JUDGMENT
S.K. Chattopadhyaya, J.
1. In the present application the petitioner has prayed for quashing of (i) of first information report (ii) the charge-sheet and (iii) the order taking cognizance as also the entire criminal proceeding against the petitioner. A further prayer has also been made to restrain the concerned opposite parties from investigating into the case.
2. Before considering the arguments advanced on behalf of the parties the backgrounds of the case may be potrayed: On the basis of an F.I.R. filed on 16.4.88 a criminal case was registered against the petitioner under Section 409 of the Indian Penal Code. The allegation in the F.I.R. is that the petitioner, while” posted as Ranger in the year, 1986-87, was required to distribute 20 Matric tonnes of wheat to the labourers engaged in aforestation. Though the petitioner received the said amount of wheat but instead of distributing the whole to the labourers, he misappropriated 10 M.T. of wheat. Further allegation is that even after his retirement on 31.3.88 the petitioner obstructed in official duty by putting lock in the government office. After investigation charge-sheet was submitted and by order dated 18.7.91 the court below, after perusal of the records, took cognizance against the petitioner which is under challenge.
3. It is not disputed at the Bar that when the said offence was committed during the year, 1986-87, the petitioner was a gazetted public servant and as such was protected under the provisions as laid down in Section 197 of the Code of Criminal Procedure (hereinafter referred to as the Code). The case of the petitioner in nut shell is that the informant, D.F.O. was biased against him in as much as the petitioner filed a writ application before this Court for payment of his salary and pension and also challenging the departmental proceeding. The said writ application was, however, not entertained. Further case of the petitioner is that he again moved this Court by filing another writ application for payment of post retirement benefits and when the Principal Chief Conservator of Forest, failed to comply with the order and direction of this Court, the petitioner moved a contempt petition against him. The petitioner has alleged that knowing full well that the departmental proceeding against the petitioner which was going on, is bound to fail, the concerned officers with mala fide intention, filed this F.I.R. even after his retirement. Some allegations have also been made against opposite parties 3 and 4 for demand of some money towards the distribution of the said wheat’s to the workers. As the petitioner refused to oblige those two opposite parties, the petitioner has been falsely implicated in this case.
4. Mr. Bhowmik appearing on behalf of the petitioner firstly submits that in view of the prohibition contained in Section 197 of the Code, the court below could not have taken cognizance against the petitioner. Elaborating his argument he contends that distribution of wheat was done by the petitioner in the discharge of his official duty and if some irregularities in the distribution were made, criminal intention of the petitioner cannot be derived from that fact. Secondly, it is contended that the case diary as well as the documents annexed with this application will clearly show that no case, whatsoever, has been made out against the petitioner as alleged in the F.I.R. He further submits that the facts stated in the petition will show that the initiation of criminal proceeding against the petitioner is nothing but outcome of vengenance. Lastly, Mr. Bhowmik submits that in order to do justice this Court, even while exercising powers under Section 482 of the Code, can tear the veil and look to the case diary and evidence collected during investigation. In support of his contention he has relied in the decision of Director of Inspection and Audit v. C.L. Subramaniam .
5. On the other, Mr. V. Shivnath, learned G.P.I. contradicting the submissions of Mr. Bhowmick, submits that even if it is the admitted that the petitioner was gazetted public servant on the date of occurrence and sanction was a must before taking cognizance even then when the court has taken cognizance against the petitioner after going through the records of the case, this Court cannot quash the order taking cognizance on the basis of the documents annexed with the petition. In this connection he has relied in the decision of Minakshi Bala v. Sudhir Kumar and Ors. .
6. Before considering the points regarding sanction I may deal with other prayers made by the petitioner in this application. It is now well settled that this Court in exercise of its jurisdiction either under Articles 226 and 227 of the constitution or under Section 482 of the Code cannot quash the F.I.R. at the initial stage. It is also settled law that the High Court by quashing the F.I.R., cannot throatle the investigation. In the case of State of Bihar and Anr. v. J.A.C. Saldana , the Supreme Court has held that ordinarily interference with investigation of cognizable offence is not open and the High Court cannot give direction to close the case.
