JUDGMENT
L.P.N. Shahdeo, J.
1. This is an application under Section 482 of the Code of Criminal Procedure for quashing the entire criminal proceedings pending against the petitioner and also the order, dated 4.3.1987 whereby and whereunder cognizance of the offence under Section 420 of the Indian Penal Code has been taken against the petitioner which was then pending in the Court of Shri B. Singh Sub-Divisional Judicial Magistrate, Khunti, in the District of Ranchi.
2. Brief facts giving rise to the present application is that the petitioner who was a gazetted Government servant working as Block Development Officer, Arki, District Ranchi is alleged to have received a cow under I.R.D.P. Scheme in the name of the complainant who was driver under the same Block and under the same officer. The said cow was received in the name of complainant but was not handed over to him and it was in possession of the petitioner. The petitioner did not hand over that cow to the complainant in spite of request for the same and thereafter he filed a complaint petition before the Pramukh, Gram Panchayat Samittee, Arki on 29.7.1986 alleging that in all the relevant papers his signature was obtained for that can but it was not handed over to him and thus the petitioner had fraudulently committed forgery and cheating. This complaint petition ultimately was received in the Arki Police Station and the officer-in-charge registered a case under Section 420 of the Indian Penal Code against the petitioner and submitted charge-sheet against him after investigation as a result of which cognizance was taken by the Magistrate which is being challenged in this application.
3. Mr. R.K. Prasad, learned Counsel appearing on behalf of the petitioner has taken first objection that the petitioner in the capacity of Block Development Officer was working in that capacity and in discharge of his official duties he had performed his duty in the I.R.D.P. scheme is official capacity or purporting to have ahead is his official capacity and as such sanction of the appropriate Government in this case the State Government was necessary for his criminal prosecution as required under Section 197 of the Code of Criminal Procedure.
4. His second argument was that in this case inordinate delay has occurred. The case was filed after the petitioner was transferred from that Block which is a mala fide prosecution and in fact no case alleged to have been made out against him.
5. Section 197 of the Code of Criminal Procedure gives protection to the Government Servant, Judge or Magistrate who while acting on purporting to act in discharge of his official duty had committed any offence, no court can take cognizance and of such offence except with previous sanction of the competent authority mentioned therein.
6. The under-lying provisions of Section 197 of the Code of Criminal Procedure is to afford protection to all public servant against frivolous, vexatious or false prosecution in respect of those offences which are alleged to have been committed by them while acting or purporting to act in discharge of their official capacity. This is based upon principle that the efficiency of public servant and their capacity to take independent decision should remain undeterred free from any fear or any possible prosecution at the instance of private party to whom annoyance or injury may have been caused by their legitimate act done in discharge of their official duties in order to give them facility for affective or unhamper performance of their official duty. This section is attracted only when the accused must be a public servant removable from the office only with the sanction of the State Government or Central Government as the case may be, and secondly it must be an accused of an offence alleged to have been committed by him while acting or purporting to act in discharge of his official duty. The ban impose for taking cognizance of the offence under Section 197 of the Code of Criminal Procedure is attracted when the aforesaid conditions are fulfilled. Therefore I have to examine how far present facts and circumstances of the case calls for necessity of such sanction in the present case or such sanction is not at all required.
7. In this case, admittedly, the petitioner is a gazetted Government servant working as Block Development Officer at the relevant time when the offence was alleged to have been committed by him. It is also admitted position that the complainant has received cow for which he signed necessary papers before the Block Development Officer in discharge of his official capacity or purporting to act in that capacity has alleged the cow to the complainant which according to the allegation was not handed over to him. Therefore, the acts complained of falls within the scope of his official duty. There is a proximity and nexus of the Act complained of to the performance of his official duty. The allegation levelled against the Block Development Officer comes within the ambit of performance of his official duty or purporting to act in that capacity. If he was not working in that capacity, he could not receive the cow, he could not have distributed to the complainant, he could not have got those papers signed by him and all these acts taking together co-exist and series of these acts falling within the ambit and scope of his official duty. Therefore, the allegation levelled against the petitioner comes within the scope of his performance of official duty and for which sanction under Section 197 of the Code of Criminal Procedure was a pre-requisite which has admittedly not obtained in this case’ from the State Government who was competent to remove the petitioner from service. In fact in this case no sanction at all of any authority what to say of any competent authority.
