State of Kerala v. V. Padmanabhan Nair, (S.C.) BS33367
SUPREME COURT OF INDIA

Before:- K.T. Thomas and M.B. Shah, JJ.

Criminal Appeal No. 632 of 1999 (Arising out of S.L.P. (Crl.) No. 730 of 1999). D/d. 14.7.1999.

State of Kerala - Appellant

Versus

V. Padmanabhan Nair - Respondent

For the Appellant :- Mr. P. Vipin Nair and Mr. K.M.K. Nair, Advocates.

Prevention of Corruption Act, 1946, sections 5(2), 6 and 19 Criminal Procedure Code, 1973, Section 197 - Indian Penal Code, Sections 406 and 409 - Prosecution of retired Public servant under Section 5(2) of Prevention of Corruption Act, 1947 and Sections 406, 409/120B Indian Penal Code - Incident of corruption and breach of trust prior to retirement - Sanction for prosecution under Section 197 Criminal Procedure Code, 1973 is not required. 1972(3) SCC 89, AIR 1955 Supreme Court 287 and AIR 1955 Supreme Court 309 relied.

[Paras 5 to 7]

Cases Referred :-

Harihar Prasad v. State of Bihar, 1972(3) SCC 89.

S.A. Venkataraman v. State, 1958 SCR 1040.

C.R. Bansi v. State of Maharashtra, 1970(3) SCC 537.

Kalicharan Mahapatra v. State of Orissa, 1998(6) SCC 411.

Shreekantiah Ramayya Munnipalli v. State of Bombay, AIR 1955 Supreme Court 287.

Amrik Singh v. State of Pepsu, AIR 1955 Supreme Court 309.

JUDGMENT

K.T. Thomas, J. - Leave granted.

2. In July 1989, respondent retired from Government service as Superintending Engineer of the P.W.D. under the Government of Kerala. About three years thereafter he was arraigned along with certain other persons before a Special Judge for offence under Section 5(2) of the Prevention of Corruption Act, 1947 (for short 'the P.C. Act') and Sections 406, 409, 201 read with Sections 120B and 100 of the Indian Penal Code. A learned Single Judge of the High Court of Kerala quashed the criminal proceedings against the respondent for want of sanction under Section 197 of the Code of Criminal Procedure (for short 'the Code'). State of Kerala, aggrieved by the said order of the High Court, has come up with this appeal by special leave.

3. The case against the respondent, in short, is that while he was working as Executive Engineer at the Moovattupuzha Valley Irrigation Project Division, he joined himself into a criminal conspiracy with four other accused for defrauding the Government by misappropriating about 600 tonnes of steel rods (costing Rs. 1,26,000/-). When respondent was charge-sheeted for the aforesaid offences, he appeared before the Special Judge's Court and filed a petition to discharge him on the ground that no prior sanction, as contemplated in Section 197 of the Code, has been obtained. Respondent, however, conceded before the Special Judge that no previous sanction is necessary under Section 6 of the P.C. Act 1947. But the Special Judge overruled his contention and held that "there is no necessity at all to obtain a sanction under Section 197 of the Code to proceed against the petitioner under the provisions of the P.C. Act 1947."

4. As the matter was taken up before the High Court the decision of this Court in Harihar Prasad v. State of Bihar, 1972(3) SCC 891 was cited before the learned Single Judge, who heard the matter. It was held in the said decision that :

Learned Single Judge tried to distinguish the said decision by observing thus :

In S.A. Venkataraman v. State, 1958 SCR 1040 and in C.R. Bansi v. State of Maharashtra, 1970(3) SCC 537 this Court has held that :

When the newly worded section appeared in the Code (Section 197) with the words "when any person who is or was a public servant" (as against the truncated expression in the corresponding provision of the old Code of Criminal Procedure, 1898) a contention was raised before this Court in Kalicharan Mahapatra v. State of Orissa, 1998(6) SCC 411 that the legal position must be treated as changed even in regard to offences under the P.C. Act also. The said contention was, however, repelled by this Court in Kalicharan Mahapatra (cited supra) wherein a two Judge Bench has held thus :

5. The correct legal position, therefore, is that an accused facing prosecution for offences under the P.C. Act cannot claim any immunity on the ground of want of sanction, if he ceased to be a public servant on the date when the court took cognizance of the said offences. So the High Court was at any rate wrong in quashing the prosecution proceedings in so far as they related to offences under the P.C. Act.

6. That apart, the contention of the respondent that for offences under Sections 406 and 409 read with Section 120B of the Indian Penal Code sanction under Section 197 of the Code is a condition precedent for launching the prosecution is equally fallacious. This Court has stated the correct legal position in Shreekantiah Ramayya Munnipalli v. State of Bombay, AIR 1955 Supreme Court 287 and also Amrik Singh v. State of Pepsu, AIR 1955 Supreme Court 309 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 (supra) as follows :

7. Learned Single Judge of the High Court declined to follow the aforesaid legal position in the present case on the sole premise that the offence under Section 406 of the Indian Penal Code has also been fastened against the accused besides Section 409 of the Indian Penal Code. We are unable to discern the rationale in the distinguishment. Sections 406 and 409 of the Indian Penal Code are cognate offences in which the common component is criminal breach of trust. When the offender in the offence under Section 406 is a public servant (or holding any one of the positions listed in the section) the offence would escalate to Section 409 of the Penal Code. When this Court held that in regard to the offence under Section 409 of the Indian Penal Code - read with Section 120-B it is no part of the duty of the public servant to enter into a criminal conspiracy for committing breach of trust, we find no sense in stating that if the offence is under Section 406 read with Section 120B Indian Penal Code it would make all the difference vis-a-vis Section 197 of the Code.

8. For the aforesaid reasons, we have no doubt that the High Court has committed a grave error in quashing the prosecution proceedings. The case against the respondent has to go to trial in accordance with law. Accordingly, we allow this appeal and set aside the judgment of the High Court and direct the Special Judge concerned to proceed with the trial.

Appeal allowed.