Criminal Appeal No 21 of 1973
Appeal by Special Leave from the Judgment and Order dated 3 5 1972 of the Delhi High Court in Criminal Revision No 45069
D Mukherjee section K Dholakia and R C Bhatia for the Appellants
Respondent in person
The Judgment of the Court was delivered by SARKARIA J
This appeal by special leave directed against a judgment dated May 3 1962 of the Delhi High Court arises out of these circumstances  M section Kochar the respondent herein filed a complaint in the Court of the Sub Divisional Magistrate Delhi alleging that the appellants herein who are officers of the Customs Department had committed offences under Sections 120B166409 Indian Penal Code
It was stated in the complaint as follows  The complainant was the sole representative in India of various manufacturing concerns in West Germany and was carrying on business under the style of House of German Machinery
He imported certain items of machinery from the German firms for displaying them in the International Industries Fair held in New Delhi in November 1961
In spite of the fact that he had obtained a valid Customs Clearance Permit for the import of these items of machinery the Customs Authorities prevented him from clearing the goods from the Railway Station
Ultimately the complainant was able to clear the goods by obtaining the necessary permission from the Government
He was allowed to retain the imported goods with him till the first of June 1962
The goods were to be re exported from India thereafter
The respondent applied for extension of the period but his request was declined
On June 16 1962 the accused appellants raided the premises of the complainant at 30 Pusa Road New Delhi and seized some of those imported goods which were meant for display in the International Industries Fair
The appellants also seized certain other goods kept by 114 the complainant at the site of the Fair itself
Inventories of the goods were prepared by the appellants at the time of their seizure
The goods were then packed in boxes and sealed by the appellants with their own seals which were signed by the complainant as well as the appellants
One copy of the inventories duly signed by the appellants and the complainant also was handed over to him
On November 20 1963 the complainant made an application before the Sub Divisional Magistrate praying that the goods seized by the appellants be handed over to him on Superdari as they were likely to deteriorate unless kept safely under proper conditions
The Sub Divisional Magistrate on January 22 1964 made an order directing that all the goods seized by the appellants be handed over to the complainant on Superdari
The Customs however felt aggrieved by this order of the Magistrate and went in revision against it before the Additional Sessions Judge Delhi who on February 7 1964 passed an order staying delivery of possession
Subsequently by order dated April 3 1965 the Additional Sessions Judge dismissed the revision petition and vacated the stay order
In spite of the order of the Magistrate confirmed by the Additional Sessions Judge the Customs handed over to the complainant on Superdari only a part of the goods seized and in respect of the remaining goods the Customs Authorities went in further revision to the High Court and obtained an interim stay of the order of the Additional Sessions Judge
Subsequently on August 22 1966 the High Court made an order directing that all the goods which had been seized by the Customs Authorities from the complainant including those which had been returned to him on Superdari should be produced before the Sub Divisional Magistrate who was seized of a case under Section 5 of the Import and Export Control Act and Section 16681 of the Sea Customs Act regarding the goods pending against the complainant
Accordingly Shri H L Sikka Sub Divisional Magistrate prepared two inventories of these goods on November 16 1966 and thereafter
The boxes were opened before Shri Sikka who got inventories of the goods found therein prepared and after noting the condition of those goods he got the same repacked and sealed in proper boxes in the presence of the parties with a seal of the Court
Before resealing the Magistrate noted down the condition of the four packages which were produced before him by the appellants and which remained in their possession since the seizure 16 6 1962
It was then found by the Magistrate that the seals of these boxes were tampered
One 115 wooden box was broken and the seal on it was also broken while the remaining three packages were completely empty but sealed
The goods of Consignment No 1 of Ms Gebr
Ruhstrat concerning the complaint filed by the Assistant Collector of Customs under Section 5 of the Import  Export Control Act and Section 11781 of the Sea Customs Act which were also seized by appellant No 1 who had obtained their delivery from the Railway Station were not produced before Shri H L Sikka Magistrate along with the other goods when the inventories were prepared
This gives a bona fide apprehension to the complainant that the said goods have been criminally misappropriated by the accused The accused by their act in illegally tampering and breaking the seals of the consignment seized by them and removing some of these goods and further abusing their positions and seizing some of the personal articles of the complainant under the colour of search warrant issued by the SDM Karol Bagh and illegally holding those goods of the complainant uptil have committed offences under Sections 120B166409 IPC The Sub Divisional Magistrate before whom the complaint had been filed examined the complainant under Section 200 and further held a preliminary enquiry under Section 202 Cr
PC in the course of which he examined Shri H L Sikka Magistrate also
After considering the statements recorded in the preliminary enquiry and the documents produced by the complainant the Magistrate found a prima facie case under Sections 120B409 IPC against the three appellants
He therefore directed that the accused appellants herein be summoned
On receiving the summons the appellants appeared before the Magistrate and made an application praying for their immediate discharge inter alia on the ground that the Magistrate had no jurisdiction to take cognizance of the complaint in the absence of sanction under Section 197 of the Code of Criminal Procedure 1898 and under Section 155 of the  for prosecution of the appellants
