Supreme Court of India
RAGHUNATH ANANT GOVILKARversusSTATE OF MAHARASHTRA AND ORS.
- Citation
- 2008 INSC 154
- Decided
- 8 February 2008
- Disposal
- Dismissed
- Bench
- ARIJIT PASAYAT
Holding
Section 197 does not apply because the alleged offences are not reasonably connected to any official duty, so no sanction is required and the appeal fails.
Summary
The appellant, a former employee of the Maharashtra Housing and Area Development Authority, was charged with offences under IPC sections 420, 465, 466, 467, 468 and 471 for allegedly falsifying allotment of premises and issuing spurious rent receipts. He sought discharge under Section 228 of the CrPC, arguing that no sanction under Section 197 of the CrPC was obtained and that, being retired, the proceedings were barred by the Maharashtra Civil Services (Pension) Rules. The trial court and the Bombay High Court rejected his pleas, holding that the complaint was filed before his retirement and that the alleged acts were not within the scope of his official duties, so Section 197 did not apply. On appeal, the Supreme Court examined whether Section 197 requires sanction for a retired public servant and whether the offences were connected to official duty. It held that although the wording of Section 197 now makes sanction applicable to retired servants, the offences in question bore no reasonable connection to any official duty; consequently, Section 197 was inapplicable and no sanction was required. The appeal was dismissed.
Issues considered
- The applicability of Section 197 of the Criminal Procedure Code to a retired public servant.
- Whether the offences alleged (IPC 420, 465, 466, 467, 468, 471, 406, 409, 120‑B) are connected to the appellant's official duties.
- Whether sanction under Section 197 is a prerequisite for prosecution in the present case.
- The effect of Maharashtra Civil Services (Pension) Rules, 1982, Rule 27 on the initiation of proceedings after retirement.
Legislation cited
- Code of Criminal Procedure, 1973s. 197, s. 228
- Indian Penal Code, 1860s. 120-B, s. 406, s. 409, s. 420, s. 465, s. 466, s. 467, s. 468, s. 471
- Maharashtra Civil Services (Pension) Rules, 1982s. Rule 27
Subjects
Section 197 CrPCpublic servantsanction for prosecutionofficial dutyretired government employeecriminal breach of trustIPC offencescognizanceMaharashtra Housing Development Authority
Judgment
J
[2008] 2 S.C.R. 580
A RAGHUNATH ANANT GOVILKAR _J. ~ ;
I
II.
STATE OF MAHARASHTRA AND ORS.
(Criminal Appeal No. '279 of 2008)
FEBRUARY 8, 2008
B
(DR. ARIJIT PASAYAT AND D.K. JAIN, JJ.)
__..
Code of Criminal Procedure, 1973: 1
s. 197 - Prosecution of public servant - Sanction for -
c HELD: Before s. 197 can be invoked, it must be shown that the
official concerned was accused of an offence alleged to have
been committed by him while acting or purporting to act in
discharge of his official capacity - It is quality of the act which
is important and protection of the section is available if the act
D falls within the scope and range of.official duty of public servant
. .:. . On facts, offences alleged to have been committed by )t
delinquent u/ss 420, 465, 466, 467,468 and 471 /PC cannot
~
be related to any official duty - Penal Code, 1860 - ss. 420,
465, 466,467,468 and 471.
E s. 197 - Sanction for prosecution of retired public servant
- HELD: expression "was" employed after "is" in the section
makes need for sanction applicable even in cases where a
retired public servant is sought to be prosecuted.
F Penal Code, 1860: ·~
~
SS. 406, 409 and 120-B - HELD: SS. 406 and 409 are
cognate offences in which common component is criminal
breach of trust - Supreme Court having held that in regard to
offence uls 409 rlw 120-B it is no part of duty of public servant
G to enter into a criminal conspiracy for committing breach of
trust, the position will not be different if offence is uls 406 r/w .,__
120-B /PC vis-a-vis s.197 Cr.P. C. - Code of Criminal
Procedure, 1973.
H 580
.-"" \
RAGHUNATH ANANT GOVILKAR v. STATE OF 581
MAHARASHTRAAND ORS.
