High Court

Legal Reasoning

cria-310.231 IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO.310 OF 2023Shahadeo S/o Rambhau Pokale,Age-54 years, Occu:Police Inspector,At present R/o-Sawede, Taluka and District-Ahmednagar. ...APPLICANT VERSUS 1) The State of Maharashtra, (Through Vajirabad Police Station, District-Nanded),2) Kamal Vishwanath Shinde, Age-35 years, Occu:Assistant Police Inspector, R/o-Police Welfare Division, Vajirabad, Nanded, Taluka and District-Nanded. ...RESPONDENTS ... Mr. Sohail Subhedar Advocate h/f. Mr. Nilesh S. Ghanekar Advocate for Applicant. Mr. P.S. Patil, Additional P.P. for Respondent No.1. ... CORAM: SMT. VIBHA KANKANWADI AND SANJAY A. DESHMUKH, JJ. DATE : 12th AUGUST, 2025 ORDER [PER SMT. VIBHA KANKANWADI, J.] :1.Present Application has been filed, initially for quashing the cria-310.232First Information Report (for short “the FIR”) vide Crime No. 193of 2022, registered with Vajirabad Police Station, District-Nanded on 7th June 2022, for the offence punishable underSections 409, 420, 467, 468, 471, 477 read with Section 34 ofthe Indian Penal Code, and later on by way of amendment, forquashing the proceedings in R.C.C. No.89 of 2024, pendingbefore the learned Chief Judicial Magistrate, Nanded. 2.Heard learned Advocate Mr. Sohail Subhedar holding forMr. Ghanekar Advocate for Applicant and learned Additional P.P.Mr. P.S. Patil, for Respondent No.1. 3.Learned Advocate for the applicant has taken us throughthe entire charge-sheet and submits that the applicant is a PoliceInspector and presently serving at Sawede, Taluka and District-Ahmednagar. The FIR has been lodged by Assistant PoliceInspector Kamal Vishwanath Shinde, attached to Police WelfareDepartment, Nanded. Applicant was then serving in ReservePolice Force as Police Inspector at Nanded. In the FIR, It isstated that inquiry was made in respect of the working of onepolice head constable Ramkisan Gangaram Jakulwar and thepresent applicant for the period from 28th February 2019 to 31stJuly 2021, under the orders of District Superintendent of Police, cria-310.233Nanded. It was then found out that there is misappropriation ofRs.10,41,735/- while purchasing the articles for the policesubsidiary canteen and misappropriation of Rs.10,36,377/- inpurchase and distribution of Raymond cloth. Thus, there wasalleged misappropriation of Rs.20,78,112/-. According to theFIR, when the visit was made by the inquiry committee, thecomputer in the canteen was not working. The swipe machinewas also not working and it appears that the said transactionswere taking place offline. In fact it was so pretended that thosewere not working but in fact the computer as well as the swipemachine were in working condition. Intentionally those were keptnot operational. Accounts were not properly maintained andcertain prior sanctions for purchase of articles were not taken.Those were the allegations against Mr. Jakulwar and as againstthe present applicant, it was stated that said Jakulwar wasillegally appointed by the present applicant. The applicant wasasked to pay the outstanding bill of the police canteen but hehas not cleared the same. Applicant has not obtained priorpermissions, had not visited the canteen and not supervised thefinancial transactions. Certain amounts were collected from thepersons in the police department towards the cloth, however, itwas not distributed. cria-310.2344.Learned Advocate for the applicant states that the DeputySuperintendent of Police (Home), Police Superintendent Office,Nanded and the Police Inspector, Police Welfare Division,Nanded, are the President and Secretary of the Police WelfareDivision. The applicant was not the secretary of the committeebut he was only the member of the canteen supervisingcommittee. Only co-accused Ramkishan Jakulwar wasresponsible for the alleged misappropriation and he wasappointed on oral directions given by the Deputy Superintendentof Police, Nanded. The audit which is carried out by thecommittee consisting of Deputy Superintendent of Police (Home)and Police Inspector, Police Welfare Division, is illegal as theywere the President and Secretary of Police Welfare Division. SaidJakulwar had filed an application dated 7th September 2021,thereby admitting misappropriation of the amount by him.Amount of Rs.26,000/- was got deposited from him and he hasundertaken to pay the remaining amount by selling his house. Itis learnt that another application has been given by co-accusedJakulwar stating that the transaction of sale of his house came tobe cancelled. In the entire charge-sheet, it is not stated as tohow the present applicant is involved and therefore, it would beunjust to ask the applicant to face the trial. cria-310.2355.Per contra, the learned APP strongly opposed theApplication and submitted that the entire charge-sheet wouldshow that the documents have been collected and as regardsthe present applicant is concerned, there was specific roleattributed to him. Now, how the misappropriation by mainaccused has been abetted or there was common intention of thepresent applicant, would be proved at the time of