JUDGMENT
D.K. Sinha, J.
1. The Criminal Revision is directed against the order impugned dated 16.6.2007, passed by learned A.C.J.M., Latehar in Latehar P.S. Case No. 50 of 1998 (G.R. No. 132 of 1998), whereby and whereunder, the discharge petition filed under Section 239 of the Code of Criminal Procedure on behalf of the petitioner was rejected.
2. Short fact of the case, as stands narrated in the written report of the opposite party No. 2 Awadh Bihari Singh, the then Divisional Forest Officer, State Trading Division-II, Latehar, was that the petitioner Vijay Kumar Sinha was the Divisional Forest Officer of the State Trading Division-II, Latehar from 2.1.1990 to 28.12.1993. It was alleged that during his tenure of posting at such place, he defalcated huge amount of public money, approximate to the tune of Rs. 43,20,500/- as it was found after official enquiry by the Department. Informant had produced various documents with the written report which were the basis of institution of the case. It was further alleged, inter alia, that fake purchase of various materials from fake dealers/suppliers, standing in different names and styles, mostly non-existing, were shown by the petitioner. As a matter of fact, he had no authority or any sanction granted to him in this regard by superior authority or competent officer of the Department. It was further alleged that the petitioner had done it at his personal accord under mala fide intention and personal gains which ultimately resulted in defalcation of huge amount and that the materials so purchased by him were not found on physical verification by the Department. It was further alleged that alleged supply was made through the following agencies:
(1) M/s. Steel and Allied Products, Calcutta
(2) M/s. Paramount Dealers, Ranchi
(3) M/s. Beemco Industry, Ranchi
(4) M/s. B. Mani Lal and Co., Ranchi
(5) Bihar Aluminium Agency, Ranchi
Accordingly, F.I.R. was instituted against him on 25.4.1998 under Sections 467, 468, 471, 477, 406, 409 r/w 120B of the Indian Penal Code.
3. Police after investigation submitted chargesheet against the petitioner and others and accordingly cognizance of the offence was taken on 21.9.2005 by the C.J.M., Latehar under Sections 467, 468, 471, 477, 406, 409 and 120B of the Indian Penal Code and the record was transferred to the A.C.J.M., Latehar for favour of disposal who passed the impugned order on the petition filed under Section 239 of the Code of Criminal Procedure.
4. Advancing his argument and assailing the impugned order, Mr. Sahani, learned Counsel submitted that F.I.R. was belated in respect of alleged occurrence which took place between 2.1.1990 and 28.12.1993 as it was instituted on 25.4.1998 without cogent explanation of inordinate delay and therefore, the entire prosecution case was doubtful, vexatious and brought about maliciously.
5. Learned Counsel further made submissions that the opposite party No. 2 tried to mislead the investigating agency by giving incorrect facts and the Annexures No. 1 to 10/2 purportedly annexed with the original report suggested that the allegations made in the F.I.R. were not in terms of those Annexures. After institution of the case, the matter was referred to the Vigilance Department who, after investigation, found that the allegations could not be substantiated against the petitioner as such suggested exoneration of the petitioner from such allegation and had there been prima facie case, the State Vigilance Department could have recorded special vigilance case against the petitioner.
6. Having inherent latches and as there was no material to proceed against the petitioner, the Forest Department (prosecution) whimsically persuaded and got the matter referred to the State C.I.D. which acted according to the choice of the Department and submitted chargesheet after lapse of more than seven years without rhyme and reason, perfunctory in nature and virtually a table report, yet, the C.J.M., Latehar without application of mind and in absence of mandatory sanction under Section 197 of the Code of Criminal Procedure took cognizance of the offence as stated aforesaid, the learned Counsel for the petitioner added.
7. Attention was attracted towards the facts that no sanction under Section 197 of the Code of Criminal Procedure was obtained from the appropriate Government before prosecuting the petitioner. In the instant case, sanction was accorded by the Law Secretary-cum-L.R. for criminal prosecution of the petitioner. Admittedly the petitioner is a member of Indian Forest Service guided by the All India Services (Discipline and Appeal) Rules, 1969. The allegation was related to the acts purported to have been done during his tenure in service and in discharge of his official duties and, therefore, sanction for the criminal prosecution of the petitioner by the Law Secretary-cum-Legal Remembrance was not maintainable and that too after taking the cognizance of the offence. Sanction under Section 197 of the Code of Criminal Procedure before taking of cognizance of offence against the public servant of the rank of I.F.S. is sine qua non.
