# BAIJNATll GUPTA AND OTllER4' v. THE STATE OF MADHYA PRADESH

- **Citation:** [1966] 1 S.C.R. 210
- **Court:** Supreme Court of India
- **Decided:** 1965-05-01
- **Case number:** Criminal Appeals Nos. E 77, 162 and 163 of 1962
- **Bench:** A. K. Sarkar, M. Hioayatullah, Y. Ramaswami
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/baijnatll-gupta-and-otller4-v-the-state-of-madhya-pradesh-3525
- **Pages:** 19

## Headnote

Code of Cri111i11a/ Procedure (Ac1 5 of 1898), s. 197( I )-Sanction for
prosecution of public servant for offence com1niued in the discharge of
official duty-Public ser\•ant <·hargt•d under ss. 477A '1nd 409 l.P.C.-Son<:-
tion whether required.
G \Vas Chief Accountant-i-·u111-0fticc Superintendent in the Electric Supply
Undertaking run by the G()vernment of the erstwhile state of Madhy•
llhera1.
11c ,,·as pro::,ecutcJ along w·ith K, an assistant Superintendent
in the santc oflicr.:, for criminal breach of trust of money v."hich had hccn
entrusted to them.
l'hcy l'-·ere also ch;lfge<l vdth malting false cntric.."l in
the accounts. l'hc proscculion case v.-.ts that :-iun1s amounting to Rs. 2 l ,450
wore falsely shown in the accounts as having been sent to the trelsury but
were not actually deposited there.
Further, a sum of Rs. 10,000 had
been falsely shown on the debit side io cover the c~traction of that sum hy
K, the said entry ha\"ing bczn later on cancelled by G. G v.·as con\·icted
by the trial court under s. 477A read with s. 109
and under s. 409 of
the lndi~1n Pen;1l Code. The lligh {·oun dismbsc<l his ~!ppcal. By spcchil
leave he .lppcl.llcd to this Court.
It Y.'as conh .. "fldcd on behalf of the appellant th<tt he y,·as a pulllic
servant and lhe alleged offences, if committc..>d hy him. were cornmiucd
ill. the discharge of his officiJl duty and ihercforc his trial ~1nd convictio:i
for the aJlcg:xl offences \\';10, had on account of prior sanction not having
been obtained under s. 197( 1) of the COOc of Criminal Procedure.
HELO: S;cnc•ion under s. 197(1) of the Code of Criminal Proc.,dure
was neces..o;ary for the prosecution of the appellant for the offence under
s. 477A/ J99 of lhe Indian Penal Code because it was committed v..·iihin
the scope of ofiicial duties though in dereliction or them. [223F]
A
8
c
D
}'er lliday~1tull;:1h and Rama.<;\Varni, JJ. It is not every offence commiF
ttea by a public "crvant th:i.t requires sanction for prosecution under s.
197 (I) of the Criminal Procedure Code, nor every act done by him while
he is engaged in the perfonnanee of his official duties; but if the ect
complained of is <lircclly concerned "ith his official duties so that, ir
qUC8tiooed, il could be claimed to have been done hy virtue of his office
then sanction \\'OUld he necessary.
ll is the quality of th" act that is
importanl and if it fa11s \vithin the ~pe and range of his official dutie"
the protection contemplal'cd by s. 197 of the Criminal Procedure Cooe
G
will he a1tractctl. [223 A-<!
Applying the principle to the present ca~e the sanction of the State
Government ,,·ac; not ne~c;ary for the prosecution of the appellant under
s. 409 or rhc Indian Penal C.ode bccauc;e the act of crimin<'.11 misappropriation '"';is not commi!tcd hy lhc appcllan1 \l.·hi!c he \Vas acting: or purporting
to act in discharee of his official dutic~ and that offence had no direct
connection with t.he duties of the appellant as a public servant, and the
11
official stalu<: of the appella!lt only furnished the appellant wilh :tn occasion
or .an opportunity of commi1ting the offence. [221E)
Sa1ivan1 Singh V. S1alt' of Pun_iah. rJ960} 2 S.C.R. 89. followed.
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BAIJNATH GUPTA v. STATE (Sarkar, .T.)
211
Hori Ram Singh v. Emperor, [1939] F.C.R. 159,
Gill v. The King,
[1948] F.C.R. 19 and Om Parkash Gllpta v .State of U.P. [1957] S.C.R.
423, relied on.
Amrik Singh v. State of Pepsu, [19551 1 S.C.R. 1302, referred to.
Per Szrkar, J. \Vhcthcr an offence \\.:as committed in the course of
official duty will depend on the facts of each case. The test is whether the
public servant, if challenged, can reasonably claiin that what he did he
did in virtue of his office. [213 G-H; 215 C-Dl
Hori Rani Singh v. The Crolvn, [1939] F.C .. R. 159, Shreekantiah
Ramayya Munipalli v. State of Bombay, [195511 S.C.R. 1177 and Gil/ v.
King. [19481 F.C.R. 19, r·ofcrred to.
The facts of the present case could not be distinguished from those
in Amrik Si11gh's

## Text

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210
BAIJNATll GUPTA AND OTllER4'
v.