~ ·-4 '·
Words and Phrases: A
'Official act', 'Official ·duty' - Meaning of in the context of
s.197 Cr.PC.
An FIR was registered against the appellant with the
allegations that he, while working with the Maharashtra B
Housing and Area Development Authority, made false
-4, allotment of premises to various persons, under his
• signatures and issued rent receipts so that the said
a!lottees could claim that they were in possession of the
tenements though, in fact, the said tenements were vacant c
and were not in possession of MHADA; and thereby
committed offences punishable u/ss 420, 465,466A67 ,468
and 471 IPC, The appellant filed an application before the
trial court for his discharge in terms of s.228 of the Code
of Criminal Procedure, 1973 primarily on the grounds that
D
>. no sanction for his prosecution was obtained and that in
view of Rule 27 of the Maharashtra Civil Services
Al\ {Pension) Rules, 1982, the proceedings could not have
been initiated after his retirement. The trial court rejected
the application holding that the complaint was filed before
the retirement of the accused, and, therefore, r.27 of the E
Pension Rules had no application; and that since the acts
committed by the accused did not fall within the ambit of
official duty, question of sanction u/s 197 Cr.P.C. did not
arise. The High Court also dismissed the petition of the
.... accused holding that when cognizance was taken, the F
accused had ceased to be a public servant.
In the instant appeal filed by the accused, it was
. contended for the appellant that the acts were done by
him while he was in service and the same had link with
-\ his 'official duty and, therefore, sanction in terms of s.197 G
Cr.P.C. was necessary.
Dismissing the appeal, the Court
HELD: 1.1 A court, as envisaged by s.197 Cr.P.C. is
H
I
-)
·,
582 SUPREME COURT REPORTS [2008] 2 S.C.R.
A precluded from entertaining a complaint or taking notice
of it or exercising jurisdiction if it is in respect of a public
servant who is accused of an ,offence alleged to have
been committed during-the discharge of his official duty.
The mandatory character of the protection afforded to a
B public servant is brought out by the expression "no court
shall take cognizance of such offence except with the
previous sanction". Use of the words 'no' and 'shall' make f-
it abundantly clear that the bar on the exercise of power
by the court to take cognizance of any offence is absolute
c and complete. The very cognizance is barred. That is, the
complaint cannot be taken notice of. [para 11] [590-C-G]
Bakhshish Singh Brar vs. Gurmej Kaur 1987(4) SCC 663
- relied on.
1.2 Before Section 197 Cr.P.C. can be invoked, it must
0
be shown that the official concerned was accused of an
offence alleged to have been committed by him while
acting or purporting to act in the discharge of his official
capacity. It is not the duty which requires examination so
much as the act, because the official act can be performed
E both in the discharge of the official duty as well as in
dereliction of it. The act must fall within the scope and
range of the official duties of the public servant concerned.
It is the quality of the act which is important and the
protection of the section is available if the act falls within
F the scope and range of his official duty. [para 8] [588-A-C]
P. Arulswami v. State of Madras (1967) 1 SCR 201 -
relied on
1.3 "Official act" or "official duty" means an act or
G duty done by an officer in his official capacity. Use of the
expression 'official duty' in s.197 implies that the act or
!
omission must have been done by the public servant in
the course of his service and that it should have been in
the public service and discharge of his duty. The section
H does not extend its protective cover to every act or
)
,_
RAGHUNATH ANANT GOVILKAR v. STATE OF 583
MAHARASHTRAAND ORS.
• --4-
' omission done by a public servant in service but restricts A
its scope of operation to only those acts or omissions
which are done by a public servant in discharge of official
duty. It has been widened further by extending protection
to even those acts or omissions which are done in
~ purported exercise of official duty; that is under the colour 8
'
of office. [para 13-14] [591-G-H; 592-A]
Ai 8. Saha v. M. S Kocha 1979 (4) SCC 177 - relied on
~ .l
1.4 Section 197 Cr.P.C. has to be construed strictly,
while determining its applicability to any act or omission c
in the course of service. Its operation has to be limited to
those duties which are discharged in the course of duty.
But once any act or omission has been found to have
been committed by a public servant in the discharge of
his duty then it must be given liberal and wide construction
D
so far its official nature is concerned, so as to advance
{
"
A\
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.
