(Prayer: This Criminal Petition Is Filed U/S 482 Of Cr.P.C. Seeking To Examine The Records In Order To Satisfy The Correctness, Legality And Propriety Of Finding And Order Passed In Rejecting The Application Filed U/S. 239 Of Cr.P.C. By The Petitioner And Allow The Applications Filed U/S. 239 Of Cr.P.C. By The Petitioner In C.C.No.266/2002 And C.C.No.267/2002 On The File Of The Civil Judge and Jmfc Court, Byadgi And Discharging The Petitioner For The Alleged Offences Punishable U/S. 406, 409, 465, 468, 471, 477a Of Ipc And In Turn Rejecting The Order Passed By The Trial Court And Revision Court.)
1. Heard learned counsel for the petitioner and learned Additional State Public Prosecutor for respondent - State. Perused the records.
2. This petition is filed for quashing of the orders passed by Civil Judge and J.M.F.C. Court, Byadgi in C.C. Nos.266/2002 and 267/2002 dated 25.08.2010 against this petitioner for che offences punishable under Sections 409, 465, 466, 471 and 477 of the Indian Penal Code, 1860 (hereinafter referred to as 'I.P.C.' for brevity) in refusing to discharge the accused for the said offences by invoking Section 197 of Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.' for brevity) and also for quashing of the orders passed by II Addl. District and Sessions Judge, Haveri, sitting at Ranebennur in C.R.P. No. 144/2010 dated 31.08.2013.
3. The brief facts of case that emanate from records are that, Police have submitted a charge sheet against this petitioner - accused No. 1 and other accused persons alleging that while accused No. J was working as a Block Educational Officer in Byadgi during 06.09.1999 to 18.09.2000 in connivance with accused Nos.2 and 3 has got created false and fictitious salary bills, transfer benefit bills, T.A. bills and other bills of Government servants at Byadgi and a cheque book was also taken from the concerned Bank. It is also alleged that an amount of Rs.42,330/- of the Government is mis-appropriated by all the accused persons including petitioner on several dates. It is also further alleged that during 01.04.2000 to 31.03.2001 the accused persons have mis-appropriated a sum of Rs.7,82,330/- and further for the period from 31.12.1999 to 31.03.2000 a sum of Rs. 13,15,903/- and apart from that also they have mis-appropriated to an extent of Rs.2,70,000/-.
4. The main contention of accused No.1 was that, in fact accused Nos.2 and 3 have committed these offences by creating false and fictitious bills as alleged against them. This petitioner is only a Superior Officer of accused Nos.2 and 3 and he might have only approved or countersigned the said bills during the discharge of his duty as a public servant. Therefore, the act of accused Nos.2 and 3 compared to the act of accused No.1 is totally separable in nature, and therefore, in order to prosecute accused No.1 prior sanction under Section 197 of Cr.P.C. is absolutely necessary. Accordingly, accused No.1 has made an application under Section 239 of Cr.P.C. seeking for discharge by raising the provision under Section 197 of Cr.P.C. After analysing the charge sheet papers, both the Courts have come to the conclusion that the materials placed before Courts are sufficient to draw an inference at that stage that the acts of accused Nos. 1 to 3 are inseparatable in nature. Therefore, the trial Court as well as the revisional Court have come to the conclusion that the sanction under Section 197 of Cr,P.C. is not necessary to prosecute accused No.1 also. Against said order, the present petition has been filed before this Court.
5. I have carefully pet used the orders passed by both the Courts. Though this Court cannot go in detail with the factual matrix of case, nevertheless, the legal point involved in this particular case can be discussed. On the basis of charge sheet papers trial Court has come to conclusion that there is allegation of connivance between accused Nos. 1 to 3. When the materials placed before Court shows that there was connivance between accused Nos. 1 to 3, then they cannot stand on different footing. Both the Courts have relied upon the decision of Hon'ble Supreme Court reported in - AIR 1997 SC 2102 between Shambunath Mishra vs. State of U.P. and another.
6. In the said judgment similar facts are involved as in this case and particularly relying upon the portion of said judgment, the trial Court has come to conclusion that sanction is not necessary, so far as this accused is concerned. For the purpose of understanding the principles laid down in the said case, it is worth to reiterate the said principles, which reads as follows-
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 or omission is integral to performance of public duty, the public servant is entitled to the protection under Section 197(1) of 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 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. 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 : where 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."
