The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No.2328 of 2019 Jyotiraj Dash Petitioner Mr. Debi Prasad Dhal, Senior Advocate …. -Versus- State of Odisha Opposite Party …. Mr. Tapas Kumar Praharaj, Standing Counsel CORAM: JUSTICE R.K. PATTANAIK DATE OF JUDGMENT:30.05.2023 1. Instant writ petition under Section 482 Cr.P.C. is filed by the petitioner challenging the impugned order of cognizance dated 2nd September, 2016 passed in G.R. Case No.971 of 2016 by the learned S.D.J.M., Sadar, Cuttack corresponding to Mangalabag P.S. Case No.121 registered under Sections 120-B, 409 and 420 read with 34 IPC on the grounds inter alia that there is no evidence on record to substantiate his involvement in the transaction of fraud and hence, it is liable to be quashed in the interest of justice.
Facts
2. In fact, an FIR was lodged by the Assistant Superintendent of Post Offices (In-Charge), Cuttack, Sub-Division, Cuttack alleging therein that one of the accused opened a savings bank account in General Post Office, Cuttack which was subsequently converted to a new account after migration to core banking and he was issued with a cheque book and then another accused, a co- employee of the petitioner, opened one more savings bank account and converted the same to a new account and she also issued a postal cheque book and both the accounts were having insufficient funds by the time the cheques were deposited which CRLMC No.2328 of 2019 Page 1 of 7 Jyotiraj Dash Vrs. State of Odisha was cleared without actually being debited from the post office account and the amounts noted against each cheque was, however, credited in the bank account holders, as a result of which, the Postal Department incurred loss of Rs.42,05,000/- and therefore, the accused persons involved and the petitioner with other employees allegedly misappropriated the said amount. With such allegation, after the FIR was lodged, it resulted in the submission of chargesheet followed by the impugned order of cognizance dated 2nd September, 2016 in G.R. Case No.971 of 2016. It is made to understand that the chargesheet was submitted against the petitioner and others keeping the investigation open under Section 173(8) Cr.P.C. and thereafter, a supplementary chargesheet was received by the learned court below after a month and considering the same, the impugned order under Annexure-4 was passed by taking cognizance of the offences under Sections 120-B, 409 and 420 read with 34 IPC.
Legal Reasoning
7. This Court in CRLMC No.989 of 2018, in respect of one of the accused, namely, Ratikanta Swain, who was in-charge of the GPO and was exercising general administration and supervision of all the branches, the order of cognizance as against him was interfered with and set aside with a direction to the learned S.D.J.M., Sadar, Cuttack to await decision of the sanctioning authority before proceeding further. Since the petitioner was not directly related to the clearance of cheques but was looking after overall administration at the GPO, the Court directed that the sanction to be necessary in order to prosecute him and accordingly, by judgment dated 4th January, 2022 disposed of CRLMC No.989 of 2018 with the above direction. 8. The petitioner, at the relevant point of time, was working as Assistant Post Master (Savings Bank). It is claimed that no images of forged cheques were sent to the petitioner while being cleared and she had no scope or occasion to know about the transaction. It is also claimed that since the act complained of was while discharging official duty, before filing of chargesheet against him, sanction should have been obtained. The Court is aware of the limitation in exercise of inherent jurisdiction under Section 482 Cr.P.C. and alive to the set guidelines and principles laid down by the Apex Court in Ch. Bhajanlal (supra). What was the procedure to be followed and whether there was any deviation or lapses on the part of any other postal employee and hence, the petitioner is not liable, as pleaded at present, is a matter of examination. CRLMC No.2328 of 2019 Page 4 of 7 Jyotiraj Dash Vrs. State of Odisha However, the fact of the matter is the petitioner had been chargesheeted for the alleged offences along with others including the principal accused, who said to have died in the meantime. Notwithstanding the deposit of the misappropriated money by principal accused, it is rightly submitted by Mr. Praharaj, learned SC for the State that the prosecution for the crime is not obliterated. The question is, being an employee of the postal department, whether the petitioner was directly or indirectly involved in the alleged fraud or was innocent and discharging official duty without any having knowledge about the said fraud is again a decision depends on the evidence collected during investigation and submitted along with the chargesheet 9. Without commenting upon the procedure, whether, was followed or not for which the fraud escaped attention of the petitioner may be examined by the learned court below considering the entirety of the evidence before reaching at a conclusion as to his culpability either during enquiry or trial as the case may be. However, at the same time, the Court is of the view that the principal accused committed the fraud and managed to get the cheques cleared and money credited to the accounts held by two others. Such fraud was perpetuated during the regular postal transaction. Whether there was any lapse on the part of the petitioner or failure in proper verification, or was a party to the alleged fraud, a decision thereon would be depending on the evidence on record. However, as according to the Court, even assuming for the sake of argument that some wrong has been committed, it was carried out through the alleged transaction which remained within the domain of regular postal business. If any act is committed during official transaction, the Court is of the view that sanction should be demanded since before prosecuting any such employee, the sanction of the competent authority should be ensured when too many procedural aspects in official CRLMC No.2328 of 2019 Page 5 of 7 Jyotiraj Dash Vrs. State of Odisha duty are involved like the present case. In case, any such mischief is committed and detected, it is always advisable to have an independent assessment and decision of the sanctioning authority before an employee is criminally prosecuted. At least, it does not appear to be a case where the petitioner is directly involved in the alleged fraud sharing a common intention with the principal accused, who rather managed to siphon off the amount to the accounts of others having defrauded the Postal Department. In due course and discharge of official duty, the petitioner was responsible for clearing such cheques and under such circumstances, whether to hold him responsible for negligence or criminal lapses or really for any offence committed by him, the sanction of the competent authority is essential or else even an innocent and ignorant employee may be criminally prosecuted for the fraud or any kind of mischief committed by an outsider. 