[para 14] [592-B-E]
E
Matajog Dobey v. H. C. Bhari 1955 (2) SCR 925-relied on
1.5 The offence alleged to have been committed (by
the accused) must have something to do, or must be
related in some manner, with the discharge of official duty.
There must be a reasonable connection between the act F
and the discharge of official duty; the act must bear such
relation to the duty that the accused could lay a
reasonable (claim), but not a pretended or fanciful claim,
that he did it in the course of the performance of his duty.
If on facts, therefore, it is prima facie found that the act or G
1\ omission for which the accused was charged had
reasonable connection with discharge of his duty then it
.
,
must be held to be official, to which applicability of
Section 197 of the Code cannot be disputed. [para 15-17]
[592-G-H; 593-A-B] H
584 SUPREME COURT REPORTS [2008] 2 S.C.R.
A S.A. Venkataraman v. State 1958 SCR 1040; State of
Maharashtra v. Dr. Budhikota Subbarao 1993 (3) SCC 339;
+
_,; .
and Kalicharan Mahapatra v. State of Orissa 1998 (6) SCC
411 - relied on.
2.1 An accused facing prosecution cannot'claim any 1
B immunity on the ground of want of sanction, if he ceased '
to be a public servant on the date when the court took r
~
cognizance of the said offences. But the position is f-
_!,
different in cases where Section 197 of the Code has
application. [para 21] (594·8]
c
2.2 In pursuance of the report of the Law Commission
the expression "was" came to be employed after the
expression "is" in s.197 to make the need for sanction
applicable even in cases where a retired public servant is
D sought to be prosecuted. The High Court, therefore, was
in error in observing that sanction was not necessary
because the expression used is "was". However, in the .A
instant case, the alleged offences cannot be related to any
official duty. [para 24,26,27] [595-8, D]
)>. .
E R. Balakrishna Pillai v. State of Kera/a 1996 (1) SCC 478;
State of H.P. v. M.P. Gupta 2004 (2) SCC 349; State of Orissa
v. Ganesh Chandra Jew 2004 (8) SCC 40; S.K. Zutshi v. Bimal
Debnath 2004 (8) SCC 31; Rakesh Kumar Mishra v. State of
Bihar and others 2006 (1) sec 557; and State of Kera/av. V
F Padmanabhnan Nair 1999 (5) SCC 690 - relied on.
3. Sections 406 and 409 of IPC are cognate offences
>-
in which the common component is criminal breach of
)
trust. When the offences in which offence under Section
406 is included are committed by a person who is a public
t-
G servant (of holding any one of the position listed in the
Section) the offence would escalate to Section 409 of the
")'
Penal Code. When this Court held that in regard to the
offence under Section 409 of IPC read with Section 120-8
it is no part of the duty of the public servant to enter into a "
H criminal conspiracy for committing breach of trust, it
\_
,,
I
RAGHUNATH ANANT GOVILKAR v. STATE OF 585
MAHARASHTRAAND ORS. [PASAYAT, J.]
cannot be said that if the offence is under Section 406 A
read with Section 120-8, IPC it would make all the
difference vis-a-vis Section 197 of the Code. [para 30]
[597-C-E]
Harihar Prasad vs. State of Bihar 1972(3) SCC 89;
Srreekantiah Ranatta Munnips!li v. State of Bombay AIR 1955 B
SC 287; Amrik Singh v. State of Pepsu AIR 1955 SC 309-
relied on.
4. Though, the view ofthe High Court about the need
for sanction in the case of retired Government servant was
erroneous, it rightly recorded the finding that the charged
c
offences were not relatable to any official duty. [para 31]
[597-F]
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
No. 279 of 2008. D
~
From the final Judgment I order dated 21.7.2005 of the
~
Hig.h Court of Judicature at Bombay in Crl. W.P. No. 291/2005.
B.Y. Kulkarni and V.B. Joshi for the Appellant.
Ravindra Keshavrao Adsure and V.N. Raghupathy for the E
Respondents.
The Judgment of the Court was delivered by
DR. ARIJIT PASAYAT, J. 1. Leave granted.