The Magistrate accepted this objection and held that in the absence of sanction for the prosecution of the present appellants he had no jurisdiction to take cognizance of the complaint
He purportedly relied on the decision of this Court in Shreekantiah Rammayya Munipalli  Anr
vs State of Bombay1
In the result he discharged the accused appellants herein
116 Aggrieved the complainant filed a revision petition which was dismissed by the Additional Sessions Judge on December 6 1968 on the ground that since the shortage of goods was discovered at the time when they were produced before the Customs House and there was absolutely nothing to show that the goods in question remained in the personal custody of the appellants it was difficult to hold that the shortage if any was due to the act of the accused
 The complainant went in further revision to the High Court which was heard and allowed by a learned Judge by his judgment now under appeal before us
After an elaborate discussion the learned Judge has held that no sanction was required for the prosecution of the accused appellants for an offence under Sections 120B409 Indian Penal Code because they were certainly not acting in the discharge of their official duties when they misappropriated these goods
The first contention of Mr Mukerjee learned Counsel for the appellants is that the complainant has falsely alleged in the complaint that when the Sub Divisional Magistrate Shri Sikka in compliance with the order of the High Court inspected the goods and noted the condition thereof it was found that the seals of four boxes were broken while the remaining three packages were completely empty but sealed
It is maintained that the inventory itself prepared by Shri Sikka falsifies this allegation
It is further pointed out that in the complaint it is not alleged with particularity as to what goods disappeared or were removed nor that the disappearance of some of the goods if any occurred after their seizure and before their deposit in the Customs House by the appellants and that the allegation made by the complainant during arguments before the High Court to the effect that the goods in question were misappropriated sometime after seizure and before their deposit in the Customs House was not based on any facts or circumstances appearing in the statements of the complainant and Shri Sikka recorded during the preliminary enquiry
Learned counsel also repeatedly urged that the allegations regarding the commission of the offence of criminal breach of trust by the appellants were false and groundless
For this purpose it is stressed the Court should not confine itself to the allegations in the complaint but also consider all the evidential material on the record including that brought on the record by the appellants
In support of the contention that the question of sanction can be raised from stage to stage Mr Mukherjee relied on certain observations of this Court in Matajog Dobey vs H C Bari1
We have no quarrel with the proposition that the question of sanction under Section 197 Cr
PC can be raised and considered at any 117 stage of the proceedings
We will further concede that in considering the question whether or not sanction for prosecution was required it is not necessary for the Court to confine itself to the allegations in the complaint and it can take into account all the material on the record at the time when the question is raised and falls for consideration
Now in paragraph 20 of the complaint it was clearly alleged that the Sub Divisional Magistrate Shri H L Sikka found that the seals of four boxes had been tampered with and one of the boxes broken while the remaining three packages were completely empty but sealed
Mr Mukherjee has not read out or referred to any portion of the statement of Shri H L Sikka recorded under Section 202 CrPC to show that the same contradicts or falsifies the allegations in paragraphs 19 20 and 21 of the complaint
Indeed no copy of the statements of the complainant and Shri Sikka recorded in proceedings preliminary to the issue of process has been furnished for our perusal
It is true that the precise time and manner or the misappropriation and the detailed particulars of the items of goods alleged to have been misappropriated are not given in the complaint
But it seems that some foundation for the allegation that the goods in question had been misappropriated by the appellants sometime after their seizure and before their deposit in the Customs House had been laid during the preliminary enquiry made by the Magistrate
This allegation was made not only before the High Court but has been reiterated by the complainant in paragraph 12 of his counter affidavit that he had filed in this Court in opposition to the special leave petition of the appellants
For this averment he relied on a certain letternotice dated January 30 1963 addressed to him by the Customs Authority
Thus the material brought on the record upto the stage when the question of want of sanction was raised by the appellants contained a clear allegation against the appellants about the commission of an offence under Section 409 IPC To elaborate it was substantially alleged that the appellants had seized the goods and were holding them in trust in the discharge of their official duty for being dealt with or disposed of in accordance with law but in dishonest breach of that trust they criminally misappropriated or converted those goods
Whether this allegation or charge is true or false is not to be gone into at this stage
In considering the question whether sanction for prosecution was or was not necessary these criminal acts attributed to the accused are to be taken as alleged
For these reasons we overrule the first contention canvassed on behalf of the appellants
118 The second contention advanced by Mr Mukherjee is in the alternative
It is submitted that even if for the sake of argument it is assumed that some of the goods were removed and set apart by the appellants after seizure then also the seizure and the removal being integrally connected with each other the alleged act constituting the offence of criminal misappropriationcriminal breach of trust could but reasonably be viewed as an act which includes dereliction of duty done or purporting to be done in the discharge of their official duty by the appellants
