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Vaidyanatha Ayyer Vs. State of Kerala - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Case NumberCriminal Revn. Petn. No. 44 of 1960
Judge
Reported inAIR1961Ker175; 1961CriLJ816
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 197 and 197(1); Indian Penal Code (IPC) - Sections 409
AppellantVaidyanatha Ayyer
RespondentState of Kerala
Appellant Advocate C. Sankaran Nair, Adv.
Respondent AdvocatePublic Prosecutor
DispositionRevision dismissed
Cases ReferredGokulchand Dwarkadas v. The King
Excerpt:
.....197, unless the act complained of is an offence; it is no doubt the well settled rule that the sanctioning authority should be appraised of all the facts relating to the offence charged against the accused before that authority accords sanction, ext. even though those letters had not been produced before the court as it ought to have been done yet there cannot be the slightest doubt that full facts were placed before the sanctioning authority and that it was after a perusal of the same that the sanctioning authority was satisfied that it was a case where the accused should be proceeded against under section 409, i. we are, therefore, satisfied that even if it could be taken that sanction is necessary the sanction accorded in this case is perfectly legal and proper. sentence should be..........the contention of the prosecution was that no sanction was necessary as it was no part of the accused's official duties to permit an unauthorised removal of the goods. therefore when he allowed that, he neither acted, nor purported to act in the discharge of his official duties. this contention was negativedand it was stated:'the act complained of, namely, the disposal, could not have been done in any other way. if itwas innocent it was an official act; if dishonest, it was the dishonest doing of an official act, but in either event the act was official because accused 2,could not dispose of the goods save by the doing of an official act, namely, officially permitting their disposal; and that he did. he actually permitted their release and purported to do it in an official capacity,.....
Judgment:

Govinda Menon, J.

1. The accused in C. C. 77 of 1959 on the file off the District Magistrate of Palghat who had been convicted under Section 409 I. P. C., and whose appeal before the Sessions Judge, Palghat had been dismissed has filed this revision petition. He was sentenced to rigorous imprisonment for one year by the District Magistrate, but in appeal the sentence was reduced to rigorous imprisonment for three months. On admission of the revision petition., notice has been issued to the accused to show cause why the sentence should not be enhanced and that is how it has come up before this Bench for hearing,

2. It is not disputed by the petitioner that monies were entrusted to him. On 5-5-57, Pw. 2 the then President of the Panchayat Board handed over charge to the petitioner who was then the Vice President. The balance cash on hand was also entrusted. The petitioner was thereafter functioning as Vice President, and being a minor Panchayat he was also the Executive Officer of the Panchayat. In that capacity he was the custodian of all the cash and all the account books and registers of the Panchayat Board. Ho was collecting monies and was in possession of the cash belonging to the Panchayat.

3. Pw. 3, the Deputy Panchayat Officer had audited the accounts of the Panchayat up to March 1957 on 3-8-1957. His next visit was on 18-1-1958. On that day the cash book showed a balance of Rs. 2365,28 besides the credit balances in the Sub-Treasury and Post Office. This cash balance ought to have been in the hands of the petitioner. The petitioner was not able to produce the cash balance when demanded.

It was admitted by him that he had no cash with him on that day. This fact is seen recorded by Pw. 3 in Ext. P-2 cash book. The relevant entry is Ext.,P-2 (a). The petitioner also gave a statement Ext. P-13 that he would remit the amount by 4-2-1958. Pw. 3 again inspected the office on 8-4-1958. The petitioner had not by then remitted any amount and he again gave a statement Ext. P-14 asking for more time for payment of the amount. These statements are admissible in evidence.

It cannot, therefore, be contended that there was no conversion of the amount for the accused's own use. The courts below have exhaustively discussed the evidence in the case and rightly found that the prosecution has conclusively proved entrustment and misappropriation. The learned counsel for the petitioner therefore has rightly not chosen to seriously argue this aspect of the case.

4. The main point that was pressed is that there was no proper or valid sanction obtained for the prosecution of the petitioner a? is required under Section 197, Cri. P. C. and consequently the initiation of the proceedings was illegal and without jurisdiction. What is contended is that there is nothing in the sanction order to show that sanction was given in respect of the facts constituting the offence or that the sanctioning authority was appraised of all the facts relating to the offence charged against the accused before sanction was accorded for the prosecution. It is also stated that the prosecution has not proved by any extraneous evidence that sufficient materials had been placed before the sanctioning authority.

5. Two things arise for consideration. Firstly whether sanction is really necessary for the prosecution of the petitioner for the offence under Section 409, I. P. C., and secondly if it is necessary, whether the sanction given in this case Ext. P-23 is valid and proper so as to confer jurisdiction on the Magistrate to try the case.

6. To determine the first question whether sanction was required it will be necessary to refer to the principles established by authoritative pronouncements on the subject both by their Lordships of the Privy Council, the Federal Court and lastly of the Supreme Court on the subject.

