Keshavlal Mohanlal Shah vs The State of Bombay

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

Court: Supreme Court of India

Case Number: Criminal Appeal No. 127 of 1960

Decision Date: 17 March, 1961

Coram: Raghubar Dayal

Keshavlal Mohanlal Shah versus The State of Bombay was decided on 17 March 1961 by the Supreme Court of India. The opinion was authored by Justice Raghubar Dayal, who also constituted the bench. The petitioner in the case was Keshavlal Mohanlal Shah and the respondent was the State of Bombay. The judgment was rendered on the seventeenth day of March, 1961 and the bench was identified as Dayal, Raghubar. The citation for the decision is recorded as 1961 AIR 1395 and also as 1962 SCR (1) 451. The case concerned a magistrate who had been dismissed from service for criminal misconduct and the procedural question of whether a court could take cognizance of the offence without a prior sanction under section 197 of the Code of Criminal Procedure, 1898. The headnote summarises that the appellant, a magistrate, had been dismissed after a departmental enquiry, and subsequently the State Government lodged a complaint that resulted in a conviction under section 409 of the Indian Penal Code. The central issue raised was whether the trial magistrate should have been required to obtain a prior sanction before taking cognizance, in light of the provisions of section 197 of the Code of Criminal Procedure. The court held that no prior sanction is necessary for a court to take cognizance of an offence committed by a magistrate while acting in official capacity if, at the time the complaint was made or the police report was filed, the magistrate had already ceased to hold the office, that is, at the moment cognizance is taken. The decision relied on the precedent set in S. A. Venkataraman v. The State, reported in 1958 S.C.R. 1037.

The judgment itself fell under the criminal appellate jurisdiction and concerned Criminal Appeal No. 127 of 1960. The appeal was permitted by special leave against a judgment and order dated 4 August 1958 of the former High Court at Bombay, which had arisen from Criminal Revision Application No. 728 of 1958. Counsel for the appellant was identified, as were counsel for the respondent. The judgment was delivered on 17 March 1961. The court noted that the appellant had been a Third Class Magistrate at Sanand in 1951 and had received a cash deposit of Rs. 200 from a person named Amar Singh Madhav Singh for bail security. That amount was not entered into the Criminal Deposit Register, and consequently the appellant was found to have committed criminal breach of trust in respect of the deposit. Following a departmental enquiry, the appellant was dismissed from service on 4 April 1953. A complaint on behalf of the State was filed on 9 June 1954, leading to a conviction under section 409 of the Indian Penal Code by the trial magistrate, which was confirmed by the Extra Additional Sessions Judge of Ahmedabad. The High Court dismissed the appellant’s revision. The sole ground of contention in the present appeal was that the learned magistrate should not have taken cognizance of the offence without the prior sanction of the State Government as required by section 197 of the Code of Criminal Procedure. The court further observed that it is not contested that a court could not have taken cognizance of the offence if the appellant had still been a magistrate on the date the complaint was filed, which was 9 June 1954. Since the appellant was no longer a magistrate on that date, the pivotal question became whether the provisions of section 197 preclude a court from taking cognizance of an offence alleged to have been committed by a magistrate while acting in official duty, even when the magistrate had ceased to hold office at the time the court assumes cognizance.

It was observed that the Court could not have taken cognizance of the offence against the appellant if he had still been a Magistrate on 9 June 1954. In reality, the appellant was no longer a Magistrate on that date, the very date on which the complaint was filed. Consequently, the Court was asked to consider whether section 197 of the Code of Criminal Procedure barred a Court from taking cognizance of an offence that had been committed by a Magistrate while he was performing, or purporting to perform, his official duties, even though the Magistrate had ceased to hold that office by the time the Court considered the matter. Sub‑section (1) of section 197 was quoted in full: “(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 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 sanction—(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.”

