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AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • For the Petitioner:— Mrs. Shyamla Pappu Senior Advocate with Mr. D.B Kalia, Advocates.
  • — Mr. S.N Marwaha Senior Advocate with Mr. A.K Marwaha, Advocates.
Judges
  • Mr. Justice V.D. Misra
Acts
  • rule 2 of the All-India Services (Conduct) Rules, 1968 and to rule 2 of the All-India Services (Discipline & Appeal) Rules, 1969.
  • section 197 (1) of the Code of Criminal Procedure;
  • section 197 of the Code of Criminal Procedure
  • provisions of the Food Adulteration Act, 1954
  • duties.5. Section 21 of the Indian Penal Code
  • section 123 of the Indian Evidence Act
  • Bombay Cooperative Societies Act, 1954
  • provisions of section 197 of the Code
  • section 161 of the Indian Penal Code,
  • PREVENTION OF FOOD ADULTERATION ACT
  • section 21 of the Indian Penal Code.
  • rule 9 (7) of the Fundamental Rules
  • Section 197, Cr.P.C
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • For the Petitioner:— Mrs. Shyamla Pappu Senior Advocate with Mr. D.B Kalia, Advocates.
  • — Mr. S.N Marwaha Senior Advocate with Mr. A.K Marwaha, Advocates.
Judges
  • Mr. Justice V.D. Misra
Acts
  • rule 2 of the All-India Services (Conduct) Rules, 1968 and to rule 2 of the All-India Services (Discipline & Appeal) Rules, 1969.
  • section 197 (1) of the Code of Criminal Procedure;
  • section 197 of the Code of Criminal Procedure
  • provisions of the Food Adulteration Act, 1954
  • duties.5. Section 21 of the Indian Penal Code
  • section 123 of the Indian Evidence Act
  • Bombay Cooperative Societies Act, 1954
  • provisions of section 197 of the Code
  • section 161 of the Indian Penal Code,
  • PREVENTION OF FOOD ADULTERATION ACT
  • section 21 of the Indian Penal Code.
  • rule 9 (7) of the Fundamental Rules
  • Section 197, Cr.P.C
See more information ...
Smart Summary

Concise Analytical Summary of the Opinion (V.D. Misra, J.)

Factual and Procedural Background

S.S. Dhanoa, an Indian Administrative Service officer, was appointed General Manager of Cooperative Store Limited (Super Bazar), New Delhi. The Government of India issued Notification No. 27-942/72-Estt-1 placing his services at the disposal of Super Bazar with effect from the forenoon of 7 April 1972; his term was later extended for a further year from 7 April 1973.

Super Bazar is a cooperative society registered under the Bombay Cooperative Societies Act, 1954 (as extended to Delhi), with the Central Government holding over 95% of its shareholding. The store operated branches across Delhi and sold, among other items, honey.

On 4 October 1973, a Food Inspector took a sample of honey from the I.N.A. Colony Branch. The Public Analyst reported the honey as adulterated. The Municipal Corporation of Delhi filed a complaint (dated 30 March 1974; filed 5 April 1974) under the Food Adulteration Act, 1954 against several persons including Mr. Dhanoa, alleging that as General Manager he participated in the working of Super Bazar and was in charge and responsible for the conduct of its business at the time of the alleged offence.

Mr. Dhanoa was summoned as an accused and moved an application under section 197 of the Code of Criminal Procedure, claiming that (i) he was a public servant acting in the discharge of his official duties, and (ii) the Court could not take cognizance without the previous sanction of the Central Government because he was not removable from office except by or with the sanction of the President of India. The trial Magistrate dismissed that application by order dated 9 October 1974. Mr. Dhanoa filed the present petition challenging the Magistrate's order.

Legal Issues Presented

  1. Whether the petitioner (S.S. Dhanoa) was acting or purporting to act in the discharge of his official duty at the time when the offence (sale of adulterated honey) is alleged to have been committed.
  2. Whether the petitioner was employed, at the time of the alleged offence, in connection with the affairs of the Union (so as to require previous sanction under section 197(1)(a), Cr.P.C.).

