@JUDGMENTTAG-ORDER
Kishore K. Mandal, J.@mdashThe petitioner is aggrieved by order dated 14.8.2007 passed by the learned Judicial Magistrate, 1st Class, Patna in Gardanibagh P.S. Case No. 478/2001 whereby cognizance of the offence has been taken under Sections 409 and 120B/ 34 IPC. Background facts leading to the present case may be noticed with relevant brevity.
2. The Deputy Superintendent of Police, Central Cloth Store, Patna lodged a complaint with the Officer-in-charge, Gardanibagh Police Station, alleging therein that having joined the said Central Cloth Store, Patna he made enquires upon instruction of Inspector General (Prison) as there was non-assumption of charge due to varied reason(s). In such enquiry, it was found that original and duplicate copies of challan nos. 303 and 304, both dated 10.12.1996, were recovered from the drawer of the office table from which it was not apparent as to whether clothing items mentioned therein were received by the Bhagalpur Police or not. They were, however, shown to have been issued from the store. In the Central Issue Register, the items shown and indicated therein were shown to have been received by the then Sergeant, namely; Sri Keshav Kumar posted at Bhagalpur. A report was submitted to the Additional Inspector General (Personnel) to ascertain/establish the facts. An officer was thereafter deputed who, upon inspection of the Committee Register for the financial year 1996-97, did not find mention of challan nos. 303 and 304, both dated 10.12.1996. The complicity of the petitioner in the crime was surfaced. It is further alleged that the D.I.G. (Prison) made requests to the Superintendent of Police, Bhagalpur to acquaint him with the said state of affairs. The petitioner was also noticed to clarify the matter. The petitioner took the stand that the items mentioned therein were issued. The matter was enquired whereafter it came to light that the items issued vide challan nos. 303 and 304 were never received at Bhagalpur. On the basis of these facts, it was alleged that clothing items/materials worth Rs. 3,20,000/- were misappropriated by the petitioner in connivance with other accused''s. The FIR was drawn up and the case was investigated whereafter the charge-sheet was submitted on 13.8.2007 against the petitioner and one another accused under Sections 409 and 120B IPC. Accordingly, the learned court below took cognizance. The said order has been impugned in this application.
3. Heard Shri Suraj Nr. Pd. Sinha in support of the application, Shri D.K. Sinha, learned AAG-II, assisted by Mrs. Sucheta Yadav for the State and Shri Atul Chandra for opposite party no. 2.
4. Learned counsel for the petitioner made twofold submissions. It was contended that the order taking cognizance is bad in law as no sanction was obtained before passing the said order which was mandatory for proceeding with the case. He relied in this regard on Section 197 of the Code of Criminal Procedure (for short "the Code"). It was next submitted that the prosecution obtained sanction on 12.10.2007 (Annexure-3). On perusal thereof it would appear that the sanction has been granted by the Secretary to the Department of Law, Govt. of Bihar. The said authority is not competent authority to grant sanction in the case of the petitioner who was officiating as Dy. S.P. The administrative department of the petitioner is Home (Police) Department. He relies in this regard on an unreported order of this Court passed in Cr. Misc. No. 44151 of 2008 (Shankar Prasad vs. State of Bihar).
5. Per contra, Shri D.K. Sinha submitted that the impugned order was passed on 14.8.2007. The present application has been filed in this Court on 2.1.2013. There is manifestly inordinate delay in challenging the order passed by the court below. The application merits to be dismissed on this score itself as this is part of the method to delay the trial. The court has to consider whether, in the facts and circumstances of the case, sanction is at all required. The petitioner is facing charge of having committed the offence of criminal breach of trust while functioning as the public servant. In his submissions, considering the allegations levelled against him the petitioner cannot claim protection u/s 197 of the Code. Reliance in this regard has been placed on the case of
6. This Court in this connection may usefully extract hereinbelow the observation of the Hon''ble Apex Court in the case of
50. The offence of cheating u/s 420 or for that matter offences relatable to Sections 467, 468, 471 and 120B can by no stretch of imagination by their very nature be regarded as having been committed by any public servant while acting or purporting to act in discharge of official duty. In such cases, official status only provides an opportunity for commission of the offence.
