STATE OF KERALA versus V. PADMANABHAN NAIR

Citation: [1999] 3 S.C.R. 864 · Decided: 14-07-1999 · Supreme Court of India · Bench: K.T. THOMAS · Disposal: Appeal(s) allowed

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Judgment (excerpt)

A 
B 
STATE OF KERALA 
v. 
V. PADMANABHAN NAIR 
JULY 14, 1999 
[K.T. THOMAS AND M.B. SHAH, JJ.] 
Indian Penal code, 1860/ Prevention of Corruption Act, 1947/Criminal 
Procedure Code, 1973: Sections 406, 409, 201 109 read with 120-B/Section 
5(2)/Section 197-Respondent employed in the Public Works Department-
C Defrauded Government by misappropriating steel rods in conspiracy with 
others-Arraigned before the Special Judge after three years of retirement 
alongwith others-Sought discharge on the grounfi of want of prior sanction 
under Section 197 Cr. P. C.-Contention overruled-Respondent challenged 
the order in revision-Revision allowed-High Court quashed the criminal 
D proceedings on the ground of want of prior sanction under Section 197-
0rder of the High Court appealed against-Held-Accused ceased· to be a 
public servant before ta'king of cognizance of the offence by the Court-
Immunity on the ground of want of prior sanction cannot be claimed for 
offence under Section 5(2) of the Prevention. of Corruption Act-Sections 
406 and 409 I.P.C. are cognate offences-When offence under Section 406 
E l.P.C. is by a public servant, it escalates to an offence under Section 409 
l.P.C.-No part of the duty of the public servant to enter into a criminal 
conspiracy for committing criminal breach of trust-Prior sanction under 
Section 197 Cr.P.C. not required in case of offen~es under the both sections. 
F 
The respondent, an Executive Engineer with the Public Works 
Department had conspired with four other accused for defrauding the 
Government by misappropriating steel rods worth Rs. 1,26,000. After about 
three years of his retirement from Government service, the respondent 
alongwith some other persons was arraigned before a Special Judge for an 
offence under Section 5(2) of the Prevention of Corruption Act, 1947 and 
G Sections 406, 409, 201 read with Sections 109 and 120-B of the Indian Penal 
Code, 1860. On being chargesfteeted for the above offences, the respondent 
filed a petition before Special Judge for his discharge on the ground that no 
prior sanction, as contemplated under Section 197 Cr.P.C. had been obtained. 
The Special Judge, overruling the contention of the respondent, held that no 
sanction under Section 197 of the Criminal Procedure Code was required 
H to proceed against the respondent under the provisions of Act. The order of 
864 
... 
STATEOFKERALAv. V.P. NAIR 
865 
the Special Judge was challenged in revision. 
The High Court alloweci the revision on the ground that even though 
sanction is no bar to a prosecution under Section 409 read with Section 120-
B of the Penal Code, in the instant case sanction was necessary in view of 
the charge under Section 406 also of the Penal Code against the respondent. 
A 
Hence, this appeal. 
B 
The respondent contended that for prosecution under Sections 406 and 
409 read with Section 120-B of the Penal Code and under Section 5(2) of 
the Act, it was necessary to obtain prior sanction under Section 197 Cr.P.C. 
Allowing the appeal, this Court 
HELD : 1. An accused facing prosecution under the Prevention of 
Corruption Act, 1947 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 offence. The High Court was at any rate wrong in 
quashing the prosecution proceedings in so far as they related to offences 
under the Act. [868-B] 
2. Sections 406 and 409 of the Indian Penal Code, 1860 are cognate 
offences in which the common component is criminal breach of trust. When 
c 
D 
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 has held that in regard to E 
the offence under Section 409 read with Section 120-B of the Penal Code 
it is no part of the duty of the public servant to enter into a criminal 
conspiracy for committing criminal breach of trust then in case of an offence 
under Section 406 read,with Section 120-B of the Penal code also there is 
no difference vis-a-vis Section 197 of the Criminal Procedure Code, 1973. F 
[868-H; 869-A] 
3. Neither every offence committed by a public servant nor even every 
act -done by him while he is actually engaged in the performance of his 
official duties requires sanction for prosecution under Section 197 Cr.P.C. 
[868-DJ G 
Kalicharan Mahapatra v. State of Orissa, [199

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