JUDGMENT
Jaspal Singh, J.
(1) The petitioner was a permanent employee of the Delhi Development Authority and bad remained posted for some time as Director (Land Management). The prosecution alleges that he alongwith some other employees of the Delhi Development Authority entered into a criminal conspiracy to allot a commercial plot to one Saraswati Devi Dolya and to mate her eligible for such allotment went to the extent of preparing false record first showing her to be in unauthorised possession of some land belonging to the Delhi Development Authority, then showing it as having been resumed and thereafter allotting her some commercial land as an alternative plot. He has thus been charged under section 120B read with section 420 of the Indian Penal Code besides section 5(2) read with section 5(l)(d) of the Prevention of Corruption Act, 1947.
(2) The petitioner took objection that he could not be prosecuted in the absence of sanction under section 197 of the Code of Criminal Procedure. The learned Special Judge, however, turned it down.
(3) Although in the petition before me the petitioner has challenged the order of framing of charge also on the ground that no prima facie case is made out, during arguments the learned counsel for the petitioner had confined himself only on the point of sanction.
(4) It was not disputed that the petitioner was a public servant at the relevant time and that he has since retired from service. It was also not in dispute that under section 197 of the Code of Criminal Procedure sanction would be needed even with regard to a retired public servant and that in the case of the petitioner no sanction has so far been obtained. Does it then mean that I should allow the petition and quash the proceedings for want of sanction? The learned counsel for the petitioner says yes. However the learned counsel for the respondent says I just cannot do that and his argument is two fold. Firstly he says that the Prevention of Corruption Act being a special Act it would override the general law and that as under the said Act no sanction is required for proceeding against the petitioner for offences committed under the said Act, section 197 of the Code would have no role to play in the matter. But then, as we know by now, the petitioner has been charged under section 120B read with section 420 of the Penal Code also. To meet this situation it is contended that the offence of cheating would not fall within the ambit and scope of section 197 of the Code and as such absence of sanction would in no way be fatal.
(5) SUB-SECTION (1) of section 6 of the Prevention of Corruption Act needs to be noticed. It says that no court shall take cognizance of an offence punishable under sections 161, 164 and 165 of the Indian Penal Code or under sub-sections (2) or 3A of section 5 of the Prevention of Corruption Act “alleged to have been committed by public servant” except with the previous sanction of the appropriate authority. A bare reading of the provision would go to show that at the time the court is asked to take cognizance not only the offence must have been committed by a public servant but also the person accused should still be a public servant removable from his office by a competent authority. Where, therefore, the accused has ceased to be a public servant at the time the court takes cognizance of the offences alleged to have been committed by him as a public servant, the provision of section 6 would not apply. Admittedly the petitioner had ceased to be a public servant at the time the court was asked to take cognizance, and this being the position, no sanction was required under section 6 of the Act.
(6) However, as noticed earlier, the petitioner relies upon section 197 of the Code. As per him as the said provision covers a person who has ceased to be a public servant, sanction under that provision would be needed. In support he places reliance upon a judgment of a learned single Judge of the Punjab and Haryana High Court in Rachhpal Singh v. The State of Punjab 1979 C.L.R. (P&H) 282. Undoubtedly, it supports the petitioner. Paragraph 4 of the report being relevant, I feel tempted to reproduce it. It says: “MR.J.P.S.Sandhu, the learned counsel for the State has contended before me that section 6 of the Prevention of Corruption Act only requires the sanction when the Government servant sought to be prosecuted is still in service. Undoubtedly, the language of section 6 is to the effect and there are decisions that under the Prevention of Corruption Act the delinquent public servant can be prosecuted during the tenure of office only after obtaining the sanction from the competent authority. However, the position has changed by the amendment in section 197 of the Code. There is no dispute that the petitioner was a public servant. Section 93 of the Punjab Town Improvement Act clearly lays down that a member of the Improvement Trust is a public servant. Section 10 of the Act provides that a member can be removed by the State Government. So, the case squarely falls within the purview of the amended section 197 of the Criminal Procedure Code.”