THE STATE OF MADHYA PRADESH
May 1, 1965
[A. K. SARKAR, M. HIOAYATULLAH AND Y. RAMASWAMI, JJ.J
Code of Cri111i11a/ Procedure (Ac1 5 of 1898), s. 197( I )-Sanction for
prosecution of public servant for offence com1niued in the discharge of
official duty-Public ser\•ant <·hargt•d under ss. 477A '1nd 409 l.P.C.-Son<:-
tion whether required.
G \Vas Chief Accountant-i-·u111-0fticc Superintendent in the Electric Supply
Undertaking run by the G()vernment of the erstwhile state of Madhy•
llhera1.
11c ,,·as pro::,ecutcJ along w·ith K, an assistant Superintendent
in the santc oflicr.:, for criminal breach of trust of money v."hich had hccn
entrusted to them.
l'hcy l'-·ere also ch;lfge<l vdth malting false cntric.."l in
the accounts. l'hc proscculion case v.-.ts that :-iun1s amounting to Rs. 2 l ,450
wore falsely shown in the accounts as having been sent to the trelsury but
were not actually deposited there.
Further, a sum of Rs. 10,000 had
been falsely shown on the debit side io cover the c~traction of that sum hy
K, the said entry ha\"ing bczn later on cancelled by G. G v.·as con\·icted
by the trial court under s. 477A read with s. 109
and under s. 409 of
the lndi~1n Pen;1l Code. The lligh {·oun dismbsc<l his ~!ppcal. By spcchil
leave he .lppcl.llcd to this Court.
It Y.'as conh .. "fldcd on behalf of the appellant th<tt he y,·as a pulllic
servant and lhe alleged offences, if committc..>d hy him. were cornmiucd
ill. the discharge of his officiJl duty and ihercforc his trial ~1nd convictio:i
for the aJlcg:xl offences \\';10, had on account of prior sanction not having
been obtained under s. 197( 1) of the COOc of Criminal Procedure.
HELO: S;cnc•ion under s. 197(1) of the Code of Criminal Proc.,dure
was neces..o;ary for the prosecution of the appellant for the offence under
s. 477A/ J99 of lhe Indian Penal Code because it was committed v..·iihin
the scope of ofiicial duties though in dereliction or them. [223F]
A
8
c
D
}'er lliday~1tull;:1h and Rama.<;\Varni, JJ. It is not every offence commiF
ttea by a public "crvant th:i.t requires sanction for prosecution under s.
197 (I) of the Criminal Procedure Code, nor every act done by him while
he is engaged in the perfonnanee of his official duties; but if the ect
complained of is <lircclly concerned "ith his official duties so that, ir
qUC8tiooed, il could be claimed to have been done hy virtue of his office
then sanction \\'OUld he necessary.
ll is the quality of th" act that is
importanl and if it fa11s \vithin the ~pe and range of his official dutie"
the protection contemplal'cd by s. 197 of the Criminal Procedure Cooe
G
will he a1tractctl. [223 A-<!
Applying the principle to the present ca~e the sanction of the State
Government ,,·ac; not ne~c;ary for the prosecution of the appellant under
s. 409 or rhc Indian Penal C.ode bccauc;e the act of crimin<'.11 misappropriation '"';is not commi!tcd hy lhc appcllan1 \l.·hi!c he \Vas acting: or purporting
to act in discharee of his official dutic~ and that offence had no direct
connection with t.he duties of the appellant as a public servant, and the
11
official stalu<: of the appella!lt only furnished the appellant wilh :tn occasion
or .an opportunity of commi1ting the offence. [221E)
Sa1ivan1 Singh V. S1alt' of Pun_iah. rJ960} 2 S.C.R. 89. followed.
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BAIJNATH GUPTA v. STATE (Sarkar, .T.)
211
Hori Ram Singh v. Emperor, [1939] F.C.R. 159,
Gill v. The King,
[1948] F.C.R. 19 and Om Parkash Gllpta v .State of U.P. [1957] S.C.R.
423, relied on.
Amrik Singh v. State of Pepsu, [19551 1 S.C.R. 1302, referred to.
Per Szrkar, J. \Vhcthcr an offence \\.:as committed in the course of
official duty will depend on the facts of each case. The test is whether the
public servant, if challenged, can reasonably claiin that what he did he
did in virtue of his office. [213 G-H; 215 C-Dl
Hori Rani Singh v. The Crolvn, [1939] F.C .. R. 159, Shreekantiah
Ramayya Munipalli v. State of Bombay, [195511 S.C.R. 1177 and Gil/ v.
King. [19481 F.C.R. 19, r·ofcrred to.
The facts of the present case could not be distinguished from those
in Amrik Si11gh's case.
The appellant when charged with the defalcation
of RB. 21,450 could have reasonably said that he sent the amounts to the
treasury as the accounts showed, and that would have been an act in the
performance of his official duty.
In respect of the sum of Rs. 10,000 he
oould similarly have said that he spent them in the discharge of his duty.
Whether he had actually done that or not would be irrelevant for deciding
the necessity for sanction. [215B, D, E-F]
The trial and conviction of the appellant under s. 409 Indian Penal
Code for defalcation of the two sums of Rs. 10,000 and Rs. 21,450 was
therefore1 bad in the absence of the n~cessary sanction. [215 F-G]
Amrik Singh v. State of Pepsu. [1955] 1 S.C.R. 1302, followed .