Arguments of the Parties

Petitioner's Arguments (as presented)

  • Mr. Dhanoa is a public servant within the meaning of section 21 of the Indian Penal Code.
  • As a government servant placed on deputation (foreign service) he was acting in the discharge of his official duties when the offence is alleged to have occurred, and therefore the Court could not take cognizance without the previous sanction of the Central Government under section 197, Cr.P.C.

Respondents' Arguments (as presented)

  • There is nothing on record to show that the petitioner was employed in connection with the affairs of the Union or of a State at the time of the alleged offence.
  • The act of selling an adulterated article of food cannot be treated as having been performed in the discharge of his official duties.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Amrik Singh v. State of Pepsu, 1955 (1) S.C.R. 1302 Establishes that not every offence by a public servant requires sanction under section 197; sanction is required where the act is directly concerned with official duties so that it could be claimed to have been done by virtue of the office. The Court relied on the principle summarized in Amrik Singh as part of the settled law governing when section 197 protection applies.
Hori Ram Singh v. Emperor, (1939) F.C.R. 159 One of the earlier authorities referred to in Amrik Singh's review of the law concerning acts done by public servants. Referred to as part of the chain of authorities leading to the principle stated in Amrik Singh; used as background precedent (no distinct new application beyond that role).
H.H.B. Gill v. The King, (1948) L.R. 75 I.A. 41 Another authority cited in the group of cases considered in Amrik Singh. Referred to as background authority contributing to the settled principle summarized in Amrik Singh.
Albert West Meads v. The King, (1948) L.R. 75 I.A. 185 Authority forming part of the jurisprudence reviewed in Amrik Singh. Referred to as part of the precedent base underlying the principle that not every act by a public servant needs sanction.
Phanindra Chandra v. The King, (1949) L.R. 76 I.A. 10 Authority relied on in the review of the law concerning official acts by public servants. Used as part of the array of precedents summarized in Amrik Singh; no separate novel application.
R. W. Mathams v. State of West Bengal, (1955) 1 S.C.R. 216 Authority included among cases reviewed in Amrik Singh's discussion of official duty and sanction. Referred to as part of the legal foundation for the principle quoted from Amrik Singh.
K. Satwant Singh v. State of Punjab, AIR 1960 S.C. 266 Holds that certain offences (e.g., bribery, cheating) by their nature are not committed while acting in the discharge of official duty because they bear no necessary connection with official functions. The Court cited Satwant Singh to show that some offences cannot reasonably be treated as acts done in the discharge of official duties and that the act must bear a real relation to duty to attract section 197 protection.
Baijnath v. State of Madhya Pradesh, AIR 1966 S.C. 220 Reiterates that the quality of the act is decisive; protection under section 197 applies if the act falls within the scope or range of official duties (or in excess of them), but not when the official status only furnished an occasion. The Court relied on Baijnath to reinforce that only acts within the scope of official duties attract section 197 protection.
Pukhraj v. State of Rajasthan, (1973) 2 S.C.C. 701 Explains that a mere claim that the act was done in execution of duty is not sufficient at an early stage; whether sanction is necessary may emerge during the judicial inquiry or trial. Used by the Court to note that determination of the need for sanction can be stage-dependent and that material may be placed on record during trial to show the relation to duty.
Matajog Dobey v. H. C. Bhari (referenced) Referenced for observations that necessity for sanction may reveal itself in the course of proceedings. Invoked as part of the authorities supporting the procedural point that necessity for sanction can emerge later in the process; cited by way of supporting precedent.
Bhagwan Prasad Srivastava v. N.P. Misra (referenced) Referenced as an authority indicating that appellants/respondents may place material during trial to establish relation of acts to duty for the purpose of section 197. Used to support the proposition that material may properly be adduced during trial to establish whether acts were within official duty.
M.C.S. Reddy v. The State (Food Inspector), Cuddapah Municipality, 1975 Cri. L.J. 1015 (Andhra Pradesh High Court) Held that a public servant working as manager of a milk project could be prosecuted without sanction under section 197 because he could not claim entitlement to sell adulterated milk in the performance of his duties. The Court expressly agreed with this decision and applied its reasoning by analogy: sale of adulterated food cannot reasonably be claimed as performance of official duty and therefore does not attract section 197 protection.
Delhi Development Authority v. Sh. Lal Chand Goel (Civil Revision No.217 of 1974, unreported; decided 21 April 1975) Held (in that unreported matter) that the Delhi Development Authority was a "State" within the meaning of section 123, Indian Evidence Act, by applying tests from Rajasthan State Electricity Board v. Mohan Lal. The Court noted this unreported judgment but found it irrelevant to the present question (whether running Super Bazar counted as an affair of the Union).
Rajasthan State Electricity Board, Jaipur v. Mohan Lal & Ors., (1967) 3 S.C.R. 377 Articulated tests for determining when an entity may be treated as a State or State instrumentality for certain legal purposes (as applied in other contexts). Mentioned as the source of tests applied in the unreported Delhi Development Authority case; the Court said that that line of reasoning had no relevance to the section 197 question in the present case.