trial.6.If we consider the FIR lodged by the informant and theother documents on record, especially statement of one ManishaNarendra Pimpale, Assistant Accounts Officer, Office of theDistrict Superintendent of Police, Nanded, it would be seen thatin respect of allegation No.1 regarding illegal appointment of Mr.Jakulwar and no prior permission has been sought, we would saythat at the most the departmental inquiry can be held. Furtherfrom the document on record i.e. report by the committee itself,it can be seen that the present applicant appears to be the onlymember and not the President or the Secretary. Only theapplicant, in such situation, cannot be held responsible for theappointment of Mr. Jakulwar, when the President, Secretary andother members were also duty bound to control and supervise allthe activities carried out in the canteen. cria-310.2367.The second allegation is that it was directed that thecashbook entries should be updated but those were not updatedand report has not been given in respect of misappropriationcommitted by Mr. Jakulwar. Interestingly the present applicantappears to have been posed as member secretary of thecommittee, whereas the report of the committee statesotherwise. Even in this respect, at the most there can bedepartmental inquiry, as no criminality is directly involved.8.As regards allegation No.3, now here the applicant hasbeen stated to be the member of the canteen committee and itis stated that he was supposed to visit the canteen from time totime and inform about the misappropriation and illegalities in thecanteen affairs. It is then stated that when no report has beengiven, the present applicant has mute consent for the same. Thisappears to be the inference drawn by the superiors and at themost it will involve departmental inquiry. 9.The last and fourth allegation is on the basis of statementof Jakulwar dated 2nd August 2021, stating that the applicant hastaken material from the police canteen without paying for it. Atthe most, this would give rise to the recovery of the amount. cria-310.237Here also then it is stated that for this irregularity the applicanthas given mute consent. Criminal action cannot be taken on thebasis of surmises and conjectures. 10.Here, the prosecution is also in respect of offence underSection 409 of the Indian Penal Code and all the acts are statedto be either done or not done in the official capacity of theapplicant. In respect of offence under Section 409 of the IndianPenal Code, the prosecution should show that previous sanctionas contemplated under Section 197 of the Code of CriminalProcedure was obtained. No doubt the legal position stands thatfor offence under Section 420 of the Indian Penal Code, it cannotbe the part of the job of a Government servant to cheat, andtherefore, in that case the previous sanction is not required. Butthat cannot be the same thing when it comes to Section 409 ofthe Indian Penal Code. To sanction the bills or forward it forsanction or withdrawal of the amount and/or to visit andsupervise the functioning of the canteen, was part of the officialduty of the applicant and therefore, the sanction was necessary.11.Here, we would like to take note of the legal position thatwas carved out in Om Prakash Yadav Vs. Niranjan Kumar cria-310.238Upadhyay and Others, [2024 SCC Online SC 3726], whichreads thus :"The legal position that emerges from the discussion of theaforesaid case laws is that:(i) There might arise situations where the complaint or thepolice report may not disclose that the act constituting theoffence was done or purported to be done in the dischargeof official duty. However, the facts subsequently coming tolight may establish the necessity for sanction. Therefore, thequestion whether sanction is required or not is one that mayarise at any stage of the proceeding and it may reveal itselfin the course of the progress of the case. (ii) There may also be certain cases where it may not bepossible to effectively decide the question of sanctionwithout giving an opportunity to the defence to establishthat what the public servant did, he did in the discharge ofofficial duty. Therefore, it would be open to the accused toplace the necessary materials on record during the trial toindicate the nature of his duty and to show that the actscomplained of were so interrelated to his duty in order toobtain protection under Section 197 CrPC. (iii) While deciding the issue of sanction, it is not necessaryfor the Court to confine itself to the allegations made in thecomplaint. It can take into account all the material on recordavailable at the time when such a question is raised and fallsfor the consideration of the Court. (iv) Courts must avoid the premature staying or quashingof criminal trials at the preliminary stage since such ameasure may cause great damage to the evidence that mayhave to be adduced before the appropriate trial court." cria-310.23912.In Shriniwas Reddy Kankanala Vs. State of Maharashtraand Another, [2024(4) Mh.L.J. (Cri.) 510], this Court hasconsidered the Three Judge Bench decision in B. Shaha andOthers Vs. M/s