Dismissed

N. Mahadevan v. State of Andhra Pradesh

Telangana HC4 Apr 2013CRLP/2462/2010

Case brief

AI extract

What is this about?

The High Court dismissed the petitioners' application under Section 482 Cr.P.C. seeking quashing of proceedings for criminal breach of trust. The court held that the alleged misappropriation was not an act done in discharge of official duty, rendering sanction under Section 197 Cr.P.C. unnecessary, and the petition lacked merit.

What did the court decide?

The criminal petition under Section 482 Cr.P.C. was dismissed.

N. Mahadevan Vs State of Andhra Pradesh — Service and Employment | Telangana HC (2013)

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THE HON’BLE SRI JUSTICE C.PRAVEEN KUMAR

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Crl.P.No.2462/2010

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ORAL ORDER:

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The petitioners who are public servants and employees in Department of Atomic Energy filed the present criminal petition under Section 482 Cr.P.C., seeking quashing of proceedings in CC No.286/2009 on the file of Judicial First Class Magistrate, Manuguru, Khammam which was taken on file for an offence under Section 409 IPC.

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2. The allegations in the charge sheet are as under: The first petitioner was working as In-charge of Stores, HWP(M) and the second petitioner was working as Stores Keeper, Physical custodian of WH-4, HWP (M), Aswapuram. On 26-11-2005 at about 17-30 hours , the first petitioner lodged a report with Aswapuram Police Station stating that he received a letter from Deputy Commandant, CISF on 18-11-2005 about detection of 75 numbers of tubes containing the seal of PO No.RPUM/HWP/G1/1098/XVII/ 316, ASME SB-IIIC-6870 (061) 1905 mm 0D X 1.245 mm WT (Nub) x 4770 mm long, BTN 2004 1125 code G lying unattended near RM shop beside jungle area. On verification, it was found that ALCOBEX Aluminum Brass tubes 807 numbers and ALCOBEX Cupro Nickel Tubes 130 numbers were missing from the stock of the stores. The total cost of the missing material was found to beRs.8,03,967-61. Based on the report given by the first petitioner, a case inCr.No.71/2005 was registered for an offence punishable under Section 379 IPC. During the course of investigation, L.W.22-the investigating officer examined nearly 20 unofficial witnesses and recorded their statements under Sec. 161 Cr.P.C., The said evidence revealed that the property which is kept in open premises of WH-4 is not easy to be taken away. CISF post keeps a guard over the said property and as such it is very difficult to take the property out of the said premises. It is further stated in the charge sheet that each and every

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movement will be observed by night sentries of CISF and it is highly impossible to commit the theft of the property. The investigating officer found that committing theft of 937 pipes from the place where they have been kept without exposing to CISF is highly impossible as the offenders could not conceal their movements hours together in the security zone. Their investigation further revealed that there are several articles in the stores and if anything is moved from the stores or store yard only concerned employee will have the accessibility as it is well protected area. According to the charge sheet, the property was either mishandled or misappropriated by the officials of stores which requires a thorough audit and inspection of the departmental records. It is alleged that the officials of the stores colluded with each other and made a scene of offence after shifting out the property technically from the stores premises. Basing on these allegations, a charge sheet has been filed under Section 409 IPC against the petitioners who were in charge of the Stores Department and to whom the property was entrusted. 3. Sri Ch. Ravinder, the learned counsel for the petitioners would contend that even accepting the allegations made in the charge sheet to be true, no offence under Section 409 IPC is made out. According to him, the property which is the subject matter of dispute in the present case was moved out from the godown into a open space after taking permission from the super officers and as such it cannot be said that the petitioners have committed an offence of criminal breach of trust. He would further contend that the acts done by the accused were in discharge of their official duties and as such no prosecution can be initiated without obtaining sanction under Section 197 Cr.P.C.,

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4. On the other hand, the learned Public Prosecutor would contend that allegations made in the charge sheet do make out an offence under Section 409 IPC and the question whether sanction is necessary or not has to be decided during the course of trial.

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5. For better appreciation of the rival contentions, it would be

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necessary to extract Sec. 409 IPC which reads as under:

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“409:Criminal breach of trust by public servant, or by banker, merchant of agent

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Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”

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Criminal breach of trust referred in Section 409 IPC is defined in Section 405 IPC, which is as under:

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405:Criminal breach of trust

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Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly, misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust".”

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6. The ingredients to constitute an offence of criminal breach of trust under Section 409 IPC are entrustment with property or with domain over the property and dishonest conversion of such property. Therefore, entrustment and conversion is the essence for an offence of criminal breach of trust apart from proving that the accused was a public servant.

