State of Kerala Vs. V. Padmnabhan Nair

FACTS OF THE CASE:

1. In July 1989, respondent retired from Government service as Superintending Engineer of the P.W.D. under the Government of Kerala. Three years post his retirement, he was put on trial along with certain other persons before a Special Judge for committing offence under Section 5(2) of the Prevention of Corruption Act 1947 (hereinafter “the P.C. Act”) and under Sections 406, 409, 201 read in consonance with Sections 120-B and 109 of the Indian Penal Code.
2. The corresponding proceedings against the respondent were quashed by a learned single judge of Kerala High Court citing the need for necessary sanction under Section 197 of the Code of Criminal Procedure (hereinafter “the Code”)
3. The respondent was charge-sheeted for his involvement in a criminal conspiracy with four other accused thereby defalcating the Government by misappropriating about 600 tonnes of steel rods (costing Rs.1,26,000/-) while he was working as Executive Engineer at the Moovattupuzha Valley Irrigation Project Division. He filed a petition before the Special Judge’s Court to discharge him on the ground that no prior sanction, as mentioned in Section 197 of the Code, has been obtained.
4. Respondent, however, conceded before the Special Judge that no previous sanction is required under Section 6 of the P.C. Act 1947. But the Special Judge overruled his contention and held that “there is no necessity 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.”

ISSUES RAISED:

1. Whether the impugned order of the High Court quashing the criminal proceedings due to lack of necessary sanction is valid or not.
2. Whether sanction is required in the present case and the criminal act in question comes within discharge of the official duty.

CONTENTIONS OF THE PETITIONER:

The counsel for petitioner argued that the dismissal of criminal proceedings against the respondent, arising out of lack of necessary sanction to proceed under Section 197 of the Code is not in consonance with the provisions of the P.C. Act 1947.

CONTENTIONS OF THE RESPONDENT:

The Counsel for the respondent contented that for offences under Sections 406 and 409 read with Section 120-B of the IPC, requirement of sanction Under Section 197 of the Code is a condition precedent for launching the proceeding to prosecute a public servant for alleged criminal acts done in discharge of his official duty. Therefore, the appeal made by the petitioner lacks the necessary backing of law.

JUDGEMENT RENDERED:

The learned single judge in the present case declined the reasoning given by the respondent and observed that the Sections 406 and 409 of the IPC are cognate offences having criminal breach of trust as the common component. When a public servant is the offender in the offence under Section 406, the offence would automatically escalate to Section 409 of the IPC. The act of criminal conspiracy under section 120B of IPC read with offence under Section 409 of the IPC is no part of the duty of the public servant nor comes under discharge of official duty. Therefore, the judgement of High Court was set aside and the appeal to proceed with the trial was allowed. It was further held that-” An accused facing prosecution 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 is taking cognizance of the said offences”.

REASONING BEHIND THE JUDGEMENT:

1. The Court relied on the judgement passed in Harihar Prasad v. State of Bihar(i) in which it was held that the act of criminal conspiracy or the involvement in criminal misconduct which is punishable under Section 120-B, read with Section 409 of the Penal Code along with Section 5(2) of the Prevention of Corruption Act punishable under Section 120-B, read with Section 409 of the Penal Code along with Section 5(2) of the P.C Act, do not fall within the discharge of official duty and cannot be said to be of the nature mentioned in Section 197 of the Code of Criminal Procedure. Therefore, necessity of previous sanction poses no bar to prosecution in the present case.
2. Further, looking into the rulings of S.A. Venkataraman v. State(ii) and C.R. Bansi v. State of Maharashtra(iii) the Court observed that there is no explicit mention of a prior sanction in case a person duty-bound at the time when offence was committed, ceases to be a public servant at the time the court was asked to take cognizance of the offence. The decision regarding the reception of this changed legal position was made in Kalicharan Mahapatra v. State of Orissa(iv)- “A public servant who committed an offence mentioned in the Act, while he was a public servant, can be prosecuted with the sanction 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.”
3. Henceforth, an accused facing prosecution under the PC Act 1947, who ceased to be a public servant at the time when court was asked to take cognizance of the offence, cannot claim lack of prior sanction as impunity against his criminal acts.
4. That apart, the court relied on the rulings of Shreekantiah Ramayya Munnipalli v. State of Bombay(v) and Amrik Singh v. State of Pepsu(vi)­. It was held that- Not every offence done by the public servant requires a prior sanction before taking cognizance of the same nor every act done by the public servant can be held as performance of his official duty. In the present case, involvement in criminal conspiracy cannot be adjudged as part of respondent’s official duty ruling out the necessity of a sanction.

CONCLUSION:

Under Section 197 of the Code, to prosecutea public servant, permission or sanction has to be secured from the government to obviate frivolous and vexatious cases, harassment of officials and to ensure the efficacy of administrative machinery is not tampered with. But in no way this want of prior sanction shall be used as a cloak for criminal misconduct in name of duty. It is equally important that in the garb of Section 197 of Code, those Public Servants who are real offenders must not be left scot-free.

The court took cognizance of the fact that every act of public servants cannot be considered as performance of their official duty such as criminal conspiracy in the present case. Therefore, upon cumulative consideration of facts and circumstances, the issues advanced stand hereby disposed of.

FOOTNOTES:

1. 1972 (3) SCC 89
2. 1958 SCR 1040
3. 1970 (3) SCC 537
4. JT 1998 (5) SC 269
5. AIR 1955 SC 287
6. AIR 1955 SC 309

written by Divyanshi bais intern under legal vidhiya

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