1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH S.B. CRI MI NAL REVI SI ON PETI TI ON NO. 1 1 / 1 9 9 5 ( Madan Moh an Sh ar m a ver su s Th e St at e of Raj ast h an ) Dat e of Or der : 2 1 .0 7 .2 0 0 9 HON'BLE MR. JUSTI CE RAGHUVENDRA S. RATHORE Mr. Vijyant Nirwan, for the petitioner. Mr. Javed Choudhary, Public Prosecutor. In this criminal revision petition, the accused petitioner has sought to challenge the judgment dated 25.05.1989 whereby the learned Chief Judicial Magistrate, Jhalawar had convicted him for the offence under Section 409 IPC and sentenced for 4 years R.I and fine of Rs. 2,000/ - in default of which to further undergo 1 month R.I. Being aggrieved of the said order the accused petitioner preferred an appeal which came to be dismissed by the Additional Sessions Judge Jhalawar on 01.12.1994, by which he affirmed the conviction and sentence awarded by the learned Magistrate. 2. The relevant facts of the case are that a complaint came to be lodged by Divisional Forest Officer, Jhalawar on 28.09.1976. It was averred in the complaint that the accused- petitioner was working on the post of cashier in the office of Divisional Forest Officer in the year 1971. His work was to maintain the cash book. The petitioner had on 31.07.1971 received an amount of Rs. 3953.75/ -, from Post Office Jhalawar which was of the National Savings Certificates of two contractors 2 namely, Pana Chand and Devi Lal. The said savings certificates had been kept with Divisional Forest Officer, Jhalawar and the amount had been fortified. Therefore, the amount was received by the accused petitioner from the post office and by his own hand, he made an entry in the cash book at item nos. 149 and 150. Thereafter the said amount was shown by the accused- petitioner at item no. 24 dated 02.08.1971, to have been deposited through challan of the State Bank of Bikaner and Jaipur, Branch Jhalawar. Subsequently, on verification it was found that the amount was neither deposited in the Bank nor there was any entry of it in the treasury. Therefore, the accused- petitioner had not deposited the amount in the Bank and committed criminal breach of trust. 3. On filing of the complaint by the Divisional Forest Officer, the police registered a case for the offence under Section 409 IPC. Thereafter the investigation commenced and on conclusion of the same, challan came to be filed against the petitioner. The learned trial court then framed charges against the accused-petitioner, who denied the same and claimed for trial. The prosecution, in support of its case, had produced 8 witnesses and some documents which were duly exhibited. Then the statement of the accused was recorded under Section 313 Cr.P.C. and in defence, he had produced Shri Dev Vallabh as DW/ 1. On conclusion of the trial, the learned trial court convicted and sentenced the accused-petitioner as aforementioned. The appeal filed by him, against the order of the learned Magistrate, 3 was also dismissed. Hence the present revision petition. 4. The learned counsel for the petitioner has primarily raised the contentions that the impugned judgment passed by both the courts below and the conviction and sentence awarded to the accused petitioner is illegal and deserves to be quashed and set-aside, on the ground of want of sanction. He has submitted that the accused-petitioner was admittedly a public servant and the alleged offence having been committed in discharge of his official duty, it was incumbent for the prosecution to have obtained sanction before initiating prosecution against him. In support of his submissions, the learned counsel for the petitioner has placed reliance on the judgment of a Larger Bench of the Apex Court in the cases of Sh r eek an t iah Ram ay y a Mun ipalli an d an ot h er ver sus St at e of Bom bay , A.I .R. 1 95 5 Su pr em e Cou r t 28 7 ; St at e of Or issa an d Or s. ver sus Ganesh Ch andr a Jew , 2 0 0 4 AI R SCW 1 9 2 6 and Rak esh Kum ar Mish r a ver su s St at e of Bih ar an d Or s., AI R 2 00 6 Su pr em e Cour t 8 2 0. 5. On the other hand, the learned Public Prosecutor has supported the judgment passed by the learned courts below and submitted that the offence committed by the accused petitioner cannot be said to be a part of his official duty and as such no sanction was required. He has further submitted that in all the acts done by a public servant, resulting in commission of a crime, sanction is not required unless it is part of the official duty. In 4 support of his submissions he has placed reliance on the cases of Sh am bhoo Nat h Mish r a v er sus St at e of UP & Or s., A.I .R. 1 9 9 7 SC 2 1 0 2 and St at e of Ker ala ver sus V. Padm n abh an Nair , A.I .R. 1 9 9 9 SC 2 4 0 5 . 