8. Learned Counsel relied upon the decision of the Apex Court. In the case of Rakesh Kumar Mishra v. State of Bihar and Ors. reported in 2006 (1) East Cr. C 216(SC), it was observed,
6. The protection given under Section 197 is to protect responsible public servants against the institution of possible vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted to confer on the Government, if they choose to exercise it, complete control of the prosecution. This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant from the protection.
In the case, of State of Orissa and Ors. v. Ganesh Chandra Jew learned Apex Court while interpreting Section 197 of the Code of Criminal Procedure observed that the use of the expressions ‘official duty’ implies that the act or omission must have been done by the public servant in course of his service and that it should have been in discharge of his duty. The section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duly. Official duty, therefore, implies that the act or omission must have been done by the public servant in course of his service and such act or omission must have been performed as part of duty which further must have been official in nature. The Apex Court further observed that such section has thus, to be construed strictly, while determining its applicability to any act or omission in course of service. Its operation has to be limited to those duties which are discharged in course of duty. By giving instance, Apex Court observed that a public servant is not entitled to indulge in criminal activities. To that extent the section has to be construed narrowly and in a restricted manner. But once it is established that act or omission was done by the public servant while discharging his duty then the scope of its being official should be construed so as to advance the objective of the Section in favour of the public servant.
9. Learned Counsel by pointed out towards the allegation with reference to manufacturing of false evidence and attracted the attention that the informant himself misused his power as the Divisional Head being the Divisional Forest Officer by manufacturing false evidence against the petitioner by tampering the books of accounts and making back dated entries. If the allegation as levelled against the petitioner was accepted to be true for the argument sake, though denied, the informant should have been prosecuted who allowed the petitioner to tamper the documents and as such, he became accomplice of the alleged offence.
10. Several financial irregularities have been alleged in the F.I.R. by the informant that the petitioner had shown false purchase of fire extinguishers though there was no bamboo in the stack, whereas the counsel explained that the books of accounts depicted 1,400 MT of bamboos stacked at the relevant time and for the protection of such huge quantity of bamboos, exigency warranted for purchase of fire extinguishers.
11. It was further alleged that no work of clearance of boundary lines of depot and also for the protection of damaged bamboo clumps was done. Learned Counsel pointed out that in a Trading Forest Division, work of clearing boundary of depot and damaged clumps were essential and any slackness in this regard used to invite unwarranted fire causing huge damages and for such reason, no Divisional Forest Officer used to take chance with such perils. As far as damaged clumps of bamboo were concerned, it were spread over 15,000 acres and any work undertaken or money expended could not be visible after five years. The informant had lodged F.I.R. after almost five years of taking his charge of the Division on 25.4.1998 for the alleged offence during the period 1992-93.
12. On the other hand, respondent-State by filing counter-affidavit explained that allegations made against the petitioner were thoroughly enquired by the Conservator of Forest, State Trading Circle, Daltonganj and upon finding sufficient materials against the petitioner, the matter was referred to the State Government. The State Government upon being satisfied with the enquiry report, ordered to take legal action against the petitioner. The profit and loss Accounts sent to the Chief Conservator of Forest and the Director of State Trading Corporation, Ranchi by the petitioner were deeply scrutinized by them and glaring irregularities were detected therein clearly pointing out the guilt of the petitioner. Petitioner had committed defalcation of the public money to the tune of Rs. 43,20,500/- by showing fake purchase of various materials from false dealers/suppliers and it was found during enquiry that most of the vouchers, bills, receipts and supply orders were forged and fabricated and that the claimed purchase materials were not found in the store, office or depot on physical verification. Even the Accountant General had raised objection against the purchase of materials worth several lakhs of rupees in which procedures for purchase of materials were not followed.