(7) A bare perusal of the above-said judgment would show that the question whether section 6 of the Prevention of Corruption Act 1947 would exclude application. of section 197 of the Code for trials before the Special Judge was not convassed and the court, with respect proceeded on the assumption that section 6 of the Prevention of Corruption Act notwithstanding, the requirement of section 197 of the Code required to be satisfied.
(8) That the Prevention of Corruption Act, 1947 was a special legislation with regard to bribery and corruption both with regard to its substantive and procedural aspects is not in doubt and the position is rather accepted by Mr. Singla too. And, if that be so it has necessarily to be held that the special provision of Sanction under sec- tion 6 of the Act would operate to the exclusion of the general provisions of sanction as contained in section 197 of the Code. To say that section 197 of the Code would override the provision of section 6 of the Act as far persons having ceased to be public servants are concerned, would be saying something totally inconsistant with the law. It is section 6 of the Act which is to prevail.
(9) But then, this is not the end of the matter. What about charges under sections 120B and 420 of the Indian Penal Code? They are not only independent offences, they are independent of the Act as well. Obviously then, section 6 of the Act would not apply. And, what about section 197 of the Code?
(10) Mr. Lal, who appeared for the C.B.L, submitted that the sine qua non for the applicability of section 197 being that the offence must be one which has been committed by the public servant either in his official capacity or under colour of the office held by him, therefore where the act complained of is conspiracy to cheat and cheating it would have no direct connection or inseparable link with his duties as a public sevant. In support, he sought to draw force from a judgment of the Supreme Court in Manohar Nath v. State of J & K.
(11) In Manohar Nath’s case (supra), the appellant was Regional Officer of the Directorate of Field Publicity of the Government of India in 1972. He travelled by air from Srinagar to Delhi to and fro on one occasion and from Srinagar to Jammu to and fro on two other occasions by obtaining air tickets in lieu of exchange orders. The cost of the tickets obtained by the appellant was debitable to the account of the Directorate and under the rules the appellant was required to exclude the same from the bills for travelling allowance. However the appellant included the same in his T.A. bills and as such was prosecuted under section 420 Indian Penal Code The appellant took the plea that in the absence of sanction under section 197 of the Code, the prosecution was not maintainable. The Supreme Court relying upon its earlier judgment in Amrik Singh v. State of Pepsu said: “IT has not been contended before us that official duty of the appellant was to draw travelling allowance bills though his status as a public servant authorised him to draw such bills. Drawing T.A. bills cannot be said to have been directly and reasonably connected with appellant’s duty as Regional Officer of the Directorate and the official status furnished the opportunity for doing the acts which constitute ingredients of the offence. He was, therefore, not entitled to claim protection of section 197(1) of the Code.”
(12) Though not relied upon, since the Supreme Court placed reliance on its earlier judgment in Amrik Singh’s case (supra) I may at this stage, notice that judgment as well. The offence charged in that case was under section 409 of the Penal Code. The accuser was a Sub – Divisional Officer in the Public Works Department, Pepsu, and was, at the material time, in charge of certain works. It was part of his duties to disburse the wages to the workmen employed in the works, and the procedure usually followed was that he drew the amount required from the treasury, and paid the same to the employees against their signatures or thumb-impressions in the monthly acquittance roll. In the roll for April,. 1951, one Parma was mentioned as a Khalasi, and a sum of Rs.51 was shown as paid to him for Us wages, the payment being vouched by thumb impression. The prosecution alleged that there was, in fact, no person of the name of Parma and that the thumb impression found in the acquittance roll was that of the appellant himself, and that he had received Rs.51.00 and misappropriated the same. The question arose whether sanction was required or not. The Court observed: “The result then is that whether sanction is necessary to prosec0ute a public servant on a charge of criminal misapproriation, 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 necesary.
IN this view, we have to examine whether the acts with which the appellant is charged directly bear on the duties which he has got to discharge as a public servant. The appellant received the sum of Rs.51.00 alleged to have been misappropriated, as Sub-Divisional Officer, and he admits receipt of the same. Then it was his duty to pay that amount to the khalasi Parma, and take his signature or thumb impression in acknowledgment thereof. The accused does claim to have paid the amount to Parma, and the acquittance roll records the payment, and there is in acknowledgement thereof a thumb- impression as against his name.