Om Prakash Gupta v. State of U.P. [!957] S.C.R. 423 and K. Satwant
Singh v. State of Punjab, (1 %01 2 S.C.R. 89, distingushed.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeals Nos.
E
77, 162 and 163 of 1962 and 74 of 1965.
F
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Appeals by special leave from the judgments and orders dated
December 22, 1961 of the Madhya Pradesh High Court (Indore
Bench) at Indore in Criminal Revisions Nos. 262, 263, 265 and
266 of 1960.
A. S. R. Chari, and Ravinder Narain, for the appellant (in
Cr. A. Nos. 66/62 and 74/65).
W. S. Barlingay and A. G. Ratnaparkhi, for the appellant (in
Cr. As. Nos. 162 and 163/62).
I. N. Shroff, for the respondent (in all the appeals).
Sarkar, J. delivered a partly dissenting Opinion.
The Judgment of Hidayatullah and Ramaswami, JJ.
was
delivered
by
Ramaswami, J.
Sarkar J.
I have had the advantage of reading the judgment
to be delivered by my learned brother Rarnaswami in these four
appeals. I agree with him that the appeals by the appellant Kale,
being Criminal Appeals Nos. 162 of 1962 and 163 of 1962 should
be dismissed and have nothing to say in regard to these appeals.
212
SUPRBMI! COURT
REPORTS
[1960] I S.C.R.
The Olilcr two apj><!"ls. n;rntdy. (·rim ma! Appeals No •.. 77 of
A
1962 and 7,; of 1965 ar-: by the appdlant Gupta against bi., conviction under '· ·l 77 A, read with '· I 09, and s. 409 of the Indian
Penal Code.
Ramaswami J. is of the opinion that the conviction
under s. 477 A, rc;td with >. IOlJ, c:annut be sustained as sanction
to start the proceedings had not been duly obtained under s. 197
of the Cude or Crii;1inal Procedure.
This is also my view.
In
B
regard lo the conviction for the other olknc:e. his opinion is that
sanction '"" not ne,·,·s,ary and S(l. that con,iction should bt: upheld.
With this 1icw I am unable to agree and in this judgment
I will deal only with this matter.
The appclianb Gupta and Kale were respectively the Chief
C
Accountant-rnm-011ice Superintendent and Assistant Cashier of
the Madhya Bharat l:.kctric Supply. an enterprise run by tile
Cio\'ernment .i! ~1adhya Bharat. It is nllt di:;riute<l that Gupta was
a public scn:mi who \\JS not rcmo1abk from his ollice save by the
sanction of the 'vi adh)'a Bharat government.
The only poioit is
whether in regard to the charge under s. 409 he was accused of an
D
offence alleged to have been committed by him while acting or
purporting to act in the di<charge of his oflieial duty. If he wai;.
then in \'iew of s. 197 of the Code of Criminal Procedure no court
could take L·ogni;;ince l\f th>.! off~ncc \\'ithou! th 1~ .-;an.:tion nf the
government of Madhy;• Bharat and his c·invic1i,1n under s. 409 of
E
the Indian Penal Codi.! cannot be upheld.
lt appec:rs that in fact a sanction under s. 197 of the Code of
Criminal l'rnccdure w:1' obtained hut as this was done after
cognizance h;1d been taken. it w;:s of no use.
It is clear from the
language of s. 197 that the sanction has to be taken bdore cn~ni7ance has been ta,cn. This indeed is not disputed. It is also ckar
F
from the facts that cognizance of the case had been taken on :\oril
6, 1953 when witne>Ses were summoned on a future date w that
the matter might he enquired into by the magistrate : see Ho'.' Ram
Singh "· The Croirn('). R. /?. Chari v. The State nf Uttar Pradesh(') ;ind Gnpal Marwari v. Ki11r: Emperor('). The sanction
however was obtained on July I, 1953. I, therefore. have t•' proG
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cecd on the basis that the sanction had not been obtained.
•
Criminal Appeal 'lo. 77 of 1962 arises out of a criminal misappropriation by Gupta of Rs. I 0.000 and Criminal Appeal No.
74 of l 965 out of a simi!Jr misappropriation of R;. 21,450. both
of which sUJm were entrusted to him in his official capacity. Tbe
II
(I) [t939) F.C.B. 159, 179.
(2) [t951J S.C.R. 312.
(3) jl943) l.L~. 22 P"I. 433.
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BAIJNATH GUPTA v. STATE (Sarkar. !.)
213'
chalan in the first case was in these terms : "Both the accused in
conspiracy with each other have embezzled an amount of
Rs. 10,000 on 25-8-50 from this Government money and made
false entries of receipt and expenditure in the concerned Government registers for concealment of this embezzlement. From investigation, doing of an offence under ss. 409, 477 A and 34 Indian
Penal Code is proved against both the aforesaid accused. Hence
the charge sheet is submitted for awarding sentences according to·
law." The chalan in the other case states, "Both these accused in
conspiracy with each
other have embezzled :.m
amount of
Rs. 21,133-5-0 on 29-9-50 and expenditure of Rs. 1,450 is shown
and it is written there that this amount has been remitted in the
treasury but actually Rs. 1, J 33-5-0 were remitted in the treasury on
that date and the balance of Rs. 21,450 was embezzled and false
entries were made in the account books.
