The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No.2653 of 2024 (In the matter of an application under Section 482 of the Code of Criminal Procedure, 1973) Baladev Rath ……. Petitioner -Versus- State of Odisha ……. Opp. Party For the Petitioner : Mr. Satya Narayan Mishra-4, Advocate For the Opp. Party : Mr. S. J. Mohanty, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 16.04.2025 :: Date of Judgment: 05.05.2025 S.S. Mishra, J. The petitioner has invoked the inherent jurisdiction of this Court questioning the order dated 22.02.2024 passed by the learned J.M.F.C., Boden in C.T. Case No.180 of 2019, whereby the learned Court below has taken cognizance of the offence punishable under Section 409 of I.P.C. against the petitioner. 2. An F.I.R. was registered against the petitioner on 10.08.2019 inter alia alleging that the petitioner while working as a District Child Protection Officer at Nuapada has misappropriated government funds under Biju Sishu Surakhya Yojana (BSSY) by selecting fake beneficiary like one Siba Prasad Behera., who is neither an orphan nor affected/infected by HIV/AIDS, hence, intentionally violated BSSY guidelines. The F.I.R. was registered by one Gopal Chandra Das claiming himself to be a social worker. The Investigating Agency picked up the investigation, however, took more than five years to complete the investigation and eventually filed the charge-sheet on 15.02.2024. Subsequently, vide order dated 22.02.2024, the learned J.M.F.C., Boden has taken cognizance of the offence under Section 409 of I.P.C. against the petitioner. The petitioner is aggrieved by the cognizance order and
Legal Reasoning
“4. Having heard learned counsel for both the parties, perusing the pleadings and on perusing the judgments relied upon by the petitioner referred to herein above, it appears that the scope and ambit of the protection granted under Section 197, Cr.P.C to a public servant, has repeatedly been reiterated by the Hon'ble Supreme Court in various judgments as well as in the case of Anjani Kumar (Supra). In the said case the Hon'ble Supreme Court came to hold that once it is established that act or omission was done by the public servant while discharging his duty then the scope of its being official should be construed so as to advance the objective of the Section in favour of the public servant. It is further noted in the said judgment that if it is prima facie, found that the act or omission for which the accused was charged which has a reasonable connection with the discharge of his duty then it must be held to be official, to which applicability of Section 197, Cr.P.C cannot be disputed.” 10. In the instant case, after investigation, the Investigating Agency has filed charge-sheet inter alia arriving at the following conclusion:- “During investigation it is ascertained that Baladev Rath the has then Dist. Child Protection Officer, Nuapada misappropriated the Govt. fund under Biju Shishu Surakshya Jojana by selecting fake beneficiary like Siba Prasad Behera S/O Late Baburao Behera of village Karlaote under Boden 7 CRLMC No.661 of 2004 Page 12 of 14 Block who is neither orphan nor affected or infected by HIV/Aids and intentionally violating the BSSY guidelines and deposited Rs.40,000/- in the SBI account vide No.11846521963 of fake beneficiary Siba Prasad Behera of Karlokate which depriving the real beneficiary which is not judicious, but against the child rights. The case has been supervised by Sru B.P. Dehuri, OPS, Ex SDPO, Kharirar who opined that it is a true case U/s 409 IPC and the accused Baladev Rath (45) S/O Late Chintamani Ratha Sharama of village Gotma PS-Jonk Dist-Nuapada the Ex DCOP, DCPO Nuapada is liable for the offence. After complete of investigation orders has been obtained from SP, Kalahandi for submission of CS in this case. An investigation of the case is completed and there is prima facie evidence well-made out u/s 409 IPC against accused Baladev Rath (45) S/O Late Chintamani Ratha Sharama of village Gotma PS-Jonk Dist-Nuapada the Ex DCOP, DCPO Nuapada. Hence, I submitted CS U/s 409 IPC against him to stand his trial in the court of law vide CS No.29 dt 15.02.2024 to stand his case in the court of law. 11. Taking into consideration the allegation made against the petitioner in the F.I.R. and subsequent charge-sheet and the document form part of the charge-sheet, I have no hesitation to hold that the allegation against the petitioner is forming part of his official duty and that the act “complained of” against the petitioner may not fall under the definition of forging valuable security as held in M.P. Gupta (supra) or any such grievous offence which can be proceeded with, independent of sanction. Therefore, the sanction under Section 197 Cr.P.C. was inevitable in the facts scenario of the present case. In absence of sanction Page 13 of 14 under Section 197 Cr.P.C. obtained by the prosecution, the learned Court below ought not to have been taken cognizance. Hence, the petition deserves merit. 12. Accordingly, the order dated 22.02.2024 passed by the learned J.M.F.C., Boden in C.T. Case No.180 of 2019 and the consequential proceedings arising therefrom qua the petitioner is quashed.