6. On careful consideration of the submissions made by the counsels for the rival parties and the case law cited by them, I am of the considered opinion that this revision petition has merits. There is no dispute about the fact that the petitioner, at the relevant time was working on the post of cashier in the office of Divisional Forest Officer, Jhalawar. The amount in question was in respect of the National Savings Certificates belonging to the contractors Phana Chand and Devi Lal which had been got deposited in favour of Divisional Forest Officer, Jhalawar and after receiving the same from the post office, an entry was made by the petitioner in the cash book. The accused-petitioner had then shown to have deposited the amount with the Bank on 02.08.1971. It was on verification/ audit that it came to surface that the amount was withdrawn by the petitioner from the post office but was never deposited with the Bank. Consequently, the petitioner had committed criminal breach of trust of the amount of Divisional Forest Office. 7. In the case of Shreekantiah Ramayya Munipalli (supra) the relevant facts were that the three accused persons were government servant. At the relevant time, the first accused was the officer commanding the Military Engineering 5 Stores Depot at Dehu Road, near Poona. He was in over-all- charge. The second accused was under him as the officer in charge of the Receipts and Issue control section. The third accused worked directly under the second as an Assistant Stores Officer. The depot was maintained by the Central Government and covered an area of some 150 acres. Government stores worth several lacs of rupees were kept there. On 11-9-1948 iron stores worth about Rs. 4,000 were illegally passed out of the depot and were handed over to one Ibrahim Fida Hussain, an agent of the approver Mohsinbhai (P.W.1). The case of the prosecution was that the three accused, who were in charge of these stores and to whom they had been entrusted in various capacities, entered into a conspiracy to defraud the Government of these properties and that in pursuance of this conspiracy they arranged to sell them to the approver (P.W.1) for a sum of Rs. 4,000. The money is said to have been paid and then the stores were passed out of the depot. The money was pocketed by the three accused and not credited to Government. On these facts a number of charges were framed in the said case. The first set was drawn up on 09.07.1953. All the three accused were jointly charged with an offence punishable under Section 5 (2) of the Prevention of Corruption Act, 1947 and they were further jointly charged, for having committed criminal breach of trust in furtherance of the common intention of all, under Section 409 IPC read with Section 34. Then there were a number of alternative charges in which each accused was separately charged for having committed criminal breach of trust 6 individually under Section 409 IPC. Further, in alternative, all the three accused were jointly charged under Section 409 IPC read with Section 109, for having abetted each other in commission of the offence of criminal breach of trust under Section 409 IPC. 8. While considering the arguments in that case the Hon'ble Apex Court observed in paras 9, 10 and 11 as under: - “9. Now it will be observed that the accused are all public servants and they contend that as, according to the proseuction, they purported to act in the discharge of their official duties, sanction was necessary under S.197, Criminal Procedure Code. There is sanction so far as accused 1 is concerned but accused 2 contends that there is none in his case to justify the present trial, so his trial, conviction and sentence are bad. 10. The position about this is as follows: On 27.10.1949 the Governor-General, acting under S. 197. Cri.P.C., sanctioned the prosecution of accused 1 for offences under Ss. 120-B, 409, 109 and so forth, for having conspired with the other two to commit criminal breach of trust in respect of the properties with which this case is concerned and thus for having abetted the commission of that offence, and also for having committed it. Similar sanction could easily have been given against the other two accused but it was not. The sanction for these offences was limited to accused 1. 11. On the same date sanction was also given for the prosecution of accused 1 under S. 5 (2), Prevention of Corruption Act and a similar sanction was given against accused 2. The question is whether this sanction agaisnt accused 2 can be extended to cover his prosecution under S. 409, IPC. In our opinion, it cannot.” After considering the facts of the case and the contentions raised before it, the Hon'ble Apex Court held as 7 under: - “18. Now it is obvious that if S. 197 Cr.P.C. is construed too narrowly it can never be applied, for of course it is no part of an official's duty to commit an offence and never can be. But it is not the duty we have to examine so much as the act, because an official act can be performed in the discharge of official duty as well as in dereliction of it. The Section has content and its language must be given meaning. What it says is- “when any 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 duty...” We have therefore first to concentrate on the word “offence”. 