Court's Reasoning and Analysis

The Court framed two central questions: (1) whether the petitioner was acting or purporting to act in the discharge of his official duty when the offence was alleged to have been committed; and (2) whether the petitioner was at that time employed in connection with the affairs of the Union.

On the second question (employment in connection with the affairs of the Union):

  1. The Court observed that the petitioner was on "foreign service" as defined by Fundamental Rule 9(7) and that counsel for the petitioner relied on explanatory deeming provisions in rules governing all-India service conduct and discipline. Those explanations deem a member whose services are placed at the disposal of a company, corporation or local authority to be serving in connection with the affairs of the Union (for the purposes of those rules).
  2. The Court held that those explanatory deeming provisions operate "for the purpose" of the particular service rules and cannot be extended beyond those rules to other statutes (i.e., they do not automatically alter the meaning of "employed in connection with the affairs of the Union" for the purposes of section 197, Cr.P.C.).
  3. The Court found no material on record to show that the running of Super Bazar amounted to one of the affairs of the Union. Consequently, the petitioner could not be said to have been employed "in connection with the affairs of the Union" at the relevant time.
  4. From this conclusion the Court reasoned that no previous sanction under section 197(1)(a), Cr.P.C. was necessary in respect of the petitioner.

On the first question (whether the act was committed while acting in the discharge of official duty):

  1. The Court summarized settled precedent: not every offence by a public servant requires sanction under section 197; sanction is required where the act is directly concerned with official duties so that it could reasonably be claimed to have been done by virtue of the office.
  2. The Court reviewed Supreme Court authorities (Amrik Singh; K. Satwant Singh; Baijnath; Pukhraj) to extract the controlling principles: (a) some offences by their nature have no necessary connection with official functions (e.g., bribery, cheating); (b) the decisive factor is the quality and relation of the act to the duties of the office; and (c) whether sanction is required may have to be assessed at different stages, with material possibly emerging during trial.
  3. The Court considered an analogous decision of the Andhra Pradesh High Court (M.C.S. Reddy) which held that a public servant managing a milk project could be prosecuted without sanction for selling adulterated milk because such selling was not within the performance of his duties.
  4. The Court expressed respectful agreement with M.C.S. Reddy and applied the same reasoning: the Prevention of Food Adulteration Act prohibits selling adulterated food, and a public servant cannot reasonably claim that selling adulterated food was part of the performance of his official duty.
  5. Accordingly, the Court concluded that the act of selling adulterated honey could not be characterized, on the material before the Court, as an act done in the discharge of official duty attracting the protection of section 197.

The Court's analysis remained tightly tied to the material on record and the established principles from the cited authorities; it expressly refrained from extending rule-specific deeming provisions beyond their statutory contexts.

Holding and Implications

Holding: Petition dismissed.