7. Section 190 of the Code talks of cognizance of offence by the Magistrate. This expression has not been defined in the Code. In the broad and literal sense it means taking notice of the offence which would include the intention of initiating judicial proceeding against the offender in respect of that offence or taking steps to see whether there is any basis for initiating judicial proceeding or for other purposes. It is well settled that taking cognizance of an offence is entirely a different thing from initiation of proceedings. It is the condition precedent to the initiation of proceedings by the -Magistrate or the Judge. Cognizance is taken of cases and not of persons and thus, it has reference the hearing and determination of the case in connection with an offence.
8. In a recent decision in the case of Director of Inspection and Audit and Ors. v. C.L. Subramaniam reported in 1995 SCC (CRIMINAL) 121, their lordships of the Apex Court have explained the scope and ambit of the provisions of Section 197 of the Code, inter alia, that two conditions must be fulfilled before the. provisions becomes applicable; one is that the offence mentioned there in must be committed by a public servant and the other is that the public servant employed in connection with the affairs of the Union or the State is not removable from his office save by or with the sanction of the Central Government or the State Government, as the case may be. The object of the section is to provide guard against vexatious proceeding against such public servant and to secure the opinion of the superior authority whether it is desirable that there should be a prosecution. If on the date of the complaint itself it is incumbent upon the court to take cognizance of such offence only when there is a previous sanction, then unless the sanction to prosecute is produced, the court cannot take cognizance of the offence. Naturally, at that stage the court taking cognizance has to examine the acts complained of and see whether the provisions of Section 197 of the Code are attracted. If the above two conditions are satisfied then the further inquiry would be whether the alleged offences have been committed by the public servant while acting or purporting to act in discharge of his official duties. According to their lordships, if this requirement is also satisfied then no court shall take cognizance of such offence except with the previous sanction. For this purpose, it further held, that the allegations made in the complaint are very much relevant to appreciate whether the acts complained of are directly connected or reasonably connected with the official duties so that if questioned the public servant could claim to have done these acts by virtue of his office, that is to say, there must be reasonable connection between the act and the discharge of official duties.
(underlining is mine).
9. On the backdrops of this authoritative pronouncement, if the allegation made against the petitioner in the instant case is examined, it appears that the petitioner’s duty was to distribute 20 MT of wheat to the labourers who were engaged in aforestation. It is not disputed by the petitioner that he did not receive those 20 MT of wheat. The allegation is that out of 20 MT of wheat, the petitioner mis-appropriated 10 MT of what and distributed the rest.
10. In such view of the matter, a question arises as to whether as a Range Officer, while discharging his official duty of distribution of wheat, the petitioner was entitled to mis-appropriate 10 MT of wheat or not. The obvious answer would be in negative. Being a responsible gazzetted officer, the petitioner was entrusted by the authority to distribute the said wheat to the labourers and if the allegations made in the F.I.R. are proved to be correct, then, in my opinion, by no stretch of imagination, it can be said that the act of misappropriation of those wheat’s was committed by the petitioner in discharge of his official duty.
11. Now another question arises as to whether the court below while taking cognizance has taken into consideration this aspect of the matter i.e. whether the petitioner acted while discharging his official duty or not. From the impugned order taking cognizance it appears that the court below has taken into consideration the records of the case and the charge-sheet and, as such, this Court cannot scrutinise those records to see whether the materials on record justify the order taking cognizance.
12. In the case of Ghanshyam Das Kuppepar v. State of Bihar reported in 1994(1) PLJR 744, relying on several decisions of the Apex Court, I have already held that the High Court will not convert itself into a trial court for going into the question which are to be decided by the trial court on the basis of evidence. Even recently in the case of State of Maharashtra v. Sharda Chandra Vinayaka Dongra and Ors. reported in 1995 SCC (Criminal), 16, the Supreme Court has held that the Magistrate is not debarred from taking cognizance merely because the police has filed an application after submission of charge-sheet seeking permission to file a supplementary charge-sheet. Their Lordships have held that power of the Magistrate is not controlled by the investigating agencies. In these circumstances, in my opinion, when the court has taken cognizance of the offence after going through the records, this Court will not interfere with the same.
13. It is now well settled that a public servant can only be said to act or purporting to act in the discharge of his official duties if his act is such as to lie within the scope of his official duties.
14. From the discussions made above, it is clear that the allegations against the petitioner in the F.I.R. are such which cannot be said to be an act in discharge of his official duties. Whether the present criminal prosecution has been initiated against the petitioner out of malice or vengeance, is to be decided by the trial court at appropriate stage and this Court cannot look into those matters in a quashing proceeding.
15. In the result, I find no merit in this application which is, accordingly, dismissed.