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2011 DIGILAW 185 (JHR)

Parmeshwar Kumar Hembram v. State of Jharkhand

2011-03-10

JAYA ROY

body2011
Order Heard the learned counsel for the petitioner and the learned counsel appearing for the C.B.I 2. The petitioner has filed this criminal revision application against the order dated 4.2.2011 passed by the Special Judge, C.B.I-cum-Additional Sessions Judge, 1st Dhanbad, in R.C. Case No.15A of 2007R, rejecting the petitioner's application filed under Section 239 Cr.P.C. for his discharge. 3. Counsel of the petitioner submits that sanction has not been taken in this case. The petitioner is a Junior Engineer. It is submitted that no doubt, he has already retired from his service but as the case is also under Section 120B read with Sections 420, 468 and 471 of the Indian Penal Code, according to Section 197 Cr.P.C., no sanction has been obtained from the Government which is a mandatory provision. In the charge-sheet, annexed as Annexure-2 to this application, it is stated that as the petitioner, namely, Parmeshwar Kumar Hembram has already retired from the service, sanction for prosecution is not required in this case. 4. Counsel of the C.B.L, Mr. Mokhtar Khan has submitted that petitioner had not raised this point before the trial court. Furthermore, there is evidence that petitioner certified that 100% work has been done, though the work executed has been found incomplete. As there is a direct evidence against the petitioner, petitioner cannot be discharged and the trial court has rightly rejected his discharge application filed under Section 239 Cr.P.C. 5. Mr. Khan, counsel appearing for the C.B.I. has cited a decision in the case of P.K. Pradhan vs. State of Sikkim, reported in (2001)6 SCC 704 regarding the sanction. In which the Apex Court has held:- "5. The legislative mandate engrafted in sub-section (1) of Section 197 debarring a court from taking cognizance of an offence except with the previous sanction of the Government concerned in a case where the acts complained of are alleged to have beer committed by a public servant in discharge of his official duty or purporting to be in the discharge of his official duty and such public servant is not removable from office save by or with the sanction of the Government, touches the jurisdiction of the court itself. It is a prohibition imposed by the statute from taking cognizance. It is a prohibition imposed by the statute from taking cognizance. Different tests have been laid down in decided cases to ascertain the scope and meaning of the relevant words occurring in Section 197 of the Code: "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty". The offence alleged to have been committed must have something to do, or must be related in some manner, with the discharge of official duty. No question of sanction can arise under Section 197, unless the act complained of is an offence; the only point for determination is whether it was committed in the discharge of official duty. There must be a reasonable connection between the act and the official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits. What a court has to find out is whether the act and the official duty are so interrelated that one can postulate reasonably that it was done by the accused in the performance of official duty, though possibly in excess of the needs and requirements of the situation." 6. From the order impugned, I find that the court below, after going through the case records-case diary, charge-sheet and all the relevant papers, has come to the conclusion. that there are sufficient materials available against the petitioner on the record and therefore, it rejected the petitioner's application for discharge filed under Section 239 Cr.P.C. 7. Going through the F.I.R. and the charge-sheet and the impugned order, I also find that there are sufficient materials against the petitioner to proceed with trial. Therefore, I do not find any illegality in the impugned order. Accordingly, this revision application is dismissed. 8. However, the trial court during the course of trial $hall examine the question of sanction afresh and deal with the same in the judgment in the light of the law laid down in the aforesaid case by the Apex Court.