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2016 DIGILAW 313 (ORI)

Monohar Randhari v. State of Orissa (Vig. )

2016-04-19

B.K.NAYAK

body2016
JUDGMENT B.K. NAYAK, J. - Order dated 30.04.2015 passed by the learned Special Judge, Vigilance, Jeypore in I.C.C. No. 1 of 2013 taking cognizance of offences under Section 13(2) read with Section 13(1) (c) of the Prevention of Corruption Act, 1988 and Section 409 of the I.P.C. and directing for issuance of summons to the petitioner-accused, has been assailed in this application under Section 482, Cr.P.C. 2.Prosecution allegations against the petitioner are that while functioning as Senior Clerk-cum- in charge of store and Development Section of Nandahandi Block, the petitioner misappropriated a sum of Rs. 6,29,696/- showing false issue of cement forging signature/LTIs of the recipients, mis-balancing the totals and manipulating the office records. It is further alleged that the total cost of loss of stock and store in respect of cement, perlin, AC sheets, ridges, iron doors and iron windows etc. is to the tune of Rs. 6,29,696/-. On consideration of the allegations in the complaint petition, the initial statement of the complainant, the statements of witness recorded during enquiry under Section 2002, Cr.P.C. and the enquiry report submitted by the vigilance department under Section 210 of the Cr.P.C., the learned Special Judge was satisfied that offences were prima facie committed and accordingly he took cognizance and directed for issue of summons to the petitioner. 3.In assailing the impugned order, the learned counsel for the petitioner has raised only one contention that sanction under Section 19 of the P.C. Act, 1988 and Section 197, Cr.P.C. having not been taken from the authority competent to remove the petitioner from his office, the order of cognizance is bad, illegal and are liable to be set aside. Mr. Pani, learned Additional Standing Counsel for the Vigilance Department, on the other hand, contends that for the offence under Section 13 (2) read with Section 13 (1)(c) of the P.C. Act, no sanction under Section 19 of the Act is necessary inasmuch as much before the date of cognizance the petitioner had already resigned from the post and the resignation has been accepted. It is also his submission that for the offence under Section 409 of the I.P.C. also no sanction under Section 197, Cr.P.C. is required since committing misappropriation or criminal breach of trust of government property cannot be held to be in the discharge of official duty of government servant. It is also his submission that for the offence under Section 409 of the I.P.C. also no sanction under Section 197, Cr.P.C. is required since committing misappropriation or criminal breach of trust of government property cannot be held to be in the discharge of official duty of government servant. 4.It is trite law as has been held by the Hon’ble apex Court in the decision reported in 2007 (5) Supreme-426: B.S. Goraya v. U.T. of Chandigarh that if the accused is not a public servant on the date cognizance was taken then sanction under Section 19 of the P.C. Act is not required for such cognizance. In so holding the Hon’ble Court referred to and followed decisions in the cases of The Commissioner of Income Tax, Bombay City, Bombay v. The Elphinstone Spinning and Weaving Mills Co. Ltd : AIR 1960 SC 1016 , K.S. Dharmdatan v. Central Government and Ors. : 1979 (4) SCC 204 and Kalicharan Mohapatra v. State of Orissa : 1998 (6) SCC 411 . Therefore, not obtaining sanction from the Block Development Officer under whom the petitioner was working on the date of commission of offence would not vitiate the order of cognizance of the offence under P.C. Act inasmuch undisputedly on the date of order of cognizance, the petitioner was no more working in the post of Senior Clerk-cum-Store in charge of the Block office. So far as the offence under Section 409 of the I.P.C. is concerned, it is also trite law, as has been held by the Hon’ble Supreme Court in the decision reported in AIR 1997 SC 2102 : Shambhoo Nath Misra v. State of U.P. and others that fabrication of record and misappropriation of public fund by public servant is no part of his official duty and therefore sanction for prosecution under Section 197 of the Cr.P.C. is not necessary. Therefore, both the contentions of the learned Counsel for the petitioner are rejected. 5.In the light of the discussions made above, I find no infirmity in the impugned order. Accordingly, the CRLMC is dismissed. CRLMC dismissed.