2. The challenge in this appeal is to the order passed by F
the learned Single Judge of the Mumbai High Court dismissing
the Criminal Writ Petition filed by the appellant for quashing the
proceedings pending before the Addi. Chief Metropolitan
Magistrate, 37th Court, Eaplanade. The appellant was the
accused No.1 O in the said case. The allegation against the
appellant was that while working with Maharashthon Housing
Cf
andArea DevelopmentAuthority (in short 'MHADA') the appellant
allotted premises to various persons under his signature, issued
rent receipts so that the said persons could claim that they were
in possession of the tenements, though in fact, the tenements,
H
586 SUPREME COURT REPORTS [2008] 2 S.C.R.
J +
A in question, were vacant and were not in possession of MHADA. +
3. According to the prosecution, the appellant committed
offences punishable under Sections 420, 465, 466, 467, 468
and 471 of the Indian Penal Code, 1986 (in short 'IPC'). Before
the Trial Court, the appellant filed an application for discharge
B in terms of Section 228 of the Code of Criminal Procedure,
1973 (in short the 'Cr.P.C.') primarily on the ground that sanction
~-
was necessary for his prosecution. It was also submitted that -"
proceedings could not have been initiated after his retirement
in view of what has been stated under Rule 27 of the
c Maharashtra Civil Services (Pension) Rules, 1982 (in short
'Pension Rules'). The application was dismissed by the Trial
Court. It was noted that the appellant was in Government ser\iice
till 31.8.1989. The complaint was filed on 17.7.1989 which was
treated as an FIR and, therefore, Rule 27 of the Pension Rules
D have no application. As regards the requirement of sanction ·in
terms of Section 197 Cr.P.C. it was held that acts done by the ~
accused did not fall within the ambit of official dufy and, therefore,
).<
question of sanction did not arise.
4. The High Court by the impugned order dismissed the
E petition -affirming the view taken by the Trial Court. It was held
that on 10.8.1992 when the cognizance was taken, the appellant ~
had ceased to be a public servant.
5. Learned counsel for the appellant submitted that the acts
done had clearly link with the official duty. The language of
F Section 197 Cr.P.C. is very clear that if the impugned acts were >-
· done when the accused was in service, sanction in terms of
Section 197 Cr.P.C. is necessary.
6. Learned counsel for the State supported the orders
G impugned.
7. The pivotal issue i.e. applicability of Section 197 Cr.P.C. )-
needs careful consideration. In Bakhshish Singh Brarv. Gurmej
Kaur(1987 (4) SCC 663), this Cou.rtwhile emphasizing on the
balance between protection to the officers and the protection to
H the citizens observed as follows:
" RAGHUNATH ANANT GOVILKAR v. STATE OF
MAHARASHTRAAND ORS. [PASAYAT, J.]
587
..... \-~ "It is necessary to protect the public servants in th~ A
discharge of their duties .... In the facts and circumstances
of each case protection of public officers and public
servants functioning in discharge of official duties and
protection of private citizens have to be balanced by finding
cut as to what extent and how far is a public servant working B
in discharge of his duties or purported discharge of his
duties, and whether the public servant has exceeded his
-\ limit. It is true that Section (sic197) states that no,
• cognizance can be taken and even after cognizance having,
been taken if facts come to light that the acts complained, c
of were done in the discharge of the official duties then the
trial may have to be stayed unless sanction is obtained.
But at the same time it has to be emphasised that criminal,
trials should not be stayed in all cases at the preliminary.
stage because that will cause great damage to the
D
evidence."