It is argued that section 197 Cr P C cannot be construed too narrowly in the sense that since the commission of offence is never a part of the official duty of a public servant an act constituting an offence can never be said to have been done or purportedly done in the discharge of official duty
Such a narrow construction it is submitted will render the Section entirely otiose
For law on the point the learned counsel referred to several decisions of this Court
He took us through the relevant passages of the judgment in Matajog s case supra and strongly relied on the ratio of Shree kantiah Rammayya s case ibid and Amrik Singh vs The State of Pepsu 1 The words any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty employed in Section 1971 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 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
The right approach to the import of these words lies between these 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 1971 an act constituting an offence directly and reasonably connected with his official duty will require sanction for prosecution under the said provision
As pointed out by Ramaswami J in Baijnath vs State of MP2 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 contemplated by Section 197 of the Criminal Procedure Code will be attracted
 In sum the sine qua non for the applicability of this Section is that the offence charged be it one of commission or omission must 119 be one which has been committed by the public servant either in his official capacity or under colour of the office held by him
While the question whether an offence was committed in the course of official duty or under colour of office cannot be answered hypothetically and depends on the facts of each case one broad test for this purpose first deduced by Varadachariar J of the Federal Court in Hori Ram vs Emperor 1 is generally applied with advantage
After referring with approval to those observations of Varadachariar J Lord Simonds in HHB Gill vs The King2 tersely reiterated that the test may well be whether the public servant if challenged can reasonably claim that what he does he does in virtue of his office Speaking for the Constitution Bench of this Court Chandrasekhar
Aiyer J restated the same principle thus  in the matter of grant of sanction under Section 197 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 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
Emphasis supplied Let us now apply this broad test to the facts of the case as alleged and sought to be proved by the complainant
The allegation against the appellants is about the commission of offences under Sections 409120B Indian Penal Code
To be more precise the act complained of is dishonest misappropriation or 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
There can be no dispute that the seizure of the goods by the appellants and their being thus 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 is 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 Indian Penal Code
Could it be said that the act of dishonest misappropriation or conversion complained of bore such an integral relation to the duty of the appellants 120 that they could genuinely claim that they committed it in the course of the performance of their official duty  In the facts of the instant case the answer cannot but be in the negative
There is nothing in the nature or quality of the act complained of which attaches to or partakes of the official character of the appellants who allegedly did it
Nor could the alleged act of misappropriation or conversion be reasonably said to be imbued with the colour of the office held by the appellants
As pointed out by Varadachariar J in Hori Ram supra generally in a case under Section 409 Indian Penal Code the official capacity is material only in connection with the entrustment  and does not necessarily enter into the later act of misappropriation or conversion which is the act complained of
 This however should not be understood as an 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 1971 of the Code of Criminal Procedure for prosecution of the accused for an offence under Section 409 Indian Penal Code was necessary
Shreekantiah Rammayya supra was a case of that kind
The act complained of against the second accused in that case was dishonest disposal of the goods
The peculiarity of the act was that from its very nature in the circumstances of that case it could not have been done lawfully or otherwise by the accused save by an act done or purporting to be done in an official capacity
In other words the very charge was the dishonest doing of an official act by the accused
Whether the act was dishonest or lawful it remained an official act because the accused could not dispose of the goods save by the doing of an official act namely officially permitting their disposal and that he did
It was in view of these special facts of the case it was held that the offence under Section 409 Indian Penal Code was committed or purported to be committed by the accused in the discharge of his official duty and as such sanction under Section 1971 Cr
PC was a prerequisite for his prosecution
The facts of the case before us are entirely different
The ratio of Shreekantiah Rammayya has therefore no application to the facts of the case before us
In Amrik Singh vs The State of Pepsu1 it was laid down that whether sanction is necessary to prosecute a public servant on a charge 121 of criminal misappropriation will depend on whether the acts complained of hinge on his duties as a public servant
If they do then sanction is requisite
But if they are unconnected with such duties then no sanction is necessary
Amrik Singh s case also stands on its own facts which were materially different from those of the present case
The correctness of that decision was doubted in Baijnath vs State of Madhya Pradesh supra and its authority appears to have been badly shaken
In any case its ratio must be confined to its own peculiar facts
There are several decisions of this Court such as Om Parkash Gupta vs State of Uttar Pradesh1 Baijnath vs State of Madhya Pradesh supra Marihar Prasad vs State of Bihar2 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 Parkash Gupta s case ibid 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 not 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