7. In the case of Om Kr. Dhankar (supra) the Apex Court held as under:--
14. In view of the above legal position, the Additional Sessions Judge and the High Court were not right in holding that for prosecuting the respondent No. 2 for the offences for which the summoning order has been issued, the sanction of the competent authority u/s 197 Cr.P.C. is required. The view of the Additional Sessions Judge and the High Court is bad in law being contrary to the law laid down by this Court in Prakash Singh Badal case (supra). The second question is answered in the negative and in favour of the appellant.
8. It has been contended that in course of trial if it is found by the learned trial court upon survey of facts of the case that the petitioner is entitled to the protection u/s 197 of the Code then such sanctions can be obtained at a subsequent stage of the trial. The order impugned, in such view of the matter, would not be illegal.
9. As seen from the records, the petitioner was posted as the Dy. S.P., Central Cloth Store. The allegation, in substance, is that he issued clothing articles for the use of police personnel(s) vide two challan nos. 303 and 304, both dated 10.12.1996 which was shown to have been received by another co-accused namely Keshav Kumar, but, in fact, the articles/ materials were never made over. The Government was thereby put to a heavy loss. This was later found to be a scam.
10. It has been argued on behalf of the petitioner that in somewhat identical circumstance this Court in Cr. Misc. No. 44151 of 2008 held that in the case of the petitioner of the said case (who was serving as the Child Development Project Officer), the sanction granted by the Law Department was not sustainable in law. From perusal of the aforesaid order it appears that the petitioner of the case was being prosecuted under the provision of the P.C. Act besides the penal provision of the Indian Penal Code. The Court also noticed that the challenge was made to the order immediately after the same was passed and there was no inordinate delay in challenging the correctness/legality of the order. In such circumstance, while setting aside the cognizance order it was observed that the prosecuting agency may obtain a valid sanction from the competent authority and thereafter proceed in accordance with law. The issue raised here is whether, in the attending facts of the case, any sanction is at all required. This issue has been considered in relation to a case where the public servant was facing charge punishable u/s 409 IPC in the case of S.B. Saha vs. M.S. Kochar (supra). The Apex Court held as under in paras 18 and 28:--
18. The words "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty" employed in Section 197(1) of the Code, are capable of a narrow as well as a wide interpretation. If these words are construed too narrowly, the Section will be rendered altogether sterile, for, "it is not part of 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, committed in the course of the same transaction in which the official duty is performed or purports to be performed. The right approach to the import of these words lies between these two extremes. While on the one hand, 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 Section 197(1), an act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution under the said provision. As pointed out by Ramaswami J. in
27. There are several decisions of this Court, such as,
11. Without delving deep into the matter relying on the ratio laid down in S.B. Saha (supra) it can be said that in a case of criminal breach of trust the accused may not have the protection of the provision contained in 197 of the Code. True it is that if an issue in this regard at subsequent stage of the trial is raised the court below could consider the same in the background of attending facts of the case. Any observation/finding recorded on this issue may prejudice the case of the parties. The matter is, therefore, left to be agitated before the learned trial court in the light of the evidence/materials adduced at the trial.
12. Counsel for the petitioner has strenuously argued that the prosecution did find necessity of sanction and, therefore, obtained sanction in the present case which was granted by the Law Secretary of the Government who is not the competent authority to grant sanction in the case of the petitioner.
13. In view of my conclusion, this issue would be relevant once the trial court, upon perusal of the materials, comes to the conclusion that sanction in the case was required for prosecuting the case. For clarification, this Court would only note that in the case of Shankar Prasad (supra) the sanction granted by the Law Department was found not sustainable in law on the ground that not only the same was granted by an authority who was not competent but the same was also granted mechanically without considering any material on record. No argument relying on materials placed before the sanctioning authority before grant thereof was made before this Court inasmuch as relevant facts have also not been brought on record. It is also to be kept in focus that any irregularity in grant of sanction would not ipso facto render the final verdict unsustainable in law unless it is shown to have occasioned a failure of justice.
14. For the aforesaid reasons, this Court is not persuaded to invoke its inherent jurisdiction to quash the order dated 14.8.2007.
15. The petitioner may raise the issue as raised in this case before the trial court in the light of the evidence/material adduced thereat which shall be considered in accordance with law.
16. This Court, however, further clarifies that the order present should not be construed as a seal of approval to the sanction order granted in this case to prosecute the petitioner. The application stands disposed of.
