Amrik Singh vs The State Of Pepsu

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 48 of 1954

Decision Date: 28 February 1955

Coram: Natwarlal H. Bhagwati, T.L. Venkatarama Ayyar

In the matter titled Amrik Singh versus The State of Pepsu, the Supreme Court of India rendered its judgment on the twenty-eighth day of February, 1955. The decision was authored by Justice Natwarlal H. Bhagwati, who also sat on the bench alongside Justices Ayyar, T. L. Venkatram, Das, and Sudhi Ranjan Bhagwati. The petitioner in the appeal was Amrik Singh, while the respondent was the State of Pepsu. The judgment was recorded under the citations 1955 AIR 309 and 1955 SCR (1) 1302. The case concerned a charge of criminal misappropriation made against a public servant and examined the requirement of obtaining sanction for prosecution under section 197(1) of the Code of Criminal Procedure, as provided in the Criminal Procedure Code (Act V of 1898), specifically referencing the provision noted as section 19 7(1). The central issue before the Court was whether every offence committed by a public servant, or every act performed by him while carrying out official duties, necessarily demanded prior sanction before a prosecution could be instituted.

The Court clarified that not every offence committed by a public servant triggers the need for sanction under section 197(1) of the Code of Criminal Procedure, nor does every act performed by him in the course of his official duties automatically require such sanction. The requirement for sanction arises only when the act alleged is directly connected to the official duties of the servant in such a way that, if questioned, it could be asserted that the act was undertaken by virtue of the office held. In such circumstances, sanction is indispensable, irrespective of whether the conduct represents a proper discharge of duties. The Court emphasized that any defence based on the propriety of the servant’s actions is a matter to be examined at trial on the merits and cannot be resolved at the preliminary stage of granting sanction, which must be secured before the initiation of prosecution. Consequently, the necessity of sanction in a criminal misappropriation charge depends on whether the acts complained of hinge on the servant’s official responsibilities; if they do, sanction is required, and if they are unrelated, no sanction is needed. The Court referred to several earlier decisions for guidance, including Hori Ram Singh v. Emperor ([1939] F.C.R. 159), H. H. B. Gill v. The King ([1948] L.R. 75 I.A. 41), Albert West Meads v. The King ([1948] L.A. 75 I.A. 185), Phanindra Chandra v. The King ([1949] L.R. 76 I.A. 10), B. W. Mothavzs v. State of West Bengal ([1955] 1 S.C.R. 216) and Shreekantiah Ramayya Munipalli v. The State of Bombay ([1955] 1 S.C.R. 1177).

The appeal was brought under criminal appellate jurisdiction as Criminal Appeal No. 48 of 1954. Special leave to appeal was granted by an order of the Supreme Court dated the thirty-first of July, 1953, permitting review of a judgment and order dated the fifteenth of May, 1953, delivered by the High Court of Judicature for the State of Pepsu at Patiala in Criminal Appeal No. 140 of 1952. That judgment, in turn, arose from a decision of the Court of Magistrate First Class, Patiala, dated the thirty-first of March, 1952, in Challan Case No. 160/102 of 1951. Counsel for the appellant was a senior advocate assisted by a junior, while counsel for the respondent was a team of senior advocates supported by additional counsel. The judgment of the Supreme Court was pronounced on the twenty-eighth of February, 1955, and the opinion was delivered by Justice Natwarlal H. Bhagwati.

