Sri Balmiki Prasad Sharma v. State Of Bihar — 1999 DIGILAW 396 (PAT)

Judgment Indu Prabha Singh, J. 1. This is an application under Secs. 397 and 401 of the Code of Criminal Procedure, 1973 (in short the Code). It is directed against the order dated 28.8.1987 passed by the Chief Judicial Magistrate, Gaya taking cognizance of the offences against the petitioner in Gaya Civil Lines P.S. Case No. 188/86/G.R. Case No. 2450/86. 2. The prosecution case, in short, is that at the relevant time Shri K.N. Rai was the District Superintendent of Education, Gaya and in this capacity he received a Bank draft for Rs. 5,50,000.00 from the Education Department for the payment of salary to the teachers of six schools mentioned in the F.I.R. However, Shri K.N. Rai, against this direction of the Education Department paid a sum of Rs. 1,07,018.46 paise to some other schools not mentioned in this list of the Education Department. The then Director (Administration)-cum-Joint Secretary Department of Education, Bihar, Patna wrote a letter to the Officer Incharge, Civil Lines, P.S. Gaya making allegations under Secs. 409 and 417 of the Indian Penal Code against Shri K.N. Rai. On the basis of this information the aforesaid case was instituted in Gaya Lines Police Station against Shri K.N. Rai, the District Superintendent of Education, Gaya. After completing the investigation the police submitted charge-sheet in which it named the present petitioner also as an accused. When this charge-sheet was placed before the Chief Judicial Magistrate, Gaya he by the impugned order took cognizance of the offence against all the four accused named in it including the present petitioner. 3. In this case the petitioner has contended that at the relevant time he was posted as Upper Division (Selection Grade) Clerk in the office of the District Superintendent of Education, Gaya but he was not the accountant. He had nothing to do with the receipt of money in the said office or disbursing the same to different schools. He has not been named in the F.I.R. So far as payments to two schools to the tune of Rs. 1,07,018.46 was concerned it was done under the orders of the District Magistrate, Gaya. The petitioner is a Government servant and had acted in discharge of his official duty. As such he cannot be prosecuted without the prior sanction of the State Government. 1,07,018.46 was concerned it was done under the orders of the District Magistrate, Gaya. The petitioner is a Government servant and had acted in discharge of his official duty. As such he cannot be prosecuted without the prior sanction of the State Government. In the present Case the State Government has not sanctioned the prosecution of the petitioner in accordance with Sec. 197 of the Code. As such the impugned order Taking cognizance of the offence also against the present petitioner is illegal and without jurisdiction. The learned Chief Judicial Magistrate has committed a grave error of record while mentioning in the impugned order that in paragraph No. 203 of the case diary this petitioner had admitted that he had dealt with the register and cheques relating to payments to the alleged two schools. There is no material in the case diary to connect the petitioner with the alleged offence. The petitioner is a public servant and he cannot be prosecuted without the sanction order from the State Government. No sanction order from the State Government was received by the Court. On these grounds it has been contended that the impugned order dated 28.8.1987 passed by the Chief Judicial Magistrate, Gaya be quashed. 4. The only point for decision before me is whether this application is fit to be allowed or not. 5. I have heard the parties in detail. The learned Counsel for the State has also made his submissions countering the claim of the petitioner with respect to want of sanction. So far the petitioner is concerned on his behalf it has seriously been contended that since he is a Government servant, and also since no prior sanction from the State Government was obtained for his prosecution; the cognizance taken against him is bad in law and on this ground alone it is liable to be set aside. On the question of facts also it has been contended that he was not named as an accused in the F.I.R. In the whole of the case diary there is no material against him and so far as paragraph No. 203 of the case diary is concerned that cannot, fix any criminal liability on this petitioner. Hence he has prayed that the impugned order be quashed. 6. Hence he has prayed that the impugned order be quashed. 6. I will firstly take up for consideration the question of the raised on behalf of the petitioner, namely, the order of cognizance is bad for want of sanction of his prosecution inasmuch as he being a Government servant prior sanction for his prosecution was necessary in terms of Sec. 197 of the Code. This bring us to the consideration of Sec. 197(1) which runs as follows: 197. Prosecution of Judges and public servants.-(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government 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, no Court shall take cognizance of such offence except with the previous sanction- (a) in the case of a person who is employed or as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government; (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with affairs of a State, of the State Government. 