ORDER
1. In this petition, the accused has challenged the order of the II Additional Sessions Judge, D.K., Mangalore, passed in Cr. R.P. No. 62 of 1998 and the order of the JMFC, Sulia passed in C.C. No. 1070 of 1997 and prays this Court to quash the entire proceedings pending on the file of the JMFC, Sulia in the said criminal case.
2. The petitioner is an Assistant Agricultural Officer, Soil and Health Centre, Shimoga. He was working as Assistant Agricultural Officer at Sulla. Upon the complaint filed by the Assistant Director of Agriculture, Sulia, police registered a criminal case against the petitioner and others for an offence punishable under Section 409 of the IPC. It was alleged that the petitioner and others misappropriated Government funds to the tune of Rs. 1,96,913/- between the period 1991 to 1994. The I.O. after completing the investigation filed a charge-sheet for the offences punishable under Sections 468, 420, 409 read with Section 34 of the IPC. The I.O. has laid eight separate charge-sheets. The order of the learned Magistrate taking cognizance of the offences alleged, was questioned before the learned Sessions Judge, on the ground that the prosecution is bad in law in the absence of sanction as required under Section 197 of the Cr. P.C. This question which was canvassed before the learned Sessions Judge has been rejected. Hence, the petitioner has approached this Court on the same ground.
3. The learned Counsel for the petitioner has also contended in this petition that the petitioner is a Government servant and the Government Officer cannot be prosecuted without proper sanction as required under Section 197 of the Cr. P.C. by the competent officer.
4. I have heard the learned Counsel for the petitioner and also the learned Additional State Public Prosecutor perused the impugned orders. This question of sanction as required under Section 197 of the Cr. P.C. cropped up again and again before the Apex Court on different circumstances and the expression of the Supreme Court is found in the latest judgment of the Supreme Court in Shambhoo Nath Misra v State of Uitar Pradesh and Others. The Supreme Court at paras 4 and 5 in the said decision held as under:
“4. Section 197(1) postulates that “when any person who is 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 of the appropriate Government/authority”. The essential requirement postulated for sanction to prosecute the public servant is that the offence alleged against the public servant must have been done while acting or purporting to act in the discharge of his official duties. In such a
situation, it postulates that the public servant’s act is in furtherance of his performance or his official duties. If the act/omission is integral to performance of public duty, the public servant is entitled to the protection under Section 197(1) of the Cr. P.C. Without previous sanction, the complaint/charge against him for the alleged offence cannot be proceeded with the trial. The sanction of the appropriate Government or competent authority would he necessary to protect a public servant from needless harassment or prosecution. The protection of sanction is an assurance to an honest and sincere officer to perform his public duty honestly and to the best of his ability. The threat of prosecution demoralises the honest officer. The requirement of sanction by competent authority of appropriate Government is an assurance and protection to the honest officer who does official duty to further public interest. However, performance of public duty under colour of public duty cannot be camouflaged to commit crime. Public duty may provide him an opportunity to commit crime. The Court to proceed further in the trial or the enquiry, as the case may be, applies its mind and records a finding that the crime and the official duty are not integrally connected.
5. The question is: when the public servant is alleged to have committed the offence of fabrication of record or misappropriation of public fund etc., can be said to have acted in discharge of his official duties? It is not the official duty of the public servant to fabricate the false record and misappropriate the public funds etc., in furtherance of or in the discharge of his official duties. The official capacity only enables him to fabricate the record or misappropriate the public fund etc. It does not mean that it is integrally connected or inseparably interlinked with the crime committed in the course of same transaction, as was believed by the learned Judge. Under these circumstances, we are of the opinion that the view expressed by the High Court as well as by the Trial Court on the question of sanction is clearly illegal and cannot be sustained”.
5. There is no dearth of case law laid down by the Supreme Court on this question starting from the year 1956. The case law of the Supreme Court is found in the following cases:
1. Matajog Dobey v H.C. Bhari;
2. Om Parkash Gupta v State of Uttar Pradesh;
3. Bakshish Singh Brar v Smt. Gurmej Kaur;
4. R. Balakrishna Pillai v State of Kerala and Another.
6. The Supreme Court has highlighted the necessity of sanction as required under Section 197 of the Cr. P.C. in Shambhoo Nath Misra’s case, supra, wherein it is stated that the sanction of the appropriate Government or competent authority would be necessary to protect a public servant from needless harassment or prosecution. The protection of sanction is an assurance to an honest and sincere officer to perform his public duty honestly and to the best of his ability. The threat of prosecution demoralises the honest officer. The requirement of sanction by competent authority of appropriate Government is an assurance and protection to the honest officer who does official duty to further public interest. However, performance of public duty under colour of public duty cannot be camouflaged to commit crime. Therefore, in the case on hand, the present petitioner who is an Agricultural Officer has misappropriated the public funds and committed forgery for the purpose of cheating. Public servant cannot make use of his office to forge a public document, thereafter misappropriate public funds. Therefore, he is clearly not entitled for any protection under Section 197 of the Cr. P.C., as the act is not done under the colour of office. Petition is devoid of merit. Accordingly, it is dismissed.