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2016 DIGILAW 877 (ORI)

Laxman @ Lakhan Kumar Patnaik v. State of Orissa

2016-09-27

S.K.SAHOO

body2016
JUDGMENT : S.K. SAHOO, J. The petitioner has challenged the impugned order dated 16.10.2006 passed by the learned Chief Judicial Magistrate, Rayagada in G.R. Case No. 79 of 2000 in rejecting the discharge petition filed by the petitioner and holding that there are sufficient materials placed by the investigating agency to believe that prima facie case under section 409 of the Indian Penal Code is made out against the petitioner. 2. The learned counsel for the petitioner first contended that there is no sanction order under section 197 Cr.P.C. and therefore, the learned Trial Court cannot proceed against the petitioner for commission of offence under section 409 of the Indian Penal Code. The second contention raised by the learned counsel for the petitioner is that the F.I.R. has been lodged by the C.D.P.O., Rayagada who is not the competent authority to lodge the F.I.R. The third contention raised by the learned counsel for the petitioner is that the C.D.P.O. has committed all the mischief but falsely entangled the petitioner. 3. In case of OM Kr. Dhankar –Vrs.-State of Haryana reported in (2012) 52 Orissa Criminal Reports 63, where the complainant challenged the order of quashing the issuance of process against the accused for offence punishable under sections 420, 406 & 161 Indian Penal Code, relying on the decision of Prakash Singh Badal Vrs. State of Punjab reported in (2007) 1 Supreme Court Cases 1, it was held that sanction of the competent authority for prosecuting the accused for such offences is not required as by no stretch of imagination by their very nature, such offences be regarded as having been committed by any public servant while acting or purporting to act in discharge of official duty. In case of Sarat Chandra Dehury -Vrs.-Sankirtan Behera reported in 1989 (1) Orissa Law Reviews 321, it is held that the act of misappropriation or criminal breach of trust of Gram Panchayat fund cannot be held to have been done while the Sarpanch acts or purports to act in the discharge of his official duty. Criminal misappropriation and criminal breach of trust are offences of purely personal character unconnected with any official duty. Therefore, prior sanction of the Govt. U/s. 197 of the Code for the prosecution of the accused for commission of offences U/s. 409 and 420 I.P.C. was not necessary. 4. Criminal misappropriation and criminal breach of trust are offences of purely personal character unconnected with any official duty. Therefore, prior sanction of the Govt. U/s. 197 of the Code for the prosecution of the accused for commission of offences U/s. 409 and 420 I.P.C. was not necessary. 4. As per the prosecution case, the petitioner as a storage Agent of ICDS Project, Rayagada received the way Bill No. 1349 dated 08.07.1999 containing 50 packets of R.V. Oil and 250 bags of C.S.B. on 08.07.1999 and had not accounted for the same in the Project Register and the quantity of ‘CARE’ foodstuffs was also not handed over on 09.07.1999 to the in charge C.D.P.O., for which the aforesaid foodstuffs was found shortage and accordingly, after investigation, charge sheet was submitted under section 409 of the Indian Penal Code. 5. Considering the accusations against the petitioner as well as the ratio laid down in the aforesaid decisions, I am of the view that no sanction is necessary to proceed against the petitioner under section 409 of the Indian Penal Code as the act committed by the petitioner cannot be said to have been done while acting or purporting to act in discharge of official duty. 6. Though learned counsel for the petitioner contended that the C.D.P.O. is not a competent authority to lodge the F.I.R., nothing has been shown prohibiting the C.D.P.O to institute a proceeding under section 409 of the Indian Penal Code. The condition which is sine qua non for recording a First Information Report is that there must be information and that information must disclose a cognizable offence. It is manifestly clear that if any information disclosing a cognizable offence is laid before an officer in charge of a police station satisfying the requirements of Section 154 (1) of the Code, the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information. (Ref:-A.I.R. 1992 S.C. 604 (Para 30, 31, 32), State of Haryana –Vrs-Ch. Bhajanlal). 7. The other contention of the learned counsel for the petitioner that the C.D.P.O. has committed all the mischief and falsely entangled the petitioner can be adjudicated by the learned Trial Court at the appropriate stage on consideration of evidence on records. 8. (Ref:-A.I.R. 1992 S.C. 604 (Para 30, 31, 32), State of Haryana –Vrs-Ch. Bhajanlal). 7. The other contention of the learned counsel for the petitioner that the C.D.P.O. has committed all the mischief and falsely entangled the petitioner can be adjudicated by the learned Trial Court at the appropriate stage on consideration of evidence on records. 8. In view of the materials available on record, I am of the view that the learned Trial Court has not committed any illegality in rejecting the discharge petition filed by the petitioner. Accordingly, the CRLMC application stands dismissed.