Arguments
Heard Mr. Satya Narayan Mishra 4, learned counsel for the petitioner and Mr. S. J. Mohanty, learned Additional Standing Counsel for the State. Page 2 of 14 4. The prominent ground emphasized by Mr. Mishra, learned counsel for the petitioner that the cognizance could not have been taken against the petitioner for the offence under Section 409 I.P.C. without valid sanction as the petitioner is a government servant. He has read out extensively Section 197 Cr.P.C. and also relied upon series of judgments starting from the case of Ramakanta Sahoo vrs Suresh Prasad Panda1 to the judgment of the Hon’ble Supreme Court in the case of Suneeti Toteja vrs. State of U.P. and another2. 5. On the contrary, Mr. Mohanty, learned Additional Standing Counsel for the opposite party submitted that in order to arrive at any conclusion regarding the question as to whether “the act complained of” is in the discharge of his official duty of the petitioner or not, could only be effectively examined and answered during the course of trial. The question of sanction should be subjected to the final outcome of trial. The applicability of sanction provided U/s 197 Cr.P.C. and its validity being a question poised with facts and law needs to be thrashed out in 1 CRLMC No.661 of 2004 2 2025 SCC OnLine SC 433 Page 3 of 14 the trial alone. To substantiate the said submission the learned ASC, has placed reliance on the judgement of Hon’ble Supreme Court in Romesh Lal Jain V. Naginder Singh Rana3 “33. The upshot of the aforementioned discussions is that whereas an order of sanction in terms of Section 197 CrPC is required to be obtained when the offence complained of against the public servant is attributable to the discharge of his public duty or has a direct nexus therewith, but the same would not be necessary when the offence complained of has nothing to do with the same. A plea relating to want of sanction although desirably should be considered at an early stage of the proceedings, but the same would not mean that the accused cannot take the said plea or the court cannot consider the same at a later stage. Each case has to be considered on its own facts. Furthermore, there may be cases where the question as to whether the sanction was required to be obtained or not would not be possible to be determined unless some evidence is taken, and in such an event, the said question may have to be considered even after the witnesses are examined.” In light of the rival contention and judicial precedents cited, it becomes necessary to scrutinize the nature of the alleged act “complained of” and to determine whether it was committed in discharge of official duty by the petitioner so as to attract protection under Section 197 Cr.P.C. 6. I have carefully gone through the case record and analysed the judgment cited by both the counsel for the parties at the Bar. At the 3 (2006) 1 SCC 294 Page 4 of 14 outset, it is relevant to mention that as per the allegation made by the prosecution the petitioner has misused his official position being a District Child Protection Officer and by misinterpreting the BSSY scheme has given benefit to one Siba Prasad Behera although he was not eligible. The petitioner has deposited Rs.40,000/- to the account of Siba Prasad Behera, who was otherwise not entitled to the benefit scheme. Therefore, the act “complained of” against the petitioner is falling under the “colour of the official duty”. On that admitted factual premise, the legality of the impugned order desired to be gone into. 7. The Court below has placed reliance on the judgment of the Hon’ble Supreme Court in State of H.P. v. M.P. Gupta4 and concluded that no sanction is required for prosecuting a public servant for offences involving act of forgery of “valuable security”. I have also examined the judgment referred to by the learned trial Court. In that case, the Hon’ble Supreme Court observed that when the allegations involve forgery of valuable security and related dealings, such acts cannot be considered as 4 (2004) 2 SCC 349 Page 5 of 14 part of the public servant’s official duties. Hence, in such circumstances, prosecution can proceed without prior sanction if the public servant is found to have committed such offences. The relevant part of the M.P. Gupta (supra) judgment is reproduced for better appreciation:- “22. Above views are reiterated in State of Kerala v. V. Padmanabhan Nail (1999) 5 SCC 690: 1999 SCC (Crl.) 1031. Both Amrik Singh (AIR 1955 SC 309: (1955) 1 SCR 1302: 1955 Crl LJ 865 and Shrrekantiah AIR 1955 SC 287 (1995) 1 SCR 1177: 1955 Cri LJ 857 were noted in that case. Sections 467, 468 and 471 IPC relate to forgery of valuable security, Will etc; forgery