In the light of all that has been said above we are of opinion that on the facts of the present case sanction of the appropriate Government was not necessary for the prosecution of the appellants for an offence under Sections 409120 B Indian Penal Code because the alleged act of criminal misappropriation complained of was not committed by them while they were acting or purporting to act in the discharge of their official duty the commission of the offence having no direct connection or inseparable link with their duties as public servants
At the most the official status of the appellants furnished them with an opportunity or occasion to commit the alleged criminal act
In the result the appeal fails and is dismissed
NKA Appeal dismissed


Summary:
The act complained of is dishonest misappropriation or conversion of goods by the appellants which they had seized and as such were holding in trust to be dealt with in accordance with law
This gave a bona fide apprehension to the respondent that the goods have been criminally mis appropriated by the appellants
The SDM conducted a preliminary enquiry and found a prima facie case under section 120B409 IPC against the appellants
The SDM summoned the appellants who appeared before him and prayed for their immediate discharge which was accepted on the ground that he had no jurisdiction and he discharged the appellants
A revision petition before the Addl
Sessions Judge was dismissed on the ground that since the shortage of the goods was discovered at the time when they were produced before the Customs House there was absolutely nothing to show that the shortage if any was due to the act of the appellants
The respondent went in further revision to the High Court which was allowed on the ground that no sanction was required for the prosecution of the accused appellants because they were certainly not acting in the discharge of their official duties when they misappropriated these goods
It was argued on behalf of the appellants that i It had been falsely alleged in the complaint that when the SDM inspected the goods and noticed the condition thereof it was found that the seals of the four boxes were broken while the remaining three packages were completely empty but sealed that the inventory itself prepared by the SDM falsified the prosecution allegation ii That it was not alleged in the complaint with particularly as to what goods had disappeared or were removed nor that the disappearance of some of the goods if any occurred after their seizure and before their deposit in the Customs House by the appellant iii That even if for the sake of argument it is assumed that some of the goods were removed and set apart by the appellants after seizure then also sanction for prosecution us 197 Cr
PC was absolutely necessary because the seizure and removal being integrally connected with each other the alleged act constituting the offence of criminal mis appropriationcriminal breach of trust could but reasonably be viewed as an act which includes dereliction of duty done or purporting to be done in the discharge of their official duty by the appellants iv That section 197 Cr
PC cannot be construed too narrowly in the sense that since the commission of offence is never a part of the official duty of a public servant an act constituting an offence can 112 never be said to have been done or purportedly done in the discharge of official duty as such a narrow construction will render the section entirely otiose
Dismissing the appeal  HELD The question of sanction us 197 Criminal Procedure Code can be raised and considered at any stage of the proceedings
116H 117A The words Any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty in section 1971 of the Code are capable of a narrow as well as wide interpretation
If these words are construed too narrowly the section 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 committed in the course of the same transaction in which the official duty is performed or purports to be performed
The right approach to the import of these words lies between these two extremes
While 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 sec
1971 an act constituting an offence directly and reasonably connected with an official duty will require sanction for prosecution under the said provision
The sine qua non for the applicability of this section is that the offence charged be it one of commission or omission must be one which has been committed by the public servant either in his official capacity or under colour of the office held my him
118D H 119A In the instant case there was some foundation for the allegation that the goods in question had been misappropriated by the appellants sometime after their seizure and before their deposit in the Customs House
There can be no dispute that the seizure of the goods by the appellants and their being thus entrusted with the goods or having dominion over them was an committed by them while acting in the discharge of their official duty
But the act complained of is 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 Indian Penal Code
It could not be said that the act of dishonest misappropriation or conversion complained of bore such an integral relation to the duty of the appellants that they could genuinely claim that they committed it in the course of the performance of their official duty119E H 120A There is nothing in the nature or quality of the act complained of which attaches to or partakes of the official character of the appellants who allegedly did it
Nor could the alleged act of misappropriation or conversion be reasonably said to be imbued with the colour of the office held by the appellants
Therefore on the facts of the present case the alleged act of criminal misappropriation complained of was not committed by them while they were acting or purporting to act in the discharge of their official duty the commission of the offence having no direct connection or inseparable link with their duties as public servant
At the most the official status of the appellants furnished them with an opportunity or occasion to commit the alleged criminal act
Sanction of the appropriate Government was therefore not necessary for the protection of the appellants for an offence under section 409120B Indian Penal Code
120A B 121D F 113 Om Parkash vs State of Uttar Pradesh   Amrik Singh vs The State of pepsu   Shreekantiah Rammayya Munipalli and Ors
vs State of Bombay AIR  distinguished
Baijnath vs State of Madhya Pradesh AIR 1966 SC 220 at page 222 and Harihar vs State of Bihar  referred to