The appellant served as a Sub-Divisional Officer in the Public Works Department of the State of Pepsu and, at the material dates, was responsible for supervising certain works at a place called Karhali. It fell within his duties to disburse the wages of the workmen employed on those projects. The usual practice was that the required sum was drawn from the treasury and then paid to the employees against their signatures or thumb-impressions recorded in a monthly acquittance roll. In the roll for April 1951 a laborer named Parma was entered as a khalasi (menial servant) and a payment of Rs 51 was shown as having been made to him; the payment was vouched by a thumb-impression recorded in the roll. The prosecution alleged that no person named Parma actually existed, that the thumb-impression in the roll was that of the appellant himself, and that he had inserted a fictitious name in order to draw the amount to his own benefit. According to the prosecution, the appellant therefore received Rs 51 and misappropriated that sum. The First-Class Magistrate of Patiala framed two charges against the appellant: one under section 465 of the Indian Penal Code for forging the thumb-impression of Parma, and another under section 409 of the Indian Penal Code for criminal misappropriation of the Rs 51. After a full trial the magistrate acquitted the appellant, holding that there was indeed a khalasi named Parma employed by the accused at Kehrauli and, although the thumb-impression in the roll matched the appellant’s, the prosecution had failed to prove that the amount drawn by him did not reach the hands of Parma. The State appealed this acquittal to the High Court of Pepsu. The High Court rejected the magistrate’s findings, concluding that proof that the thumb-impression in the acquittance roll belonged to the appellant, when considered together with the surrounding circumstances, was sufficient to establish his guilt, and consequently convicted him under both sections 465 and 409. The present special-leave appeal is directed against that judgment. Counsel for the appellant argued that the conviction was illegal because no sanction under section 197(1) of the Code of Criminal Procedure had been obtained for the prosecution, that the evidence on record was insufficient to sustain either a charge of forgery or of criminal misappropriation, and that having been acquitted by the trial magistrate, the appellate court had no authority to reverse that verdict. The question of sanction under section 197(1) was presented first, as it went to the root of the matter. The material facts were that the Department had applied for a sanction to prosecute the appellant for an offence under section 409, and that the Chief Secretary of the Home Department had sent a communication, Exhibit PX, stating that he had been directed to convey the Government’s sanction. No objection was raised before the trial magistrate or the High Court regarding the validity of the sanction. However, after the High Court’s decision it emerged that no actual order of Government sanction existed and that the Chief Secretary’s communication had been issued in error. Consequently, the prosecution that led to the appellant’s conviction had been instituted without any sanction under section 197(1). If such sanction is indeed required, as contended by the appellant’s counsel, the entire proceeding—including the conviction—must be set aside. The respondent, on the other hand, maintained that the principal charge was under section 409 and that no sanction was required for that prosecution.

The Court observed that the Department had applied for authorisation to prosecute the appellant for an offence punishable under section 409, and that the Chief Secretary of the Home Department transmitted a communication identified as Exhibit PX, stating that he had been “directed to convey sanction of the Government to his prosecution.” Because of this communication, no issue was raised before either the trial magistrate or the High Court that the prosecution lacked the required sanction. After the High Court disposed of the appeal, it emerged that in reality there was no formal order of Government sanction for the prosecution and that the Chief Secretary had erred in sending Exhibit PX. Accordingly, the prosecution that led to the appellant’s conviction had been commenced without any sanction under section 197(1) of the Code of Criminal Procedure, and, if such sanction were required as contended by counsel for the appellant, the entire proceedings—including the conviction—would have to be set aside. The respondent, however, maintained that the principal charge against the appellant was under section 409 and that no sanction is necessary for a prosecution under that provision. The issue therefore was whether section 197(1) of the Code of Criminal Procedure mandates sanction for prosecuting the appellant under section 409. The Court noted that judicial opinion on the scope of section 197(1) has been markedly divergent, though the matter has lately been examined by the highest courts of the country and by the Privy Council, leading to a position that can now be regarded as fairly settled. The Court referred to Hori Ram Singh v Emperor, a Federal Court decision concerning the necessity of sanction under section 270 of the Government of India Act, 1935, which parallels section 197(1) of the Code of Criminal Procedure. In that case, a Sub-Assistant Surgeon had been charged under section 409 for dishonestly removing medicines from a hospital under his charge to his residence, and under section 477-A for failing to record the medicines in the stock-book. No Government sanction had been obtained for prosecution under section 270, and the Court had to decide whether sanction was required. It held that the charge under section 477-A required sanction because “the official capacity is involved in the very act complained of as amounting to a crime,” but that no sanction was needed for the charge under section 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” (1939 F.C.R. 159). In the same judgment, Justice Varadachariar examined the scope of section 197(1) of the Code of Criminal Procedure, observed the lack of uniformity in decisions, and classified them into three categories—those which had