From an investigation,
the offence under Sections 409, 4 77 A and 34 Indian Penal Code
is found and the Chalan is submitted." There is some confusiou
in the wording of this cbalan but it is not in dispute that what was
meant was that Rs. 21,450 had been embezzled by showing two·
sums of Rs. 21,133-5-0 and Rs. 1,450-0-0. totalling Rs. 22,583-5-0,
as having been sent to the treasury while actually only Rs. 1,133-5-0
had been sent. By "both the accused" the chalans referred to Kak
and Gupta but it is not in dispute that in regard to Kale no sanction
under s. 197 was necessary.
Now the only question is whether in respect of the charges
under s. 409 of the Indian Penal Code, Gupta can be said to havebeen "accused of any offence alleged to have been committed by
him while acting or purporting to act in the discharge of his official
duty". It is said on behalf of the prosecution that in respect of an
offence of criminal breach of trust no sanction is necessary as
such an offence can never be said to be so committed because it
is no part of the official duty of a public servant to misappropriatemoncys of his employer. With that proposition, I am unable to·
agree.
It was rejected by this Court in Shreekantiah Ramayya
Munipalli v. The State of Bombay(') and Amrik Singh v. The
State of PEP SU (2).
I think on the authorities as they stand, it is now clearly estab-·
lished that whether an offence was committed in the course of
official duty will depend on the facts of each case. In Hori Ram
Singh's case(') Sulaiman J. stated at p. 180, "The question whether
a criminal breach of trust can be committed while purporting to
(I) [1955] l S.C.R. 1177.
(2) [1955] I S.C.JI. 1302.
(3) [19391 F.C.R. 159.
"214
syrREME
COURT
REPORTS
[1966] l S.C.R.
.act in executioll. of duty is not capable of being answered hypothetically in the abStract, without any reference to the actual facts of
the case." In the same case, in discussing the test to be applied in
.determining whether or not a11 act is one purported to be done
in execution of duty as a public servant, Varadachariar J. observed
.at p. 187, "I would observe at the outset that the question is sub-
:stantially one of fact, to J;>e determined with referepf<;_ to .the act
·complained of and the attendant circumstances; it seems neither
-useful nor desirable to paraphrase the language of the section i.n
attempting to lay down hard and fast tests." In Gill v. King,( 1 )
Lord SimG.nds in delivering the judgment of the Board observed
that much assistance was to be derived from the judgment of the
Federal Court in Hori Ram Singh's case(2 ) and added, "The test
may well be whether the public servant, if challenged, can reasoncably claim that, what he does, he does in virtue of his office." In
Shreekantiah Ramayya Muni pal/i's case('), Bose J. in delivering
·the judgment of this Court fully agreed with the observations of
V'aradachariar J. which I have earlier quoted.
That case con-
·cerned with a charge under s. 409 as the present case is.
The
:accused there had been charged with dishonest misappropriation
·Of government properties by selling them with intent to pocket the
sale proceeds.
Bose J. held on the facts of that case that the
misappropriation was an act which must be said to have been
-done in the purported discharge of official capacity.
This case
shows beyond doubt that it cannot be laid down as an invariable
proposition that an offence under s. 409 can never be committed
by a public servant while acting in the discharge of his official dt<ty.
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The case nearest to the present is
Amrik Singh v. State of
PEPSU('). There a public officer entrusted with moneys for payF
ment of wages was charged with defalcation of a. sum of Rs. 51
·which he showed as paid to a khalasi (menial
servant) named
Parma on account of wages and which was vouched by a thumb
"impression purporting to be of the payee but which amount it was
alleged had not been paid to the khalasi because there was no one
of that name and the thumb impression was of the accused himself
G
who had misappropriated the money to his own use.
This Court
held that .a sanction was neces;;ary in order to prosecute the public
servant on a charge of this kind. It was observed at p. 131 o. "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
H
(!) [1948] F.C.R. p.19, 40.
~3) [195511 S.C.R. 1177.
(2) [1939] F.C.R. 159.
4) [1955] 1 S.C.R. 1302.
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BA!JNATll GUPTA \'. STATE (Sarkar, J.)
215·
of his duties and can be justified by him as done by virtue of his
office.
Clearly, therefore, sanction was required under s. 197(1)
of the Code of Criminal Procedure before the appellant could be
prosecuted under s. 409 and the absence of such sanction is fatal
to the maintainability of the prosecution. The conviction should,
therefore, be quashed."
I find it impossible to distinguish the facts of that case from
the present. Regarding the defalcation of Rs. 21,450 the chalan
that I have already quoted would show that the defalcation had
been committed by the making of certain false entries in the books
by Gupta and Kale acting in conspiracy.
Whether these entries
were correct or not is not
a matter for investigation when the
question of the necessity for sanction arises.
Applying the test
laid down by the Privy Council in Gill's case (1) the necessity for
the sanction had to be determined by putting the question, could the
accused have reasonably seated that what he had done, he had done
in the course of his official duty? In the present case when charged
with the defalcation of that amount, he could have reasonably
said that he had sent the amounts to the treasury as the accounts
showed and that would have been an act done in the course of his
official duty.