10. Section 197 Cr.P.C. stipulates that sanction to be necessary in respect of a public servant, who 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, in absence of which, no court shall take cognizance of such offence. In umpteen numbers of cases, the Apex Court held that sanction under Section 197 Cr.P.C. is a protection to the public servant, who acts innocently while performing official duty or having committed any offence being an offence punishable under law, such an act must be direct having reasonable nexus between the offence committed and the discharge of official duty. Of course, in case of dishonest misappropriation and a charge against a public servant for his direct involvement, sanction is not necessary, however, any such misappropriation or fraud if committed by an outsider which has been accomplished through transactions, a such public servant on duty and having been part of the series of transactions carried out in routine official business, in the considered view of the Court, CRLMC No.2328 of 2019 Page 6 of 7 Jyotiraj Dash Vrs. State of Odisha he should not straightaway be subjected to criminal prosecution without a sanction under Section 197 Cr.P.C. or else it would lead to miscarriage of justice. There is every likelihood that innocent public servant may be exposed to unnecessary litigation and criminal action, when they are not directly or indirectly involved. The Court is also alive to the law reiterated very often about the need of sanction and most recently in judgments of the Apex Court in Indra Devi and Others Vrs. State of Rajasthan and Others MANU/SC/0472/2021 and D. Devaraja Vrs. Owais Sabeer Hussain decided in Criminal Appeal No. 458 of 2020 and
Arguments
3. Heard Mr. Dhal, learned Senior Advocate appearing for the petitioner and Mr. Praharaj, learned SC for the State. 4. The petitioner by the time the alleged transaction took place was working as Assistant Post Master (Savings Bank) and his duty, as claimed, was about issuance of the cheque to the customers and whenever any cheque is deposited, it is sent for clearance which is carried out under the supervision of the Deputy Post Master and finally, he being the Assistant Poster Master Savings compares the signature and thereafter, the cheque is submitted to the Deputy Post Master again and by claiming so, it is contended that the transaction has been without his knowledge as the date on which the forged cheques were presented, it did not go through the standard procedure for checking and verification and hence, he had no occasion to know about the same. With the above claim and certain other grounds, the petitioner submits that CRLMC No.2328 of 2019 Page 2 of 7 Jyotiraj Dash Vrs. State of Odisha no case is made out against him and hence, the order of cognizance under Annexure-4 is bad in law. 5. Mr. Dhal, learned Senior Advocate submits that one of the accused employee challenged the order of cognizance dated 2nd September, 2016 in CRLMC No.989 of 2018 which was allowed with a direction to proceed awaiting sanction of the competent authority in view of Rule 172-A of the General Regulation of Postal Manual read with Section 197 Cr.P.C. It is contended that the entire amount misappropriated was deposited by the principal accused after the alleged transaction. Since due procedure was not followed during transaction, as according to Mr. Dhal, learned Senior Advocate, the petitioner could not have been criminally prosecuted. It is further submitted that the FIR was lodged by the Assistant Superintendent of Post Offices, Cuttack East Sub- Division, Cuttack without complying Rule 176-A of the General Regulation of Postal Manual which stipulates that in case of loss and fraud to the Govt. property to the tune of Rs.5,000/- or above, such report is to be at the instance of the Divisional Superintendent of Post Offices and that apart, since no cognizable offence is made out against the petitioner and as it was during and in course of official duty, he has been prosecuted without a sanction and therefore, in exercise of inherent jurisdiction, keeping in view the settled legal position of the Apex Court in State of Haryana and Others Vrs. Ch. Bhajan Lal and Others AIR 1992 SC 604, the order of cognizance as against him should be quashed. 6. On the other hand, Mr. Praharaj, learned SC for the State counters by stating that fraud was committed by the principal accused with the involvement of the officials which was revealed at the end of investigation leading to the submission of chargesheet against all and in view of the nature of offences CRLMC No.2328 of 2019 Page 3 of 7 Jyotiraj Dash Vrs. State of Odisha alleged, there was no need of any sanction under law and rightly, therefore, the learned court below took cognizance of the offences under Annexure-4. It is also submitted that deposit of the misappropriated amount by the principal accused by itself does not wipe out the mischief altogether and hence, the criminal proceeding against the petitioner shall have to be continued.
Decision
disposed of on 18th June, 2020. Hence, considering the totality of the facts and circumstances of the case, when the petitioner was functioning as Assistant Post Master and he had certain duty and responsibility to discharge, any such fraud committed by the principal accused, a part-time employee, who could able to get the money transferred to two other accounts, it would be wise and better advised if sanction is obtained, which according to the Court, is necessary and should have been insisted upon by the learned court below. 11. Accordingly, it is ordered. 12. In the result, the CRLMC stands allowed to the extent as aforesaid. As a necessary corollary, the impugned order of cognizance dated 2nd September, 2016 passed in G.R. Case No.971 of 2016 corresponding to Mangalabag P.S. Case No.121 is hereby set aside with a direction to the learned S.D.J.M., Sadar, Cuttack to proceed against the petitioner subject to receiving sanction from the competent authority. Signature Not Verified Digitally Signed Signed by: THAKURDAS TUDU Reason: Authentication Location: OHC,CTC Date: 03-Jun-2023 15:30:34 TUDU (R.K. Pattanaik) Judge CRLMC No.2328 of 2019 Page 7 of 7