Official Duty; Punjab State Warehousing Corp. Vs. Bhushan Chander [Supreme Court of India, 29-06-2016]

Penal Code, 1860 – Ss. 409, 467, 468, 471 – Criminal Procedure Code, 1973 – Section 197 – Sanction – Criminal Breach of Trust – Official Duty – No official can put forth a claim that breach of trust is connected with his official duty – 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 alien to the discharge of the official duty, question of invoking Section 197 CrPC does not arise.

Official Duty


IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

[Dipak Misra] and [Shiva Kirti Singh] JJ.

June 29, 2016

CRIMINAL APPEAL NO. 159 OF 2016

(@ S.L.P.(Criminal) No. 3906 of 2012)

Punjab State Warehousing Corp. … Appellant

Versus

Bhushan Chander & Anr. … Respondents

J U D G M E N T

Dipak Misra, J.

The singular question that has emanated in this appeal, by special leave, is whether the High Court has correctly accepted the submission advanced on behalf of the first respondent, who was convicted for offences punishable under

Section 409/467/468/471 of the Indian Penal Code, 1860

(for short, ‘IPC’) and had been awarded sentence for each of the offences with the stipulation that they would run concurrently, that he being an employee of the appellant Corporation is a public servant and the trial had commenced without obtaining sanction under

Section 197 of the Code of Criminal Procedure, 1973 (CrPC)

and hence, the trial in entirety was invalid and as a result the conviction and sentence deserved to be set aside.

2. As far as the factual narration is concerned, suffice it to state that the Managing Director of the Corporation had written a letter on 28.6.1989 to the concerned police authority to register a case against the first respondent for offences punishable under Sections 409/467/468 and 471 of the IPC or any other appropriate provision of law. During investigation, the investigating agency found that the accused who was working as a Godown Assistant in the Corporation had misappropriated 11 gunny bales value of which was Rs.38,841/-; that he had tampered with the record of the department; and accordingly the police authorities filed the charge-sheet for the aforesaid offences before the court of competent Judicial Magistrate. The learned Magistrate on the basis of evidence brought on record, found that the prosecution had been able to bring home the guilt against the accused and accordingly sentenced him to suffer rigorous imprisonment for three years under Section 467 and 409 IPC and two years under Section 468/471 IPC with separate default clauses. The judgment of conviction and order of sentence was assailed in appeal before the learned Session Judge, Firozpur and the matter was finally heard by the learned Additional Session Judge, who appreciating the evidence on record, concurred with the conviction but modified the sentence of three years imposed under Section 409 and 467 IPC to two years.

3. Being dissatisfied, the first respondent preferred Criminal Revision No. 359/2001 in the High Court of Punjab and Haryana at Chandigarh. Before the revisional court, the only contention that was raised pertained to non-obtaining of sanction under Section 197 CrPC. It was argued before the learned Single Judge that in view of the decisions in

State of Maharashtra v. Dr. Budhikota Subbarao, (1993) 3 SCC 339

Rakesh Kumar Mishra v. State of Bihar and others, (2006) 1 SCC (Cri) 432

Sankaran Moitra v. Sadhna Das and another, (2006) 2 SCC (Cri) 358

Om Kumar Dhankar v. State of Haryana, (2007) 3 RCR (Criminal) 496

the requisite sanction having not been obtained, the trial was vitiated. On behalf of the Corporation as well as the State of Punjab, it was argued that the sanction under Section 197 CrPC was not necessary to prosecute the first respondent and to substantiate the said stand, reliance was placed on

Dr. Lakshmansingh Himatsingh Vaghela v. Naresh Kumar Chadrrashanker Jah, (1990) 4 SCC 169

N. Bhargavan Pillai (dead) by Lrs. and another v. State of Kerala, (2004) 2 Cri. CC 575

State of U.P. v. Paras Nath Singh, (2009) 6 SCC 372

Raghunath Anant Govilkar v. State of Maharashtra, (2008) 11 SCC 289

and

Choudhury Parveen Sultana v. State of West Bengal, (2009) 3 SCC 398

4. The learned Single Judge referred to the charges framed under Section 409 and 467 IPC. He also referred to the authorities in

Prakash Singh Badal v. State of Punjab, (2007) 1 RCR (Criminal) 1

Nirmal Singh Kahlon v. State of Punjab, (2008) 2 RCR (Criminal) 208

Om Kumar Dhankar (supra) and

Bakshish Singh Brar v. Gurmel Kaur, 1988 (1) RCR (Criminal) 35

and analyzing Section 197 CrPC observed that the said provision is meant to protect responsible public servants against the institution of vexatious criminal proceedings for offences alleged to have been committed by them. The learned Single Judge referred to

P. Arulswami v. State of Madras, AIR 1967 SC 776

Matajog Dube v. H.C. Bahri, AIR 1956 SC 44

P.K. Pradhan v. State of Sikkim, 2001 (3) RCR (Cri.) 835 (SC)

reproduced a passage from

B. Saha v. M.S. Kochar, (1979) 4 SCC 177

and came to hold as follows:-

“So far as the commission of offence in this case is concerned, the very allegation would clearly reveal that it is not a case where the allegations are in any other capacity than a public servant. The allegation against the petitioner is that while being a public servant, he had committed a criminal breach of trust. It is only in the performance of the official duty that the petitioner is alleged to have been found with certain deficiencies for which allegation of criminal breach of trust as well has been made against him. Certainly the facts in this case are inextricably mingled with the official duty of the petitioner to be considered severable to call for dispensing with the requirement of sanction”.

5. After so stating, the revisional court distinguished the decision in Paras Nath Singh (supra) which was relied upon by the prosecution by stating thus:-

“The aggrieved person in the said case has faced trial for alleged commission of the offences punishable under Section 409, 420, 461 and 468 IPC. The Supreme Court in this case has drawn difference between the official duty and doing something by public servant in the course of his service. It is observed that the section does not extend its protective cover to 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. Even this observation of the Hon’ble Supreme Court would fully apply to the facts of the present case. Here, the petitioner is alleged to have committed this offence not only as a public servant but is stated to have done so in discharge of his official duty. In discharge of his official duty, the petitioner was required to protect stock, which he failed to do so and so he is asked to account for the same”.

6. The eventual conclusion recorded by the learned Single Judge is to the following effect:-

“Under normal circumstances, the offence under Sections 467/468/471 IPC may be of such a nature that requirement of obtaining sanction under Section 197 CrPC may not be called for. The offences in this case have been inter-connected with the main offence alleged against the petitioner under Section 409 IPC and it would clearly indicate that these offences could not be separately treated or dealt with. Requirement of obtaining sanction would be needed for an offence under Section 409 IPC and the same may not be separated from the remaining offences”.

7. After so stating, the learned Single Judge ruled that the Corporation is a fully government-owned and financed by the State Government and, therefore, he is a public servant as per the definition of Section 21 of IPC and, therefore, his employment in the Corporation would confer him the status of public servant for which sanction is necessary. The revisional court has not adverted to any of the aspects touching merits of the case and, therefore, we refrain from entering into the said arena.

8. Section 197(1) and (2) CrPC which are relevant for the present purpose are reproduced below:-