SUPREME COURT REINSTATES A CRIMINAL CASE AGAINST A PUBLIC SERVANT ACCOUNTANT FOR CREATING FALSE RECORDS
A two-Judge Bench of the Supreme Court comprising of Justice Abhay S. Oka and Justice Ujjal Bhuyan Judgment dated 17.01.2024 in the matter of Shadakshari vs. State of Karnataka and Anr, Criminal Appeal No. 256 of 2024 and held that Section 197 (Prosecution of Judges and Public Servant servants)[i] of the Criminal Procedure Code (Cr. PC), 1973 does not protect every action or negligence of a public servant during their service. Its scope is limited to acts or negligence carried out by public servants in the course of discharging their official duties.
i) That the aforesaid Appeal filed before the Apex Court by one, Shadakshari (Appellant /Complainant) against the State of Karnataka and one Mallikarjuna (Respondents), challenged the Order dated 25.11.2020 of the Hon’ble High Court of Karnataka, Bengaluru (High Court), which dismissed the Criminal Petition No. 4998 of 2020 and quashed the Complaint dated 19.12.2016 lodged by the Appellant, including the Order dated 28.03.2018 passed by the learned Judicial Magistrate First Class (Trial Court), Belur in C.C. No. 116 of 2018.
ii) The Appellant has lodged a First Information Report (FIR) (hereinafter, referred as Complaint in the Impugned Order) on 19.12.2016. The Complaint alleged that the Respondent No.2, a Village Accountant in Kirigdalu Circle, Karnataka, and another individual were involved in the fraudulent creation of property documents in the name of a deceased person. Furthermore, these documents included a death certificate, a family tree, and other related records, all fabricated to secure illegal gains.
iii) Subsequently, the FIR, registered at Haleebedu Police Station, Belur, specified charges under various sections, including Sections 409 (Criminal breach of trust by Public Servant servant, or by banker, merchant or agent), 419 (Punishment for cheating by personation), 420 (Cheating and dishonestly inducing delivery of property), 423 (Dishonest or fraudulent execution of deed of transfer containing false statement of consideration), 465 (Punishment for forgery), 466 (Forgery of record of Court or of Public Servant register, etc.), 467 (Forgery of valuable security, will, etc.), 468 (Forgery for purpose of cheating), 471 (Using as genuine a forged document or electronic record), and 473 (Making or possessing counterfeit seal, etc., with intent to commit forgery punishable otherwise) of the Indian Penal Code (IPC), 1860.
iv) Subsequently, the Respondent No.2, dissatisfied with the FIR, filed a Criminal Petition No.9580 of 2017 under Section 482 (Saving of Inherent Power of High Court) of the Code of Criminal Procedure (Cr. PC), 1973 before the High Court of Karnataka at Bengaluru.
v) The High Court, in its Order dated 05.01.2018, acknowledged the Appellant’s specific and serious allegations. Notably, it emphasized the creation of false documents, including a death certificate for a living person. Despite providing Respondent No.2 the liberty to seek legal remedies in the event of an adverse report, the High Court refrained from intervening and highlighted the need for further investigation based on the FIR.
vi) The Sub Inspector of Police at Haleebedu Police Station, serving as the Investigating Officer, submitted a final report under Section 173 (Report of police officer on completion of investigation) of the Cr.PC on 20.03.2018. This report led to the filing of Chargesheet No.12/2018, naming Accused individuals, including the Respondent No.2, who were charged under various sections of the IPC. The Charge Sheet also listed thirty-one witnesses.
vii) Subsequently, the Respondent No.2 filed another petition under Section 482 Cr.PC, seeking to quash the FIR, Charge Sheet, and an Order dated 28.03.2018. The High Court on 25.11.2020, considering the Respondent No.2’s status as a Public Servant and the denial of Prosecution sanction, set aside the Complaint, Charge Sheet, and the Order dated 28.03.2018.
A) The High Court held that though the Investigating Officer had sought sanction to prosecute the Village Accountant (Respondent No.2) but it was denied, the Prosecution for the alleged criminal offence against a Public Servant could therefore not continue.
