# P. ARULSWAMI v. THE STATE OF MADRAS

- **Citation:** [1967] 1 S.C.R. 201
- **Court:** Supreme Court of India
- **Decided:** 1966-08-29
- **Case number:** Criminal Appeals Nos. 130 & 131 of 1964
- **Bench:** V. Ramaswami, V. Bhargava, Raghubar Dayal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/p-arulswami-v-the-state-of-madras-3813
- **Pages:** 6

## Headnote

Madras Vl/Jage Panchayats Act (Mad. Act X of 1960), s. 106--ln
language sinlJJoT 10 s. 197 ( 1) Cr. P.C.-Sanclion of State Government for
prosecution for offenc• under s. 409 J.P.C.-Whether requir.ed-Circums•
ranees in which such sanction necessary.
·
The appellant, who was the Preside11t of a Pancbayat Board,
was
charged with an offence under s. 409, I.P.C. for not bringing to account
in the book of the Phllchayat Board a sum of Rs. 4,000, belonging to the
Board. The trial court was not satisfied that the prosecution bad proved
the charge and therefore acquitted the appellant ' but, on appeal,
the
High Court accepted the prosecution evidence and convicted him.
It was contended on behalf of the appellant that the proS<lCution against
him was not maintainable for want of sanction by the State GO\-emment
under s. 106 of the Madras Village Paiu:hayats Act (Mad. Act X of 1960);
but the High Court rejected this contention.
On appeal to this Court.
HELD : Sanction of the State Government
was not
DP...Cessary for
the prosecution of the appellant under s. 409, Indian Penal .Code.
As in the case of s. 197(1) of the Criminal Procedure Code, which
is in similar language to s. 106 of the Madras Act, it is not every offence
committed by a public servant that requires
sanction for
prosecution;
nor even every act done by him while be is actually engaged in the
performance of his official duties; but if the act complained Qf is directlv
concerned with his official duties so that, if questioned, it could bC
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 bis official <luties 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 ther~ 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. [205 D-FJ
Cue law reviewed.
CRIMINAL
APPELLATE
JURISDICTION : Criminal
Appeals
Nos. 130 & 131 of 1964.
Appeals by special leave from the Judgment . and order dated
December 3, 1963 of the Madras High Court in Criminal Appeals.
Nos. 380of1961 and 72 of 1962 respectively.
201
Ml4Sup.C.I./66'-14
202
SUPREME COURT REPORTS
[J 967] I S.C.R
R. Ganapathy
Iyer, for
the appellant
(in
both
the
A
appeals}.
A. V. Rangam, for the respondent (in both the appeals).

