S.S. Sidhu, J.
1. The State of Haryana has filed this appeal against the judgment dated 1st February, 1973, of the Court of the Judicial Magistrate 1st Class, Ambala (Shri P. P. Chhabra), by which it acquitted Iqbal Singh respondent of his charge Under Section 409, Indian Penal Code, because it was found that it was necessary for the prosecution to obtain sanction of the Central Government to prosecute Iqbal Singh and that the same had not been obtained before launching prosecution against him in the Court.
2. The facts of the case, in brief, are that Iqbal Singh respondent was working as Foreman-cum-Supervisor, Rural Industry Development Central, at Pinjore. He absented aimself from duty from 12th August, 1967, onwards and took away some Government money with him. The District Industries Officer made a complaint to the Superintendent of Police Ambala, alleging that Iqbal Singh had embezzled the Government money. He had proceeded on medical leave for four days with effect from 26th July, 1967. He then got his leave extended to 11th August, 1967. After that, neither any application for extension of leave was received from him nor did he report himself for duty. He was required to appear before the industries Officer, Ambala, and hand over the money by 20th August, 1967, but he failed to do so and instead sent a letter stating that he would appear before that officer on 23rd August, 1967. Even on the aforesaid date, he failed to turn up before that officer. The complaint containing the above allegations was made against him to the Superintendent of Police, as stated above. The amounts which were allegedly embezzled by him, as mentioned in the complaint, were as under:-
(1) Rs. 1445.85 - This amount he had shown in the cash book to have been spent for purchase of electric goods and installation thereof in the office. In fact, he had not utilised that money for that purpose.
(2) Rs. 666.31--This amount had remained with the accused as balance.
(3) Rs. 1008.33-This amount he had shown in the cash-book to have been paid to the concerned payee but he had not actually done so.
(4) Rs. 533.40-This amount had remained with him as miscellaneous amount.
The police, after investigation, arrested the accused and challaned him in the Court for his trial under Section 409, Indian Penal Code.
3. The trial Court charged the accused Under Section 409, Indian Penal Code, The accused pleaded not guilty to his charge and claimed trial,
4. 8 witnesses were examined by the (prosecution in support of the charge framed against the accused. The accused in his statement recorded Under Section 342, Cr.PC after the close of the prosecution evidence, denied the prosecution allegations and pleaded innocence. He admitted that he was entrusted with an amount of Rs. 3,096.99 during the period between 1-11-1966 and 23-8-1967 but added that he was innocent and that he had fallen ill and on account of that he could not attend his office. It was further pleaded by him that the whole of the amount was then paid back by him to the department concerned. The learned trial Magistrate ultimately acquitted Igbal Singh respondent vide his judgment dated 1st February, 1973, as already stated above.
5. We have heard the learned counsel for the parties and have fully appreciated the arguments addressed before us by them. It has been argued by the learned counsel for the appellant that no sanction for prosecution of a public servant, as contemplated by the provisions of Section 197 of the Code of Criminal Procedure, 189B, is necessary, when that public servant is to be prosecuted for the commission of the offence of criminal breach of trust and, therefore, in the present case, the learned trial Magistrate, wrongly acquitted Iqbal Singh respondent for want of sanction of the Central Government to prosecute him Under Section 409, Indian Penal Code, vide the impugned order dated 1st February, 1973, and, as such the said order is liable to be quashed. He, in support of his contention, has cited Om Parkash Gupta v. State of U.P. : 1957CriLJ575 in which it has been held as under (at p. 464) :
No sanction is necessary to prosecute the public servant as he does not normally act in his capacity as a public servant when committing criminal breach of trust.
We doubt if we can accept the above contention of the learned counsel. Section 197(1), Code of Criminal Procedure, 1898, reads as under :-
197. (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the 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 congnizance of such offence except with the previous sanction -
(a)in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
(b) in the case of a person who Is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government, In the present case, it has been inter alia alleged on behalf of the prosecution that Rs. 1445.85 were shown by Iqbal Singh respondent in the cash book to have been spent on purchase of electric goods and installation thereof in the office and that, in fact, he had not utilised the money for that purpose; that Rs. 1008.33 had been shown by him in the cash book to have been paid to the concerned payee but he had not actually done so. Thus, according to the prosecution allegations, Iqbal Singh respondent had misappropriated those amounts and, as such, had committed criminal breach of trust. In order to prove that charge against him, it has to be established that he had made the above-mentioned entries in the cash book. Whether those entries are false or correct is a different matter but there is no doubt that those entries were made by him while he was acting or purporting to act in the discharge of his official duty as a Foreman-cum- Supervisor, Rural Industry Development Centre, at Pinjore. It is an admitted fact that Iqbal Singh is an employee of the Union of India and, such he is removable from his office with the sanction of the Central Government. That being so, the provisions of Section 197 of the said Code are fully attracted in this case. In order to establish the charge Under Section 409, Indian Penal Code, against Iqbal Singh, whole series of his acts, which include the making of the above-mentioned entries in the cash book about two items have to be proved. This view finds support from Shreekantiah Ramayya Munipalli v. State of Bombay : 1955CriLJ857 by which it has been held as under (at pp. 292, 293):-
Now it is obvious that if Section 197, Cr.PC is construed too narrowly it can never be applied, for of course it is not part of an official's duty to commit an offence and never can be. But it is not the duty we have to examine so much as the act, because an official act can be performed in the discharge of official duty as well as in dereliction of it. 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 have, therefore, first to concentrate on the word 'offence'.
