N.S. Dhanik, J
The allegation against the applicant accused is that while working as Village Development Officer, Neryuka, he committed several financial
misappropriations in collusion with the co-accused Sabu Lal, the then Gram Pradhan of Gram Panchayat Neryuka, District Uttarkashi. After the
investigation, police submitted the chargesheet against the applicant and the co-accused Sabu Lal.
It is the case of the applicant that the applicant is a public servant; he has been charged with the allegation of financial embezzlement; chargesheet has
been submitted and cognizance has been taken against him, but no prior sanction to prosecute the applicant, as envisaged under Section 197 CrPC, has
been obtained from the competent authority and, therefore, the impugned proceeding so far it relates to the present applicant is liable to be quashed.
In the present case, the short question for consideration before this Court is regarding the applicability of Section 197 CrPC only, and not about the
alleged acts of financial misappropriations committed by the applicant.
It is contended on behalf of the applicant that the applicant being a public servant, sanction ought to have been obtained under Section 197 CrPC for
prosecuting the appellant. Reliance has been placed on the judgment of the Hon’ble Apex Court in General Officer Commanding v. CBI, (2012) 6
SCC 228, wherein it has been observed that “the use of words like “no†and “shall†in Section 7 of the 1990 Act denotes the mandatory
requirement of obtaining prior sanction of the Central Government before institution of the prosecution, suit or legal proceedings. From the conjoint
reading of Section 197(2) CrPC and Section 7 of the 1990 Act, it is clear that prior sanction is a condition precedent before institution of any of the
aforesaid legal proceedings.â€
Section 197 Cr.P.C. provides:-
“197. Prosecution of Judges and public servants.--(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 [save as
otherwise provided in the Lokpal and Lokayuktas Act, 2013]- (a) in the case of a person who is employed or, as the case may be, 14 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: 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. Explanation
â€" 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, section 376, section 376A, section 376AB, section 376C, section 376D, section 376DA, section 376DB or section 509 of the Indian Penal Code
(45 of 1860).â€
It is an admitted fact that the applicant is a public servant and he committed the alleged financial misappropriation during the course of discharge of his
official duties. It is also an admitted fact that no “sanction†has been obtained before submission of the chargesheet or prior to taking cognizance
against the applicant. Learned State Counsel also does not dispute with the proposition of law that prior sanction is required to prosecute the applicant,
being a public servant, before submitting chargesheet or taking cognizance against him.
In view of what has been set forth above, the present C482 application under Section 482 CrPC is liable to be allowed and the same is hereby
allowed. Impugned order dated 29.11.2013 passed by the Sessions Judge, Uttarkashi, in Criminal Revision No. 2/2014, Vijay v. State, relating to
offences under Sections 409, 467, 120B IPC, is hereby quashed.
Inform the Court concerned accordingly.
