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Judgment
K.N. Phaneendra, J.—The present writ petitions are filed seeking for quashing of the communication dated 10/6/2013 in No. ZPK/Magaragraukhayo/CR/2013-2014 and consequently, to quash the charge sheet in No. 103/2013 dated 16/6/2013 in crime No. 45/10 for the offences punishable under Sections 409, 465, 468, 471, 420 read with Section 34 of IPC, so far as the present petitioner is concerned. The brief factual matrix that emanate from the records are: that according to the petitioner, he was appointed as a Sericulture Demonstrator by the Director of Sericulture. In the month of October 2009, the petitioner was deputed on OOD to Gram Panchayat, Kandakoor, to work as a Secretary. The police have registered a FIR against the then Secretary, Mr. Sarangamath and others, alleging misappropriation of public funds. At that time, there was no complaint against this petitioner on the ground that, he was not working during that period. The departmental enquiry was initiated against then Secretary. The then Secretary was admitted the guilt and paid the entire amount. Thereafter, the first respondent police have filed a charge sheet alleging misappropriation against the petitioner and others. It is contended that, the sanction order issued by the Chief Executive Officer, Koppal, is neither from the competent authority nor it complies other legal requirements. Therefore, the charge sheet field on the basis of such sanction order required to be quashed.
Per contra, the learned Addl. Additional State Public Prosecutor, strenuously submitted that the police have investigated the matter and deleted the name of accused Khajabi W/o Murtusab, S.S. Sarangamath and Gaviyappa Y. Kattimani and filed a charge sheet against the present petitioner along with other three accused persons.
The charge sheet discloses that in November 2009 and September 2009, the accused persons including this petitioner have committed a serious misappropriation to the extent of Rs. 68,000/-, Rs. 8,500/- and Rs. 75,000/- and totally an amount of Rs. 1,61,500/- during the above said period. It is also alleged that the accused No. 2, (the petitioner herein) has contributed his common intention in order to create false documents to misappropriate the said amount. On these allegations, the Investigating Officer sought for the sanction order and accordingly, the sanction was accorded by the Chief Executive Officer, Zilla Panchayat, Koppal.
Now coming to the arguments of the learned Counsel, the sanction order was issued by the Chief Executive Officer, Zilla Panchayat, Koppal. He has drawn my attention that the petitioner was appointed by the Director of Sericulture and not by the Chief Executive Officer, Zilla Panchayat, Koppal. The parental department is the Sericulture Department and CED Zilla Panchayat, Koppal, ought not to have issued the sanction order. Secondly, he contended that the sanction order does not disclose any examination of case papers, application of mind by the sanctioning authority forming an opinion that there is a prima facie material against the petitioner to accord the sanction. Therefore, the said sanction order is illegal, it does not comply with illegal requirement, as such whole subsequent proceeding shall fall to the ground. In this regard, of course, it is worth to note here that sanctioning authority while according the sanction u/s 197 of Cr.P.C. shall apply its mind to the materials on record. It is worth to note here the decision reported in State of Maharashtra and others Vs. Ishwar Piraji Kalpatri and others, .
The Apex Court held that making of statement while according sanction that the Officers signing orders) have personally scrutinised the file and arrived at required satisfaction. The sanction order should show prima facie that there has been application of mind and that the material on record has been examined by the concerned Officer before according sanction.
The learned Addl. SPP countering the above said arguments submitted that the sanction order is not necessary when the offence committed by the officer is not referable to discharge of his official duty as a public servant. The allegation must be referable to the discharge of official duty by the public servant. He should have done that particular offence during the course of his duty under the colour of his office. If it is not done, then no sanction is necessary. Even a defective sanction order is obtained by the police in submitting the charge sheet to the Court, it is the domain of the trial Court to examine whether in the given facts and circumstances of the case, sanction order is absolutely necessary to prosecute the petitioner/accused. Secondly, he contended that when the charge has already been filed and the case is before the trial Court and charges have not yet been framed against the accused-petitioner, he can approach the trial Court, put forth all his contentions and the trial Court has to consider whether sanction order is necessary to proceed against the accused or not. If sanction order is necessary, then the Court has to examine whether the sanction order is valid or not in order to proceed against the petitioner.
It is also worth to note hear the decision of the Apex Court reported in Rakesh Kumar Mishra Vs. The State of Bihar and Others, , the Apex Court at paragraphs 6 and 9 to 13 have held
under Section 197 that applicability of Section 197, expressed ''any offence alleged to have been committed by the accused while acting or purporting to act in the discharge of his official duty. Words ''official duty'' how it has to be construed. Official duty implies that the act or omission must have been done by the public servant in the course of his official duty and that it should fall within the scope and) sphere of his official duty. It is also to be seen whether any omission or commission brought under the colour of his official duty. Section 197 to be construed strictly while determining its applicability to any act or omission in the course of service. Hence, protection is not available to all criminal acts of a public servant. But, where act or omission performed by public servant had reasonable connection or nexus with discharge of his duty then it must be held Section 197 is attracted.
In view of the above said decisions, these factors i.e. whether the act committed by the petitioner is referable to his discharge of his duty as a public servant or it is purely out side the preview of the official duty, whether it amounts to a criminal act under the colour of his office has to be considered by the Court having jurisdiction to deal with the matter on facts.
The learned Counsel also contended that another accused person earlier arrayed as accused by name S.S. Sarangamath, Erstwhile Secretary of Gram Panchayat, Kandakoor, has admitted the guilt during the course of departmental enquiry and paid the amount levied against him. Therefore, there is no question of proceedings against the present petitioner. But, when there are allegations made in the charge sheet stating that this person was also involved and contributed his common intention in misappropriating Rs. 1,61,500/- that charge sheet after due investigation done by the police cannot be at this stage brushed aside, merely, on the ground that a departmental enquiry was taken place against some other persons. Whether this person is actually involved in misappropriating the fund has to be tested by means of the materials available on record produced by the police.
In view of the above said facts and circumstances of the case and the law laid down by the Apex Court in the above said two decisions, while exercising power under Articles 226 and 227 of the Constitution of India read with Section 482 of Cr.P.C., this Court cannot dwell upon the merits and demerits of the case on the basis of the factual material on record. The appreciation of facts and circumstances is exclusively within the domain of the trial Court.
On the basis of the above said rulings of the Apex Court, it is clear that the trial Court has to ascertain on the basis of the material available in the charge sheet that whether any sanction is required to proceed against the accused or not. If the Court comes to the conclusion that the sanction order is necessary, then the Court has to pleased to consider whether the sanction order is valid and it was issued by the competent authority and whether the sanction order is also otherwise comply all the legal requirements to proceed against the accused persons. The petitioner is at liberty to approach the trial Court by means of making an application for discharge if necessary and the Court has to give its finding on such application filed by the petitioner before proceeding against the petitioner.
With these observations, I am of the opinion that the writ petitions are liable to be dismissed. Hence, the following order:-
These writ petitions are dismissed. Liberty is given to the petitioner to approach the trial Court with appropriate application for discharge, in the event of filing of an application for discharge, the trial Court to consider the same in view of the observations made above.