7. A perusal of Sec. 197(1) of the Code clearly shows that the protection of this Sub-sec. is not available to all the public servants. It is available only to such public servants who are not removable from their office save by or with the sanction of the Government. If a public servant is removable not by the State Government but by some other authority like the Divisional Commissioner, Inspector General of Police etc. the protection of Sec. 197(1) is not available to him as is clear from the perusal of this sub-section. 8. According to the present petition the petitioner at the relevant time was posted as a Upper Division (Selection Grade) Clerk in the office of the District Superintendent of Education, Gaya. From this it would be clear that his appointing authority was not the State Government and as such his removal from service could have been ordered not by the State Government but by his appointing authority. From this it would be clear that his appointing authority was not the State Government and as such his removal from service could have been ordered not by the State Government but by his appointing authority. From this it would become clear that the protection of Sec. 197(1) of the Code will not be available to the present petitioner. 9. However, in paragraph 11 of his petition he had contended that he is a Government servant and he had acted in discharge of his official duty and as such he cannot be prosecuted without prior sanction of the State Government. In the next paragraph he has submitted that the State Government had not sanctioned his prosecution in terms of Sec. 197 of the Code. In paragraph 13 he has further contended, that in absence of the prior sanction of the State Government under Sec. 197 of the Code the prosecution of the petitioner as also the order taking cognizance of the offence against him is bad in law and cannot be sustained. 10. In this connection the learned Counsel appearing on behalf of the petitioner has drawn my attention to the case of Sri Ram Swarath Yadav and Ors. V/s. Dr. Rajeshwar Prasad Sinha and Ors. 1990 B.B.C.J. 765. In this case the Officer Incharge of the police station and a Sub-Inspector of Police were sought to be prosecuted without prior sanction of the State Government and the cognizance against them was taken by the Court. It was contended before the learned Single Judge of this Court that taking of the cognizance against them was fit to be quashed as the same was barred under the provision of Sec. 197(2) read with Sec. 197(3) of the Code. For the reasons stated in this judgment this Court had accepted this contention raised on behalf of the two Police Officers who were the petitioners before the Court in the said case. On the basis of this decision it has been contended that since the protection of Sec. 197 of the Code is applicable to all the public servants serving in the State of Bihar hence no cognizance against the petitioner could have been taken by the learned Chief Judicial Magistrate in absence of prior sanction from the State Government. I, however, do not find any force in the contention for the reasons mentioned below. 11. I, however, do not find any force in the contention for the reasons mentioned below. 11. Before proceeding to discuss the merits of this submission I would firstly refer to the provisions of Sec. 197(2) and (3) of the Code which run as follows: 197(2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to Act in the discharge of the official duty, except with the previous sanction of the Central Government. (3) The State Government may, by notification, direct that the provisions of Sub-sec. (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that Sub-sec. will apply as if for the expression "Central Government" occurring therein, the expression "State Government" were substituted. 12. A perusal of these two Sub-sections clearly shows that under Sub-sec. (2) of the protection of Sec. 197 has been given to the Armed Forces of the Union. However, under Sub-sec. (3) the State Government has been authorised by issue of notification to apply Sub-sec. (2) of such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein and not to all the public servants of the State. Moreover in order to attract the provision of Sub-sec. (3) a notification issued by the State Government would be necessary which notification will have to confine itself only to the members of the Forces charged with the maintenance of public order as may be specified therein. 13. In the aforesaid decision in the case of Shri Ram Swarath Yadav (supra), this notification dated 24th of May, 1980 has been re-produced which runs as follows: In exercise of the power conferred by Sub-sec. (3) of Sec. 197 of the Code of Criminal Procedure, 1973 (Act II of 1974), the Governor of Bihar is pleased to declare that the provision of Sub-sec. (3) of Sec. 197 of the Code of Criminal Procedure, 1973 (Act II of 1974), the Governor of Bihar is pleased to declare that the provision of Sub-sec. (2) of the said section shall apply to the officer and men wherever they may be serving the State of Bihar of the Bihar Police Force charged with the maintenance of public order and who have been appointed by the Inspector General of Police, Bihar, or any other officers specially authorised to appoint any person to such force under the Police Act (Act V of 1961). 