Full Judgment
N.K. Mody, J.
1. Final argument heard. Perused the record.
Being aggrieved by the judgment dated 29-11-2004 passed by 6th Additional Sessions Judge, Indore in Cr.A. No. 95/2004, whereby the judgment dated 30-9-2002 passed by Special Judicial Magistrate (CBI), Indore in Criminal Case No. 8/96, whereby the petitioner was convicted under Section 420 of IPC for a period of two years with fine of Rs. 20,000/-, was confirmed, present revision petition has been filed.
2. In short the case of the prosecution was that the petitioner was posted as Station Engineer at All India Radio, Gwalior. Petitioner applied for grant of Leave Travel Concession (hereinafter referred to as 'the LTC') on 6-10-94 for going to Kanyakumari alongwith his family. Alongwith the application petitioner submitted the reservation tickets on the basis of which a sum of Rs. 19,176/- were credited to the account of the petitioner. Later on upon a complaint lodged by one Navrang, the matter was investigated by CBI and it was found that the tickets which were submitted by the petitioner were got cancelled on 7-11-94 and in fact petitioner did not travel and availed the money of LTC. On the basis of these allegations charge-sheet was filed against the petitioner under Section 420 of IPC, on the ground that the petitioner submitted false bills of Rs. 20,070/-, wherein the date of journey of the petitioner was w.e.f. 14-11-94 to 21-11-94. The case was contested by the petitioner. After framing of the charges and recording of the evidence, learned Tribunal convicted the petitioner under Section 420 of IPC and sentenced for a period of two years and fine of Rs. 20,000/-. An appeal was preferred against that order which was dismissed, hence this revision petition.
3. Learned Counsel for the petitioner argued at length and submits that complaint was filed by Navrang (P.W. 4), who was having inimical relations with the petitioner and one G.P. Ojha, but the prosecution was filed only against petitioner. Learned Counsel for the petitioner submits that in fact the petitioner travelled for a period of six days of which all the particulars and tickets were submitted by the petitioner with the department, but all these documents were missing from the record. It is submitted that before filing of the prosecution no sanction was taken by the respondent under Section 197 of Cr.PC. It is submitted that since the sanction was mandatory, therefore, the prosecution of the petitioner was itself illegal, which deserves to be quashed. For this contention, reliance is placed on a decision in the matter of State of Orissa v. Ganesh Chandra Jew 2004 Cr.LJ 2011, wherein the Hon'ble Apex Court has observed as under:
So far public servants are concerned the cognizance of any offence, by any Court, is barred by Section 197 of the Code unless sanction is obtained from the Appropriate Authority, if the offence, alleged to have been committed, was in discharge of the official duty. The Section not only specifies the persons to whom the protection is afforded but it also specifies the conditions and circumstances in which it shall be available and the effect in law if the conditions are satisfied. The mandatory.character of the protection afforded to a public servant is brought out by the expression, 'no Court shall take cognizance of such offence except with the previous sanction'. Use of the words, 'no' and 'shall' make it abundantly clear that the bar on the exercise of power by the Court to take cognizance of any offence is absolute and complete. Very cognizance is barred. That is the complaint, cannot be taken notice of. According to the Black's Law Dictionary the word 'cognizance' means 'jurisdiction' or 'the exercise of jurisdiction' or 'power to try and determine causes'. In common parlance it means taking notice of. A Court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have committed during discharge of his official duty.
It was further held that:
Use of the expression, 'official duty' implies that the act or omission must have been done by the public in the 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 duty.
It has been widened further by extending protection to even those acts or omissions which are done in purported exercise of official duty. That is under the colour of office. 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 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 while are discharged in course of duty. But once any act or omission has been found to have been committed by a public servant in discharge of his duty then it must be given liberal and wide construction so far its official nature is concerned. For instance 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.
4. Reliance was also placed on decision in the matter of Sankaran Moitra v. Sadha Das and Anr. : AIR 2006 SC1599 , wherein the Hon'ble Apex Court has held that the prosecution cannot be launched without sanction.
5. In the alternative learned Counsel submits that petitioner is aged 64 years and has been retired as Station Director, All India Radio. It is submitted that petitioner was in jail for some time. Learned Counsel submits that keeping in view the fact that the petitioner is a senior citizen and was also in jail, petitioner be released on probation by giving benefit of Probation of Offenders Act and the amount of fine may reasonably be enhanced.
6. Learned Counsel for the respondent submits that so far as the sanction is concerned none of the authorities submitted by the petitioner is applicable in the present case. Learned Counsel submits that since the act of the petitioner was (sic: was not) in discharge of official duties, therefore, no sanction was necessary. So far as conviction and sentence is concerned, learned Counsel submits that after due appreciation of evidence both the Courts below have found the petitioner guilty for the aforesaid offence. Looking to the nature of the offence the sentence which has been awarded by the learned Courts below is just and reasonable, which requires no interference.
7. From perusal of the record, it appears that the act of the petitioner was not in discharge of his official duties, therefore, no sanction was necessary for prosecuting the petitioner.
8. So far as the conviction of the petitioner under Section 420 of IPC is concerned, sufficient evidence is on record, whereby it is amply proved that the petitioner has committed an offence which is punishable under Section 420 of IPC. However, since the petitioner is aged 64 years and is a senior citizen and the alleged offence is of the year 1994 and keeping in view all the facts and circumstances of the case and also keeping in view the period which has already been undergone by the petitioner this Court deems it fit to give the benefit of provisions of Probation of Offenders Act as the purpose would be served in case the jail sentence awarded to the petitioner is reduced to the period already undergone, subject to further depositing a sum of Rs. 1,00,000/- as fine within a period of six weeks. In default the petitioner shall suffer jail sentence awarded by the learned Courts below.
9. In the result, the revision petition is partly allowed. The findings of conviction is hereby maintained with the modification to th6 extent that the jail sentence awarded to the petitioner is reduced to the period already undergone subject to depositing further fine of Rs. 1,00,000/- within a period of six weeks. In default the petitioner shall suffer jail sentence awarded by the Trial Court and confirmed by the Sessions Court. Petitioner is on bail. His bail bonds stands discharged.