Now an offence seldom 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.
If a charge Under Section 409, IPC can be proved against a public servant without reference to any acts which he might have done while acting or purporting; to act in the discharge of his official duty, then, of course, no previous sanction for his prosecution as required Under Section 197 of the said Code is necessary, for launching prosecution against him as he cannot be said to have acted as a public servant while committing breach of trust. In such a situation, the view taken in Om Parkash Gupta's case 1975 Cri LJ 575 (SC) (supra) shall be applicable to his case. But, in the present case, the position is quite different. What has been held in Om Parkash Gupta's case r (supra) is that a Government employee does not normally act in his capacity as a public, servant when committing criminal breach of trust and, therefore, no sanction is necessary to prosecute him for the commission of that offence; but if a public servant has committed criminal breach of trust while acting or purporting to act in the discharge of his official duty, then previous sanction to prosecute him, as contemplated by Section 197(2) of the Code is necessary. In that case, the view taken in Om Parkash Gupta's case would not be applicable. This point has been thoroughly dealt with in Amrik Singh v. State of Pepsu : 1955CriLJ865 which lays down as under (at pp. 312, 313 of AIR);-
It is not every offence committed by a public servant that requires sanction for prosecution Under Section 197 (1), 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; and that would be so, irrespective of whether it was, in fact, a proper discharge of his duties, because that would really be a matter of defence on the merits which would have to be investigated at the trial, and could not arise at the stage of the grant of sanction, which must precede the institution of the prosecution.
In our judgment, even when the charge is one of misappropriation by a public servant, whether sanction is required Under Section 107 (1) will depend upon the facts of each case. If the acts complained of are so integrally connected with the duties attaching to the office as to be inseparable from them, then sanction Under Section 197 (1) would be necessary; but if there was no necessary connection between them and, the performance of, those duties, she official status furnishing only the occasion or opportunity for the acts, then no sanction would be required.
The result then is that whether sanction is necessary to prosecute a public servant on a charge of criminal misappropriation, will depend on whether the acts complained of hinge oh his duties as a public servant. If they do, then sanction is requisite. But if they are unconnected with such duties, then no sanction is necessary.
Even this Court in Madan Lal Lamba v. Inderjit Rohta (1969) 71 Pun LR 1065 : 1970 Cri LJ 726 relying on Amrik Singh's case (supra), took a similar view and held as under (at pp. 727,728, 729 of Cri LJ) :-
A public servant shall be treated to have acted or purported to act in the discharge of his official duty, if his official duties as a public servant enable him to justify the, act falling within the scope of those duties. In other words, the act should be integrally connected with the authority of his office and should fall within the periphery of prescribed duties. If there is reasonable nexus between the act and the official obligation to be discharged by the public servant, the act shall be regarded as an official act. If the act is entirely unconnected with his office, it could not be deemed to be an official act within the scope of Section 197(1), Criminal procedure Code. There must be a logical relation of the act with the discharge of official duties, which the office of a public servant enjoins upon him. A different or out of the way manner of doing an act if otherwise it falls within the scope of official duties could not be treated as alien to the scope of such duty. Whether the act is done rightly or wrongly, correctly or incorrectly, if it is done in the discharge of official duty, it will be covered by that section...the act of preparation of record by the petitioner and so also the act of preparation of incorrect record by him falls as much within the scope of Section 197, Criminal Procedure Code, as it does within the scope of Section 218, Indian Penal Code. The petitioner having prepared the incorrect record while acting or purporting to act in the discharge of his official duty as Sub-Divisional Officer, he cannot be proceeded against for prosecution Under Section 218, Indian Penal Code, unless sanction for his prosecution has been obtained Under Section 197, Criminal Procedure Code.
6. In view of the position of law discussed above, we are of the considered opinion that he learned Magistrate rightly held that previous sanction for the prosecution of Iqbal Singh was necessary before the complaint could be filed against him and the Court could entertain the same. Since no such sanction was obtained in this case, the learned Magistrate rightly held that the trial stands vitiated and hence he rightly acquitted the respondent of his charge. Thus, the impugned order does not call for any interference. Consequently, this appeal is dismissed.