14. On behalf of the petitioner no notification of the State Government has been brought on the record to show that he is covered under any such notification issued under Sub-sec. (3) of Sec. 197. Moreover he is a staff of the office of District Superintendent of Education, Gaya and by no stretch of imagination he can be said to be member of Forces charged with the maintenance of the public order as may be specified in the Government notification. Basically this protection in terms of Sub-sec. (2) was only made available to the Armed Forces of the Union but by virtue of Sub-sec. (3) and on the strength of a notification to be issued by the State Government this protection has been extended to the members of the Forces charged with the maintenance of public order as may be specified therein. From the scheme of Sub-sections (2) and (3) it becomes clear that this protection cannot be extended to all the public servants since it can only be extended to the members of the Armed Forces or to the members of the forces engaged in maintenance of the public order as may be specified therein. For the rest of the public servants not covered under Sub-sections (2) and (3) the general rules as contained in Sub-sec. (1) of Sec. 197 will apply stating that such public servant should be not removable from his office save by or with the sanction of the State Government. In view of the clear provision in this regard I do not find any force in this contention of the learned Counsel for the petitioner. 15. On behalf of the petitioner reliance has also been placed on the case of Ramjee Thakur V/s. The State of Bihar 1998 (1) PLJR 71. In view of the clear provision in this regard I do not find any force in this contention of the learned Counsel for the petitioner. 15. On behalf of the petitioner reliance has also been placed on the case of Ramjee Thakur V/s. The State of Bihar 1998 (1) PLJR 71. This was a case of a Deputy Collector who was appointed by the State Government. Hence the ratio of the decision in this case will not apply to the case of the present petitioner. Obviously a public servant appointed by the State Government is entitled to the protection of Sec. 197. Up-to-date case law has been taken into consideration in this decision to show that the previous sanction to prosecute the public servant was necessary if the acts complained of are integrally connected with the duties attached to the office. Hence, the ratio of this decision is also not going to help the case of the petitioner for the obvious reason that he is not a public servant removable from his office only by or with the sanction of the State Government. 16. It has lastly been contended before me that the present petitioner has not been named in the F.I.R. and, therefore, no, cognizance against him should have been taken. There is no force in this contention as the police is competent to submit the charge-sheet also against such persons who are not named in the F.I.R. If it, prima facie, finds that such other persons had also a role in the commission of the alleged offence. It has further been contended on behalf of the petitioner that in the whole of the case diary including its paragraph No. 203 there is no material against him. It, however, appears that this question has been taken into consideration by the learned Court below which has observed as follows: Admittedly the petitioner was at the relevant time accountant in the office of District Superintendent of Education, Gaya. Para 203 of the case diary shows that this statement had been taken by the police as an accused in this case. The case diary further shows that he had dealt with the registers and cheques relating to the payment to those two schools. Para 203 of the case diary shows that this statement had been taken by the police as an accused in this case. The case diary further shows that he had dealt with the registers and cheques relating to the payment to those two schools. Even in his statement before the police this accused admitted that he had done, every work in accordance with the direction of his superior authorities (vide para 203 of the case diary). Thus it is clear that this accused petitioner was very much concerned with the payments to the two schools for which this case has been filed. What was his role in or liability for those transactions, can be ascertained only after evidence is taken in course of trial in this case. At present there appears to be prima facie sufficient material in the case diary for proceeding against this petitioner. Therefore, his petition under consideration is hereby rejected. 17. I have also gone through paragraph 203 of the case diary in which there are materials against the petitioner. The allegations made therein are question of fact and at this stage it will not be proper for me to express any opinion on the same. The learned Chief Judicial Magistrate has also restrained himself from making any observation on those question of fact. It is not one of those cases in which on the perusal of entire material on record no prima facie case against the present petitioner is made out. 18. For the reasons stated above I do not find any merit in the submission made on behalf of the petitioner. I also do not find any defect in the impugned order. 19. In the result this application in revision is dismissed and the impugned order is hereby confirmed. Before, concluding however, I would like to mention that this application was admitted for hearing by a learned Single Judge of this Court on 4.11.1987 and on the same date a stay order was passed as a result of which the disposal of this case has long been delayed. The learned Court below is, therefore, directed to see that the trial of this case may be taken up immediately and disposed of without any loss of time.