## Text

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P. ARULSWAMI
v.
THE STATE OF MADRAS
August 29, 1966
[V. RAMASWAMI, V. BHARGAVA AND RAGHUBAR DAYAL, JJ.]
Madras Vl/Jage Panchayats Act (Mad. Act X of 1960), s. 106--ln
language sinlJJoT 10 s. 197 ( 1) Cr. P.C.-Sanclion of State Government for
prosecution for offenc• under s. 409 J.P.C.-Whether requir.ed-Circums•
ranees in which such sanction necessary.
·
The appellant, who was the Preside11t of a Pancbayat Board,
was
charged with an offence under s. 409, I.P.C. for not bringing to account
in the book of the Phllchayat Board a sum of Rs. 4,000, belonging to the
Board. The trial court was not satisfied that the prosecution bad proved
the charge and therefore acquitted the appellant ' but, on appeal,
the
High Court accepted the prosecution evidence and convicted him.
It was contended on behalf of the appellant that the proS<lCution against
him was not maintainable for want of sanction by the State GO\-emment
under s. 106 of the Madras Village Paiu:hayats Act (Mad. Act X of 1960);
but the High Court rejected this contention.
On appeal to this Court.
HELD : Sanction of the State Government
was not
DP...Cessary for
the prosecution of the appellant under s. 409, Indian Penal .Code.
As in the case of s. 197(1) of the Criminal Procedure Code, which
is in similar language to s. 106 of the Madras Act, it is not every offence
committed by a public servant that requires
sanction for
prosecution;
nor even every act done by him while be is actually engaged in the
performance of his official duties; but if the act complained Qf is directlv
concerned with his official duties so that, if questioned, it could bC
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 bis official <luties 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 ther~ 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. [205 D-FJ
Cue law reviewed.
CRIMINAL
APPELLATE
JURISDICTION : Criminal
Appeals
Nos. 130 & 131 of 1964.
Appeals by special leave from the Judgment . and order dated
December 3, 1963 of the Madras High Court in Criminal Appeals.
Nos. 380of1961 and 72 of 1962 respectively.
201
Ml4Sup.C.I./66'-14
202
SUPREME COURT REPORTS
[J 967] I S.C.R
R. Ganapathy
Iyer, for
the appellant
(in
both
the
A
appeals}.
A. V. Rangam, for the respondent (in both the appeals).
The Judgment of the Court was delivered by
Ramaswami, J.
Criminal Appeal No. 130 of 1964:
This appeal is brought, by special leave, from the judgment
of the Madras High Court dated December 3, 1963 in Criminal
Appeal No. 380 of 1961 by which the appellant was convicted under
s. 409, Indian Penal Code and sentenced to rigorous imprisonment for one year.
The appellant was elected President of the Nerinjipet Panehayat
Board on May 17, 1958. At that time he was a duly elected member of the Board. It appears that a sum of Rs. 4,000 of the
Board had l:e!n invested in four National Plan Savings Certificates in the Bhavani Post Office.
It was alleged that the appellant cashed them on February 11, 1959 and did not bring the amount
in the account books of the Panchayat Board.
The defence of
the appellant was that he signed the certificates and handed them
over to P.W. 4, the Deputy Panchayat Officer of the block within
which the village was located. This was done by the appellant
because P.W. 4 approached him and asked him that the Board
should subscribe through him for small savings certificates for
Rs. 7,000 just as the Panchayat had subscribed Rs.
7,000
through Tahsildar representing the Revenue Department. For
that purpose P.W. 4 got Rs. 500 in cash on December 2, 1958
and a cheque for Rs. 2.500 on February 9, 1959. It was the
case of the appellant that P.W. 4 represented that along with this
sum of Rs. 3,000 he would cash the National Plan Savings Certificates of the total value of Rs. 4,000 and purchase small savings
.certificates for Rs. 7 ,000 that being his quota from the Narinjipct
Panchayat. To enable P.W. 4 to make the purchase, the appellant endorsed the National Plan Savings Certificates and handed
them over to P.W. 4.
The Sqb-Divisional Magistrate, Erode was
not satisfied that the prosecution had proved the charge and therefore acquitted the appellant, but on appeal the High Court ac-
<:epted the prosecution evidence that it was the appellant who
<:a.shed the certificates at the Post Office and not P.W. 4 and accordingly found the appellant guilty of the offence.
It was argued on bealf of the appellant in the High Court
that prosecution was
not maintainable for want of sanction
by the State Government under s. 106 of the Madras Village
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ARULSWAMI v. STATE (Ramaswami. !.)
203
Panchayats Act (Madras Act X of 1950) (hereinafter called the
'Madras Act'). That section reads as follows :
"106. When the president, executive authority or any
member, 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 olfence except with the previous sanction of
the Government."
Sanction for the prosecution was, however, given in this case by the
Collector and not by the Government under powers purported to
have been delegated to him under s. 127 of the Madras Act
which provides :
"127.
(1) The Government may, by notification,
authorize any authority, officer or person to exercise in
any local area, in regard to any panchayat or any class of
panchayats or all panchayats in that area, any of the powers
vested in them by this Act except the power to make rules;
and may in like manner withdraw such authority.
"
The High Court held that no sanction of the Government was
necessary as the appellant had ceased to hold the office of President
when the prosecution was launched and further that the sanction of
the Collector was sufficient in law.
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The question of law involved in this appeal is whether the sancF
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tion of the Government under s. 106 of the Madras Act is necessary
