SUDAMA SARAN SHARMA Vs. STATE

JUDGEMENT

(1.) Two questions arise in this petition: If the petitioner, a class II officer of the Central Government, can be said to be "not removable from his office save by or with the sanction of the government"? If so, can it be said on the facts of this case, if he was "accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty"? These questions arise in the context of a challenge to the validity of his prosecution on the ground that in the absence of sanction of government u(s 197 of the Code, the Court seized of the case could not have taken cognizance of the offence.

(2.) The facts are these : The petitioner is being tried for an offence under Sections 420 and 467 of the Indian Penal Code of allegations that as a public servant, he had drawn advance. against daily allowance and travelling allowance, to carry out official duties outside Delhi and submitted false T.A. adjustment Bill and supporting vouchers to. claim an amount larger than he had in fact incurred. The prosecution had been admittedly filed without obtaining the sanction of government and if such a sanction was necessary in the case of the petitioner in virtue of Section 197 of the Code of Criminal Procedure, the Court obviously could not have taken cognizance of the offences. At the fag-end of the trial, the petitioner was advised to assail the validity of the prosecution on the ground of want of sanction. The challenge failed and the order of the trial court was upheld in revision. "The contention on behalf of the petitioner in the courts below was two-folds Petitioner was not removable save by or with the sanction of "government" and this power in the case of the petitioner was to be exercised by the Head of the Department i.e. the Director General of All India Radio. The offence is alleged to have been committed by the petitioner "while acting or purporting to act in the discharge of his official duty". Both the contentions were negatived by the courts below. The courts below read the expression "government" in Section 197(1) of the Code of Criminal Procedure, to mean the President, in the case of Central Government, and held that the protection of the subsect ''on was available to a public servant, who had been appointed by the President and was removable by him and the petitioner, who had been appointed and could be removed by the Director General of All India Radio, was outside the purview of the protection. That all executive power vested in the President by virtue of Article 53 of the Constitution and was exercised by him either directly or through officers subordinate to him in terms of the Rules of Business, made in exercise of power conferred by Article 77 of the Constitution of India. and that these functionaries were exercising executive power of the Union and their orders were the orders of the government, either as delegates of the President or as the instrumentalities. through which the President exercised executive Power, apparently did not appeal to either of the courts below. On the second question, the courts below expressed the view that in defrauding the government, inter alia, by submitting false Bill and vouchers, or in fabricating false documents petitioner could not be said to be either "acting or purporting to act in the discharge of his official duties, fraud or making a false document being no part of the official duty of any public servant". It was further held that in any event, preparation of a T.A. Bill and that too an inflated one, was neither part of the official duty of the petitioner nor connected with it.

(3.) . Section 197(1) of the Code runs thus :