for the purpose of cheating and using as genuine a forged document respectively. It is no part of the duty of a public servant while discharging his official duties to commit forgery of the type covered by the aforesaid offences, Want of sanction under Section 197 of the Code is, therefore, no bar.” In light of the above legal position, it becomes imperative to assess whether the alleged acts attributed to the petitioner fall within the ambit of duties performed in the discharge of official functions. If the acts in question, as alleged, pertain to forgery or manipulation of valuable security which are clearly outside the scope of lawful public duty as recognized in M.P. Gupta (supra) then the protection under Section 197 Cr.P.C. may not be available. However, to properly determine the applicability of such protection, factual matrix of the Page 6 of 14 present case must be considered, including the identity and locus of the complainant, as well as the nature of the allegations. 8. The law operating in the field of sanction is no more res integra. This Court while deciding the case of Nruparaj Sahu vrs. State of Odisha and another5 has extensively dealt with the issue in subject and held that protection given under Section 197 Cr.P.C. is aim to safeguard a responsible public servant against the institution of possibly vexatious criminal proceedings for the offences alleged to have been committed by them while they are acting or purporting to act as public servant. In the instant case, the complaint is lodged by one Gopal Chandra Das, who claims to be a social worker. The complainant does not claim to have been affected in any manner whatsoever by the alleged act of the petitioner. 9. I have perused the statement of the complainant namely Gopal Chandra Dash, the person namely Siba Prasad Behera(dead) who has allegedly been benefited from the scheme receiving assistance from the 5 CRLMC No.3816 of 2023 Page 7 of 14 accused-petitioner, the elder brother of Siba Prasad Behera and some other persons who claimed to have known about the incident, recorded under the Section 161 Cr.P.C. It clearly emerges from the statements of the witnesses that their testimonies are bereft of any credible or substantive material to establish that Siba Prasad Behera was ineligible to avail the benefit of the scheme. The informant masquerading himself to be a social worker have filed the complaint sans any material support. Hence, it appears that the allegation made against the petitioner is somehow motivated. Therefore, the prosecution lodged against the petitioner appears to be poised with the vexatious intention. Hence, the sanction under Section 197 Cr.P.C. would have averted the malicious prosecution against the petitioner. The Hon’ble Supreme Court has consistently held that the absence of such sanction vitiates the prosecution and renders the proceedings non-est in law. This principle was reaffirmed in the case of Suneeti Toteja vrs. State of U.P. & Another (supra) by taking a note of its judgment in Page 8 of 14 Amod Kumar Kanth vrs. Association of victim of Uphaar Tragedy6 and held thus:- “27. In Amod Kumar Kanth v. Association of Victim of Uphaar Tragedy, 2023 SCC OnLine SC 578 disposed of by a three-Judge Bench of this Court on 20.04.2023, of which one of us (Nagarathna, J.) was a member, it was observed that the question of cognizance being taken in the absence of sanction and thereby Section 197 of the CrPC being flouted is not to be conflated and thereby confused with the question as to whether an offence has been committed. The salutary purpose behind Section 197 of the CrPC is protection being accorded to public servants. In paragraphs 28, 29 and 31, it was observed as under: “(28) The State functions through its officers. Functions of the State may be sovereign or not sovereign. But each of the functions performed by every public servant is intended to achieve public good. It may come with discretion. The exercise of the power cannot be divorced from the context in which and the time at which the power is exercised or if it is a case of an omission, when the omission takes place. (29) The most important question which must be posed and answered by the Court when dealing with the argument that sanction is not forthcoming is whether the officer was acting in the exercise of his official duties. It goes further. Even an officer who acts in the purported exercise of his official power is given the protection under Section 197 of the Cr. P.C. This is for good reason that the officer when he exercises the power can go about exercising the same fearlessly no doubt with bona fides as public functionaries can act only bona fide. In fact, the