Ramruchi Tripathi vs State of Uttar Pradesh

Yashwant Varma, J.—This application under Section 482 Cr.P.C. has been preferred seeking quashing of all the proceedings pertaining to Criminal Case No. 1340 of 1995 (State v. Ramruchi Tripathi) arising out of Case Crime No. 398 of 1991, under Section 409 I.P.C., Police Station Kotwali City Banda, pending in the court of Chief Judicial Magistrate, Banda.

This Court has heard the learned counsel for the applicant and learned A.G.A.

From the facts as disclosed in the application, it appears that the applicant at the relevant time was working as Gram Panchayat Adhikari and by virtue of holding the said office also acting as the Secretary for the Weaker Section Housing Groups. A First Information Report came to be lodged against him on 2.5.1991 with an allegation that the applicant had misappropriated cheques of Rs. 22,500/-. This First Information Report further alleged that the applicant who has been accorded a sum of Rs. 1,06,400/- for the purposes of construction activities had also misutilized and misappropriated the said sum in light of the fact that the works undertaken were estimated only at Rs. 25,444/-. It is, therefore, alleged that an amount of Rs. 80,956/- was embezzled by the applicant.

Pursuant to completion of investigation, a charge sheet was submitted on 29.4.1992 alleging commission of an offence under Section 409 I.P.C. The Magistrate is stated to have taken cognizance upon this charge sheet on 12.2.1995 and consequent to which the case against the applicant came to be registered as Case No. 1340 of 1995.

In these proceedings pending since the year 1995, the applicant is stated to have filed an application on 28.1.2014 asserting that since no previous sanction for his prosecution has been taken from the State Government under Section 197 Cr.P.C., the entire prosecution was liable to be quashed. This application of the applicant came to be rejected on 10.10.2014 by the Chief Judicial Magistrate. While proceedings continued thereafter this application came to be filed before this Court on 15.5.2015 laying challenge not only to all the proceedings pertaining to Criminal Case No. 1340 of 1995 as also for quashing of the order dated 10.10.2014.

Learned counsel for the applicant has submitted that the issue of sanction is fundamental in character and in the absence thereof, he is clearly entitled to seek quashing of the proceedings in question. He submits that by virtue of him being the Gram Panchayat Adhikari, the fact that he was a public servant cannot be disputed. He further submits that the allegations as carried in the charge sheet and material gathered by the prosecution clearly establishes that the same relates to action taken by him in discharge of his official duties and, therefore, obtaining of sanction under Section 197 Cr.P.C. was a must. He has in support of his above submissions also relied upon the judgments of Hon''ble Supreme Court in the case of State of Maharashtra v. Dr. Budhkota Subbarao, (1993) SCC 339 as also of a learned Single Judge of this Court in the case of Todar Singh Premi Vs. State of Uttar Pradesh, (1992) CriLJ 1724 .

Having heard the learned counsel for the parties, this Court finds that the issue whether sanction is required to initiate criminal proceedings in respect of the offence of criminal breach of trust, cheating or forgery is no longer res integra. Without burdening this judgment with numerous precedents, this Court only refers to the latest pronouncement of the Hon''ble Apex Court in the case of Inspector of Police and another v. Battenapatla Venkata Ratnam and another in Criminal Appeal No. 129 of 2013 decided on 13.4.2015.

Dealing with almost a similar issue, the Hon''ble Apex Court after taking into consideration the earlier judgments rendered by it on the subject held as follows:--

"No doubt, while the respondents indulged in the alleged criminal conduct, they had been working as public servants. The question is not whether they were in service or on duty or not but whether the alleged offences have been committed by them "while acting or purporting to act in discharge of their official duty". That question is no more res integra. In Shambhoo Nath Misra v. State of U.P. and others1, at paragraph-5, this Court held that:

"5. 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 he 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 records 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 the 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."

In Parkash Singh Badal v. State of Punjab and others, at paragraph-20, this Court held that:

"20. The principle of immunity protects all acts which the public servant has to perform in the exercise of the functions of the Government. The purpose for which they are performed protects these acts from criminal prosecution. However, there is an exception. Where a criminal act is performed under the colour of authority but which in reality is for the public servant''s own pleasure or benefit then such acts shall not be protected under the doctrine of State immunity."

and thereafter, at paragraph-38, it was further held that:

"38. The question relating to the need of sanction under Section 197 of the Code is not necessarily to be considered as soon as the complaint is lodged and on the allegations contained therein. This question may arise at any stage of the proceeding. The question whether sanction is necessary or not may have to be determined from stage to stage."

In a recent decision in Rajib Ranjan and others v. R. Vijaykumar, at paragraph-18, this Court has taken the view that ... "even while discharging his official duties, if a public servant enters into a criminal conspiracy or indulges in criminal misconduct, such misdemeanour on his part is not to be treated as an act in discharge of his official duties and, therefore, provisions of Section 197 of the Code will not be attracted".

Public servants have, in fact, been treated as special category under Section 197 CrPC, to protect them from malicious or vexatious prosecution. Such protection from harassment is given in public interest; the same cannot be treated as shield to protect corrupt officials. In Subramanian Swamy v. Manmohan Singh and another, at paragraph-74, it has been held that the provisions dealing with Section 197 CrPC must be construed in such a manner as to advance the cause of honesty, justice and good governance.

To quote:

"74. ... Public servants are treated as a special class of persons enjoying the said protection so that they can perform their duties without fear and favour and without threats of malicious prosecution. However, the said protection against malicious prosecution which was extended in public interest cannot become a shield to protect corrupt officials. These provisions being exceptions to the equality provision of Article 14 are analogous to the provisions of protective discrimination and these protections must be construed very narrowly. These procedural provisions relating to sanction must be construed in such a manner as to advance the causes of honesty and justice and good governance as opposed to escalation of corruption."

The alleged indulgence of the officers in cheating, fabrication of records or misappropriation cannot be said to be in discharge of their official duty. Their official duty is not to fabricate records or permit evasion of payment of duty and cause loss to the Revenue. Unfortunately, the High Court missed these crucial aspects. The learned Magistrate has correctly taken the view that if at all the said view of sanction is to be considered, it could be done at the stage of trial only."

In the opinion of this Court, the above judgment rendered by the Hon''ble Apex Court clearly sounds the death knell of the submissions advanced by learned counsel for the applicant. As has been held by the Hon''ble Apex Court a public servant is not entitled to immunity when he performs a criminal act under the colour of the authority and for his own pleasure or benefit. The Apex Court has categorically held that the provisions of Section 197 Cr.P.C. do not save the public servant from acts and offences of cheating, fabrication of records, misappropriation or embezzlement.

Accordingly and in light of the above, this Court finds no merits in the present application and the same is, accordingly, dismissed.