STATE OF KERALAversusV. PADMANABHAN NAIR

A                              STATE OF KERALA
                                         v.
                           V. PADMANABHAN NAIR

                                  JULY 14, 1999

B                    [K.T. THOMAS AND M.B. SHAH, JJ.]


          Indian Penal code, 1860/ Prevention of Corruption Act, 1947/Criminal
    Procedure Code, 1973: Sections 406, 409, 201 109 read with 120-B/Section
    5(2)/Section 197-Respondent employed in the Public Works Department-
C   Defrauded Government by misappropriating steel rods in conspiracy with
    others-Arraigned before the Special Judge after three years of retirement
    alongwith others-Sought discharge on the grounfi of want ofprior sanction
    under Section 197 Cr. P. C.-Contention overruled-Respondent challenged
    the order in revision-Revision allowed-High Court quashed the criminal
D   proceedings on the ground of want of prior sanction under Section 197-
    0rder of the High Court appealed against-Held-Accused ceased·to be a
    public servant before ta'king of cognizance of the offence by the Court-
    Immunity on the ground of want of prior sanction cannot be claimed for
    offence under Section 5(2) of the Prevention. of Corruption Act-Sections
    406 and 409 I.P.C. are cognate offences-When offence under Section 406          ...
E   l.P.C. is by a public servant, it escalates to an offence under Section 409
    l.P.C.-No part of the duty of the public servant to enter into a criminal
    conspiracy for committing criminal breach of trust-Prior sanction under
    Section 197 Cr.P.C. not required in case of offen~es under the both sections.

           The respondent, an Executive Engineer with the Public Works
F   Department had conspired with four other accused for defrauding the
    Government by misappropriating steel rods worth Rs. 1,26,000. After about
    three years of his retirement from Government service, the respondent
    alongwith some other persons was arraigned before a Special Judge for an
    offence under Section 5(2) of the Prevention of Corruption Act, 1947 and
G   Sections 406, 409, 201 read with Sections 109 and 120-B of the Indian Penal
    Code, 1860. On being chargesfteeted for the above offences, the respondent
    filed a petition before Special Judge for his discharge on the ground that no
    prior sanction, as contemplated under Section 197 Cr.P.C. had been obtained.
    The Special Judge, overruling the contention of the respondent, held that no
    sanction under Section 197 of the Criminal Procedure Code was required
H   to proceed against the respondent under the provisions of Act. The order of
                                         864
                     STATEOFKERALAv. V.P. NAIR                           865
the Special Judge was challenged in revision.                                   A
      The High Court alloweci the revision on the ground that even though
sanction is no bar to a prosecution under Section 409 read with Section 120-
B of the Penal Code, in the instant case sanction was necessary in view of
the charge under Section 406 also of the Penal Code against the respondent.
Hence, this appeal.                                                          B
     The respondent contended that for prosecution under Sections 406 and
409 read with Section 120-B of the Penal Code and under Section 5(2) of
the Act, it was necessary to obtain prior sanction under Section 197 Cr.P.C.
     Allowing the appeal, this Court
      HELD : 1. An accused facing prosecution under the Prevention of
                                                                                c
Corruption Act, 1947 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 offence. The High Court was at any rate wrong in
quashing the prosecution proceedings in so far as they related to offences
under the Act. [868-B]                                                        D
       2. Sections 406 and 409 of the Indian Penal Code, 1860 are cognate
offences in which the common component is criminal breach of trust. When
the offender in the offence under Section 406 is a public servant (or holding
any one of the positions listed in the section) the offence would escalate to
Section 409 of the Penal Code when this Court has held that in regard to        E
the offence under Section 409 read with Section 120-B of the Penal Code
it is no part of the duty of the public servant to enter into a criminal
conspiracy for committing criminal breach of trust then in case of an offence
under Section 406 read,with Section 120-B of the Penal code also there is
no difference vis-a-vis Section 197 of the Criminal Procedure Code, 1973.       F
                                                              [868-H; 869-A]
      3. Neither every offence committed by a public servant nor even every
act -done by him while he is actually engaged in the performance of his
official duties requires sanction for prosecution under Section 197 Cr.P.C.
                                                                     [868-DJ G
     Kalicharan Mahapatra v. State of Orissa, [1998) 6 SCC 411; Harihar
Prasad v. State of Bihar, [1972) 3 SCC 89, relied on.

       Srikantiah Ramayya Munnipal/i v. State of Bombay, AIR (1995) SC
287; Amrik Singh v. State of Pepsu, AIR (1955) SC 309; S.A. Venkataraman
v. State, [1958] SCR 1040 and C.R. Bansi v. State of Maharashtra, [1970) 3 H
    866                    SUPREME COURT REPORTS                    [1999] 3 S.C.R.

A sec 537, referred to.
        CRIMINAL APPELLATE JURISDICTION : Crirtlinal Appeal No.
    632of1999.
                                                                                        ·-.
           From the Judgment and Order dated 25.9.98 of the Kerala High tourt
B   in Crl.R.P. No. 421of1993.

          P. Vipin Nair and K.M.K. Nair for the Appellant.

          The Judgment of the Court was delivered by

C         THOMAS, J. Leave granted.

