Case ID: 4040

Judgment:
: 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. 450/69. 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 120B/166/409	 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 166(81) 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 M/s. Gebr. Ruhstrat	 concerning the complaint filed by the Assistant Collector of Customs under Section 5 of the Import & Export (Control) Act	 and Section 117(81) 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 S.D.M. Karol Bagh and illegally holding those goods of the complainant uptil. have committed offences under Sections 120B/166/409 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. P.C.	 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 120B/409	 I.P.C. 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 Bombay(1). 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 120B/409	 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. Bari(1). We have no quarrel with the proposition that the question of sanction under Section 197	 Cr. P.C. 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	 Cr.P.C.	 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 letter/notice 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	 I.P.C. 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 misappropriation/criminal 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 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 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 197(1)	 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 M.P.(2) "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 H.H.B. Gill vs The King.(2) 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 409/120B	 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 197(1) 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 197(1) Cr. P.C. 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 Pepsu	(1) 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 Pradesh	(1) Baijnath vs State of Madhya Pradesh (supra)	 Marihar Prasad vs State of Bihar	(2) 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 409/120 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. N.K.A. 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 S.D.M. conducted a preliminary enquiry and found a prima facie case under section 120B/409 IPC against the appellants. The S.D.M. 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 S.D.M. 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 S.D.M. 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 u/s 197 Cr. P.C. was absolutely necessary because	 the seizure and removal being integrally connected with each other	 the alleged act constituting the offence of criminal mis appropriation/criminal 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. 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 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 u/s 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 197(1) 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. 197(1)	 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 duty.[119E 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 409/120B 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	 A.I.R. ; distinguished. Baijnath vs State of Madhya Pradesh	 A.I.R. 1966	 S.C. 220 at page 222 and Harihar vs State of Bihar	 ; referred to.