Amulya Kumar Das vs State of West Bengal

Arunabha Barua, J.—This revisional application u/s 482 of the Code of Criminal Procedure is for quashment of a proceeding arising out of Case No. 189 of 2000 dated October 19, 2000 u/s 409 Indian Penal Code being G.R. Case No. 806/2000 in connection with charge-sheet No. 5/2001 dated January 14, 2001 u/s 409 Indian Penal Code which is pending before the learned Judge, First Special Court, Birbhum, Suri, being special Case No. 12/2001.

One Amulya Kumar Das is the Petitioner here in the instant criminal revision. He is an accused in the case u/s 409 Indian Penal Code as mentioned above. He is a permanent Government employee working as a Forest-Ranger and also acting as Ex-Officio Range Manager of West Bengal Forest Development Corporation Ltd. for Birbhum Forest Division. On the complaint of the Divisional Manager, Cashew-Plantation Division, Midnapore, the said P.S. case No. 189/2000 dated October 19, 2000 u/s 409 Indian Penal Code was started against him on the basis of the F.I.R. on the said day.

The prosecution case, briefly stated is this.

As Ex-Officio Range Manager for Birbhum Forest Division, the Petitioner was responsible for collection of corporation revenue, arising out of the sale of Corporation produce and deposited the same in the account of the ''Divisional Manager'', Cashew-Plantation Division, WBFDC Ltd. at Bank of India, Suri Branch. The Petitioner-accused had not deposited in the bank an amount of Rs. 42,029.00 received as revenue during the month of August, 2000. As such, the accused-Petitioner had defalcated and misappropriated the Corporation revenue to the tune of Rs. 42,029.00 with malafide intention and ulterior motive. However, in pursuance of a letter dated October 17, 2000 from the Divisional Forest Officer, Birbhum Division, Suri, he was allowed to deposit the sum of Rs. 42,029.00 only in cash to the Ex-officio Range Manager, WBFDC Ltd., and the Petitioner-accused did that. He first deposited Rs. 21,029/-on October 25, 2000, Rs. 11,000.00 on November 23, 2000 and the balance of Rs. 10.000.00 on January 3, 2001 against receipts before the Bank of India, Suri Branch. This had been admitted by the Divisional Forest Officer, Birbhum Division, Suri by a letter dated January 15, 2001. The Investigating Officer on completion of the investigation filed charge-sheet No. 5/2001 dated January 14, 2001. On January 24, 2001 the Investigating Officer had also reported to the S.D.J.M., Suri Birbhum in connection with that case that the accused Amulya Kr. Das deposited the sum of Rs. 42,029.00 on different dates.

Now, the Petitioner accused has alleged that since he had already paid the recovered money of Rs. 42, 029.00 on three installments on October 25, 2000, November 23, 2000, and January 3, 2001 the allegations made against him in the F.I.R. dated October 19, 2000 are totally false and that there is no question of the alleged misappropriation of money by him. It is further contended by him that after the filing of the charge-sheet by the I.O. on January 14, 2001 u/s 409 Indian Penal Code against him the Section 90 had made a report dated January 22, 2001 to the Learned S.D.J.M., Suri, Birbhum to the effect that the entire money of Rs. 42, 029.00 had already been deposited by the Petitioner-accused, and that, therefore, the Petitioner intends, the charges brought against him by the I.O. by virtue of the chargesheet dated January 14, 2001 are totally false, malafide and harassing.

The Petitioner-accused has sought to drive home another point and it is that since he was a Government servant belonging to the West Bengal Forest Service, sanction for prosecution u/s 197 Code of Criminal Procedure was necessary and since there was no sanction for his prosecution u/s 409 Indian Penal Code, the cognizance taken was bad in law.

For the aforesaid reasons as alleged by the Petitioner-accused he has prayed for quashment of the entire proceedings against him u/s 409 Indian Penal Code.

This revisional application is one u/s 482 of the Code of Criminal Procedure whereby quashment of the entire proceeding of the criminal case u/s 409 Indian Penal Code against the accused-Petitioner has been sought for. Both the F.I.R. and the charge-sheet in the case speak of embezzlement of Government money (Rs. 42,029.00) by the accused-Petitioner. It might be said at the very outset that it is settled law that power of quashment a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases, and that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. Reference may be made to the case of State of Haryana and others Vs. Ch. Bhajan Lal and others, and also to a very recent decision of the Supreme Court in the Case of S.N. Datta v. State of Gujarat and Anr. A.I.R .2001 S.C.W. 3133 Here, the mainstay of the contentions of the-Petitioner-accused is that since he has paid off the entire amount of Rs. 42,029.00 allegedly misappropriated by him from the Government fund the allegations made against him in the F.I.R. and charge-sheet are all false and that they are all mala fide and aimed at harassing him and because of that the entire criminal proceedings against him u/s 409 Indian Penal Code should be quashed. In my considered view, this stance, at this stage, has no legs to stand upon. The point is, whether or not he had actually paid off the said entire amount of money or even any part thereof on different dates and the legal implications and consequence thereof are matters of evidence at the trial. Both in the F.I.R. and in the charge-sheet, prima facie case, u/s 409 Indian Penal Code has been made out against the Petitioner-accused. Even if it is taken for argument''s sake only and not otherwise that the Petitioner-accused had refunded the amount when the act of his defalcation came to be discovered as alleged, it would still be left to serious question whether that by itself would legally absolve him of the offence allegedly committed by him. So, in simple terms, the facts and circumstances of the case being what they are, there can be no quashment of the proceedings in question against the accused at this stage.