          In July 1989, respondent retired from Government service as
    Superintending Engineer of the P.W.D. under the government ofKerala. About
    three years thereafter he was arraigned along with certain other persons
    before a Special Judge for offence under Section 5(2) of the Prevention of
D   Corruption Act 1947 (for short 'the P.C. Act') and Sections 406,40?, 201 read
    with Sections 120-B and 109 of the Indian Penal Code. A learned Singie Judge
    of the High Court of Kerala quashed the criminal proceedings against the
    respondent for want of sanction under Section 197 of the Code of Criminal
    Procedure (for short 'the code'). State of Kerala, aggrieved by the said order
    of the High Court, has come up with this appeal by special leave.
E
           The case against the respondent, in short, is that while he was working
    as Executive Engineer at the Moovattupuzha Valley Irrigation Project Division,
    he joined himself into a criminal conspiracy with four other accused for
                                                                                        ....
    defrauding the Government by misappropriating about 600 tonnes of steel
    rods (costing Rs. 1,26,000). When respondent was charge-sheeted for the
F   aforesaid offences, he appeared before the Special Judge's Court and filed a
    petition to discharge him on the ground that no prior sanction, as contemplated .
    in Section 197 of the Code, has been obtained. Respondent, however, conceded
    before the Special Judge that no previous sanction is necessary under Section
    6 of the P.C. Act 1947. But the Special Judge overruled his contention and
G   held that "there is no necessary at all to obtain a sanction under Section 197
    of the Code to proceed against the petitioner under the provisions of the P.C.
    Act 1947."

          As the matter was taken up before the High Court the decision of this
    Court in Harihar Prasad v. State of Bihar, [1972] 3 SCC 89 was cited before
H   the learned Single Judge, who heard the matter. It was held in the said
                     STATE OF KERALA v. V.P. NAIR [THOMAS, J.]                   867
     decision that :                                                                    A
              "as far as the offence of criminal conspiracy punishable under Section
              120-B, read with Section 409 of the Penal Code is concerned and also
              Section 5(2) of the Prevention of Corruption Act are concerned, they
              cannot be said to be of the nature mentioned in Section 197 of the
              Code of Criminal Procedure. It is no part of the Code of Criminal B
              Procedure. 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 Code of Criminal Procedure is, therefore, no bar to a prosecution
              under Section 120-B, read with Section 409 of the Penal Code."
                                                                                        c
             Learned Single Judge tried to distinguish the said decision by observing
     thus:

              "But here he is charged under Section 406 and 409 also which relate
              to criminal breach of trust by a public servant. Therefore,. s~nctfon is
              necessary to prosecute the petitioner (respondent}."                     D
           In S.A. Venkatarman v. State, [1958] SCR [1940] and in CR. 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) to even remotely
              suggest that previous sanction was necessary before a court could         E
              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 take cognizance, although he had been such a person
              at the time the offence was committed."

             When the newly worded section appeared in the Code (Section 197)
                                                                                        F
    . with the words "when any person who is or was 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 P.C. G
      Act also. The said contention was, however, repelled by this Court in
      Kalichar@_!fahapatra (cited supra) wherein a two 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 H
    868                    SUPREME COURT REPORTS                      [1999] 3 S.C.R.

A           contemplated in Section 19 of the Act if he continues to be a public
            servant when the court takes 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."

          The correct legal position, therefore, is that an accused facing prosecution '
B   for offences under the P.C. Act 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. So the High Court was at any rate
    wrong in quashing the prosecution proceedings in so far as they related to
    offences under the P.C. Act.

c         That apart, the contention of the respondent that for offences under
    Sections 406 and 409 read with Section 120-B of the IPC sanction under
    Section 197 of the Code is a condition precedent for launching the prosecution
    is equally fallacious. This Court has stated the correct legal position in
    Shreekantiah Ramayya Munnipa/li v. State of Bombay, AIR (1955) SC 287
D   and also Amrik Singh v. State ofPepsu, AIR (l 955) SC 309 that it is not every
    offence committed by a public servant which requires sanction for prosecution
    under Section 197 of the Code, 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 (supra) as follows :

E           "As far as the offence of criminal conspiracy punishable under Section
            120-B, read with Section 409 Indian Penal Code is concerned and also
            Section 5(2) of the Prevention of Corruption Act, are concerned they
            cannot be said to be 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
F           a criminal conspiracy or to indulge in criminal misconduct. Want of
            sanction under Section 197 of the Code of Criminal Procedure is,·
            therefore, no bar."

          Learned Single Judge of the High Court declined to follow the aforesaid
G   legal position in the present case on the sole premise that the offence under
    Section 406 of the IPC has also been fastened against the accused besides
    Section 409 of the IPC. We are unable to discern the rationale in the
    distinguishment. Sections 406 and 409 of the IPC are cognate offences in
    which the common component is criminal breach of trust. When the offender
    in the offence under Section 406 is a public servant (or holding any one of
H   the positions listed in the section) the offence would escalate to Section 409
             STATE OF KERALA v. V.P. NAIR [THOMAS, J.]                   869
of the Penal Code. When this Court held that in regard to the offence under A
Section 409 of the 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
of trust, we find no sense in stating that if the offence is under Section 406
read with Section 120-B IPC it would make all the difference vis-a-vis Section
197 of the Code.
                                                                               B
      For the aforesaid reasons, we have no doubt that the High Court has
committed a grave error in quashing the prosecution proceedings. The case
against the respondent has to go to trial in accordance with law. Accordingly,
we allow this appeal and set aside the judgment of the High Court and direct
the Special Judge concerned to proceed with the trial.                         C
RC.K.                                                       Appeal allowed.