j. 8. The protection given under Section 197 Cr.P.C. is to
,,. protect responsible public servants against the insti.tution of
possibly vexatious criminal proceedings for offences alleged
to have been committed by them while they are acting or E
adequate protection to public servants to ensure that they are
not prosecuted for anything done by them, in the discharge of
their official duties without reasonable cause, and if sanction is
granted, to confer on the Government, if it chooses to exercise
it, complete control of the prosecution. This protection has certain . F
.4, limits and is available only when the alleged act done by the
public servant is reasonably connected with the discharge of
his official duty and is not merely a cloak for doing the
objectionable act. If in doing his official duty, he acted in excess
of his duty, but there is a reasonable connection between the
G
act and the performance of the official duty, the excess will not
be a sufficient ground to deprive the public servant from the
'"' protection. The question is not as to the nature of the offence
such as whether the alleged offence contained an element
necessarily dependent upon the offender being a public servant,
H
1
588 SUPREME COURT REPORTS [2008] 2 S.C.R.
A but whether it was committed by a public servant acting or
purporting to act as such in the discharge of his official capacity. + ·"-'
Before Section 197 Cr.P.C. can be invoked, it must be shown
that the official concerned was accused of an offence alleged
to have been committed by him while acting or purporting to act
B in the discharge of his official capacity. It is not the duty which
requires examination so much as the act, because the official
act can be performed both in the discharge of the official duty
as well as in dereliction of it. The act must fall within the scope -}-
lo
and range of the official duties of the public servant concerned.
c It is the quality of the act which is important and the protection of
L
the section is available if the act falls within the scope and range
of his official duty. There cannot be any universal rule to
determine whether there is a reasonable connection between
the act done and the official duty, nor is it possible to lay down
any such rule. One safe and sure test in this regard would be to
D
consider if the ·omission or neglect on the part of the public
servant to commit the act complained of could have made him Jr.
answerable for a charge of dereliction of his official duty: if the
)'<·
answer to this question is in the affirmative, it may be said that
such act was committed by the public servant while acting in
E the discharge of his official duty and there was every connection
with the act complained of and the official duty of the public
servant. This aspect makes it clear that the concept of Section
197 Cr.P.C. does not get immediately attracted on institution of
the complaint case.
F
9. At this juncture, we may refer to P Arulswami v. State of )..
Madras (1967) 1 SCH 201, wherein this Court held as under :
"It is not therefore every offence committed by a public
servant that' requires sanction for prosecution undef
G Section 197(1) of the Criminal Procedure Code; nor even
every act done by him while he is actually engaged in the
performanc;:e of his official duties; but if the act complained ~
of is directly concerned with his official duties so that, if
questioned, it could be claimed to have been done by
H virtue of the office, then sanction would be necessary. It is
RAGHUNATH ANANT GOVILKAR v. STATE OF 589
MAHARASHTRAAND ORS. [PASAYAT, J.]
\
4 the quality of the act that is important and if it fa11s within A
the scope and range of his official duties the protection
contemplated by Section 197 of the Criminal Procedure
Code will be attracted. An offence may be entirely
unconnected with the official duty as such or it may be
committed within the scope of the official duty. Where it is B
unconnected with the official duty there can be no
protection. It is only when it is either within the scope of the
~
j. official duty or in excess of it that the protection is
claimable".
10. It would be appropriate to examine the nature of power c
exercised by the Court under Section 197 Cr.P.C. and the extent
of protection it affords to public servants, who, apart from various
hazards in discharge of their duties, in the absence of a
provision like the one mentioned, may be exposed to vexatious
prosecutions. Sections 197(1) and (2) of the Code and as under: D
..
.. _
-'I'
_ "197. (1) 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 him while acting or purporting to act in the discharge of E
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 the
case may be, was at the time of commission of the alleged
F
offence employed, in connection with the affairs of the
Union, of the Central Government;
(b) in the case of a person who is employed or, as the
case may be, was at the time of commission of the alleged
offence employed, in connection with the affairs of a State, G
of the State Government:
xx xx
(2) No court shall take cognizance of any offence alleged
to have been committed by arty member of the Armed H
590 SUPREME COURT REPORTS [2008] 2 S.C.R.
A Forces of the Union while acting or purporting to act in the
discharge of his official duty, except with the previous
sanction of the Central Government."
