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Manohar Nath Kaul Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in1981CriLJ1771
AppellantManohar Nath Kaul
RespondentState
Cases Referred and S. B. Saha v. M. S. Kochar
Excerpt:
- .....been committed by a private servant while acting or purporting to act in the discharge of his official duty.3. the argument of the learned counsel for the petitioner-accused is that the learned magistrate has assumed facts. he has not cared to spell out what the act complained was and whether it had any reasonable connection with the official duties of the accused. he contended that the protection of section 197, cr.p.c. can be validly claimed by a public servant where the act constituting the alleged offence is directly and reasonably connected with his official duty. he further contended that the accused was a public servant at the relevant time. he was entitled to submit t. a. bills and draw travelling allowance for the journeys performed by him in his official capacity. the act.....
Judgment:
ORDER

Mufti Baha-Ud-Din Farooqi, Ag. C.J.

1. This is a revision application by the accused against an order of the Chief Judicial Magistrate, Srinagar, dated 18-1-1979, holding that the accused could be prosecuted without the sanction of the Government under Section 197, Cr.P.C.

2. The accused, while acting as a Regional Officer, Directorate Field Publicity Government of India, travelled by air from Srinagar to Delhi and vice versa, on one occasion, and from Srinagar to Jammu and vice versa, on two occasions, on the foot of air tickets obtained by him in lieu of exchange orders. The value of the tickets so obtained was debitable to the Directorate of Field Publicity and the accused was required under rules to exclude it from the T. A. bills. It is alleged that he submitted T. A. bills including therein the claim for air fare and received payment accordingly. On this allegation, a challan under Section 420, I.P.C. has been submitted by the police against him in the court of the C.J.M. Srinagar. The accused claimed protection of Section 197, Cr.P.C. and contended that the prosecution was not sustainable in the absence of proper sanction by the Government. The trial Magistrate has repelled the contention. He has held that the act of cheating cannot be regarded as having been committed by a private servant while acting or purporting to act in the discharge of his official duty.

3. The argument of the learned Counsel for the petitioner-accused is that the learned Magistrate has assumed facts. He has not cared to spell out what the act complained was and whether it had any reasonable connection with the official duties of the accused. He contended that the protection of Section 197, Cr.P.C. can be validly claimed by a public servant where the act constituting the alleged offence is directly and reasonably connected with his official duty. He further contended that the accused was a public servant at the relevant time. He was entitled to submit T. A. bills and draw travelling allowance for the journeys performed by him in his official capacity. The act of submitting T. A. bills and drawing travelling allowance is directly and reasonably connected with his official duties. He is entitled to the protection of Section 197, Cr.P.C. The prosecution laid against him cannot proceed without sanction of the Government. The view to the contrary expressed by the learned C.J.M. is completely erroneous. In support of his argument he has relied upon the decisions of the Supreme Court in Amrik Singh v. State of Pepsu : 1955CriLJ865 and S. B. Saha v. M. S. Kochar : 1979CriLJ1367 and of the Ra-jasthan High Court in State of Rajas-than v. Onkardas .

4. In the cases cited by the learned Counsel for the petitioner, the Supreme 'Court has made it more than clear that the protection contemplated by Section 197, Cr, P. C. will be attracted only if the act constituting the offence is directly and reasonably connected with the official duties of the public servant. In the present case, the crux of the allegations against the accused is that he has over-charged his claim for travelling allowance. Now, the act of over-charging is no part of the duty of a public servant. His duty may be to charge T. A. but it cannot be reasonably contended that the duty to charge would include the duty to over-charge. So viewed, the act is not directly and reasonably relat-able to the official duty of the accused. If that be so, as it really is, the accused cannot claim protection of Section 197, Cr.P.C.

5. In the case of Onkardas 1960 Cri LJ 1375 (2) (Raj) (supra) the accused had drawn travelling allowance in his capacity as the Chairman of the Municipal Board in respect of a journey which in fact was undertaken by him for his private purpose. The Rajasthan High Court held that the submission of T. A. bills and drawing of travelling allowance were acts which were directly concerned with the official duties of the accused and consequently sanction was needed for his prosecution, With respect, I may say, that the decision is not correct. The act of submitting bills and drawing travelling allowance may be a part of the duty of the accused while acting as a Chairman of the Municipal Board but it could not be regarded as a part of his duty to submit such bills and draw such allowance for journey undertaken by him for private purposes and, consequently, the act complained of could not be regarded as an act directly and reasonably connected with his official duty. In the circumstances, I am not inclined to follow this judgment.

6. The. result, therefore, is that this revision fails and is dismissed accordingly.

7. The parties are directed to appear before the court below on 20th of August, 1980.


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