8. When a public servant asserts that the offence allegedly committed by him was in discharge of his official duty and there is reasonable nexus between the act and discharge of official duty, no court can take cognizance of the offence under Section 197 of the Code of Criminal Procedure. Therefore, taking cognizance in respect of such offence must be held to be bad in law and without jurisdiction. Section gives jurisdiction for prosecution of such act or offence committed by a public servant only when necessary sanction is obtained of the competent authority. It has imposed blanket ban on the courts for taking cognizance for such nature of offence. The section itself says that no court can take cognizance of such offence except with the previous sanction either of the State Government or the Central Government as the case may be. Admittedly, this requirement has not been complied with nor any sanction has been obtained of the competent authority and therefore, the criminal prosecution of the petitioner and taking cognizance for such nature of offence must be held to be bad which has vitiated the criminal proceeding initiated against him.
9. In this connection, learned counsel for the petitioner has relied upon a ruling reported in the case of Amrik Singh v. State of Pepsu , in which under similar circumstance the criminal prosecution of the petitioner was set aside by the Supreme Court where the allegation was that the accused in the capacity of Sub-Divisional Officer in the Public Works Department was alleged to have drawn an amount from the treasury and paid the same to the employees against their signatures or thumb-impressions in the monthly acquitance roll. It was part of his duties to disburse the wages to the workmen employed in the works. It was found that he withdrew the money but he had not disturbed that amount to the workman although in the acquitance roll one thumb-impression was found said to be of that workman or subsequently it was found that the money was not paid to that workman and officer himself misappropriated but the Supreme Court found whatever does was done in the official capacity is material only in connection with entrustment and does not necessarily enter into the later act of misappropriation or conversion which the act complained of and in that view it was found that sanction was necessary and since sanction was not taken the conviction of the appellant recorded by the High Court was set aside.
10. In this case, in my view, the relationship between two is also an important factor. The petitioner at the relevant time was public Government Officer and the complainant was working under him as a driver. He did not file any case at time when the incident had taken place. The complaint petition was filed on 29.7.1986 and the distribution of the cow has taken place on 23-3-1986. This complaint petition was received in the Arki Police Station on 1.9.1986. This shows the delay was for about six months. This abnormal delay has not been explained either in the complaint petition or in the charge-sheet or any where in this case. The investigation started in absence of the petitioner when he was transferred from that place. In the complaint petition there is no endorsement that Pramukh had forwarded it to the police station. The explanation of the Block Development Officer is also on the record. This shows that after his transfer, some politics has cropped up and complaint petition was filed as submitted. Whatever may be the reasons, in the facts and circumstances of the case the criminal prosectuion of the petitioner after abnomal delay of about six months speaks volume against the bona fide prosecution of the petitioner. In the facts and circumstances, it can be legitimately concluded that it was inspired mala fide prosecution by some vested interest after the transfer of Block Development Officer from that place.
11. In this case, there is complete absence of criminal intent on the part of the petitioner. No allegation has been made that he had dishonestly sold the cow or dishonestly or fraudulently cheated the complaint. The only allegation is that cow was not supplied to him. What happened to that cow, where it had gone during these period of six months wholly unexplained. Thus, I find that there is complete absence of required ingredients to constitute an offence under Section 420 of the Indian Penal Code and as such criminal prosecution in this nature of case amounts to a mala fide prosecution and as such it amounts to abuse of the process of court. This sort of criminal prosecution is a result of or is filed to feed fat old grudge and not for any bona fide grievance. Such nature of criminal prosecution which on the face of it appears to be absurd must be nipped in the bud to save the public servant from unnecessary harassment and to save from rigor of criminal trial.
12. In the result, for the reasons stated above, the application is allowed. The criminal prosecution and the order taking cognizance against the petitioner are, hereby quashed.