IF what appears on the face of the roll is true – and whether it is true or not is not a matter relevant at the stage of sanction – then the acts with which the appellant is charged fall within the scope of his duties, and can be justified by him as done by virtue of his office. Clearly, therefore, sanction was required under section 197(1), Criminal Procedure Code . before the appellant could be prosecuted under section 409, and the absence of such sanction is fatal to the maintainability of the prosecution. The conviction should, therefore, be quashed.”
(13) It would thus be apparent that it cannot be said as a general proposition of law that in every case of cheating or criminal misappropriation sanction under section 197 of the Code would not be required. Did the petitioner commit the alleged offences while acting or purporting to act in the discharge of his official duty? This is the main question. But then before it is answered the meaning of the expression “any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty” has to be understood. In S.B.Saha v. M.S.Kochar it was held: “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 I 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 support of these words lies between these two extremes. While on the one hand, it is not every of- fence 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.”
(14) In P.Arulswami v. State of Madras the Supreme Court after reviewing the earlier case law held: “….IT is not therefore every offence committed by a public servant that requires sanction for prosecution under Section 197(1) of the Criminal Procedure Code; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary. 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. An offence may be entirely unconnected with the official duty as such or it may be committed within the scope of the official duty. Where it is unconnected with the official duty there can be no protecton. It is only when it is either within the scope of the official duty or in excess of it that the protection is claimable.”
(15) In Matajog Dubey v. H. C. Bhari , while explaining to what extent an act or omission performed by a public servant in discharge of his duty can be deemed to be official, the Supreme Court said: "(T)HEoffence 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." (16) . The legal position which emerges from above, has been summed up by the Supreme Court in State of Maharashtra v. Dr. Budhikote Subbarao as under: "USE of the expression, "official duty" implies that the act or omission must have been done by the public servant in course of his service and that it should have been in discharge of his duty. The section does not extend its protective cover to every 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."
“IT has been widened further by extending protection to even those acts or. omissions which are done in purported exercise of official duty. That is under the colour of office. Official duty therefore implies that the act or omission must have been done by the public servant in course of his service and such act or omission must have been performed as part of duty which further must have been, official in nature. The section has, thus, to be construed strictly, while determining its applicability to any act or omission in course of service. Its operation has to be limited to those duties which are discharged in course of duty. But once any act or omission has been found to have been committed by a public servant in discharge of his duty then it must be given liberal and wide construction so far its official nature is concerned. For instance a public servant is not entitled to indulge in criminal activities. To that extent the section has to be construed narrowly and in a restricted manner. But once it is established that act or omission was done by the public servant while discharging his duty then the scope of its being official should be construed so as to advance the objective of the section in favour of the public servant. Otherwise the entire purpose of affording protection to a public servant without sanction shall stand frustrated. For instance a police officer in discharge of duty may have to use force which may be an offence for the prosecution of which the sanction may be necessary. But if the same officer commits an act in course of service but not in discharge of his duty then the bar under Section 197 of the Code is not attracted.” “IF on facts, therefore, it is prima facie found that the act or omission for which the accused was charged had reasonable connection with discharge of his duty then it must be held to be official to which applicability of Section 197 of the Code cannot be disputed.”
(17) The law being as noticed above, let us have a look at the necessary facts. That the petitioner was a public servant at the relevant time is not in dispute.. That it was during the course of that very period that the entire transaction took place is also not in dispute. That all the documents which have led to the indictment were prepared in the performance of his official duties is clearly borne out. The record rather shows that the acts complained of fell within the scope and range of his official duties. It is this what distinguished this case from Manohar Nath v. State of J.K. relied upon by Mr. Lal, and it is this also what prevails upon me to hold that as far as offences under section 120B and section 420 of the Penal Code are concerned, the State was required to obtain sanction under section 197 of the Code of Criminal Procedure. Since no such sanction has been obtained, the appellant cannot be proceeded against under the said provisions of the Penal Code. The appeal succeeds to that extent.