"As far as the offence of criminal conspiracy punishable under Section 120-B, read with Section 409, Indian Penal Code is concerned and also Section 5(2) of the Prevention of Corruption Act is concerned, they cannot be said to be of the nature mentioned in Section 197 of the Code of Criminal Procedure. To put it shortly, it is no part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction under Section 197 of the Code of Criminal Procedure is, therefore, no bar.
Citation: 2015(3)CGLJ354, 2015CriLJ1055
IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
WP(Cr) No. 56 of 2013
Decided On: 17.12.2014
Appellants: G.S. Rahi
Vs.
Respondent: State of Chhattisgarh
Vs.
Respondent: State of Chhattisgarh
Hon'ble Judges/Coram:Prashant Kumar Mishra, J.
1. The instant writ petition under Article 226 of the Constitution of India seeks quashment of the criminal proceedings under FIR No./Crime No. 39/2012 registered at Police Station Jashpur, District Jashpurnagar against the petitioner and 5 other accused persons for offences under Sections 420 and 409/34 of the IPC.
2. Allegations against the accused persons, as appearing in the FIR lodged by the Project Administrator, Integrated Tribal Development Project, District Jashpur, are that the Executive Engineer, Rural Engineering Service, Division Jashpur was appointed as executing agency for the construction of culvert at village Salhekera Block, Jashpurnagar and was allotted Rs. 49.05 lakhs for the said construction work. On direction of Collector, Jashpur, a joint inspection team consisting of Executive Engineer, PWD, Jashpur; Executive Engineer, Water Resources Department, Jashpur and Executive Engineer, PMGSY, Jashpur was constituted for inspection/enquiry of the work executed. The report submitted by the said committee, on the basis of evidence of technical nature collected during investigation, concluded that a sum of Rs. 23.99 lakhs has been misappropriated/embezzled and the State Government has suffered loss to the said extent. The report further concluded that 2 Sub Engineers of Rural Engineering Service (for short 'RES') Division, Jashpurnagar namely, D.L. Sonwani and R.A. Nikunj, 3 Sub Divisional Officer, RES Division Jashpur namely, L.S. Saxena, S.K. Asati and H.K. Vishwakarma and the present petitioner, Executing Engineer, RES Division, Jashpur are involved in the said misappropriation/embezzlement.
3. Learned counsel for the petitioner would submit that no offence is made out against the petitioner; charge sheet cannot be filed and the petitioner cannot be prosecuted without obtaining sanction under Section 197 CrPC, therefore, the FIR deserves to be quashed. He would rely on judgments in the matters of Mohan Raj Vs. Dimbeswari Saikia & Anr. MANU/SC/8641/2006 : 2007 CRI.L.J. 52, H.S. Gotla Vs. State MANU/KA/0746/2001 : 2001 CRI.L.J. 2695, Vishnu Kondaji Jadhav Vs. State of Maharashtra MANU/SC/0403/1994 : 1994 CRI.L.J. 1579, State of Orissa and others Vs. Ganesh Chandra Jew MANU/SC/0264/2004 : 2004 CRI.L.J. 2011, State of Maharashtra through CBI Vs. Mahesh G. Jain MANU/SC/0561/2013 : 2013 CRI.L.J. 3092, Jayprakash Pandya Vs. State of Gujarat & Anr. MANU/GJ/0495/2013 : 2013 CRI.L.J. 4101, Fakhruzamma Vs. State of Jharkhand & Anr. MANU/SC/1287/2013 : 2014 CRI.L.J. 681, CBI Vs. Ashok Kumar Aggarwal MANU/SC/1220/2013 : 2014 CRI.L.J. 930, Trilochan Baral Vs. Bankanidhi Mahapatra & another MANU/OR/0034/2014 : 2014 CRI.L.J. 1930, M.L. Shankhla & others Vs. State of Rajasthan & another MANU/RH/0461/2014 : 2014 CRI.L.J. 2458, Sarat Chandra Rath & Others Vs. Malti Tandi MANU/OR/0308/2014 : 2014 CRI.L.J. 3758 and V. Venkata Subbarao Vs. State represented by Inspector of Police, AP MANU/SC/8773/2006 : (2006) 13 SCC 305.
4. Per contra, learned State counsel would submit that after completion of the investigation, charge sheet has already been filed and from the documents submitted by the petitioner on 28.3.2014, it would appear that many witnesses have already been examined, therefore, no case for quashing FIR/Crime number is made out. He would further submit that FIR is based on the report prepared by three senior engineers of the rank of Executing Engineer, therefore, there is prima facie case against the petitioner.
5. Heard learned counsel for the parties at length and perused the record.
6. The main thrust of the argument advanced by learned counsel for the petitioner is on the issue of requirement of sanction under Section 197 CrPC before the initiation of prosecution of the petitioner.
7. It has been urged that since the alleged act of misappropriation is in connection with the discharge of official duties performed by the petitioner, sanction is necessary under Section 197 CrPC.