It was held that a sanction was required when the act complained of was attached to the official character of the person who performed it; it was also held that sanction was necessary in all cases where the official character of the person gave him an opportunity to commit the crime; and it was further held that sanction was required when the offence was committed while the accused was actually engaged in the performance of official duties. The learned judge expressed his agreement with the first of these three views. In H. H. B. Gill v. The King (1) the issue arose directly under section 197(1) of the Code of Criminal Procedure. In that case the accused had been charged under section 161 for taking bribes and under section 120-B for conspiracy. On the question of whether sanction was necessary under section 197(1) the Privy Council held that there was no difference in scope between that provision and section 270 of the Government of India Act, 1935, and, approving the statement of law made by Varadachariar, J. in Hori Ram Singh v. Emperor (2), Lord Simonds observed: “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… 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.” Accordingly, it was held that because the acts with which the accused was charged could not be justified as having been done by virtue of his office, no sanction was required. The view expressed in H. H. B. Gill v. The King (1) was subsequently followed by the Privy Council in A16 ert West Meads v. The King (—), reaffirmed in Phanindra Chandra v. The King (1) [1948] L.R. 75 I.A. 41, and adopted by this Court in R. W. Mathams v. State of We8t Bengal (1). The authorities collectively indicate that it is not every offence committed by a public servant that necessitates sanction for prosecution under section 197(1) of the Code of Criminal Procedure, nor is it every act done while the servant is actually engaged in official duties. However, if the act complained of is directly connected with the servant’s official duties such that, if questioned, it could be claimed to have been performed by virtue of the office, then sanction is required. This requirement applies irrespective of whether the act actually constituted a proper discharge of duties, because the propriety of the conduct is a matter of defence that must be examined at trial and cannot be decided at the stage of granting sanction, which must precede the institution of prosecution. It is conceded for the respondent that, on the principle that has been set out, sanction would be

The Court observed that sanction under section 197(1) of the Code of Criminal Procedure was required for prosecuting the appellant under section 465 because the charge related to his official duty of obtaining signatures or thumb-impressions of employees before disbursing wages. The appellant, however, argued that a misappropriation of funds could not be regarded as part of any public servant’s duties, that he could not invoke his office as a justification for the alleged act, and therefore no sanction under section 197(1) was necessary. He further contended that the matter was already settled by the decisions in Hori Ram Singh v Emperor (1) and Albert West Meads v The King (1), both of which involved criminal misappropriation. The Court rejected this expansive formulation of the legal position, holding that the two cited authorities did not support the appellant’s contention. In the Court’s view, even where the allegation concerns misappropriation by a public servant, the need for sanction under section 197(1) must be determined on the facts of each case. When the acts complained of are so integrally connected with the official duties that they are inseparable from the office, sanction is mandatory; conversely, if there is no necessary link between the acts and the performance of those duties and the official position merely furnished the occasion or opportunity for the acts, sanction is not required. The Court noted the relevant citations: (1) [1949] L.R. 76 I.A. 10; (3) [1939] F.C.R. 159; (2) [1955] 1 S.O.R. 216; (4) [1948] L.R. 75 I.A. 180.

More recently, the Court referred to the decision in Shreekantiah Ramayya Munipalli v The State of Bombay (1), which examined the requirement of sanction under section 197(1) where the charge was misappropriation under section 409. The Court quoted the reasoning: “The section has content and its language must be given meaning. What it says is – ‘When any public servant… 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…’ We must therefore first focus on the word ‘offence.’ An offence rarely consists of a single act; it is usually composed of several elements, and, as a rule, a whole series of acts must be proved before it can be established.” The Court then outlined the elements alleged against the second accused: first, an ‘entrustment’ or ‘dominion’; second, that such entrustment or dominion was in his capacity as a public servant; third, a ‘disposal’; and fourth, that the disposal was ‘dishonest.’ It was held evident that the entrustment and dominion were in an official capacity and that any disposal, lawful or otherwise, could only occur through an act done or purporting to be done in an official capacity. On the facts, the Court concluded that the several acts complained of were official acts, rendering the prosecution invalid for lack of the required sanction.