B) The High Court observed that Respondent No.2 was a Public Servant, and the Offence complained against him was allegedly committed while discharging his duties. Therefore, the High Court applied the protective cover provided by Section 197 of the Cr. PC.
C) Further, the High Court quashed both the initial Complaint dated 19.12.2016 and the subsequent Charge Sheet dated 28.03.2018.
D) Despite quashing the proceedings, the High Court granted liberty to Respondent No.2 to seek legal remedy if any adverse report was made after the lodging of the Complaint.
Aggrieved by the Order dated 25.11.2020 of the High Court, Respondent No. 2 filed Criminal Appeal No. 256 of 2020 before the Hon’ble Supreme Court, thereby challenging the High Court Order that dismissed the Trial Court Order dated 28.03.2018.
I) The core issue in the present Appeal is whether sanction is required to prosecute Respondent No.2, a Public Servant Accused, among other things, for creating fake documents while misusing his official position as a Village Accountant.
II) Whether the fabrication of records, by Respondent No.2, as alleged, falls within the ambit of official duty, thereby requiring sanction for prosecution under Section 197 Cr. PC.
1) The Supreme Court observed that the protection provided under Section 197 of the Cr.PC is intended to shield responsible public servants from potentially vexatious criminal proceedings arising from offences alleged to have been committed while acting in the discharge of their official duties. The Apex Court highlighted that the legislative intent is to afford sufficient protection to public servants, ensuring they are not prosecuted for actions performed in the course of their official duties without reasonable cause. The Provision also grants the Government control over the Prosecution, should it choose to exercise it.
2) The Bench reiterated that the safeguard under Section 197 is not applicable to every act or omission by a public servant during their service. It is specifically limited to acts or omissions performed in the discharge of official duties. The Court emphasized that the crucial factor is the reasonable connection between the act complained of and the official duty of the public servant. If the act falls within the scope and range of official duty, the protection of Section 197 applies.
3) Furthermore, the Apex Court clarified that Section 197 does not protect a public servant for acts such as fabricating records or misappropriating public servant funds, which are not considered part of their official duties. It underscored that acts falling outside the discharge of official duties are not entitled to the protection afforded by the section.
4) Subsequently, the Supreme Court held that the act of creating false documents cannot be considered as part of the official duty of the public servant. Consequently, the Apex Court concluded that the High Court erred in quashing the Complaint and Chargesheet entirely, and emphasized that the Protection under Section 197 should not extend to such acts. The Bench set aside the High Court’s Order and allowed the Appeal without costs while keeping all contentions open.
Based on the aforementioned facts, the Supreme Court, in its observation, clarified that Section 197 of the Cr.PC shields public servants only for acts reasonably connected to their official duties. Further, any acts such as fabricating records or misappropriating funds are not considered part of official duties and are not protected under Section 197. The Court emphasized the need for a reasonable connection between the alleged act and the public servant’s official duty. In the present case the Village Accountant is the Accused and has fabricated documents, the Court found that this act was outside the scope of official duties.
Hence, the High Court’s decision to quash the Complaint and Chargesheet entirely was deemed erroneous. Consequently, the Supreme Court set aside the High Court’s Order, allowing the Appeal.
The Indian Lawyer
[i] Section 197. Prosecution of Judges and public servants of the Indian Penal Code, 1860
(1) When any 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 1[save as otherwise provided in the Lokpal and Lokayuktas Act, 2013 (1 of 2014)]–
(a) 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 the Union, of the Central Government;
(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:
2[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.]
3[Explanation.–For the removal of doubts it is hereby declared that no sanction shall be required in case of a public servant accused of any offence alleged to have been committed under section 166A, section 166B, section 354, section 354A, section 354B, section 354C, section 354D, section 370, section 375, 4[section 376A, section 376AB, section 376C, section 376D, section 376DA, section 376DB] or section 509 of the Indian Penal Code (45 of 1860).]
(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.
(3) The State Government may, by notification, direct that the provisions of sub-section (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.
5[(3A) 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.
(3B) 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 (43 of 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.]
(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.