\
DR. LAKSHMANSINGH HIMATSINGH VAGHELE
_v._
NARESH KUMAR CHANDRASHANKAR JHA AND ANR.
JULY 24, 1990
[T.K. THOMMEN. KULDIP SINGH AND
M. FATHIMA BEEVI, JJ.]
_Code_ _of_ _Criminal Procedure 1973-Section 197-Sanction_ _to_
_prosecute-When necessary_ _for-'Pub/ic_ _servant'-'Pub/ic_ _analyst'-_
_Sanction to prosecute-Whether necessary._
The appellant, an employee of the Municipal Corporation
Ahmedabad was holding the post of Laboratory Officer and while he was
so holding the post, he by a Notification dated 21.12.1966, issued b) the
State Government, was appointed as a Public Analyst for the local area
within the municipal limits of the Corporation. The respondent filed a
complaint before the Magistrate for offences punishable under Sections 465, 468 and 201, I.P.C. alleged to have been committed by the
appellant while exercising his functions as a Public Analyst. The appellant moved the High Court under Section 482, for quashing the criminal
proceedings sought to be initiated against him by the said complaint.
His principle contention was that he being a public serv11nt removable
from office only by the State Government, the magistrate could not take
cognizance of the alleged offences and that previous sanction of the
State Government as contemplated under section 197, Cr.P.C. was
necessary. The High Court rejected the contention of the appellant and
dismissed the petition. He has filed this appeal after obtaining special
leave from the Court.
Dismissing the appeal, this Court,
A
B
## c
D
E
F
HELD: The privilege or immunity from prosecution without sanc
tion extends only when the accused is a public servant of the kind
mentioned in Section 197, Cr.P.C. He must be a public servent as
defined in Section 21 of the Indian Penal Code and not removable from G
his office save by or with the sanction of the State Government or the
Central Government as the-case may be. The offence must also be one
committed by the accused while acting or purporting to act in the discharge of his official duty. Section 197, Cr .P.C. clearly intends to draw
a line between public servants and to provide that only in the case of the
higher ranks should the sanction of the Government to their prosecu- H
lion be necessary. [513C-D, H]
511
512 SUPREME COURT REPORTS [1990] 3 S.C.R.
A The words "removable from office" occurring in Section 197
signify removal from the office one is holding. [SI4B]
;
In the instant case, the appellant was not holding any public
office in connection with the affairs of the State. The State Govermnent
had merely entrusted him with the functions of a Public Analyst which
#### 8
could be granted and taken by an administrative Act. It was on account
of his being employed by the Municipal Corporation that he was
appointed as a Public Analyst in the cadre against any post. The Prevention of Food Adulteration Act also does not contain any deeming
provision to treat the Public Analyst as a public servant. [S!~D-E]
#### C The appellant is not therefore a public servant removable only by
the State Government. [514G]
### CRIMINAL APPELLATE JURISDICTION: Criminal Appeal /
No. 387 of 1990.
D
E
From the Judgment and Order dated 12.1.1984 of the Gujarat
High Court at Ahmedabad in Misc. Crl. Application No. 48 of 1982.
S.H. Sheth and S.C. Patel for the Appellant.
B. Datta, Sunil Dogra and P.H. Parekh for the Respondents.
The Judgment of the Court was delivered by
FATHIMA BEEVI, J. Leave granted.
The appellant is aggrieved by the judgment of the High Court
F
holding that sanction of the State Government as required under
Section 197, Cr.P.C., is not necessary for taking cognizance of the
offences against the appellant on the basis of the complaint filed by the
respondent. The appellant is an employee of the Municipal Corporation, Ahmedabad. While holding the post of Laboratory Officer, the
G State Government by a Notification dated 21.12.1966 under Section 8
of the Food Adulteration Act, 1954 appointed the appellant as a Public
Analyst for the local area comprised within the limits of the Corporation. The complaint was filed by the respondent before the Magistrate
for the offences punishable under Sections 465, 468 and 201,- LP.C.,
alleged to have been committed by the appellant while exercising the
F
functions as Public Analyst,
H
L.H. VAGHELE _v._ N.K. CHANDRASHANKAR [FATHIMA BEEVI,J.] 513
The appellant moved the High Court under Section 482,
\ Cr.P.C., for quashing ·the criminal proceedings on the ground that, he
being a public servant removable from office only by the State Government the Magistrate could not take cognizance of the offence alleged
to have been committed while discharging the duties as Public Analyst
without the requisite sanction under Section 197, Cr.P.C. The High
Court rejected this contention and dismissed the petition.
Under Section 197(1), Cr.P.C., when 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 of the Government. The section extends immunity from
irresponsible, frivolous and vexatious prosecution. The privilege of
immunity from prosecution without sanction extends only when the
accused is a public servant of the kind mentioned therein. He must be
a public servant as defined in Section 21 of the Indian Penal Code and
not removable from his office save by or with the sanction of the State
**Government or the Central Government** **as** **the case** **may** **be. The**
offence must also be one committed by the accused while acting or
purporting to act in the discharge of his official duty. Section 21,
l.P.C., reads as under:
A
B
# c
D
21. "Public servant" - The words "public servant" denote E
a person falling under any of the descriptions hereinafter
following, namely:
### '
Twelfth.-Every person
(a) in the service or pay of the Government or remunerated by fess or commission for the performance of any
public duty by the Government;
(b) in the service or pay of a local authority, a corporation
established by or under a Central, Provincial or State
Act or a Government company as defined in Section
617 of the Companies Act, 1956{lof1956).
Section 197, Cr.P.C., clearly intends to draw a line between
public servants and to provide that only in the case of the higher ranks
F
G
H
A
B
### c
D
E
F
G
514 SUPREME COURT REPORTS [ 1990] 3 S.C.R.
should the sanction of the government to their prosecution be necessary. While a public servant holding an office of the kind mentioned in ../
the Section is as such public servant appointed to another office, his
official acts in connection with the latter office will also relate to the
former office. The words "removable from office" occurring in Section 197 signify removal from the office he is holding. The authority
mentioned in the section is the authority under which the officer is
serving and competent to terminate his services. If the accused is under the service and pay of the local authority, the appointment to an
office for exercising functions under a particular statute will not alter
his status as an employee of the local authority.
The appellant herein is admittedly the Laboratory Officer in the
service and pay of the Municipal Corporation of Ahmedabad. The
appointment as Public Analyst by the Government does not confer on
him the status of a public servant or an officer under the service and
pay of the Government. He is not remunerated by any fee by the
Government. The appellant was not the employee of the State
Government and was not employed in connection with the affairs of
the State. He was not holding any public office i!l connection with the
affairs of the State. The State Government had merely entrusted him
with the functions of a Public Analyst which could be granted and
taken by an administrative act. It was on account of his being employed by the Municipal Corporation that he was appointed as a Public
Analyst by the Government. He is not appointed as Public Analyst in
the cadre against any post. The Prevention of Food Adulteration Act
also does not contain any deeming provision to treat the Public
Analyst as a public_servant.
The appellant is holding an office from which he is removable by
the Local Authority and not by the Government. The cancellation of
the appointment as Public Analyst would not amount to removal from
office. Section 197, Cr.P.C., in this context contemplates the removal
of the appellant from the office of the Laboratory Officer and not his
transfer or removal from the office of the Public Analyst. The removal
of the appellant from the office of Public Analyst would not affect his
office as a Laboratory Officer under the Local Authority and would
not amount to removal from office. The appellant is not therefore a
public servant removable only by the State Government. The High
Court was right in its view. We accordingly dismiss the appeal.
Y. Lal Appeal dismissed.