11. The section falls in the chapter dealing with conditions
requisite for initiation of proceedings. That is, if the conditions
8 mentioned are not made out or are absent, then no prosecution
can be set in motion. For instance, no prosecution can be
initiated in a Court of Session under Section 193, as it cannot
take cognizance, as a court of original jurisdiction, of any offence
unless .the case has been committed to it by a Magistrate or
C unless.the Code expressly provides for it. And the jurisdiction of
a Magistrate to take c'ognizance of any offence is provided by
Section 190 of the code, either on receipt of a complaint, or
upon a police report or upon information received from any
person other than a police officer, or upon his knowledge that
D. such offence has been committed. So far public servants are
concerned, the cognizance of any offence, by any court, is barred
• by Section .197 of the Code unless sanction is obtained from
· the appropriate authority, if the offence, alleged to have been
committed, was in discharge of the official duty. The section not
E only specifies the persons to whom the protection is afforded
but it also specifies the conditions and circumstances in which
it shall be available and the effect in law if the co·nditions are
satisfied. The mandatory character of the protection afforded
to .a public servant is brought out by the expression "no court
F shall take cognizance of such offence except with the previous
sanction". Use of the words 'no' and 'shall' make it abundantly
clear that the bar on the exercise of power by the court to take
cognizance of any offence is absolute and complete. Very
cognizance is barred. That is, the complaint cannot be taken
G notice of. According to Black's Law Dictionary the word
"cognizance" means 'jurisdiction' or "the exercise of jurisdiction"
or power to try and determine causes'. In common parlance it
means taking notice of. A court, therefore, is precluded from
entertaining a complaint or taking notice of it or exercising
jurisdiction if it is in respect of a public servant who is accused
H
RAGHUNATH ANANT GOVILKAR v. STATE OF 591
MAHARASHTRAAND ORS. [PASAYAT, J.]
..
.... .... of an offence alleged to have been committed during the A
discharge of his official duty.
12. Such being the nature of the provision the question is
how should the expression "any offence alleged to have been
committed by him while acting or purporting to act in the
B
discharge of his official duty" be understood? What does it
mean? '"Official act" or "official duty" means an act or duty done
..... by an officer in his official capacity. In B. Saha v. M. S Kocha
>- (1979 (4) SCC 177) it was held (SCC pp.184-85, para 17)
"17. The words 'any offence alleged to have been c
committed by him while acting or purporting to act in the
discharge of his official duty employed in Section 197(1) of
the Code, are capable of a narrow as well as a wide
<.
interpretation. If these words are construed too narrowly,
the section will be rendered altogether sterile, for, 'it is no
----\ D
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, committed in
the course of the same transaction in which the official
duty is performed or purports to be performed. Th·e right
approach to the import of these words lies between these E
two extremes. While on the one hand, it is not every offence
committed by a public servant while 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 F
,.. require sanction for prosecution under the said provision."
I
13. Use of the expression 'official duty' implies that the act
•
!
or omission must have been done by the public.servant in the
course of his service and that it should have been in the public
G
service and discharge of his duty. The section does not extend
its protective cover to every act or omission done by a public
,. ""' servant in service but restricts its scope of operation to only
those acts or omissions which are done by a public servant in
discharge of official duty.
H
t
•
592 SUPREME COURT REPORTS [2008] 2 S.C.R.
A 14. It has been widened further by extending protection to
even those acts or omissions which are done in purported
+ .._, '\
exercise of official duty; that is under the colour of office. Official
duty, therefore, implies that the act or omission must have been
done by the public servant in the course of his service and such
B act or omission must have been performed as part of duty which
further must have been official in nature. The section has, thus,
to be construed strictly, while determining its applicability to any
~-
act or omission in the course of service. Its operation has to be A
limited to those duties which are discharged in the course of
c duty. But once any act or omission has been found to have been
committed by a public servant in the discharge of his duty then
it must be given liberal and wide construction so far its official
nature is concerned. For instance a public servant is not entitled
to indulge in criminal activities. To that extent the section has to
~
be construed narrowly and in a restricted manner. But once it is I
D
established that an 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
E sanction. shall stand frustrated. For instance a police officer in
the 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 the course .
of service but not in the discharge of his duty and without any
F justification therefor then the bar under Section 197 of the Code
-~
is not attracted. To what extent an act or omission performed by
a public servant in the discharge of his duty can be deemed to
be official was explained by this Court in Matajog Dobey v. H. C.
Bhari (1955 (2) SCR 925)_.
G
15. The offence alleged to have been committed (by the
accused) must have something to do, or must be related in some ~-
manner, with the discharge of official duty. ...
