roll and the disbursement of the
money were integrally connected with the official duties of the Sub-
Divisional Officer, and . without sanction the prosecution was not
maintainable.
The question of sanction arose again in the case of K. Satwant E
Singh v. The State of Punjab,( 1) and on this occasion before a Consti-
tution Bench. Connected with the rehabilitation programme in Burma
after the Japanes invasion during the Secpnd World War, certain
works were undertaken - some to be executed by the Army and
others were entrusted to contractors. The appellant was one of such F
contractors and claimed payment for work done and on his ·request
payments were made through cheques which were encashed at
Lahore. The Government of Burma looked into the claim~ again on
.~
account of suspicion and discovered that some of the claims were
false and. payment therefor was not due. The contractor was there•
fore, charged for an offence under s. 420, I.P.C. and some of the G
officers connected with the payments were charged under s. 420/109,
I.P.C. Imam, J. spoke for the Constitution Bench thus:
" Henderson was charged with intentionally aiding
the appellant in the Commission of an offence punishable H
(I) [1960) 2 s.c.R. 89.
/
7!)6 SUPREME COURT REPORTS tI98~l 2 s.c.R.
under s. 420 ofthe Indian Penal Code by falsely stating
A as a fact, in his reports that the appellant's claims were
true and that statement had been made knowing all the
while that the claims in question were false and fraudu-
lent and that he had accordingly committed an offence
under s. 420/109, Indian Penal Code. It appears to us to
B be clear that some offences canno' by their very nature
be regarded as having been committed by public servants
while acting or purporting to act in the discharge of their
official duty. For instance, acceptance of a bribe, an
offence punishable under s. 161 of the Indian Penal Code,
is one of them a11d offence of cheating or abetment there-
c of is another. We have no hesitation in saying)hat where
a public servant commits the offence of cheating or abets
· another so to cheat, the offence committed by him is not
one while he is acting or purporting ·to act in the dis-
•
charge of his official duiy, as such offences have no
D necessary connection between them and the performance
of the duties of a public servant the official status furnish-
ing only the occasion or opportunity for the commission of
the offences (vide Amrik Singlz's case). The act of cheat-
ing or abetment thereof has. no reasonable connection
with the discharge of official duty.' The act must bear such
E relation to the duty that the public servant could lay a
reasonable but not a pret.ended or fanciful claim, that he
did it in the course of the performance of his duty".
(underlining is ours)
The Court held that the protection under s. 197 of the Code
F was not available.
The authority in Satwant Singh's case has never been challenged
in this Court and as.the offence of cheating was involved therein, the
ratio of the aforesaid case which is binding on us would have been
G ordinarily sufficient for the disposal of this appeal. We would, how-.
ever, like to refer to some of the later decisions of this Court so that·
a full view of the judicial opinion on the question may be available.
In ·naijnath Gupta & Ors.. v. The State of Madhya Pradesh,(') the ~~
H Chief Accountant-cum-Office Superintendent in an Electric Supply-'
/,..,.,.,.,
(1) (1966] I S.C.R. 210.
M.N. KAUL v, ). AND K. (Ranganath Misra, J.) . 797;
Undertaking rnn by the Government of erstwhile State of Madhya
Bharat was prosecuted for offences punishable under ss. 477A and A
409, I.P.C. It was contended before this Court that the offences had
been committed in the discharge of official duty and in the absence of
prior sanction the conviction was not maintainable. The majority
quoted with approval the following observations of Lord Simonds in
Hori Ram Singh v. Emperor :(1)
B
"A public serV'ant can only be said to act or to
,
purport to act in the discharge of his official duty, if his
act is such as to lie within the scope of his official duty.
Thus, a judge neither acts n_or purports to act ·as a judge
in receiving a bribe, though the judgment which he deli- c
vers may be such an act; nor does a Government. medicaf
officer act or purport to act as a public servant in picking
the pocket of a patient ·whom he ·is examining though
the examination itself may be such an act. The test may
well be whether the public servant, if challenged, can D
reasonably claim that, what he does in. virtue of his
office ''
The Court proceeded to say :
E
"It is not every offence committed by public servant
that requires sanction for prosecution under s. 197 (1) of
the Criminal Procedure Code; nor even every act done by
him while he is actually engaged in the performance of
his official duties; but if the act complained of is. directly.
concerned with his official duties so that, if questio;,ed, it F
'could be claimed to havebeen done by virtue of the
office, then sanction would be necessary. It is the quality
of the act that is important and if it falls within the scope
and range of his official duties the protection contempla-
ted by s. 197 of· the Criminal Procedure Code will be G
attracted. An offence may be entirely unconnected with
the official duty. Where it is unconnected with the official
duty there can be no protection. It is only when it is
-- either within the scope of the official duty·or in excess of
it that the protection is claimable." • ,.