19. Now an offence seldom consists of a single act. It is usually composed of several elements, and as a rule, a whole series of acts must be proved before it can be established. In the present case the elements alleged against accused 2 are, first, that there was an “entrustment” and/ or “dominion”: second, that the entrustment and/ or dominion was ”in his capacity as a public servant”: third, that there was a “disposal”; and fourth, that the disposal was “dishonest”. Now it is evident that the entrustment and/ or dominion here were in an official capacity, and it is equally evident that there could in this case be no disposal, lawful or otherwise, save by an act done or purporting to be done in an official capacity. Therefore, the act complained of, namely the disposal could not have been done in any other way. If it was innocent, it was an official act: if dishonest, it was the dishonest doing of an official act but in either event the act was official because accused 2 could not dispose of the goods save by the doing of an official act, namely officially permitting their disposal: and that he did. He actually permitted their release and purported to do it in an official capacity, and apart from the fact that he did not pretend to act privately, there was no other way in which he could have done it. Therefore, whatever the intention or motive behind the act may have been, the physical part of it remained unaltered, so if it was 8 official in the one case it was equally official in the other, and the only difference would lie in the intention with which it was done, in the one event, in would be done in the discharge of an official duty and in the other, in the purported discharge of it. 20. The act of abetment alleged against him stands on the same footing, for his part in the abetment was to permit the disposal of the goods by the doing of an official act and thus “wilfully Suffer” another person to use them dishonestly: S. 405 I.P.C. In both cases, the “offence” in his case would be incomplete without proving the official act. 21. We therefore hold that S. 197 Cr.P.C. applies and that sanction was necessary, and as there was none the trial is vitiated from the start. We therefore quash the proceedings against accused 2 as also his conviction and sentence. Ultimately, the Hon'ble Apex Court accepted the contention that sanction under Section 197 Cr.P.C. was necessary and in absence of it the trial was vitiated resulting in quashing of conviction and sentence of the accused petitioner No. 2 in that case. 9. Learned Public Prosecutor has relied upon the case of Sambhu Nath Mishra (supra) and submitted that the essential requirement postulated for sanction to prosecute a public servant is that the offence alleged against him must have been done while acting or purporting to act in discharge of his official duties. Further he has submitted that in order to give protection of Section 197(1) Cr.P.C. the crime committed by the public servant must be integrally connected with his official duties. In that case, it was held that it was no duty of respondent 9 no. 2 to fabricate false record and misappropriate the public fund etc. in furtherance of or in the discharge of his official duties. However, it is to be noted that the principles of law, as laid down by the Larger Bench of the Hon'ble Supreme Court in the case of Shreekantiah Ramayya Munipalli (supra) had not been considered in the case of Sambhu Nath Mishra. As mentioned earlier, in the case of Shreekantiah Ramayya Munipalli (supra), the Hon'ble Supreme Court had dealt with the question of sanction and circumstances for its requirement, in detail. In the case of Padmnabhan Nair (supra) the case of Shreekantiah Ramayya Munipalli (supra) was referred in para 9, but the same had not been taken up in detail. So far as the facts of the two cases cited by the learned Public Prosecutor are concerned, they are certainly different from the present one. 10 . Therefore in the facts and circumstances of the case in hand, I am of the considered opinion that principles of law laid down by the Larger Bench of the Hon'ble Supreme Court is to be followed. Keeping in view the said principle the prosecution case, in this case, has to go for want of sanction. 11 . Consequently, when the necessary sanction was not obtained, the trial in the instant case is vitiated from the beginning and there is no other option but to quash the proceedings against the accused-petitioner and also his conviction and sentence. 10 12 . Accordingly, this criminal revision petition is allowed. The impugned judgments dated 25.05.1989 and 01.12.1994 are hereby quashed and set-aside. The conviction and sentence awarded to the petitioner is also set aside and he be acquitted of all the charges levelled against him. ( RAGHUVENDRA S. RATHORE) ,J. RameshVaishnavJr.P.A. S-1. 11