for the prosecution of the appellant for the offence under s. 409,
Indian Penal Code.
On behalf of the appellant it was contended that the sanction
granted by the Collector was not valid in law and sanction should
have been given under s. 106 of the Madras Act by the State
Government. It was submitted th~t s.127(1) of the Madras Acthas
not authorised the Government to delegate the power for granting
sanction under s. 106, to the Collector. and that what was delegated
was the power of the State Government in respect of any panchayat
or any class of panchayats or all panchayats in any local area, but
the power under s. 106 that could be exercised was only a power in
regard to the President or any member of the panchayat. It was
therefore submitted that the Government did not delegate its powers
under s. 106 of the Madras Act by virtue of the authority conferred
under s. 127(1 ). It is not necessary for us to express any concluded
opinion on the argument put forward by the appellant, for we consider that no sanction of the Government under s. 106 of the
.Madras Act is necessary for the prosecution of the appellant on the
charge under s. 409, Indian Penal Code, and the conviction of the
appellant on that charge is not invalid on this account.
2 04
SUPREME COURT REPORTS
(1967] I S.C.R.
Hori Ram Singh v. Emperor(') was 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
Proeedure and s. 106 of the Madras Act. The facts in that 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 t>ook.
The sanction
of the Government had not been obtained for the prosecution under
s. 270 of the Government of India Act. The 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, because '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. In Gil/ v. The King(.2) the question
arose directly with reference to s. 197( I) of the Criminal Procedure
Code. In that case the accused was cliarged under s. 161 "with taking
bribes, and under s. 120-B with conspiracy. On the question whether
sanction was necessary under s. 197(1) it was held by the Judicial
Committee that there was no difference in scope between that sanction and section 270 of the Government of India Act, 1935, and
approving the statement of the law by Varadachariar, J. in Hori
Ram Singlz v. Emperor,('> 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 publi<.;. servant can orily be
said to act or to purport to act ill' 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
whicli 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,
(1) [1939] F. C. R. IS9.
(2J [1948J F. C. R. 19.
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ARULSWAMI v. STATE (Ramaswami, I.)
205
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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
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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."
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The view expressed by the Judicial ColJ11l1ittee in Gill v. The King(!)
was followed by the Judicial Committee in the later cases; Albert
West Meads v. The King(2) and Phanindra Chandra v. The King(3) and
has been approved by this Court in R. W. Mat}zams v. State of West
Benga/(4). It is not therefore 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 dorie 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. Aq offenc<i. Jllay
be entirely unconnected with the official duty as such or ii may
be committed within the scope of the official duty. Wherd 'i~ 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. The same prin<liple
has been expressed by this Court in Om Prakash Gupta v. State of
U.P.(5) in which it was pointed out 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 in his official capacity
in committing criminal breach of trust. In a later cas.e-Satwant
Singh v. The State of Punjab(6), it was held that if a public servant
commits the offence of cheating or abets another so to cheat, the
offence committed by him is not one while he is acting or purporting
to act in the discharge of his official duty. The same view has been
taken by this Court in a later decision-Baijnatli Gupta and Ors.
v. The State of Madhya Pradesh(1). and it was held that the sanction
of the State Government was not· necessary for the prosecution of
(I) [1948] F.C.R. 19.
(2) 7S I.A. 185.
(3) 76 I.A. 10.
.
(4) 11955] 1 S.C.R. 216.
(5) (1957] S.C.R. 423.
(6) [1960] 2 S.C.R. 89.
(7) [1966] I S.C.R. 210.
206
SUPREME COURT REPORTS
[1967] l S.C.R.
the appellant 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 discharge of his official
duties and that offence had no direct connection with the duties of
the appellant as a public ~ervant, and the official status of the appellant only furnished the appellant with an occasion or an opportunit}· of committing the offence.
Section 106 of the Madras Act is similar in language to s. 197
of the Criminal Procedure Code and for the reasons already expressed we are of the opinion that the sanction of the State Government was not necessary for prosecution of the appellant under s.
409, Indian Penal Code.
We accordingly reject the argument of
learned Counsel for the appellant on this aspect of the case and di~
miss this appeal.
Criminal Appeal No. 131 of 1964 :
This appeal is brought, by special leave, from the judgment of
the Madras High Court dated December 3. 1963 in Criminal Appeal
"io. 72 of 1962 convicting the appellant of the offence under s. 409,
Indian Penal Code and sentencing him to rigorous imprisonment for
6 months.
The question of law involved in this appeal is the same as in
Criminal Appeal No. 130 of 1964 and for the reasons given in that
case we hold that the sanction of the Government is not necessary
for prosecution of the appellant under s. 409, Indian Penal Code
and the conviction of the appellant on that charge is not defective
in l:m.
This appeal also must be dismissed.
R.KP.S.
Appeals dismissed.
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