LAKHPAT RAJ Vs. ABDUL KARIM

JUDGEMENT

(1.) THE brief facts of this case, as alleged by the complainant Abdul Karim, are that during the famine of the year 1969, Phalodi-Jamba road had to be constructed, connecting Phalodi Jamba with village Naneri. Accused Kadar Khan, Noor Mohammed and Shamsuddin were working as Supervisors for the famine relief work. Accused Sher Mohammed, Mohamed Sharif, Kamarud Din, Mehar Din and Jag Mai were working as mates. Accused No. 10 Kher Mohammed was functioning as a Mistry. Accused No. 11 Lakhpat Raj Loonker, Assistant Engineer (B and R), was in overall charge of the famine work. All the eleven accused persons, according to the complainant, entered into a conspiracy and prepared false muster rolls and made false entries therein that such and such payments had been made to the labourers. But money, as shown in the muster rolls, had been embezzled by the accused persons. The complainant further alleged that false measurements were also entered in the Government record by accused Nos. 10 and 11 in order to wrongfully pocket Government money. On receipt of the above complaint the Munsiff-Magistrate, Phalodi, Mr. Jeewan Singh, recorded the statements of Abdul Karim, Fateh Mohammed, Mobin and Hari Singh under Section 202, Crpc and thereafter he ordered that the case should be registered against all the accused persons under Sections 409, 466 and 120-B, IPC: vide order-sheet, dated August 20, 1969. Against that order a revision petition was filed by accused No. 11 Lakhpat Raj, Assistant Engineer (B and H), in the Court of Sessions Judge, Jodhpur. The revision application, it appears, was transferred for its disposal to the Court of Additional Sessions Judge No. 1, Jodhpur. The main contention of Lakhpat Raj was that under Section 197 (i), Criminal P. C, he could not be prosecuted for the offences alleged to have been committed by him unless the State Government had accorded sanction for the purpose. Learned Additional Sessions Judge observed that Lakhpat Raj could reasonably claim protection under Section 197, Criminal P. C. and, therefore, prior sanction to prosecute him was necessary. He has accordingly submitted this reference to this Court, recommending that the order of the Munsiff-Magistrate, Phalodi, dated August 20, 1969, in so far as Lakhpat Raj is concerned, should be quashed.

(2.) I have heard learned Counsel representing Lakhpat Raj. I had had also an opportunity of receiving assistance from learned Deputy Government Advocate in the matter. Nobody is present on behalf of Abdul Karim. The only point for determination in this case is as to whether sanction under Section 197, Criminal P. C, for the prosecution of Lakhpat Raj, is necessary,

(3.) THERE has been considerable divergence of judicial opinion on the scope of Section 197 (i), Criminal P. C. The question has latterly been the subject of consideration by the highest courts in this country and by the Privy Council. Hori Ram Singh v. Emperor AIR 1939 PC 43 : (40 Cri LJ 468), is a decision of the Federal Court on the necessity for sanction under Section 270 of the Government of India Act, 1935, which is almost identical in terms with Section 197 (1), Criminal P. C. In that case it was observed: When a public servant simply embezzles some property entrusted to him and thereby commits a criminal breach of trust under Section 409, he is not doing an act, nor even purports to do an act in execution of his duty; when he commits the act, he does not pretend to act in the official discharge of his duty. A case like that would not ordinarily fall within the scope of Section 270 (1 ). But an offence under Section 477-A, Penal Code, is committed if an officer or servant or anyone employed or acting in such capacity, wilfully and with intent to defraud falsifies any book or account. Thus, where it is his duty to maintain a record or a register and in maintaining that register he makes some entries which are false to his knowledge, he is certainly purporting to act, though not actually acting in the execution of his duty, because he is making certain entries in the register, knowing them to be false. Hence for prosecution under Section 409 the consent of Governor is not necessary but for prosecution under Section 477-A, consent is necessary. In H. H. B. Gill v. The King AIR 1948 PC 128 : (49 Cri LJ 503) the question arose directly with reference to Section 197, Criminal P. C. There, the accused was charged under Sections 161 and 120-B, IPC On the question whether or not sanction was necessary in accordance with the provisions of Section 197 (1), Criminal P. C, it was held by their Lordships of the Privy Council that there was no difference in scope between Section 197, Criminal P. C, and Section 270 of the Government of India Act, 1935 and approving the statement of the law as laid down by Varadachariar, J. , in AIR 1939 FC 43 : (40 Cri LJ 468) (supra), Lord Simonds held : 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. Thus a Judge neither acts nor purports to act as a Judge in receiving a bribe, though the judgment which he delivers may be such an act; nor does a Government medical officer act or purport to act as a public servant in picking the pocket of a patient whom he is examining, though the examination itself may be such an act. The test may well be whether 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 act with which the accused was charged with an offence under Section 120-B, read with Section 161, I. P. C, could not be justified as done, by virtue of his office, no sanction under Section 197 (1), was necessary.