The other amount of Rs. 10,000 was entered in
the accounts on the expenditure side with a note "(diff. of 48)".
This entry appears at a later stage to have been crossed out but
in arriving at the total of the expenses made on that date the
amount of it had been included.
Here also the appellant Gupta
could reasonably have said that he had spent the sum of Rs. 10,000
in the course of his official duty.
Whether he had actually done
that or not would be irrelevant for deciding the necessity for the
sanction.
In view of the decision in Amrik Singh's
case( 2 )
which seems to have applied the principle deducible from authoritative decisions on this question, I think I must hold that the
conviction of the appellant Gupta for defalcation of the two sums
of Rs. 10,000 and Rs. 21,450 was bad in the absence of the
necessary sanction.
Mr. Shroff for the respondent said that the decisions of this
Court in Om Prakash Gupta v. State of U.P. (3 ) and K. Satwant
Singh v. State of Punjab(') showed that the conviction of the
appellant Gupta under s. 409 even in the absence of the sanction
was perfectly valid. I am unable to accept this contention. The
first of these cases dealt with a charge under s. 409 and it was
(1) [1948] F.C.R. p. 19, 4a.
(3) [1957] S.C.R. 423.
(2) [1955] 1 S.C.R. 1302
(4) [1960J 2 s.c.R. 89.
216
SUPlll!MI! COURT
REPORTS
[1966] l S.C.R.
observd :it p. 437, "Quite a large body of case law in all the
High Courts has held that a public servant committing criminal
breach of :n"t docs not normally act in his capacity as a public
servant."
I do not think that this observation at all helps.
All
that it says is that normally an offence under s. 409 cannot be
said to have been committed by a public servant in the discharge
of his ofticial capacity.
l11is clearly implies that there may be
cases where an offenoe under that section may be committed by
a public servant in the discharge of his official duties.
The fact
that on the facts of that case it was held that criminal breach
of trust there alleged h1d not been done in the course of official
duty would not show that on the facts of the present case the
same view must be taken.
It is of some interest to po;nt out
that learned counsel for the respondent did not contend that the
facts of that case were the same as of this case.
K. Satwant Sing h's case(') was concerned with the offence
or cheating under s. 420 of the Indian Penal Code.
Imam J. in
delivering the judgment of this Court in that case approved o'
the test formulated in Amrik Singh'.~ case( 2 )
that the offence
charged must have necessary connection with the performance of
the duties of a public servant.
What had happened there was
that Satwant Singh, a contractor, had entered into conspiracy with
a government official, Henderson, and obtained from him a fal-;e
certificate of work done by him for the government and on the
basis of it received money from the government by cheating the
sovcrnment.
As the two had been tried jointly, it was contended
that the charge against Henderson was in respect of an act done
in the course of his official duty in issuing the certificate and
the trial was bad as no sanction had been obtained.
Imam J.
pointed out that Henderson had not been prosecuted
for
any
offence concerning his act of certification and had been prosecute<l
for abetting the appellant in the act of cheating.
All that the
case decided was that that abetment by Henderson was not an
offence committed by him while acting in the discharge of hi'
official duty and, therefore, s. 197 had no application.
It <cems
to me that the decision might well have been otherwise if Henderson had been prosecuted for a false certificate given by him.
I find nothing in these two cases which would lead me to the
view that the criminal misappropriation alleged
in the present
case had not been committed by Gupta while purporting to ~ct
in the discharge of his official duty. Neither do they furni<h :inv
reason for distinguishing
A mrik Singh's cas~(
2 ).
As T have
(t) [1960]2 S.C R. 89.
(2) [t955] t S.C.R. ll J2
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BAIJNATH GUPTA v. STATE (Ramaswami, J.)
217
A already said, on the facts these two cases are quite distinct from
the case in hand.
B
I would allow both the appeals of the appellant Gupta on
the ground that his conviction under s. 409 also is unsustainable
in the absence of the sanction.
munaswami, J. Criminal Appeals nos. 77 of 1962 and 74
of 1965 are brought, by special leave, on behalf of Gupta against
the judgment of the High Court of Madhya Pradesh, Indore
Bench, Indore dated December 22, 1961
dismissing Criminal
Revision Applications nos. 262 and 263 of 1960 and affirming
c the convictions and sentences imposed on Gupta under ss. 409
and 477-A of the Indian Penal Code.
Criminal Appeals nos.
162 and 163 of 1962 are brought, by special leave, on behalf
of Kale against the judgment of the High Court of Madhya Pradei;h, Indore Bench,_ Indore dated December 22, 1961 dismissing
Criminal Revision Applications nos. 265 and 266 of 1960 and
D maintaining convictions of the appellant under ss. 477-A and
409/109 of the Indian Penal Code.
The appellant-Gupta-was charged with having committed
criminal breach of trust of a sum of Rs. 21,450 on September
29, 1950 and of a sum of Rs. 10,000 on August 25, 1950. In
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respect of these two items he was also charged of having abetted
the offence of falsification of accounts said to have been committed by the appellant Kale.
With regard to these two items
appel1ant Kale was charged under s. 477-A for falsification of
accounts and under ss. 409/109 for abetment of criminal breach
of tmst committed by appellant-Gupta. The Indore Electric
F
Power House was a Government concern at the time the alleged
offence was committed.