13. Mr. A.B. Mahato, learned A.P.P. submitted that admittedly public servants are protected under Section 197 of the Code of Criminal Procedure during discharge of their official duties but in the instant case defalcation of huge public money to the tune of Rs. 43,20,500/- by the petitioner did not come within the domain of his public duty/official duty rather his act came within the mischief of criminal breach of trust as he had submitted several false vouchers without supply of materials to the Department and thereby defalcated the money in league with fake suppliers. In view of the relevant decisions the petitioner is not entitled to get protection under Section 197 of the Code of Criminal Procedure warranting sanction for his criminal prosecution. Petitioner had not followed the prescribed norms and his limitation in relation to purchase of materials according to the need of State Trading (Forest Deptt.) without prior sanction of his superior authority, competent to accord permission in this regard. He had surpassed all the rules and regulations and that the processes mandatory in nature were not followed at any stage of purchase, made by him. By giving instance, learned A.P.P. submitted that petitioner had made payment to M/s. Steel and Allied Products, Calcutta to the tune of Rs. 12,89,790/- without receiving materials and without following official formalities as no trace of any purchase material was available in the stock register and nobody was endorsed as a receiver of the supplied materials as the purchases did not show by whom it were received.
14. Having regard to the facts and circumstances of the case and argument advanced on behalf of the parties, I find that main thrust in this criminal revision on behalf of the petitioner was that no sanction was obtained under Section 197 of the Code of Criminal Procedure before his criminal prosecution, by taking cognizance of the offence against him. It is settled law that the question of sanction goes at the root because without sanction even if complaint discloses a case for criminal trial, such trial of a public servant cannot be commenced or preceded where such sanction is necessary. Admittedly, the petitioner was a member of Indian Forest Service, working as Divisional Forest Officer, Latehar at the relevant time of alleged occurrence and his service conditions were governed by the All India Services (Discipline and Appeal) Rules, 1969. If the petitioner takes plea that the offence alleged to have been committed by him in discharge of his official duty and that he was not removable from his office save by or with the sanction of the Government, consequently, no Court shall take cognizance of the offence except with the previous sanction of the Government as required under Sub-section (1) of Section 197 of the Code of Criminal Procedure.
15. In the case of Ashok Sahu v. Gokul Saikia reported in 1990 Supp SCC 41, the Apex Court had held that want of sanction under Section 197 of the Code is a prohibition against institution of the proceedings, and the applicability of the section must be judged at the earliest stage of the proceedings and in that case, the Court directed the Magistrate to consider the question of sanction before framing a charge.
16. It is settled law that a public servant can only be said to act or purport to act in discharge of his official duty, if his act is such as to lie within the scope of his official duty. Test may well be applied whether the public servant if challenged can reasonably clarify that what he did, he did by virtue of his official position of public servant. Section 197 of the Code is not intended to apply to an act done purely in a private capacity by public servant. It must have been ostensibly done by him in his official capacity in execution of his duty, which would not necessarily be the case merely because it was done at a time when he held such office, nor even necessarily because he was engaged in his official business at the relevant time.
17. In the instant case, sanction for prosecution of the petitioner has been granted by Law Secretary-cum-L.R. of the Government of Jharkhand who, in my view, is not a competent person to accord sanction under Section 197 of the Code of Criminal Procedure to accord sanction for prosecution of the petitioner who is admittedly at the time of alleged occurrence was a member of Indian Forest Service. In my opinion, the moot question in the instant case reflects as to whether sanction under Section 197 of the Code of Criminal Procedure is at all required for criminal prosecution of the petitioner in the facts and circumstances of the alleged offence.
18. Nature of allegations levelled against the petitioner concisely shows no nexus between his official duty with the criminal breach of trust if and cheating. According to the prosecution case, huge amount was defalcated by showing fake purchases of material without obtaining sanction or permission from the superior authority. Similarly, it was alleged that petitioner had not maintained the rules of purchase and the Accountant General had raised the objection in respect of the purchases made by the petitioner.
19. It was alleged that on verification even the vouchers were found fake without existence of the materials either on stock verification or on physical verification or on the ground yet, in some cases suppliers were fake. If these allegations are clubbed together, which relate to the question of fact I do not find these allegations have nexus with the official duty of the petitioner so as to warrant sanction under Section 197 of the Code of Criminal Procedure before his criminal prosecution as these are the issues on facts.
20. In the facts and circumstances, I observe that learned Counsel for the petitioner failed to show any ground to interfere with the impugned order dated 16.6.2007, passed by the A.C.J.M., Latehar in Latehar P.S. Case No. 50 of 1998. I further observe that no sanction is required under Section 197 of the Code of Criminal Procedure for criminal prosecution of the petitioner in the instant case. There being no merit, accordingly, this Criminal Revision is dismissed.