8. Sanction under Section 197 CrPC is required when the offence is committed in course of discharge of official duty. When a public servant has allegedly committed the offence of cheating, criminal breach of trust and misappropriation/embezzlement, such offence cannot be said to be committed by the public servant while acting or purporting to act in discharge of official duty, therefore, for such offences, sanction for prosecution is not necessary.
9. In Bholu Ram Vs. State of Punjab & Anr. MANU/SC/3638/2008 : AIR 2008 SC (Supp) 550, the Supreme Court held that the offences alleged to have committed by the public servant under Sections 409, 420, 467, 468, 471 etc. of IPC cannot be regarded as having been committed while acting or purporting to act in discharge of official duty and the proceedings initiated against the public servant should not be quashed for want of sanction.
10. In State of U.P. Vs. Paras Nath Singh MANU/SC/0973/2009 : AIR 2009 SC (Supp) 1615, the Supreme Court held thus:-
"10. That apart, the contention of the respondent that for offences under Sections 406 and 409 read with Section 120-B of IPC sanction under Section 197 of the Code is a condition precedent for launching the prosecution is equally fallacious. This Court has stated the legal position in S.R. Munnipalli Vs. State of Bombay {MANU/SC/0050/1954 : 1955 (1) SCR 1177} and in Amrik Singh Vs. State of Pepsu {MANU/SC/0039/1955 : 1955 RD-SC 9} that it is not every offence committed by a public servant, which requires sanction for prosecution under Section 197 of the Code, nor even every act done by him while he is actually engaged in the performance of his official duties. Following the above legal position it was held in Harihar Prasad etc. Vs. State of Bihar {MANU/SC/0114/1971 : 1972 (3) SCC 89} as follows:
"As far as the offence of criminal conspiracy punishable under Section 120-B, read with Section 409, Indian Penal Code is concerned and also Section 5(2) of the Prevention of Corruption Act is concerned, they cannot be said to be of the nature mentioned in Section 197 of the Code of Criminal Procedure. To put it shortly, it is no part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction under Section 197 of the Code of Criminal Procedure is, therefore, no bar.11. Above views are reiterated in State of Kerala Vs. Padmanabhan Nair {MANU/SC/0400/1999 : 1999 (5) SCC 690}. Both Amrik Singh (supra) and S.R. Munnipalli (supra) were noted in that case. Sections 467, 468 and 471, IPC relate to forgery of valuable security, Will etc; forgery for purpose of cheating and using as genuine a forged document respectively. It is no part of the duty of a public servant while discharging his official duties to commit forgery of the type covered by the aforesaid offences. Want of sanction under Section 197 of the Code is, therefore, no bar." {See also: Raghunath Anant Govilkar Vs. State of Maharashtra & Ors. MANU/SC/0753/2008 : AIR 2008 SC (Supp) 1486}
11. In State of Maharashtra & Ors. Vs. Arun Gulab Gawali & Ors MANU/SC/0647/2010 : AIR 2010 SUPREME COURT 3762, it has been held by the Supreme Court that powers under Article 226 of the Constitution for quashing criminal proceedings have to be exercised very sparingly, with circumspection, that too in very rarest of rare cases.
12. In Bharat Amratlal Kothari and another Vs. Dosukhan Samadkhan Sindhi and others MANU/SC/1799/2009 : (2010) 1 Supreme Court Cases 234, it has been held that powers under Article 226 cannot be exercised to quash an FIR which made out prima facie commission of offence.
13. In State of Andhra Pradesh Vs. Gourishetty Mahesh and others MANU/SC/0473/2010 : (2010) 11 Supreme Court Cases 226, the Supreme Court has reiterated the duty of the writ Court while considering prayer for quashment of criminal proceedings.
14. In Padal Venkata Rama Reddy alias Ramu Vs. Kovvuri Satyanarayana Reddy and others MANU/SC/0884/2011 : (2011) 12 Supreme Court Cases 437, it has been held that quashing of criminal proceedings under Article 226 of the Constitution or under Section 482 CrPC is permissible only if the complaint does not disclose any offence or the same is frivolous, vexatious or oppressive. It is held that the High Court cannot get into meticulous analysis of facts as to likelihood of acquittal or conviction.
15. In C.P. Subhash Vs. Inspector of Police, Chennai and others MANU/SC/0094/2013 : (2013) 11 Supreme Court Cases 559, it has been held that the High Court in ordinary course should not invoke its powers to quash such proceedings except in rare and compelling circumstances.
16. In the present case also, the petitioner has allegedly committed offence of criminal breach of trust and cheating by causing loss of Rs. 23.99 lakhs to the exchequer by misappropriating the same while sharing common intention with other accused persons. The FIR is based on the report of enquiry committee, therefore, there is prima facie evidence against the petitioner.
17. Thus, considering the law laid down by the Supreme Court, as referred in the preceding paragraphs, no case for quashing FIR/crime number is made out. The writ petition being devoid of any merit deserves to be and is hereby dismissed.
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