Implications (direct and stated in the opinion):

  • The Court upheld the trial Magistrate's dismissal of the application under section 197 of the Code of Criminal Procedure; that order stands.
  • The Court held, on the material before it, that the petitioner was not employed in connection with the affairs of the Union for the purposes of section 197(1)(a), and therefore no previous sanction under that provision was necessary in respect of him.
  • The Court held that selling adulterated food is not reasonably claimable as the performance of a public servant's official duties; thus section 197 protection does not attach to such conduct on the facts and authorities relied upon in this opinion.
  • The opinion aligns with existing precedent (including the Andhra Pradesh High Court decision in M.C.S. Reddy) and applies established tests; the Court did not purport to lay down a novel principle or overrule existing authority.

No additional facts, consequences or speculative procedural outcomes have been added beyond those explicitly stated in the opinion.

Show full summary ...

    Shri S.S Dhanoa Petitioner v. The Municipal Corporation Of Delhi & Others S

    V.D Misra, J.:— Mr. S.S Dhanoa, a Member of the Indian Administrative Service was appointed as General Manager of Cooperative Store Limited (Super Bazar), New Delhi, (hereinafter referred to as ‘Super Baar’). Notification No. 27-942/72-Estt-1, was issued by the Government of India, Ministry of Agriculture, on April 23, 1972 placing the services of Mr. Dhanoa at the disposal of Super Bazar with effect from the forenoon of April 7, 1972 when Mr. Dhanoa took over charge as its General Manager. The Managing Committee of the Super Bazar requested the Government of India to extend his term for a further period of one year with effect from April 7, 1973 which was duly extended.

    2. The Super Bazar is a Cooperative Society registered under the Bombay Cooperative Societies Act, 1954 as extended to Delhi. The Central Government holds more than 95 per cent shares of the total share holdings of the Stores. The Super Bazar has branches at various places in Delhi. It sells various articles, including honey, to the public.

    3. Food Inspector Madan Mohan Gupta took a sample of honey for analysis from the I.N.A Colony Branch of the Super Bazar on October 4, 1973. The report of the Public Analyst shows that the honey was adulterated. On April 5, 1974 the Municipal Corporation of Delhi filed a complaint dated March 30, 1974 under the provisions of the Food Adulteration Act, 1954 against various persons including Mr. Dhanoa. It was alleged that, Mr. Dhanoa “is the General Manager of M/s. Super Bazar, Connaught Place, New Delhi, and actually participates in the working of the Super Bazar and as such is Incharge of and responsible for, the conduct of the business of M/s. Super Bazar, at the time of commission of the offence. ” Mr. Dhanoa was duly summoned as an accused. We moved an application under section 197 of the Code of Criminal Procedure alleging that he was acting in the discharge of his official duties as a public servant and the Court could not take cognizance of the alleged offence against him without the previous sanction of the Central Government, since he was not removable from office except by the sanction or the order of the President of India. The trial Magistrate by his order dated October 9, 1974 dismissed the application. Mr. Dhanoa has filed the present petition challenging the magistrate's order.

    4. Mrs. Shyamla Pappu, learned counsel for the petitioner, submits that the petitioner is a public servant in terms of section 21 of the Indian Penal Code. As a government servant he had to proceed on deputation under the orders of the Government and he was, therefore, acting in the discharge of his official duties when the offence is alleged to have been committed by him. The contention of Mr. Marwaha, learned counsel for the respondents, is that there is nothing on record to show that the petitioner was at the time of commission of the offence employed in connection with the affairs of the Union or of the State. He also contends that the act of selling adulterated article of Food cannot be said to have been performed in the discharge of his official duties.

    5. Section 21 of the Indian Penal Code defines the words ‘public servant’. Clause twelfth of this section shows that Mr. Dhanoa is a public servant being in the service of the Government.

    6. Now the relevant provisions of section 197 of the Code may be noted which read thus:

    “197. (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 —

    (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. ”

    The questions which fall for decision are (i) whether the petitioner was acting or purporting to act in the discharge of his official duty at the time when the offence is alleged to have been committed, and (ii) whether the petitioner was at the time of commission of the offence employed, in connection with the affairs of the Union.