requirement of the action being bona fide is not expressly stated in Section 197 of the Cr. P.C., though it is found in many other statutes protecting public servants from action, civil and criminal against them. 6 2023 SCC OnLine SC 578 Page 9 of 14 x x x x (31) One ground which has found favour with the High Court against the appellant is that the appellant, according to the High Court, could raise the issue before the Magistrate. (32) Here we may notice one aspect. When the question arises as to whether an act or omission which constitutes an offence in law has been done in the discharge of official functions by a public servant and the matter is under a mist and it is not clear whether the act is traceable to the discharge of his official functions, the Court may in a given case tarry and allow the proceedings to go on. Materials will be placed before the Court which will make the position clear and a delayed decision on the question may be justified. However, in a case where the act or the omission is indisputably traceable to the discharge of the official duty by the public servant, then for the Court to not accept the objection against cognizance being taken would clearly defeat salutary purpose which underlies Section 197 of the Cr.P.C. It all depends on the facts and therefore, would have to be decided on a case-to-case basis.” the It was concluded that learned Magistrate had erred in the facts of the said case in taking cognizance against the appellant therein contrary to the mandate of Section 197 of the CrPC and on that short ground alone, the appeal was allowed and the proceedings challenged in Section 482 CrPC were quashed. However, it was observed that the same would not stand in the way of the competent authority taking a decision in the matter and/or granting sanction for prosecuting the appellant therein in accordance with law. 28. In another case titled Amrik Singh v. The State of PEPSU, AIR 1955 SC 309, this Court explained the scope of Section 197 of CrPC as follows: “8. … It is not every offence committed by a public servant that requires sanction for prosecution under section 197(1) of the Code of Criminal Procedure; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be Page 10 of 14 necessary; and that would be so, irrespective of whether it was, in fact, a proper discharge of his duties, because that would really be a matter of defence on the merits, which would have to be investigated at the trial, and could not arise at the stage of the grant of sanction, which must precede the institution of the prosecution.” The Court thereunder further concluded that: “12 … The result then is that whether sanction is necessary to prosecute a public servant on a charge of criminal misappropriation, will depend on whether the acts complained of hinge on his duties as a public servant. If they do, then sanction is requisite. But if they are unconnected with such duties, then no sanction is necessary.” if in 29. As per the aforementioned proposition, it is only to be seen the the accused public servant was acting performance of his/her official duties, and if the answer is in the affirmative, then prior sanction for their prosecution is a condition precedent to the cognizance of the cases against them by the courts. It is therefore largely a disputed question of fact here and not a question of law. However, this fact of appellant herein acting in her official capacity is not seriously contested by the respondents herein. In the instant case, the appellant had filed the counter affidavit and interacted with the complainant in her capacity of a Presiding Officer, ICC. The correctness of the allegations with regard to the conduct of the appellant need not be ascertained herein by this Court but the fact that she was acting in her official duty is sufficient to hold that a prior sanction from the department was in fact necessary before the Magistrate taking cognizance against her. The Magistrate therefore erred in proceeding to take cognizance against the appellant without the sanction for prosecution being received from BIS, and since BIS has eventually refused to grant sanction for the prosecution of the appellant, the prosecution against the appellant could not have been sustained.” Page 11 of 14 Similar view has also been taken by the coordinate Bench of this Court in the case of Ramakanta Sahoo vrs. Suresh Prasad Panda7. The ratio laid down in Paragraph-4 of the said judgment, which reads as under:-
Decision
13. The CRLMC is disposed of. The High Court of Orissa, Cuttack Dated the 5th of May, 2025/ Swarna (S.S. Mishra) Judge Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 07-May-2025 10:38:01 Page 14 of 14