16. There must be a reasonable connection between the 1
i
H act and the discharge of official duty; the act must bear such I
'·'
'
RAGHUNATH ANANT GOVILKAR v. STATE OF 593
MAHARASHTRAAND ORS. [PASAYAT, J.]
... ~ relation to the duty that the accused could lay a reasonable A
(claim), but not a pretended or fanciful claim, that he did it in the
course of the performance of his duty.
17. If on facts, therefore, 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 it must be held to be
8
official, to which applicability of Section 197 of the Code cannot
be disputed.
"'• 18. In S.A. Venkataraman v. State (1958 SCR 1040), this
Court has held: c
"There is nothing in the words used in Section 6(1) to even
remotely suggest that previous sanction was necessary
before a court could take cognizance of the offences
mentioned therein in the case of a person who had ceased
to be a public servant at the time the court was asked to D
take cognizance, although he had been such a person at
... the time the offence was committed."
~
19. The above position was illuminatingly highlighted in
State of Maharashtra v. Dr. Budhikota Subbarao (1993 (3) SCC
339). E
20. When the newly worded section appeared in the Code
(Section 197) with the words, 'when any person who is or was a
Judge or Magistrate or a public servant' (as against the truncated
expression in the corresponding provision of the old Code of
~
Criminal Procedure, 1898) a contention was raised before this
Court in Kalicharan Mahapatra v. State of Orissa (1998 (6) SCC
411) that the legal position must be treated as changed even in
regard to offences under the old Act and new Act also. The said
contention was, however, repelled by this Court wherein a two-
G
Judge Bench has held thus:
<(
"A public servant who committed an offence mentioned in
the Act, while he was a public servant, can be prosecuted
with the sanction contemplated in Section 197 of the Act
if he continues to be a public servant when the court takes H
t
594 SUPREME COURT REPORTS [2008) ~ S.C.R.
'
A cognizance of the offence. But if he ceases to be a public
~ ~
servant by that time, the court can take cognizance of the
offence without any such sanction."
21. The correct legal position, therefore, is that an accused
f~cing prosecution for offences under the old Act or new Act
B cannot claim any immunity on the ground of want of sanction, if
he ceased to be a public servant on the date when the court
took cognizance of the said offences. But the position is different f
in cases where Section 197 of the Code has application. . ~'
c 22~ Section 197(1) provides that when any person who is
or was 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 him while acting or purporting
to act in the discharge of his official duty, no court shall take
cognizance of such offence except with the previous sanction
D
(a) in the case of a person who is employed of, as 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
·~
Central Government, and (b) in the case of a person who is
employed or, as the case may be, was at the time of commission
E of the alleged offence employed, in connection with the affairs
of a State, or the State Government.
23. We may mention that the Law Commission in its 41 st
Report in para 15.123 while dealing with Section 197, as it then
F stood, observed:
"It appears to us that protection under the section is needed >
as much after retirement of the public servant as before
retirement. The protection afforded by the section would
be rendere.d illusory if it were open to a private person
G harbouring a grievance to wait until the public servant
ceased to hold .his official position, and then to lodge a
~-
complaint. The ultimate justification for the protection
conferred by Section 197 is the public interest in seeing
tbat official acts do not lead to needless or vexatious
H. prosecution. It should be left to the Government to
RAGHUNATH ANANT GOVILKAR v. STATE OF 595
MAHARASHTRAAND ORS. [PASAYAT, J.]
determine from that point of view the question Qf the A
expediency of prosecuting any public servant."
24. It was in pursuance of this observation that the
expression "was" came to be employed after the expression
"is" to make the need for sanction applicable even in cases
8
where a retired public servant is sought to be prosecuted.
25. The above position was highlighted in R. Ba/akrishna
Pillai v. State of Kera/a (1996 (1) SCC 478), State of H.P. v.
M.P Gupta (2004 (2) SCC 349), State of Orissa v. Ganesh
Chandra Jew (2004 (8) SCC 40), S.K. Zutshi v. Bimal Debnath c
(2004 (8) SCC 31) and Rakesh Kumar Mishra v. State of Bihar
and others (2006 (1) sec 557).
26. The High Court, therefore, was in error in observing
that sanction was not necessary because the expression used
is "was". D.