The appellant-Gupta-entered the
service of the Power House as a Clerk in the year 1933.
He was
promoted to the post of Cashier and Accountant in the Power
House in the year 1938 and worked in that capacity till June,
194P. and thereafter he was appointed as Office SuperintendentG cum-chief Accountant of the Power House.
At that time Shri
Sibbal was the Chief Electrical Engineer and General Manager
of the Power House while Shri Narsingh Venkatesh Murti was
the Assistant General Manager. Appellant Kale was working as
a Cashier in the relevant period.
In the Power House there was
a practice of having two daily account-books, one rough and the
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other fair and according to the practice, the daily transactions of
receipt of cash and expenditure used to be entered in the rough
cash book by the Cashier, Kale. Each day he would strike the
218
SUPREME COURT
REPORTS
[1966) I S.C.R.
balance and the appellant Gupta and the Assistant General Manager Murti would check and countersign the entries in the rough
cash-books.
A part oi the cash balance used to be deposited in
the Government Treasury
and the remaining
cash used to be
kept in the safe of the Power House under lock and key.
According to the prosecution case the key of the safe always remained
with appellant Gupta and he had the dominion over the cash in
the safe. Accounts in the rough cash-book were written by appellant Kale and, as already stated, the accounts were checked and
countersigned by appellant Gupta every day.
In the year l 9~2.
Shri Sibbal suspected embezzlement of huge amounts of cash and
therefore an audit party was called for auditing the accounts. It
was found that in al!. a sum of Rs. 77,000 and odd was unaccounted for and some of the cash-books were
no: even
written. The matter was accorJiilgly reporte<l
to
the
police.
The prosecution case was that though the rough cash-book showed
that on S.:ptembcr 29. 1950 a sum of Rs. 21,D3-5-0 was sent
to the Treasury by appellant Gupta, the Treasury figures in the
challan showed that on that day only a sum of Rs. 1.133-5-0 was
deposite<l into the Treasury and thus a sum of Rs. 20,000 was
dishonestly misappropriated. Similarly, another item of Rs. 1,450
was falsely shown in the said cash-book of the same date as having
been deposited into
the treasury though in fact it was not so
deposited and thus this item was also mi>appropriated.
Hence
it was alleged that a
sum of Rs. 21,450 wa> dishonestly misappropriated on September 29, 1950 by Gupta who wa' entrusted
with the said amount or had dominion over it and he got the
false entries to that eliect made in the rour.h cash-book of that
date by Kale.
With regard to the other ite'ii1 of Rs. l 0.000 the
prosecution case was that the cash balance on August 25. 1950
was Rs. 63,894-9-6 but the entry of Rs. 10.000 on the payment
side was scored by Kale at the instance of Gupta who misappropriated the amount.
The false entry was made by Kale to cover
the abstraction of Rn. I 0.000 and later cancelled by Gupta. It
therefore, remained unaccounted for.
It was also alle~ed that in
respect of this amount. Gupta committed criminal breach of trust
and abctment of the olience of the falsification of accounts. The
charge against Kale was that with rei!ard to both Rs. 21.450 ""d
Rs. I 0.000 he wilfully made the false entries in the dailv cash
book and that he also abetted criminal breach of trust committed
by Gupta.
It was stated by Gupta in defence that he was not
in possession of the safe or its keys or th~ cash of the Power
House at the relevant time.
His case was that he worked a.,
Ca.shier up to May-June, 1948 and thereafter he wa.<; promoted
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BAIJNATH GUPTA v. STATE (Ramaswami, J.)
219
A as Office Superintendent-cum-Chief Accountant and that he
handed over the charge of the post of the Cashier and of the cash
and the key of the safe to Sadashiv Bapat (P .W. 5) and after that
he had nothing to do with the cash of the Power House. He also
denied having abetted the offence of falsification of account said
to have been committed by Kale. The case of Kale was that he
B did make all the entries in the rough cash-book with regard to
the items of Rs. 21,450 and Rs. 10,000 but Kale alleged that
he made those entries at the instance of appellant Gupta who was
his Office Superintendent. It was pleaded by Kale that he did
not abet appellant Gupta in the criminal misappropriation of the
C an1ounts.
The trying Magistrate held that appellant Gupta was
in charge of the cash, the safe and its key at the relevan~ period
and that he was entrusted or had dominion over the cash of the
Power House and that he committed criminal breach of trust in
regard to the two sums of Rs. 21,450 and Rs. 10,000.
He also
held that in respect of these two sums appellant Gupta abetted the
D offence of falsification of accounts under s. 4 77-A, Indian Penal
Code by appellant Kale who made false entries in the rough CashBook. Accordingly he convicted appellant Gupta under s. 409
and 477-A/ 109, Indian Penal Code and sentenced him on each
of the two counts in both the cases.
With regard to appellant
Kale the trying Magistrate rejected his defence that he made
E entries in the rough cash-book mechanically without any fraudulent intention.
His finding was that Kale made the entries in the
cash-book wilfully with the intention to defraud the Power House
and that he abetted appe!1ant Gupta in the criminal misappropriation.
He accordingly convicted Kale under ss. 4 77-A and 409 /
109, Indian Penal Code in the two criminal cases for the two
F
respective amounts of Rs. 21,450 and Rs. 10,000.