Hori Ram Singh v. Emperor, AIR 1939 FC 43 is a decision of the Federal Court on the necessity for sanction under Section 270 of the Government of India Act, 1935 which is similar in terms to Section 197(1), Cri. P. C. In that case a Sub-Assistant Surgeon was charged under Section 409 with having dishonestly removed certain medicines from a hospital which was under bis charge and under Section 477-A with having failed to enter them in the stock book.

The sanction of the Government had not been obtained for the prosecution and the question was whether it was necessary. It was held that the charge under Section 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 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.

7. In H. H. B. Gill v. The King, AIR 1948 PC 128 the question arose directly with reference to Section 197(1), Cri. P. C. There the accused was charged for taking bribes and On the question whether sanction was necessary, it was held by the Privy Council 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 AIR 1939 FC 43, 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 bewhether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office.'

It was accordingly held that as the acts with which the accused was charged could not be justified as done by virtue of his office, no sanction was necessary.

8. This view was followed by the Privy Council in Albert West Meads v. The King, AIR 1948 PC 156 and reaffirmed in Phanindra Chandra v. The King, AIR 1949 PC 117.

9. In Ronald Wood Mathams v. State of West Bengal, AIR 1954 SC 455 the Supreme Court followed the decisions of the Judicial Committee in AIR 1948 PC 128 and AIR 1949 PC 117 and rejected the contention that sanction was necessary for initiating proceedings against a Public Servant on charges of conspiracy and bribery.

10. The question whether sanction was necessary for an offence under Section 409 was elaborately considered in the case in Amrik Singh v. The State of Pepsu, (S) AIR 1955 SC 309. His Lordship Venkatarama Ayyar, J., discussed the earlier cases of the Federal Court and the Privy Council and summed up the position as follows :

'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'.

11. The question whether sanction is required under Section 197(1) would therefore 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, the official status furnishing only the occasion or opportunity for the acts, then no sanction would be required.

12. The accused in that case was a sub-divisional officer in the Public Works Department. It was part of his duties to disburse the wages to the workmen and the procedure was that the officer would draw the amount required from the treasury and pay the same to the employees on taking their signature or thumb impression in the monthly acquittance roll. In the roll for April 1951 a sum of Rs. 51/- was shown to have been paid for wages to one Khalasi (Servant) the payment being vouched by his thumb impression.

The case of the prosecution was that there was no such person and the thumb impression found in the acquittance roll was that of the appellant himself and that he had included a fictitious name in the acquittance roll, with intent to appropriate the money for himself. The question for consideration was whether the acts with which the appellant is charged directly bear on the duties which he has got to discharge as a public servant.

The appellant admitted the receipt of the sum of Rs. 51/-, but claimed to have paid the amount and the acquittance roll recorded the payment and in acknowledgement thereof the thumb-impression purporting to be that of the Khalasi was seen. If therefore, what appeared on the face of the roll is true and whether i is true or not is not a matter relevant at the stage of sanction, then the acts with which the accused was charged fell within the scope of his duties and can be justified by him as done by virtue of his office. It depends on whether the acts complained of, hinge on his dutiesas a public servant. If they do, then sanction is requisite. But if they are unconnected with such duties, then no sanction is necessary.

13. It is on the same ground that in Shreekantiah Ramayya Munipalli v. State of Bombay, (S) AIR 1955 SC 287 their Lordships of the Supreme Court held that sanction was necessary. In that case the appellants were in charge of a Government depot, and the allegation was that stores worth, Rs. 4000/- were illegally passed out of the depot) and were handed over to Pw. 1 in the case. The prosecution alleged that in pursuance of a conspiracy the accused arranged to sell the property to the approver and the stores were passed out of the depot.

The money received was then pocketed by the three accused and not -credited to Government. The contention of the prosecution was that no sanction was necessary as it was no part of the accused's official duties to permit an unauthorised removal of the goods. Therefore when he allowed that, he neither acted, nor purported to act in the discharge of his official duties. This contention was negativedand it was stated:

'the act complained of, namely, the disposal, could not have been done in any other way. If itwas innocent it was an official act; if dishonest, it was the dishonest doing of an official act, but in either event the act was official because accused 2,could not dispose of the goods save by the doing of an official act, namely, officially permitting their disposal; and that he did. He actually permitted their release and purported to do it in an official capacity, and apart from the fact that he did not pretend to act privately, there was no other way in which he could have done it.'

14. This case was followed by the case in Matajog Dobey v. H. C. Bhari, (S) AIR 1956 SC 44. In that case the position was further made clear. The learned Judge stated:

'The offence alleged to have been committed must have something to do, or must be related in some manner, with the discharge of official duty. No question of sanction can arise under Section 197, unless the act complained of is an offence; the only point to determine is whether it was committed in the discharge of official duty. There must be a reasonable connection between the act and the official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits'.

