B. SAHA AND ORS. versus M. S. KOCHAR

Citation: [1980] 1 S.C.R. 111 · Decided: 27-07-1979 · Supreme Court of India · Bench: R.S. SARKARIA · Disposal: Dismissed

Cited by 4 judgment(s) · cites 3 · see the full citation network in Lexace

Judgment (excerpt)

• 
J 
B. SAHA AND ORS. 
v. 
M. S. KOCHAR 
July 27, 1979 
111 
[R. S. SARKARIA, P. N. SHINGHAL AND 0. CHINNAPPA REDDY, JJ.] 
Criminal Procedure Code 1898, Sec. 197-Scope of. 
The act complained of is dishonest misappropriation or conversion of goods 
by the appellants wl1ich they had setlzed and as such were holding in trust 
to be dealt with in accordance with law. This gave a bona fide apprehension 
A 
B 
to the fC!POndent that the goods 
have been 
criminally 
mis-appropriated 
C 
by the appellants. The S.D'.M. conducted a preliminary enquiry and found a 
prima facie case under S. 120B/409 IPC against the appellants. The S.D.M. 
summoned the appellr:tnts vihO appeared before him and prayed for their in1me-
diate discharge, which was accepted on the ground that he bad no jurisdiction 
and he discharged the appellants. A .revision petition before the Addl. Sessions 
Judge was dismissed on the ground that since the shortage of the goods was 
discovered at the time when they were produced before the Customs House, 
D 
there was absolutely nothing to show that the shorta-ge, if any, was due to the 
act of the appellants. The respondent went in further revision to the High 
Court which v.•as allo .. ved on the ground that no sanction was required for 
the prosecution of the accused~appellants because they were certainly not acting 
in the discharge of their official duties, when they misappropriated these goods. 
It wa; argued on behalf of the appellants that-
(0 lt had been falsely alleged in the complaint that ·when the S.D.M. 
inspected the goods and noticed the condition thereof, it was found 
that the Eeals of the four boxes were broken v"hilc the ren1ainiriJi 
three packa-ges were completely empty but sealed; that the inventory 
itself, prepared by the S.D.M. falsified the prosecution allegation; 
(ii) That it was not alleged in the complaint with particularly as to what 
goods had disappeared or were removed, nor that the disappearance 
of some of the goods, if a-ny, occurred after their seizure and before 
their deposit in the Customs House by the appellant; 
(iii) That even if for the sake of argument it is assumed that some of 
the goods were removed and set apart by the appellants after seizure, 
E 
F 
then also sanction for prosecution u/s 197 Cr.P .C. ,Vas absolutCly 
G 
necessary because, the seizure and removal being integrally connected 
with each other, the all~ed act constituting the offence of criminal 
n1is·appropriation/criminal breach of trust could but reasonably be 
vie\vcd as an act which includes dereliction of duty-done or purport-
ing to be done in the»discharge of their 
official 
duty 
by 
the 
appellants; 
(iv) That section 197 Cr.P.C. cannot he construed too narrowly, in the 
sense that since the commission of offence is never a part of the 
official duty of a public servant, an act constituting an offence can 
H 
A 
B 
c 
D 
E 
F 
G 
H 
112 
SUPREME COURT REPORTS 
[1980] 1 S.C.R. 
never be said to have been done or purportedly done in the discharge 
of official duty, as such a narrow construction, will render the section 
entirely otiose. 
Dismissing the appeal, 
HEW : 
The question of sMJ.ction u/s 197 Crin1inal 
be raised and considered at any stage of the proceedings. 
ProceJ ure Co<le ca11 
[116H, 117AJ 
The \VOrcfs "Any olience alleged to have been comn1ittcd by hin1 whik: 
acting or purporting to act in the discharge of his official duty'' in section 197(1) 
of the· Code, are capable of a narrow as well as wide interpretation. If these 
words are constrl.Y.:'d too nar;owly, the section will be rendered altogether stefile, 
for it is no part ot 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, comn1itted in the course of the same transaction in 
v;hich the official duty is performed or purports to be pcrforn1eJ. 'fhe riglrt 
approach to the import of these words lies bet\veen these ty,'o extremes. 
\.'Vhile 
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 sec. 197(1), 
an act constituting an cffence directly and reasonably connected with an official 
dllty will require sanction for prosecution under 
the 
said 
provision. The 
sine qua non for the applicability of this section is that the offence charged, 
be it one of commifsion or omission, must be one which has been committe

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