Both Kale
and Gupta preferred appeals against their convictions in the Court
of the Sessions Judge, Indore but the appeals were dismissed by
the First Additional Sessions Judge, Indore who maintained the
convictions with regard to the two items of the cash-book already
mentioned.
The two appellants thereupon filed revision appliG cations to the High Court of Madhya Pradesh which dismissed
the revision applications and confirmed the conviction and
sentence imposed upon the appellants.
Criminal Appeals Nos. 77 of 1962 & 74 of 1965:
The principal question of Jaw arising in these two appeals is
H
whether the conviction of the appellant-Gupta-under ss. 409
and 477-A of the Indian Penal Code is i1legal as sanction of the
State Government was not given to his prosecution under the
LS Sup. Cl/65-15
220
SUPJ.EMI COtaT llEPORTS
[1966] I S.C.R.
provisions of s. 197 of the Criminal Procedure Code.
Sechon
A
197 (I) of the Criminal Procedure Code states as follows :
"197. (1) When any person who is a Judge within
the meaning of section 19 of the Indian Penal Code, or
when any Magistrate, or when any public servant who
is not removable from his office save by or with the
R
sanction of a 'State Government'
or 'the
Central
Government', 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, no Court shall
take cognizance of such offence except with the 'previous
sanctionC
(a) in the case of a person employed in connection with the affairs of the Union, of the Central Government; and
·
( b) in the case of a person employed in connection
with the affairs of a State. of the State Government.".
lfori Ram Singh v. Empemr( 1 ) is a decision of the Federal Court
on the necessity for sanction under s. 270 of the Government of
•
India Act, 1935, which is similar to s. 197(1) of the Code of
Criminal Procedure in its purpose and intent. The facts in that
E
case were that a Sub-Assistant Surgeon was charged under s. 409
with having dishonestly removed certain medicines from a hospital which was under his charge, to his own residence, and under
s. 477-A, with having failed to enter them in the stock book.
The sanction of the Government had not been obtained for the
prosecution under s. 270 of the Government of India Act. The
F
question for decision in that case was whether such sanction was
necessary.
It was held by the Federal Court that the charge under
s. 477-A required sanction, as 'the official capacity is involved
in the very act complained of as amounting to a crime'; but that
no sanction was required for a charge under s. 409. became 'the
official capacity is material only in connection with the entrust-
(;
ment and does not necessarily enter into the later act of misappmpriation or conversion, which is the act complained or.
In the
course of the judgment. Varadachariar, J. discussed the scope or
'· 197 (I) of the Criminal Procedure Code and after observing
that the decisions on that section were not uniform, proceeded
to group them under three categories-those which had held that
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sanction was necessary when the act complained of attached to
... -·.
(t) (19,9) F.C.R. t59.
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BAIJNATI! GUPTA v. STATE (Ramaswami, J.)
22 I
the official character of the person doing it, those which had held
that it was necessary in all cases in which the official character
of the person gave him an opportunity for the commission of
the crime, and those which had held it necessary when the offence
was committed while the accused was actually engaged in the
performance of official duties.
Varadachariar, J. expressed his
agreement with the first of the three views.
At page 187 of the
Report the learned Judge states :
"In one group of cases, it is insisted that there must
be something in the nature of the act complained of
that attaches it to the official character of the person
doing it.-[cf. ln re Sheik Abdul Khadir Saheb (A.I.R.
1917 Mad. 344); Kamisetty Raja Rao v. Ramaswamy
(LL.R. 50 Mad. 74) Amanat Ali v. Emperor (A.I.R.
1929 Cal. 724); Emperor v. Maung Bo Maung (I.LR.
13 Rang. 540); and Gurushidayya Shantivirayya Kulkarni v. Emperor (A.LR. 1939 Born. 63)]. In another
group more stress has been laid on the circumstance
that the official character or status of the accused gave
him the opportunity to commit the offence.
It seems
to me that the first is the correct view.
In the third
group of cases, stress is laid almost exclusively on the
fact that it was at a time when the accused was engaged
in his official duty that the alleged offence was said to
have been committed [see Gangaraju v. Venki (I.L.R.
52 Mad. 602, at p. 605) quoting from Mia-a's Commentary on the Criminal Procedure Code].
The use
of the expression 'while acting' etc. in s. 197 of the
Criminal Procedure Code (particularly its introduction
by way of amendment in 1923) has been held to lend
some support to this view.
While I do not wish to
ignore the significance of the time factor, it does not
seem to me right to make it the test. ·To take an
illustration suggested in the course of the argument, if
a medical officer, while on duty in the hospital, is alleged
to have committed rape on one of the patients or to
have stolen a jewel from the patient's person, it is difficult to believe that it was the intention of the Legislature
that he
could not be prosecuted for such offences
except with the previous sanction of the Local Government.
In Gill v. The King.(') the question arose directly with reference to s. 197 (1) of the Criminal Procedure Code.
Jn that
(1) [1948] F.C.R. 19.
222
SUPllEMB COUit! REPORTS
[t966J I s.c.R.
case the accused was charged under s. 161 with taking bribes,
and under s. 120-B with conspiracy.