Kochar, [(1979) 4 SCC 177]. Therefore, weshould take into consideration it as the law of precedent makes itmandatory to consider the decision of a Three Judge Bench ofthe Hon'ble Apex Court and in which, it is held thus :"The words "Any offence alleged to have been committed byhim while acting or purporting to act in the discharge of hisofficial duty" employed in section 197(1) of the Code, arecapable of a narrow as well as wide interpretation. If thesewords are construed too narrowly, the section will berendered altogether sterile, for it is no part of an official dutyto commit an offence, and never can be. In the wider sense,these words will take under their umbrella every actconstituting an offence, committed in the course of the sametransaction in which the official duty is performed or purportsto be performed. The right approach to the import of thesewords lies between these two extremes. While it is not everyoffence committed by a public servant while engaged in theperformance of his official duty, which is entitled to theprotection of Section 197(1), an act constituting an offence,directly and reasonably connected with his official duty willrequire sanction for prosecution under the said provision."13.Further, in G.C. Manjunath and Others Vs. Seetaram, cria-310.2310[2025 0 SC 582], also, B. Shaha and Others (supra) has beenreferred. We must understand as to why the protection is givento a public servant from prosecution, thereby making thesanction to prosecute under Section 197 of Cr.P.C., compulsory.It has been observed in G.C. Manjunath and Others (supra) inParagraph No.30 that :"A careful reading of Section 197 of the Cr.P.C. unequivocallydelineates a statutory bar on the Court's jurisdiction to takecognizance of offences alleged against public servants, savewithout the prior sanction of the appropriate Government.The essential precondition for the applicability of thisprovision is that the alleged offence must have beencommitted by the public servant while acting in the dischargeof, or purported discharge of, their official duties. Theprotective mantle of Section 197 of the Cr.P.C., however, isnot absolute and it does not extend to acts that aremanifestly beyond the scope of official duty or whollyunconnected thereto. Acts bereft of any reasonable nexus toofficial functions fall outside the ambit of this safeguard anddo not attract the bar imposed under Section 197 of theCr.P.C." 14.The provision has been made to protect the public servantsfrom malicious prosecution, otherwise it will not be possible to apublic servant to discharge his duties without fear or favour. Theobject and purpose of this section was also considered inGurmeet Kaur Vs. Devender Gupta, [2024 SCC Online SC 3761] cria-310.2311and it has been noted in G.C. Manjunath and Others (supra). Ithas been therefore, stated that :"The guiding principle governing the necessity prior sanctionstands well crystallized. The pivotal inquiry is whether theimpugned act is reasonably connected to the discharge ofofficial duty. If the act is wholly unconnected or manifestlydevoid of any nexus to the official functions of the publicservant, the requirement of the sanction is obviated.Conversely, where there exists even a reasonable linkbetween act complained of and the official duties of publicservant, the protective umbrella of Section 197 of the Cr.P.C.and Section 170 of the Police Act is attracted. In such cases,prior sanction assumes the character of a sine qua non,regardless of whether the public servant exceeded scope ofauthority or acted improperly while discharging his duty."15.Thus by taking note of the legal position, it is crystal clearthat such sanction is mandatory in case of a Governmentservant. Further, though at present there is no documentshowing that the trial Court has taken cognizance of the offence,yet it can be so presumed, because the charge-sheet has beenfiled in the year 2024. The trial Court would not have waited fortaking cognizance for about a year and therefore, the cognizanceappears to have been taken by the learned trial Court incontravention of the mandate, or in other words, in spite ofspecific bar to take cognizance in absence of the sanction, thecognizance has been taken and therefore considering all these cria-310.2312aspects and the material in the charge-sheet, it would be anabuse of process of law if the applicant is asked to face the trial.A perfect case is there to exercise the powers under Section 482of the Code of Criminal Procedure. Hence, we proceed to passthe following order:- O R D E R(I)The Application stands allowed.(II) The proceedings in R.C.C. No.89 of 2024,pending before the learned Chief JudicialMagistrate, Nanded, arising out of the FirstInformation Report vide Crime No. 193 of 2022,registered with Vajirabad Police Station, District-Nanded on 7th June 2022, for the offencepunishable under Sections 409, 420, 467, 468,471, 477 read with Section 34 of the Indian PenalCode, stands quashed and set aside as againstapplicant - Shahadeo S/o Rambhau Pokale. [SANJAY A. DESHMUKH] [SMT. VIBHA KANKANWADI] JUDGE JUDGE asb/AUG25