The Court explained that there was little room for the view that the provision restricted a Court from taking cognizance of an offence committed by a Judge only when the Judge was still in office at the moment cognizance was taken, because such an interpretation would defeat the purpose of the phrase “any person who is a Judge” in the subsection. Although the wording for a Magistrate or a public servant did not repeat the words “any person who is,” the Court held that the same principle applied to them; that is, the individual must be a Magistrate or a public servant at the time the Court seeks to take cognizance of an offence alleged to have been committed while performing official duties. Regarding the term “public servant,” the Court noted that the qualification “who is not removable from his office save by or with the sanction of a State Government or the Central Government” presupposed that the person was still in service; if the public servant had already left service, removal would no longer be a relevant question. Accordingly, the expression “when any Magistrate” was read to mean “when a person who is a Magistrate.” Even if that construction were not adopted, the language of the section—“when any Magistrate… is accused of any offence”—signalled that the restriction on taking cognizance without prior sanction applied only when the accusation was made against a person who was a Magistrate at that stage. Thus, the Court concluded that the requirement of prior sanction did not arise when the accused was no longer a Magistrate at the time the Court considered taking cognizance.

The Court observed that when a person was not a Magistrate at the time an accusation was made, the Court was authorised to take cognizance of the alleged offence without requiring any prior sanction. Counsel for the appellant had vigorously argued that the phrase “when any Magistrate is accused of any offence” should be understood to refer to the moment at which the accusation was first made against the Magistrate, that is, when it was alleged for the first time that the Magistrate had committed the offence. The Court found no justification for inserting the word “first” into the expression and consequently rejected the construction that read the provision as “when any Magistrate is first accused of any offence”. The Court explained that the initial allegation against a Magistrate does not relate to the Court’s taking cognizance of the offence; rather, it occurs either when a complaint is lodged with a superior officer in the department or when a complaint is made to the police. Both of these authorities were free to investigate the accusation. Only after a departmental inquiry or a police investigation concluded that the matter was suitable to be brought before a Court would a formal complaint or a police report be submitted to the appropriate Court for action against the Magistrate. At that stage the Magistrate would be said to be “accused of the offence” for the purposes of the Court, and the Court would then determine whether the person against whom proceedings were initiated was a Magistrate. The Court noted that this interpretation was reinforced by the language of clauses (a) and (b) of the relevant provision. According to those clauses, the required prior sanction would be that of the Central Government where the Magistrate was employed in matters relating to the affairs of the Union, and that of the State Government where the Magistrate was employed in matters relating to the affairs of a State. If the person was not employed in either capacity, no sanction was required. The Court held that the question of employment status had to be decided shortly before the complaint or police report was presented to the Court. The proper authority could grant the sanction only after considering the allegations and the evidence gathered during the investigation, that is, after the investigation was completed. The Court further observed that the submission of the complaint or police report was expected to follow the grant of sanction within a reasonable period. The Court then referred to a comparable issue that had arisen in S. A. Venkataraman v. The State (1), which concerned the interpretation of section 6 of the Prevention of Corruption Act, 1947 (Act II of 1947). Section 6(1) provides: “(1) No Court shall take cognizance of an offence punishable under s. 161 or s. 165 of the Indian Penal Code or under subsection (2) of section 5 of this Act, alleged to have been committed by a public servant except with the previous sanction‑ (a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office …”.

The Court quoted the wording of section 6(1) of the Act, which provides that a public servant may be removed only with the sanction of the Central Government when the servant is employed in affairs of the Union, with the sanction of the State Government when the servant is employed in affairs of a State and not removable except by that Government, and, in any other case, by the authority competent to remove him from his office. The Court then observed, at page 1046, that the language of section 6(1) is plain and must be given its literal effect. It held that nothing in the provision suggests that a prior sanction is required before a court may take cognizance of the offences listed in that section when the accused had ceased to be a public servant at the time the court was called upon to take cognizance, even though he had been a public servant when the offence was allegedly committed. The Court further explained that a person who is no longer a public servant cannot be described as “removable from any office by a competent authority.” The same principle was said to apply to the provisions of section 197 of the Code of Criminal Procedure. Consequently, the Court concluded that no previous sanction is necessary for a court to take cognizance of an offence committed by a magistrate while acting or purporting to act in the discharge of official duty, where the magistrate had ceased to hold that office at the time the complaint or police report was filed, that is, at the moment the court took cognizance. On that basis, the appeal was dismissed.