27. But the question is really of academic nature because
the alleged offences cannot be related to any official duty.
28. The State of Kera/a v. V Padmanabhnan Nair (1999
(5) SCC 690) it was observed as follows: E
"5. In S.A. Venkataraman v. State (AIR 1958 SC 107) and
in C.R. Bansi v. State of Maharashtra (1970 (3) SCC 537)
this Court has held that:
"There is nothing in the words used in Section 6(1) F
to even remotely suggest that previous sanction was
necessary before a Court could take a cognizance
of the offences mentioned therein the case of a
person who had ceased to be a public servant at the
time the court was asked to take cognizance, although G
he had at the time the offence was committed."
29. That apart, the contention of the respondent that for
offences under Sections 406 and 409 read with Section 120-B
of IPC sanction under Section 197 of the Code is a condition
precedent for launching the prosecution is equally fallacious. H
596 SUPREME COURT REPORTS [2008] 2 S.C.R.
A This Court has stated the correct legal position in. Srreekantiah +
." ,..,.~
Ranatta Munnipslli v. State of Bombay (AIR 1955 SC 287)
and also Amrik Singh v. State of Pepsu (AIR 1955 SC 309)
that it is not every offence committed by a public servant which
requires sanction for prosecution under Section 197 of the Code,
B nor even every act done by him while he is actually engaged in
the performance of his official duties. Following the above legal
position it was held in Harihar Prasad (1972 3 SCC 89) as j._
follows: ..
"66. The next ·point was with regard to consent or sanction.
c There is no doubt that in respect of B.P. Sinha consent
was properly given by the Deputy Commissioner. So
consent was also given in respect of N.K. Banerjee and
Harihar Prasad by the Chief Secretary. This is not a case
of sanction or consent under Section 196-A of the Code
D of Criminal Procedure. On the question of the applicability
of Section 197 of the Code of Criminal Procedure, the .A
principle laid down in two cases, namely, Shteekantiah
)--
Ramayya Munipalli v. State of Bombay and Amrik Singh
v. State of Pepsu was as follows:
E "It is not every offence committed by a public servant
that requires sanction for prosecution under Section
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 a~t
·F complained of is directly concerned with his official )r
duties so that, if questioned, it could be claimed to t
have been done by virtue of the office, then sanction
would be necessary."
The real question therefore is whether the acts complained
G
of in the present case were directly concerned with the
official duties of the three public servants. As far as the .t
offence of criminal conspiracy punishable under Section
120-B, read with Section 409 of ~he Indian Penal Code is '""
concerned and also Section 5(2) of the Prevention of
H
....,.
RAGHUNATH ANANT GOVILKAR v. STATE OF 597
MAHARASHTRAAND ORS. [PASAYAT, J.]
~ 4 Corruption Act, are concerned they cannot be said to be A
of the nature mentioned in Section 197 of the Code of
Criminal Procedure. 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 under Section 197 of the 8
Code of Criminal Procedure is, therefore, no bar."
-4 30. Learned Single Judge of the High Court declined to
J,
follow the aforesaid legal position in the present case on the
sole premise that the offence under Section 406 of IPC has
also been fastened against the accused besides Section 409 c
of IPC. We are unable to discern the rationale in the
distinguishment. Section 406 and 409 of IPC are cognate
" offences in which the common component is criminal breach of
trust. When the offences, in which offence under Section 406 is
included, are committed by a person who is a public servant (of D
... holding any one of the position listed in the Section) the offence ·
would escalate to Section 409 of the Penal Code. When this
-( Court held that in regard to the offence under Section 409 of
IPC read with Section 120-B it is no part of the duty of the public
servant to enter into a criminal conspiracy for committing breach E
of trust, we find no sense in stating that if the offence is under
Section 406 read with Section 120-8, IPC it would make all the
difference. vis-a-vis Section 197 of the Code.
31. Though, we have held that view of the High Court about
... the need for sanction in the case of retired Government servant
was erroneous, in view of the finding that the charged offences
F
are not relatable to any official duty, the appeal fails and deserves
to be dismissed which we direct.
R.P. Appeal dismissed.
G
'
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