Only another point is left to be addressed to and that is the question of sanction for the prosecution as envisaged u/s 197 of the Code of Criminal Procedure. According to the Petitioner-accused, since the Petitioner was a Government employee being in the West Bengal Forest Service, sanction for prosecution u/s 197 Code of Criminal Procedure was necessitated and since that was not done, even the cognizance taken was bad in law and proceedings as a consequence thereof should be quashed. In support of this contention, the learned advocate for the Petitioner accused has primarily relied upon a few case-laws being Chari R.R. v. State of Uttar Pradesh A.I. Ft. 1951 S.C. 207 ; Narendra Pratap Narain Singh and another Vs. State of U.P., and Amrik Singh Vs. The State of Pepsu, In plain, the factual matrix does not at all respond to the facts and circumstances of our instant case and the ratio propounded therein is not applicable here in the instant case. The Learned Counsel for the O.P.-State, on the other hand, has submitted a recent decision of the Supreme Court in the case of Shambhoo Nath Misra Vs. State of U.P. and others, . It was decided therein by the Supreme Court in connection with sanction for prosecution u/s 197(1) Code of Criminal Procedure that where there was fabrication of record and misappropriation of public fund by public servant, it could not be regarded as his official duty and that sanction for his prosecution for the alleged offence was not necessary. It would be useful here to lay down what has been pronounced by the Hon''ble Supreme Court in para. 4 and para. 5 of the said decision at page 2103 as under:

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 u/s 197(1) Code of Criminal Procedure 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 demoralizes 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 concerned.

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.

We might make it clear that the necessity of sanction to prosecute a public servant depends upon the facts of each case. Here, in this case the F.I.R. and the charge-sheet reveal� and at this stage we shall have to go by the allegations surfacing thereon- that Amulya Kr. Das, who was a Forest Ranger under the Divisional Forest Officer, Birbhum Forest Division and who was also acting as Ex-Officio Range Manager of the W.B.F.D.C. Ltd. for Birbhum Forest Division, was at the material point of time responsible for the collection of Corporation revenue arising out of the sale of Corporation produce and for depositing the same in the account of the ''Divisional Manager, Cashew-plantation Division, W.B.F.D.C. Ltd.'' at Bank of India, Suri Branch. But the accused did not deposit in the bank an amount of Rs. 42,029.00 which was received as revenue during the month of August, 2000 and defalcated and misappropriated the said Corporation revenue to the tune of Rs. 42,029.00 with mala fide intention and ulterior motive. As we see and understand it, the Petitioner-accused when allegedly commits the said offence of dishonest misappropriation of Government money, the offence committed by him cannot be said to be one he was doing while acting or purporting to act in the discharge of his official duty since such offence has no necessary nexus or connection between it and the performance of his duties as a public servant. It could rather be said that his official status only afforded him the occasion or opportunity for the commission of the offence.

In this connection, I might also profitably add and end up with an equally important decision of the Supreme Court in the case of B. Saha and Others Vs. M.S. Kochar, , wherein the Apex Court held thus:

The sine qua non for the applicability of Section 197 is that the offence charged, be it one of commission or omission, must be one which has been committed by the public servant either in his official capacity or under colour of the office held by him.

Interpreting the words ''any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty'' employed in Section 197(1),Code of Criminal Procedure which are capable of a narrow as well as a wide interpretation, the Apex Court observed thus:

If these words are construed too narrowly, the section will be rendered altogether sterile for, ''it is no part of an official duty to commit an offence, and never can be''. In the wider sense, these words will take under their umbrella every act constituting an offence, committed in the course of the same transaction in which the official duty is performed or purports to be performed. The right approach to the import of these words lies between these two extreme. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection of Section 197(1), an act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution under the said provision. It is the quality of the act that is important, and if it falls within the scope and range of his official duties, the protection contemplated by Section 197 will be attracted.

But, the question whether an offence was committed in the course of official duty or under colour of office depends on the facts of each case. One broad test for this purpose is whether the public servant, if challenged, can reasonably claim, that what he does in he does virtue of his office.

Considering whether misappropriation by a public servant was in the capacity of his official duty as a public servant the Apex Court held thus:

Where the act complained of is dishonest misappropriation or conversion of the goods by the accused persons, which they had seized and, as such, were holding in trust to be dealt with in accordance with law, sanction of the appropriate Government was not necessary for the prosecution of the accused for an offence u/s 409/120-B, IPC because the alleged act of criminal misappropriation complained of was not committed by them while they were acting or purporting to act in the discharge of their official duty, the commission of the offence having no direct connection or inseparable link with their duties as public servant. At the most, the official status of the accused furnished them with an opportunity or occasion to commit the alleged criminal act.

In my view, the aforesaid decisions in S.B. Saha v. M.S. Kochar (Supra ) and Shambhoo Nath Mishra v. Sfare of Uttar Pradesh (Supra ) by the Hon''ble Supreme Court squarely apply to the facts of this case and, therefore, no sanction for prosecution u/s 197 Code of Criminal Procedure was necessary. So, this contention of the Petitioner-accused also fails him.

Thus, I find this revisional application has no merits and accordingly the same is hereby dismissed.

The Learned Judge First Special Court, Birbhum Suri is directed to proceed with the impugned case and proceedings in accordance with law and dispose of the same as expenditiously as possible. Let a copy of this order be sent down to the Court of Learned Judge, First Special Court, Birghum, Suri.

Urgent Xerox certified copy of this order, if applied for, be given to the parties.