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7. In case of criminal breach of trust, a distinction is to be made between the person entrusted with the property and the person having control over general charge of the property. In case of entrustment of property, if it is found that the property is missing, the person to whom the property is entrusted will be liable for accounting the same. Whereas in the case of person to whom supervisory or general control over the property, he would be liable only when it is shown that he has

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misappropriated it or was a party to criminal breach of trust committed in respect of it by any other person.

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8. A perusal of the charge sheet and the material filed along with the charge sheet discloses that one I. Hari Prasad, who is examined as L.W.13 stated that the material purchase was initiated on 26-9-2003; and it was approved by the competent authority on 18-12-2003 and accordingly 1800 pipes were approved for purchase and an order to that effect was placed before ALCOBEX company. On 7-7-2004 purchased order was released after inspection of the said property done by one Murali Krishna on 21-12-2004. After receipt of the material at Heavy Water Plant, Manuguru, the stores officer sent documents for inspecting the above property at DPS Stores, Heavy Water Plant (M). L.W.13 checked the property and accepted it on 24-2-2005 and recommended to keep the pipes in the godown (WH4) as they have to draw them in the month of April. Therefore, from the above, it is clear that the property purchased was entrusted to the stores department and stock card to that effect was also prepared. Thus, the first ingredient of Section 409 IPC ie., entrustment of the property to the petitioners and the petitioners getting dominion over the property stands established through the statement of L.W.13.

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9. It is thus prima facie established that the petitioners who are public servants were entrusted with the property. It is true that after taking permission from L.W.13 and L.W.16 (P.C. Pant, Maintenance Manager), property was shifted from godown to be kept outside the godown due to lack of space in the godown. By this, it does not mean that the accused lost dominion over the property. Entrustment of property which has been made earlier continues till it is discharged. The plea of the learned counsel for the petitioners that the property was shifted outside the godown with the permission of the superior officer and that no offence was committed run contrary to the allegations made in the charge sheet.

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10. It is alleged in the charge sheet, that the property was shifted

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outside with the mala fide intention and caused breach of trust by shifting the same to a distant place. These are also disputed questions of fact which cannot be looked into in an application under Section 482 Cr.P.C.,

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11. The Apex Court in SUSHIL SURI V. CB I^[1] while considering the ambit of Sec. 482 Cr.P.C., held as under:

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“16. Section 482 Cr.P.C., itself envisages three circumstances under which the inherent jurisdiction may be exercised by the High Court, namely, (i) to give effect to an order under Cr.P.C.,; (ii) to prevent an abuse of the process of court; and (iii) to otherwise secure the ends of justice. It is trite that although the power possessed by the High Court under the said provision is very wide but it is not unbridled. It has to be exercised sparingly, carefully and cautiously, ex debito justitiae to do real and substantial justice for which alone the Court exists. Nevertheless, it is neither feasible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction of the Court. Yet, in numerous cases, this Court has laid down certain broad principles which may be borne in mind while exercising jurisdiction under Section 482 CrPC. Though it is emphasised that exercise of inherent powers would depend on the facts and circumstances of each case, but the common thread which runs through all the decisions on the subject is that the Court would be justified in invoking its inherent jurisdiction where the allegations made in the complaint or charge-sheet, as the case may be, taken at their face value and accepted in their entirety do not constitute the offence alleged.”

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12. On an analysis of the above decision coupled with the allegations made in the charge sheet would indicate that none of the contingencies narrated in the above case ie., (1) to give effect to an order under Cr.P.C., (2) to prevent abuse of process of Court; and (3) to otherwise secure the ends of justice, are made out warranting invocation of inherent power under Section 482 Cr.P.C.,

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13. The contention of the learned counsel for the petitioners that for prosecuting the accused under Sec. 409 IPC, sanction under Section 197 Cr.P.C., is necessary as the act committed by the accused was in discharge of their duty cannot be accepted.

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14. Section 197 Cr.P.C., reads as under:

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“197. Prosecution of Judges and public servants.— (1) When any

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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 cognizance of such offence except with the previous sanction—

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(a) in the case of 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;

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(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:

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[Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of Article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression “State Government” occurring therein, the expression “Central Government” were substituted.]

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(2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.

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(3) The State Government may, by notification, direct that the provisions of subsection (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression “Central Government” occurring therein, the expression “State Government” were substituted.

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(3-A) Notwithstanding anything contained in sub-section (3), no court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under clause (1) of Article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government.

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(3-B) Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991, receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of Article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the court to take cognizance thereon.]

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(4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held.