(emphasis supplied)
7. On perusal of said judgment, the Hon'ble Supreme Court in para 4 has discussed with regard to protection given to the public servants, how the protection has to be considered by the Courts and the reason for requirement of such sanction by the competent authority etc. Perhaps, the trial Court and the revisional Court persuaded themselves by the observation made by Hon'ble Supreme Court at paragraph 5, wherein, similar set of facts were involved in the said case. It has been observed that creating of fabricated records and mis-appropriation of public funds cannot be termed as official duties and it cannot be termed that the public servants can do that particular act while discharging their duties as public servants. The said acts cannot be termed as if they are done in connection with discharge of public duties. Therefore, the Hon'ble Supreme Court has reversed the judgment passed by Sessions Court as well as the High Court holding that fabrication of records and mis-appropriation of public funds comes within the purview of discharge of public duties. The trial Court and revisional Court have followed those principles and held that the act committed by accused Nos. 1 to 3 when cannot be separated and connivance is alleged, then Section 197 of Cr.P.C. is not at all applicable. Hence, both the Courts have rejected the application filed by petitioner.
8. In the charge sheet papers it has been categorically stated that accused No. i cannot blindly put his signature and there was connivance between accused Nos. 1 to 3 in order to fabricate and mis-appropriate the funds of Government. Of course, the learned counsel appearing for petitioner submitted that the act of accused No. 1 is only to put his signature or approve the papers presented by accused Nos.2 and 3. Merely because accused No.1 has put his signature on the bills, cannot be termed that he had an intention to commit the offence along with accused Nos.2 and 3. But, in my opinion, that has to be thrashed out during the course of evidence before the trial Court. The trial Court or the revisional Court or this Court cannot imagine how the prosecution would place the evidence before the Court and what will emerge during the course of evidence. During the course of evidence if the accused No. 1 is able to establish before trial Court that his role was not there in commission of the offences alleged against accused Nos.2 and 3, then it is open for accused No. 1 to raise the point of sanction that the Court cannot give any finding on merits of the case, unless the Court gives a finding that sanction is absolutely not necessary even on the basis of evidence placed before the Court. This Court agrees with the arguments of learned counsel. It is well known principle of law that sanction is necessary even at the time of taking cognizance by the Court. At the time of taking cognizance, of course the Court has to go through the materials on record and find out whether allegations made against any public servant that he has committed any offence while discharging his duties. It is a clear cut case where a Court without the assistance of any evidence or any document can come to the conclusion that the public servant while discharging his duty as a public servant has committed such offence then the Court cannot take cognizance unless sanction is accompanied with the charge sheet papers or the complaint, if it is a private complaint. If the Court is of the opinion that it requires some more materials or evidence to ascertain whether the act committed by a public servant whether referable to his duty and whether that particular act has been committed within the course of his duty and sphere of his duty then the Court can defer passing any orders with regard to the point raised, as to whether sanction is necessary. At the time of considering the charge sheet papers if the Court comes to the conclusion that sanction is absolutely necessary then also the Court can direct the prosecuting Agency to file charge sheet after obtaining proper sanction. Even at that stage also if the Court is of the opinion that some more evidence is required and Court is not in a position to come to a definite conclusion that whether public servant has committed an offence while discharging his duty as a public servant or whether the act committed by public servant was or was not under the colour of office or cannot be referable to his duties that has to be decided by the Court after recording the evidence. Then that particular point of time the Court can defer to take the decision at the time of delivering the judgment on merits. In this regard, it is worth to note a decision of Hon'ble Supreme Court, reported in - AIR 2001 Supreme Court 2547 between P.K. Pradhan v, The State of Sikkim represented by the Central Bureau of Investigation.
"(B) Criminal P.C. (2 OF 1974), S. 197 - Sanction to prosecute - Necessity - Question as to -- Need not always be decided as preliminary issue - In cases where such question cannot be decided without giving opportunity to defence to establish that act was done in discharge of official duty - Question can be left open for decision on conclusion of trial."
9. In view of the above facts and circumstances of the case, I am of the opinion that when the charge sheet papers disclose that the allegations of offence is in connivance with accused Nos. 1 to 3 and accused No. 1 has virtually approved the illegal acts of accused Nos.2 and 3 at this stage this Court is not in a position to bifurcate the act of accused No. 1 with that of accused Nos.2 and 3. Perhaps that may be the reason the trial Court arid as well as the Sessions Court have come to the conclusion that sanction is not necessary at the stage of framing charges against the accused. But it does mean to say that after recording of evidence if the Court is of the opinion that the act of accused No. 1 to that of accused Nos.2 and 3 are separable in nature and accused No. 1 is in no way connected with the offence committed by accused Nos.2 and 3 then he is entitled to raise the point that his action is only referable to discharge his public duty and no more than that. Therefore, I am of the opinion that the trial Court or the revisional Court have not committed any mistake in drawing such inference at the stage of framing of charges. With these observations, petition deserves to be dismissed. Accordingly, petition is dismissed.
However, it is made clear that accused No. 1 is at liberty to raise the point of sanction after recording evidence by trial Court even at the time of arguing the case on merits, at the time of passing the final judgment if the Court is of the opinion that the sanction is absolutely necessary on the basis of the evidence recorded by Court even the Court at the stage of final judgment can pass appropriate orders with regar d to requirement of sanction.
In view of disposal of main petition, I.A. No. 1/2013 does not survive for consideration.