Komal Singh Vaniya vs State Of Madhya Pradesh

The applicant has preferred this revision under Sections 397/401 of the Cr.P.C. challenging the order dated 22.12.2017 passed by the First Additional

Sessions Judge Multai, District Betul in S.T. No.204/2014, whereby application under Section 319 of the Cr.P.C. has been allowed and the applicant

Komal Singh Vaniya has been impleaded as an accused and subsequent issuance of bailable warrant against him.

The factual matrix of the prosecution case is that under Mukhyamantri Gram Sadak Yojna from village Masod to village Dongarpur gravel road of

2.58 kms. has been constructed under the Rural Engineering Service. This construction work was initiated in the year 2010 after grant of sanction.

There was allegation of irregularities, therefore, Collector Betul ordered for enquiry vide his letter dated 08.07.2013. Three members committee

constituted by the Collector inquired the same and submitted its report on 9.9.2013.

The Committee held that the then Sub-engineer, Sub-Divisional Officer and Executive Engineer have committed the irregularities. The irregularities

including forgery of documents, withdrawal of amount, false bills etc., were done by the then Sub-engineer, the then SDO, the then Executive

Engineer. Therefore, they were held liable for the same.

On the complaint made by District Panchayat Office Betul, on 17.03.2017 to the Police Station Betul, an FIR was lodged vide Ex.P/19. The Executive

Engineer, Rural Engineer, SDO and Sub-Engineer, who were posted in this period prepared forged muster roll and vouchers, thereby defrauded the

different amounts from the government funds and committed criminal breach of trust. On this information, accused Kundanlal, Rajendra, Uddinath,

Yogesh Deshmukh, Surendra, Yogesh Sharma have been prosecuted.

During the trial of S.T. No.204/2014, an application under Section 319 of the Cr.P.C. was moved by the prosecution for impleading the applicant

Komal Singh as an accused. The then Executive Engineer along with other officials posted during the period of alleged irregularities, the learned ASJ

after hearing the parties has allowed the application under Section 319 of the Cr.P.C. and impleaded the applicant among other persons as accused

persons. The applicant was serving as Executive Engineer for the period of 31.01.2010 to 02.11.2011. Subsequently, ordered to secure his presence

by issuance of bailable warrant.

The applicant has challenged the same, mainly two grounds. The applicant has claimed that he was posted from 31.01.2010 to 02.11.2011 and

subsequent to that, Shri S.S. Ali was posted from 26.11.2011 to 27.07.2012 and final payment of the said work was done by the applicant’s

successor. Therefore, the applicant cannot be held responsible for his approval of payment of work as Executive Engineer during his tenure.

The second contentions of the applicant is that the applicant is undoubtedly an Executive Engineer in the Rural Engineering Services and a public

servant hence without prior sanction under Section 197 of the Cr.P.C., no cognizance could have been taken against the applicant.

Learned Govt. Advocate for the State has opposed the contentions. It is submitted that the applicant along with other accused persons were

responsible for the offence. The report of the Committee constituted by the order of Collector has clearly given the findings, therefore, the applicant

has rightly been implealed as an accused.

Perused the record.

The applicant who was Executive Engineer for the period of 31.01.2010 to 02.11.2011 is not in dispute. The amount which have been approved by the

applicant for this period has wrongly been approved and paid. This is a matter of evidence, therefore, in this regard, a definite findings cannot be given

at this stage. The report is to be taken as prima facie evidence in this regard but so far as the legal aspects is concerned, the Court can consider at this

stage whether sanction under Section 197 of the Cr.P.C. is essential for taking cognizance of offence against the applicant?

In this regard, the provision of Section 197 of the Cr.P.C. may be referred, which reads as under:-

“Whoever issues or signs any certificate required by law to be given or signed, or relating to any fact of which such certificate is by law admissible

in evidence, knowing or believing that such certificate is false in any material point, shall be punished in the same manner as if he gave false

evidence.â€​

The words “no Court shall take cognizance of such offence except with the previous sanction†deem that, sanction is essential prior to taking

cognizance. The applicant acted as a public officer and in capacity of Executive Engineer, he approved the payments. Therefore, the act seems to be

in discharge of his official duties or purporting to act in discharge of his official duty.

The sanction under Section 197 of the Cr.P.C. is necessary where the accused is public servant has committed the impugned act in the discharge of

his official duty. One safe and sure test being whether the omission/neglect complained of would have made him answerable for a charge of

dereliction of his official duty. If the answer to this question is in the affirmative, it may be said that the said act was committed by the public servant

while acting in the discharge of his official duty and there was every connection with the act complained of and the official act of the public servant.

The act of the applicant, according to the complaint against the public servant are so integrally connected with the duties attached to the office as to

be inseparable from them, therefore, sanction is necessary.

On behalf of the applicant reliance has been placed in the case of Surinderjit Singh Mand and another Vs. State of Punjab and another, (2016) 8 SCC

722, wherein it has been held that the alleged offence attributed to the accused had been committed by him while acting or purporting to act in the

discharge of his official duty. Therefore, sanction is required for prosecution of the accused.

That being so, the mandate is clear and unambiguous that the Court “shall not†take cognizance without sanction. Therefore, the Court just cannot

take cognizance without sanction by the appropriate authority. Hence, this Court finds merit in the contentions advanced by the learned counsel for the

applicant.

In the above circumstances, it is clear that the offence complained is said to have been committed by the applicant was intrinsically connected with the

discharge of his official duty, as such protection under Section 197 of the Cr.P.C. from prosecution without sanction of the Competent Authority, is

available to the applicant. Thus, he could not have been prosecuted without sanction. It would be for the Competent Authority to consider the question

of sanction in accordance with law. In case, sanction is granted only then the applicant can be prosecuted and not otherwise. Resultantly, the order

impugned is set aside. This petition is allowed.

Before parting with the case, it would be observed that the prosecution, if deem, fit may seek sanction from the Competent Authority and then, place

appropriate application before the learned 1st Additional Sessions Judge.