(I) [19391 F.C.R. 159.
'
798 SUPREME COURT REPORTS (1983) 2 S.C.R.
The facts of Bakhshish Singh Dhaliwal v. State of Punjab,( 1) were
A similar to Satwant Singh' s case. Bakhshish Singh was also a contrac•
tor engaged in the rehabilitation work in Burma after the Second
World War and on a similar set of allegations as in that case he was
prosecuted along with public officers for the offence of cheating. The
ratio in Satwan( Singh' s case was quoted with full approval arid
sanction was held to be wholly unnecessary. It was held that the act·.
B of abetting the prinicipal offenders could not possibly be held to b.ave
been. done in the discharge of official duties as public servants. The
question of sanction arose again for consideration in the case of '
1 Hairhar Prasad etc. v. State ofBihar,(') in the backdrop of prosecution
of six public servants for offences punishable under ss. 120A, 120B
c and 409 of the Indian Penal Code. The Court reiterated the dictum in
Amrik Singh's case (supra) where it had been said :
\
"It is not every offence committed by a public servant
that requires sanction for prosecution under s. 197 (I) ,
Criminal Procedure Code ; nor even every act done by
D him while he is actually engaged in the performance of his
official duties; but if the act complained of is directly
concerned with his official duties so that, if questioned, it
would be claimed to have been done by virtue ofth_e office,
then sanction would be necessary".
E
Testing the facts. on the basis of this dictum the Court came to
the conclu§ion that want of sanction was no bar to the prosecution.
in B. Saha & Ors. v. M.S. Kochar,(') a three Judge Bench dealt
with the same submission advanced on behalf of certain officers of
F the Customs Department convicted for offences punishable under ss.
120B, 166 and 409 of the Penal Code. Sarkaria, J. speaking for the
. Court observed :
"In sum, the sine qua non for the applicability of
G this section is that the offence charged, be it one of com-
mission or' omission, must be one which has been com-
mittted by the pubic servant either in his official capacity
or under colour of the office held by him"
•
H
· (1) [1967! I S.C.R. 211.
(2)_ [19721 3 s.c.c. 89.
(3) (1980j 1 S.C.R. 111.
M.N. KAUL v. J_. AND K. (Ranganath Misra, J.) 799
The rule in Amrtk Singh's case was quoted with approval.
A
It was observed :
"The words 'any offence alleged to have betn
committed by him while a.cling or purporting to act in the
discharge of his official duty' employed in section 197 (I)
B
of the Code, are capable of a narrow as well as a wide
interpretation. fr these words are construed too narrowly,
the se.ction will be rendered altogether sterile, for, 'it is no
part of an official duty to commit an offence, and
never can be'. In the wider sense, these words will take
under their umbrella every act constituting an offence, c
committed in the course of the same transaction in which
the ~fficial duty is performed or purports to be performed.
The right approach to the import of these words lies
betweeen these two extremes. While on the one hand, it
is not every offence committed by a public servant while
D
engaged in the performance of his official duty, which is
entitled to the protection of section 197(1), an act
. constituting an offence, directly and reasonably connected .
(
with his official duty will require sanction for prosecution
under the said provision".
E
We are of the' definikview that the rule quoted above from
Amrik Singh's case correctly lays down the legal proposition as to
inovocability of the protection under s. 197 (!) of the Code. The
observations oflmam, J. in Satwant Singh's case that there could be
no hesitation in s~ying that where a public servant commits the F
offence of cheating or abets another so to cheat, the offence commit-
ted by him is not one while he is acting or purporting to act in the
dischrage of his official duty, as such offence has no necessary
connection between it and the performance of the duties of a public
servant, the official status furnishing only the occasion or opportunity
for the commission of the offences, is also the correct exposition· of
G
the law. It has not been contended before us that official duty of the
appellant was to draw travelling allowance bills though his status as
a public servant authorised him ·to draw such bills. Drawing of T.A.
bills cannot be said to have been directly and reasonably connected .H
with apellant's duty as Regional Officer of the Directorate and the
official status furnished the opportunity for doing the• acts which
constitute in!lredients of (he offence. tte was, therefore, not entitled
. 800 SUPREME COURT REPORTS (1983) 2 S.C.R.
to claim the protection of s. 197 (!) of the Code. The prosecution is ·
A not vitiated for want of sanction. The appeal has, therefore, to be
dismissed: . -i· '-
The prosecution was laid about 8 years back and on the plea
of want of.sanction the matter has been· dragged on for such a Jong
time at different stages. We, therefore, direct that the trial court shall
B
proceed to conclude the trial expeditiously in accordance with law.
H.S.K. Appeal dismissed.
•
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