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15. A reading of Section 197 Cr.P.C., would show that so far as public servants are concerned, the cognizance of any offence, by any court, is barred by section 197 Cr.P.C., unless sanction is obtained from the appropriate authority, if the offence, alleged to have been committed, was in discharge of the official duty. The section not only specifies the conditions and circumstances, in which it shall be available but also the

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effect in law if the conditions are satisfied.

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16. The next question would be whether in the facts and circumstances of the case, the act of public servants can fall within the meaning of the phrase “ in discharge of his official duty”. Firstly, the person alleged to have committed an offence in his capacity as a public servant must be at that time in that capacity. Secondly, the connection between the act and the official capacity should be so intimate that it could not be separated. It is only in such a case that a public servant can be protected by taking advantage of Section 197 Cr.P.C.,

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17. In B. SAHA V. M.S.KOCHAR^[2] , the Apex Court while explaining the meaning of the phrase “any offence alleged to have been committed by him while acting or purporting to act in discharge of his official duty” held as under:

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“The words “any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty” employed in Section 197(1) of the Code, are capable of a narrow as well as a wide interpretation. If these words are construed too narrowly, the section will be rendered altogether sterile, for, “it is no part of an official duty to commit an offence, and never can be”. In the wider sense, these words will take under their umbrella every act constituting an offence, committed in the course of the same transaction in which the official duty is performed or purports to be performed.

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The right approach to the import of these words lies between these two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection of Section 197(1), an act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution and the said provision.’ (emphasis in original)

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Use of the expression ‘official duty’ implies that the act or omission must have been done by the public servant in the course of his service and that it should have been in discharge of his duty. The section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty.”

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“…..Official duty therefore implies that the act or omission must have been done by the public servant in course of his service and such act or omission must have been performed as part of duty which, further, must have been official in nature. The section has, thus, to be construed strictly, while determining its applicability to any act or omission in the course of service. Its operation has to be limited to those duties which are discharged in the course of duty. But once any act or omission has been found to have been committed by a public servant in discharge of his duty then it must be given liberal and wide construction so far its official nature is concerned. …. (para 12)”

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18. In STATE OF H.P. V. M.P. GUPTA^[3] , the Apex Court while dealing with a case where the offences alleged against a public servant were under Sec.406, 409, 467, 468 and 471 IPC held:

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“That apart, the contention of the respondent that for offences under Sections 406 and 409 read with Section 120-B IPC sanction under Section 197 of the Code is a condition precedent for launching the prosecution is equally fallacious. This Court has stated the legal position in Shreekantiah Ramayya Munipalli case (1955) 1 SCR 1177) and also Amrik Singh case (1955) 1 SCR 1302) that it is not every offence committed by a public servant which requires sanction for prosecution under Section 197 of the Code, nor even every act done by him while he is actually engaged in the performance of his official duties. Following the above legal position it was held in Harihar Prasad v. State of Bihar (1972) 3 SCC 89) as follows:

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‘As far as the offence of criminal conspiracy punishable under Section 120B, read with Section 409 of the Indian Penal Code is concerned and also Section 5(2) of the Prevention of Corruption Act are concerned, they cannot be said to be of the nature mentioned in Section 197 of the Code of Criminal Procedure. To put it shortly, it is no part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction under Section 197 of the Code of Criminal Procedure is, therefore, no bar.’

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19. The said view was reiterated by the Apex Court in ROMESH LAL JAIN V. NAGINDER SINGH RANA^[4] and also STATE O F UP V. PARAS NATH SINGH (3 supra) after referring to the decisions of it in OM PRAKASH GUPTA V. STATE OF UP^[5] , STATE OF KERALA V. PADMANABHA NAIR^[6] , and MATAJOG DOBEY V.

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H.C. BHARI^[7] .

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20. An analysis of the above referred cases would lead to an inevitable conclusion that no sanction under Section 197 Cr.P.C., is required for a charge under Section 409 IPC since the official capacity is material only in connection with entrustment and it does not enter into the later act of misappropriation or conversion or dispossession of property in violation of any direction, order, prescribing the mode in which the trust is to be discharged which is the Act complained of. In the instant case, there was entrustment of the property to the petitioners and later the said

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property which was in their dominion was found at a far off place. The allegation that later act alleged to have been done by the petitioners or by someone at their instance cannot be said to have been done in discharge of their official duty. Therefore, no sanction under Section 197 Cr.P.C., is required for prosecuting the accused for an offence under Section 409 IPC.

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21. Viewed from any angle, there are no merits in the Criminal Petition and the same is accordingly dismissed.

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C. PRAVEEN KUMAR, J.

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Date: 04.04.2013. KMR

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