    7. I will take up the second question first. It is true that the petitioner while working with the Super Bazar was on ‘foreign service’ as defined by fundamental rule 9 (7) of the Fundamental Rules of the Government of India, but then can he be said to be employed in connection with the affairs of the Union. Mrs. Pappu refers to the ‘explanation’ to the definition of the word ‘government’ in rule 2 of the all-india services (conduct) rules, 1968 and to rule 2 of the all-india services (discipline & appeal) rules, 1969. The explanation in the former rule is in the following terms:

    “Explanation. — A member of the Service whose Services are placed at the disposal of a company, corporation or other organisation or a local authority by the Central Government or the Government of a State shall, for the purposes of these rules, be deemed to be a member of the Service serving in connection with the affairs of the Union or in connection with the affairs of that State, as the case may be, notwithstanding that his salary is drawn from the sources other than the Consolidated Fund of India or the Consolidated Fund of that State. ”

    The explanation to the latter rule reads thus:

    “Explanation. — A member of the Service whose services are placed at the disposal of any company, corporation, organisation or any local authority by the Central Government or the Government of a State shall, for the purpose of this clause, be deemed to be a member of the Service serving in connection with the affairs of the Union or the affairs of that State, as the case may be, notwithstanding that his salary is drawn from sources other than the Consolidated Fund of the Union or of that State. ”

    It will be noticed that these explanations are “for the purpose” of the rules only. This definition cannot, therefore, be extended to any other rule or law. On the other hand, the deeming provisions contained in these explanations suggest that but for these provisions a member of the Service, whose services are placed at the disposal of a company etc., cannot be said to be serving in connection with the affairs of the Union or the State. Help is sought from an unreported judgment of this Court in Civil Revision No. 217 of 1974 (Delhi Development Authority v. Sh. Lal Chand Goel), decided on April 21, 1975 (1) where the Delhi Development Authority was held to be a State within the meaning of section 123 of the Indian Evidence Act by applying the tests laid clown by the Supreme Court in Rajasthan State Electricity Board, Jaipur v. Mohan Lal & Ors., (1967) 3 S.C.R 377 (2). I am afraid it has no relevance to the question under discussion.

    8. There is no material before me “to show that running of the Super Bazar is one of affairs of the Union. It, therefore, follows that the petitioner was not employed in connection with the affairs of the Union at the time he was working as General Manager of the Super Bazar and so no sanction, as envisaged under section 197, was necessary. '”

    9. The next question which falls for consideration is whether the petitioner can be said to have committed the offence of selling adulterated honey while acting or purporting to act in the discharge of his official duty. The law relating to the circumstances under which a person can be said to be acting or purporting to act in the discharge of his official duty has by now been well-settled but the difficulty arises in applying the same to the particular facts of a case. I need not go through all the decision and I will only refer to four Supreme Court decisions. Venkatarama Ayyar, J., speaking for the Supreme Court in Amrik Singh v. State Of Pepsu, 1955 (1) S.C.R 1302 (3), after referring to Hori Ram Singh v. Emperor, (1939) F.C.R 159 (4), H.H.B Gill v. The King, (1948) L.R 75 I.A 41 (5), Albert West Meads v. The King, (1948) L.R 75 I.A 185 (6), Phanindra Chandra v. The King, (1949) L.R 76 I.A 10 (7), and R W. Mathams v. State of West Bengal, (1955) 1 S.C.R 216 (8) summarise the result thus:

    “It is not every offence committed by a public servant that requires sanction for prosecution under section 197 (1) of the Code of Criminal Procedure; nor even every act done by him while he is actually engaged in the performance of his official duties but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary; and that would be so, irrespective of whether it was, in fact, a proper discharge of his duties, because that would really be a matter of defence on the merits, which would have to be investigated at the trial, and could not arise at the stage of the grant of sanction, which must precede the institution of the prosecution. ”

    This question again came up for consideration before the Supreme Court in K. Satwant Singh v. The State of Punjab, AIR 1960 S.C 266 (9). Whereas Amrik Singh's case (3) (supra) was decided by a Bench of three Judges, Satwant Singh's (9) case was decided by a Bench of five Judges. After reviewing the existing case law, it was observed thus:

    “It appears to us to be clear that some offences cannot by their very nature be regarded as having been committed by public servants while acting or purporting to act in the discharge of their official duty. For instance, acceptance of a bribe, an offence punishable under section 161 of the Indian Penal Code, is one of them and the offence of cheating or abetment thereof is another. We have no hesitation in saying that where a public servant commits the offence of cheating or abets another so to cheat, the offence committed by him is not one while he is acting or purporting to act in the discharge of his official duty, as such offences have no necessary connection between them and the performance of the duties of a public servant, the official status furnishing only the occasion or opportunity for the commission of the offences . . . . . . . The act must bear such relation to the duty that the public servant could lay a reasonable but not a pretended or fanciful claim, that he did it in the course of the performance of his duty.

    This matter again came up before the Supreme Court in Baijnath v. State of Madhya Pradesh, AIR 1966 S.C 220 (10). After once more reviewing the existing case law, it was observed thus:

    “It is not every offence committed by a public servant that requires sanction for prosecution under S. 197 (1) of the Criminal Procedure Code; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned it could be claimed to have been done by virtue of the office, then sanction would be necessary. It is quality of the act that is important and if it falls within the scope and range of his official duties the protection contemplated by S. 197 of the Criminal Procedure Code will be attracted. An offence may be entirely unconnected with the official duty as such or it may be committed within the scope of the official duty. Where it is unconnected with the official duty there can be no protection. It is only when it is either within the scope of the official duty or in excess of it that the protection is claimable . . . . . . . . the act of criminal misappropriation was not committed by the appellant while he was acting or purporting to act in the discharge of his official duties and that offence has no direct connection with the duties of the appellant as a public servant, and the official status of the appellant only furnished the appellant with an occasion or an opportunity of committing the offence. ”

    Once again in Pukhraj v. State of Rajasthan and Another, (1973) 2 S.C.C 701 (11), the Supreme Court observed thus:

    “. . . the mere fact that the accused proposes to raise a defence of the Act having purported to be done in execution of duty would not in itself be sufficient to justify the case being thrown out for want of sanction. At this stage we have only to see whether the acts alleged against the 2nd respondent can be said to be in purported execution of his duty. But facts subsequently coming to light during the course of the judicial inquiry or during the course of prosecution evidence at the trial may establish the necessity for sanction. Whether sanction is necessary or not may have to depend from stage to stage. The necessity may reveal itself in the course of the progress of the case (see observations in Matajog Dobey v. H. C. Bhari (supra). In Bhagwan Prasad Srivastava v. N.P Misra (supra) also it was pointed out that it would be open to the appellant (the 2nd respondent in this case) to place the material on record during the course of the trial for showing what his duty was and also that the acts complained of were so inter-related with his official duty so as to attract the protection afforded by Section 197, Cr.P.C ”

    10. The question whether a public servant selling an adulterated article of food can claim to be doing so in the discharge of his official duty came up for decision before a Single Judge of the Andhra Pradesh High Court in M.C.S Reddy v. The State (Food Inspector) Cuddapah Municipality, 1975 Cri. L.J 1015 (12). It was held that the petitioner who was a public servant and was working as Manager Integrated Milk Project. Milk Cooling Centre, Mydukur, could be prosecuted without obtaining any sanction under section 197 of the Code of Criminal Procedure since he could not claim that he was entitled to sell adulterated milk in the performance of his duties as Manager of the Milk Project.

    11. I am in respectful agreement with the decision of Andhra Pradesh High Court. “The Prevention of Food Adulteration Act prohibits the sale of adulterated article of Food and a public servant cannot reasonably claim to sell the same in the performance of his duty. ”

    12. The petition, therefore, fails and is dismissed.

    Petition dismissed.

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    Comments

    Shri S.S Dhanoa Petitioner v. The Municipal Corporation Of Delhi & Others S
    (Sep 17, 1975)