It was further observed:

'The result of the foregoing discussion is this: There must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim, that lie did it in the course of the performance of his duty'.

15. In a subsequent case in Om Prakash Gupta v State of U. P., (S) AIR 1957 SC 458, also it was held that a Public Servant committing criminal breach of trust does not normally act in his capacity as a public servant and that no sanction is necessary for prosecuting him.

16. What we must therefore find out is whether the act and the official duty are so interrelated that one can postulate reasonably that it was done by the accused in the performance of the official duty, though possibly in excess of the needs and requirements of the situation. Judged in the light of these well-settled principles on the facts of this case it cannot be contended that the acts complained against are so integrally connected with the duties attached to the office as to be inseparable from them and in no way could it be stated that there is a reasonable connection between the act complained against and his official duty. There can, therefore, be no doubt that no sanction is necessary for the prosecution of the petitioner for misappropriating the monies entrusted to him.

17. Now even if sanction is thought necessary the question arises whether the sanction order in this case is not proper and legal and is in any way defective. Ext. P 23 is the sanction granted in this case. What is urged is that all the facts necessary for a considered order according to the section has not been placed before the sanctioning authority and that the order of sanction, does not on the face of it show that they had considered the matter.

It was also stated that no extraneous evidence has been produced in the case to show that full facts were placed before the sanctioning authority. It is no doubt the well settled rule that the sanctioning authority should be appraised of all the facts relating to the offence charged against the accused before that authority accords sanction, Ext. P 23 sanction order refers to two letters which were placed before the sanctioning authority and which were read before sanction was accorded.

One letter was from the District Collector, Palghat and the other from the Director of Local Bodies. Even though those letters had not been produced before the court as it ought to have been done yet there cannot be the slightest doubt that full facts were placed before the sanctioning authority and that it was after a perusal of the same that the sanctioning authority was satisfied that it was a case where the accused should be proceeded against under Section 409, I. P. C.

The sanctioning authority had even considered the legal aspects underlying the sanction, and whether on the facts of this case sanction was necessary or not. We are, therefore, unable to accede to the contention of the learned counsel that facts were not placed before the sanctioning authority,

18. No specific type, design, form or set of words have been prescribed for according sanction. All that the order of sanction must show is that the materials were placed before the sanctioning authority and the authority considered the materials and that the order sanctioning the prosecution resulted therefrom. The sanction order need not set out the full facts or the reasons why sanction was accorded. The object of sanction is nothing more than to ensure discouragement of fraudulent, doubtful and impolitic prosecutions and on a reading of the sanction order in this case we are of the view that all these aspects had been fully considered before sanction was accorded.

19. The learned counsel brought to our notice the decision in Gokulchand Dwarkadas v. The King, AIR 1948 PC 82. In that case there was nothing on the face of the sanction order to indicate that the sanctioning authority had before them the report made by the police or that the sanctioning authority was appraised of the facts alleged to constitute the offence and it was in such circumstances that the Judicial Committee held that sanction was invalid. The facts of that case are entirely different from the facts of this case. We are, therefore, satisfied that even if it could be taken that sanction is necessary the sanction accorded in this case is perfectly legal and proper.

20. That takes us to the question of sentence. Notice was issued by this court to show cause why the sentence should not he enhanced. The High Court, undoubtedly, has jurisdiction to enhance the sentence under Section 439, Cr. P. C., but this jurisdiction is only sparingly exercised and in cases where the State has not chosen to apply for enhancement, the High Court is generally reluctant to act suo motu.

Sentence should be enhanced in cases where the failure to enhance the sentence would lead to a serious miscarriage of justice. In this case the accused was holding a responsible position of a Panchayat Board President. Great trust was reposed in him and public monies were entrusted to him and if he misappropriates and converts to his own use Such amounts a deterrent sentence is called for.

The purity of public administration being s matter of vital concern to the community, cases of breach of trust by such officers should not be passed ever with a nominal sentence. But it must be remembered that the question of sentence Is a matterof discretion and when that discretion has been exercised by the learned Sessions Judge, we do not want to interfere even though this court if it had been trying the case might have imposed a more severe punishment and confirmed the sentence awarded by the District Magistrate.

The learned counsel for the petitioner represents that the petitioner is an honorary worker, that his political future has been ruined, that he had been subjected to this prolonged litigation and that since a substantive term of three months rigorous imprisonment has been already awarded in the case this court need not enhance the sentence.

After giving very careful thought to what thelearned counsel for the petitioner has said and inView of the fact that the sentence in this casecannot be said to be so manifestly inadequate, wefeel that we need not interfere in revision and enhence the sentence. The conviction of the accusedunder Section 409, I. P. C., and the sentence of rigorousimprisonment for three months are, therefore, confirmed and the revision petition is dismissed.


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