On the question whether
sanction was necessary under s. 197 (I) it was held by the Judicial Conunittee that there was no difference
in scope
between
that section and section 270 of the Government of India Act,
1935, and approving the statement of the law by Varadachariar, J.
in Hori Ram Singh v. Emperor, ( 1 ) Lord Simonds observed in
the course of his judgment at page 40 of the Report :
"In the consideration of s. 197 much assistance is
to be derived from the judgment of the Federal Court
in Hori Ram Singh v. The Crown ([1939) F.C.R. 159),
and in particular from the careful analysis of previous
authorities which
is to be found
in the opinion of
Varadachariar, J. Their Lordships, while admitting the
cogency of the argument that in the circumstances prevailing in India
a large measure of protection from
harassing
proceedings
may be necessary for public
officials, cannot accede to the view that the relevant
words have the scope that has in some cases been given
to them.
A public servant can only be said to act
or to purport to act in the discharge of his official duty.
if his act is such as to lie within the scope of his official
duty.
Thus, a judge neither acts nor purports to act
as a judge in receiving a bribe, though the judgment
which he delivers may be such an act : nor does a Government medical officer act or purport to act as a public
servant in picking the pocket of a patient whom he is
examining, though the examination itself may be such
an act.
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.
Applying such a
test to the present case, it seems clear that Gill could
not justify the acts in respect of which he was charged
as acts done by him by virtue of the office that he held.
Without further examination of the authorities their
Lordships, finding themselves in general agreement with
the opinion of the Federal Court in the case cited. think
it sufficient to say that in their opinion no sanction
under s. 197 of the Code of Criminal Procedure was
needed."
The view expressed by the Judicial Committee in Gill v. The
King(•) was followed by the Judicial Committee in the later cases
(I) (1939) F.C.R. 159.
(2) !1948] F.C.R. 19.
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223
Albert West Meads v. The King( 1) and Pharlindra Chandra v.
The King( 2 ) and has been approved by this
Court in R. W.
Mathams v. State of West Bengal. (8 )
It is not every offence
committed by a public servant that requires sanction for prosecution under s. 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 s. 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 protection. It is only when
it is either within the scope of the official duty or in excess of
it that the protection is claimable.
Applying the principle to the present case, we are of opinion
that sanction of the State Govermnent was not necessary for the
prosecution of Gupta under s. 409 of the Indian Penal Code,
because the act of criminal misappropriation was not committed
by the appellant while he was acting or purporting to act in the
E discharge of his official duties and that offence has no direct connection with the duties of the appellant as a public servant, and
the official status of the appellant only furnished the appellant
with an occasion or an opportunity of committing the offence.
With regard to the other charge under ss. 477-A/109 of the
F Indian Penal Code the legal position is different and, in our opinion, the sanction of the State Government is necessary for the
prosecution of the appellant on this charge because it was committed within the scope of official duties, though in dereliction of
them.
G
On behalf of the appellant Mr. Chari referred to the decision
of this Court in Amrik Singh v. The State of Pepsu( 4 ) and submitted that even with regard to the charge under s. 409, Indian
Penal Code the sanction of the State Government would be neces-
'
sary.
In that case the appellant was a Sub-Divisional Officer in
the Public Works Department, Pepsu and at the material date he
H
was in charge of certain works at a place called Karhali.
Jt was
(I) 75 I.A. 185.
(2) 76 I.A. 10.
(3) [1915] I S.C.R. 216.
(4) [1955] 1 S.C.R. 1302.
224
SUPllBKB comT REPOllTS
[1966) I S.C.R.
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 shown as paid
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to him for his wages, the payment being vouched by thumbimpression.
The case of the prosecution was that there was, in
fact, no person of the name of Parma, that the thumb-impression
found in the acquittance roll was that of the appellant himself,
that he had included a fictitious name in the acquittance roll, with
intent to himself draw the amount, and that by this expedient he
had received Rs. 51 and misappropriated the same.
It was held
r
by the High Court of Pepsu that the appellant was guilty both
under s. 465 and s. 409 of the Indian Penal Code and the sanction of State Government was not necessary for either of the
charges.
It was conceded on behalf of the respondent in this
Court that the sanction was necessary with regard to the charge
0
under s. 465 but with regard to the charge under s. 409 also it
was held by this Court that sanction of the State Government wa'
necessary and conviction of the appellant on both the charges was
quashed.
Speaking for the Court Venkatarama Ayyar, J.
approved the principle expressed by the Federal Court in Hori Ram
Singh v. Emperor(') and also by the Judicial Committee in Gill
E
v. The King(') Mr. Chari relied much on the decisions of this
Court in Amrik Singh v. The State of Pepsu(') and submitted
that it supported the appellant's case. We need not examine how
far the decision in Amrik Singh's(') case can stand in view of the
earlier decisions of the Judicial Committee and the two subsequent decisions of a larger Bench of this Court in Om Prakash
Gupta v. State of U.P.(') and in Satwant Singh v. The State of
Pun;ab.(')
In Om Prakash Gupta v. State of U.P.,(') it was
pointed out, at page 43 7 vf the Report, that sanction to
the prosecution of a public servant under s. 409 of the Indian
Penal Code is not necessary since the public servant is not acting
F
in his official capacity in committing criminal breach of trust. In G
the other case, Satwant Singh v.
The State of Punjab(').