In this case, the Court observed that the acts alleged against the second accused were official acts and that the prosecution could not be sustained for want of the requisite sanction. The Court examined the decisions in Hori Ram Singh v. Emperor (1) and Albert West Meads v. The King (1) and determined that, when properly considered, those authorities did not support the extreme contention urged on behalf of the respondent, namely the citations [1955] 1 B.C.R. 1177, [1989] F.C.R. 159 and [1948] L.R. 75 I.A. 185. In Hori Ram Singh v. Emperor (1), the medicines in question had not been entered in the stock book and were removed by the accused to his own residence; the charge was that by removing them he had committed misappropriation. It was held that removing medicines to his house was not part of the accused’s duty and that he could not rely on his official position to justify the act. The Court noted that the accused might have been able to claim official authority only if he had, for example, recorded the medicines in the stock books as having been expended by the hospital. Because no official act was involved, Varadachariar, J. observed that “…so far as the charge under section 409 was concerned, the acts in respect of which he was intended to be prosecuted could not be regarded as acts done or purported to be done in execution of his duty.” Sulaiman, J. added in the same case that “The question whether a criminal breach of trust can be committed while purporting to act in execution of his duty is not capable of being answered hypothetically in the abstract, without any reference to the actual facts of the case. An attempt to answer the question in a generalized way has been responsible for loose language used in some of the cases cited before us… The question whether the act purported to have been done in execution of duty or not must depend on the special circumstances of each case.” In Albert West Meads v. The King (1), an Army Officer received two sums of money and later could not produce them. He was charged with criminal misappropriation and convicted. He argued that the conviction was illegal for want of sanction, but the Privy Council, following H. H. B. Gill v. The King (1), rejected that argument. It was essential to note that the accused did not claim the money had been spent in the course of his official duties; rather, he alleged that the sums had been consumed by fire. Referring to these facts, the Privy Council observed that the charges involved “acts of fraudulently misapplying money entrusted to his care as a public servant, as acts done by him by virtue of the office that he held.” Consequently, the Court concluded that whether sanction is required to prosecute a public servant for criminal misappropriation depends on whether the acts charged are connected to the performance of his official duties.

In this case, the Court observed that the necessity of a sanction under the law depended on whether the acts with which the appellant was charged were linked to the functions he performed as a public servant. The Court explained that if the alleged conduct arose out of the appellant’s official duties, a sanction was required before a prosecution could be instituted; however, if the conduct was unrelated to his official responsibilities, no sanction would be necessary. Accordingly, the Court examined the specific allegation against the appellant to determine whether the questioned acts bore directly on the duties he was required to discharge in his official capacity.

The appellant, who occupied the post of Subdivisions Officer, admitted that he had received a sum of Rs 51 that later formed the subject of the misappropriation charge. The Court noted that, as part of his official responsibilities, the appellant was required to forward that amount to the khalasi known as Parma and to obtain either the signature or a thumb-impression of Parma as acknowledgment of receipt. The appellant asserted that he had indeed made the payment to Parma, and the Court pointed out that the acquittance roll contained an entry recording the payment together with a thumb-impression placed opposite the appellant’s name. The Court held that, at the stage of determining whether a sanction was required, the truth or falsity of the entry in the roll was not material; what mattered was that the record showed the appellant had performed a function that fell within the scope of his official duties.

Because the acts described in the charge—receiving the money, delivering it to Parma, and obtaining acknowledgment—were performed by virtue of the appellant’s office, the Court concluded that a sanction under section 197(1) of the Code of Criminal Procedure was mandatory before the appellant could be prosecuted under section 409 for criminal misappropriation. The Court further held that the prosecution had proceeded without obtaining the required sanction, and that this lapse rendered the proceeding non-maintainable. Consequently, the conviction was declared void and ordered to be set aside.

The Court stated that, given the fatal defect of missing sanction, it was unnecessary to assess—based on the evidence—whether the appellant had actually committed the offence of criminal misappropriation or forgery. The appeal was therefore allowed, the convictions and sentences imposed on the appellant were annulled, and any fine that had been paid was ordered to be refunded. The final order affirmed that the appeal was allowed and that the appellant was released from the conviction and its consequences.