A. Alwar Nagiah vs State

M. Karpagavinayagam, J.—This revision is directed against the order passed by the Principal Sessions Judge, Madurai in Crl.R.P. No. 42

of 1993 dated 12-10-1993 setting aside the order of discharge passed by the learned Judicial Magistrate No. I, Madurai, in C.M.P. No. 10751

of 1992 in Calendar Case No. 637 of 1989 dated 17-5-1993.

The facts which are relevant and required for the disposal of the revision are as follows : In pursuance of the conspiracy, during the period from

Oct. 1981 to Sept. 1982, the petitioner who is a Jailor, Central Prison, Madurai along with others prepared as many as 135 bogus jail certificates

and that thereafter, the petitioner signed in all the bogus jail certificate without the knowledge of the Superintendent of the Central Prison, who is an

authorised officer to issue such certificates, thereby facilitating the alleged freedom fighters to falsely claim the Freedom Fighters, pension from the

Government.

Originally the case was registered in Crime No. 11/1983 on the file of the respondent. Though, initially the case was dropped, the case was

taken up for investigation during 1986 and the charge sheet was filed in 1989 against 27 accused including the petitioner A1 before the learned

Judicial Magistrate No. I, Madurai, for the offences punishable under Sections 120(B), 465, 468, 471, 420 and 511 of the Indian Penal Code and

the charge sheet was taken on file in C.C. No. 637 of 1989 on 27-2-1989. In the same year one of the accused filed a quashing application

before the High court and the proceedings were stayed on 25-4-1989. Ultimately on 2-9-1991, the said quashing petition was dismissed by the

Court. Thereafter, before the trial was started, on 28-12-1991, the petitioner filed a petition u/s 239 of the Code of criminal Procedure praying for

discharge on the ground that the sanction order accorded in this case is invalid and the charge sheet filed cannot be taken cognizance of. After

hearing both the parties, on 17-5-1993. The learned Judicial Magistrate No. I, Madurai allowed the petition and discharged the accused accepting

the contention of the petitioner/accused that the sanction order was an invalid one.

Being aggrieved over this order of discharge, the State/respondent field a revision before the Sessions Court. The learned Principal Sessions

Judge, Madurai, after considering the materials and hearing both the sides allowed the revision, remanding the matter for trial by the lower Court

holding that the validity of the sanction could not be decided before the examination of the witnesses. The order, as referred above, is questioned

before this Court.

Mr. G. Krishnan, learned Senior Counsel representing M/s. M. S. Srinivasan, appearing for the petitioner would contend that the Sessions

Court had committed a serious illegality in remanding the matter since the invalidity of the sanction would vitiate the entire proceedings and it would

go to the root of the matter and as such the order of the lower Court in discharging the accused u/s 239 of the Code of Criminal Procedure has to

be upheld. To substantiate the same, the counsel for the petitioner cited some authorities.

Per Contra, Mr. N. R. Elango, learned Government Advocate representing the Public Prosecutor would strenuously contend that it is the settled

law by the Apex Court that the sanction can be proved in two ways, one is by pointing out the contents of the accusation in the sanction orders

and the reference about the various material considered or in the alternative, the sanction authority would be examined to prove those aspects

during the course of trial. So, according to him, the Sessions Court has correctly decided the point in issued and remanded the matter to examine

the said question only after the trial is over. The learned Government Advocate also pointed out a recent pronouncement of the Supreme Court in

Shambhoonath Misra v. State of U.P. 1997 SCC (Crl) 576 : 1997 (2) Cri (SC) 26 : (1992 2 MLW (Crl) 692 : 1997 CLJ 2491. He further

pointed out that in these cases, sanction is not at all necessary as contemplated u/s 197 of the Code of Criminal Procedure. In order to substantiate

his contention, he read out the following relevant portion of the judgment (at p. 2492 of AIR) :

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 enable 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.

According to the Government Advocate, the act of fabrication of records and making forged certificates could not be said to be the acts made

during the course of discharge of official duties and that therefore in view of the recent decision as referred above, the sanction is not at all

necessary. However, it is observed in the said decision that the trial Court should proceed further with the trial in order to find out and record a

finding as to whether the crime and the official duty are integrally connected or not. So, all the more reason, the trial Court should be allowed to go

on with the trial to find out the above aspects and then come to a proper conclusion.

In view of the above discussion, I do not see any illegality in the impugned order and therefore, the revision which has no merits is liable to be

dismissed and accordingly, it is dismissed.

The offence in this case relates to the acts committed during 1981-82 and the case was registered during 1983 and the charge sheet was filed

during 1989. Now, we are at the fag end of 1997. The proceedings were stayed on so many occasions at the instance of the parties. Therefore,

the trial Court is directed to give top priority to this case and dispose of the same in accordance with law as expeditiously as possible.

In the result, this revision is dismissed. Consequently, CRL M.P. No. 9263 of 1993 is also dismissed.

Revision dismissed.