JUDGMENT : Through Video Conferencing 1. Heard Mr. A.K. Kashyap, learned Senior Counsel appearing on behalf of the petitioners alongwith Mr. Anurag Kashyap, Advocate. 2. Heard learned A.P.Ps. appearing for the Opposite Party-State in the respective cases. 3. This batch of matters arise from two First Information Reports, one is Manika P.S. Case No. 76 of 2010 corresponding to G.R. No.616 of 2010(S) and the other is Manika P.S. Case No. 75 of 2010 corresponding to G.R. No.615 of 2010(S). In all these cases, cognizance has been taken for the offences under Sections 420, 467, 468, 471, 120(B) and 409 of the Indian Penal Code which are under challenge in the following manner : Cr.M.P. No. Name of Petitioner F.I.R. No. G.R. No. Cognizance Order under challenge Cr. M.P. No. 2807/2019 Awadhesh Kumar Singh @ Awadhesh Singh Manika P.S. Case No.76 of 2010 G.R. No.616 of 2010(S) 06.05.2019 Cr. M.P. No. 2753/2019 Bidya Sagar Yadav Manika P.S. Case No.75 of 2010 G.R. No.615 of 2010(S) 06.05.2019 Cr. M.P. No. 2775/2019 Mrityunjay Kumar Singh Manika P.S. Case No.75 of 2010 G.R. No.615 of 2010(S) 06.05.2019 Cr. M.P. No. 2776/2019 Awadhesh Kumar Singh @ Awadhesh Singh Manika P.S. Case No.75 of 2010 G.R. No.615 of 2010(S) 06.05.2019 Cr. M.P. No. 2788/2019 Firoj Ahmed Khan @ Firoz Ahmad Khan Manika P.S. Case No.76 of 2010 G.R. No.616 of 2010(S) 06.05.2019 Cr. M.P. No. 2802/2019 Mrityunjay Kumar Singh @ Mritunjay Kumar Singh Manika P.S. Case No.76 of 2010 G.R. No.616 of 2010(S) 06.05.2019 Cr. M.P. No. 2811/2019 Firoj Ahmad Khan @ Firoj Khan Manika P.S. Case No.75 of 2010 G.R. No.615 of 2010(S) 06.05.2019 4. The petitioner-Awadhesh Kumar Singh was working as Dealing Assistant in the office of the Block Development Officer at Manika; the petitioner-Mrityunjay Kumar Singh was working as Nazir in the same office and the petitioner-Bidya Sagar Yadav was working as the Dealing Assistant in that office. So far as petitioner-Firoj Ahmed Khan is concerned, he was working as a Head Clerk in the same office. 5. The petitioners namely, Awadhesh Kumar Singh, Bidya Sagar Yadav, Mrityunjay Kumar Singh and Firoz Ahmed Khan are accused in both the cases. So far as petitioner-Firoj Ahmed Khan is concerned, he was working as a Head Clerk in the same office. 5. The petitioners namely, Awadhesh Kumar Singh, Bidya Sagar Yadav, Mrityunjay Kumar Singh and Firoz Ahmed Khan are accused in both the cases. Awadhesh Kumar Singh, Mrityunjay Kumar Singh and Firoz Ahmed Khan have filed separate criminal miscellaneous petitions challenging the order taking cognizance passed in both the cases, whereas Bidya Sagar Yadav has filed Cr.M.P. No.2753/2019 challenging the order taking cognizance passed in connection with Manika P.S. Case No. 75 of 2010 corresponding to G.R. No.615 of 2010(S) only. 6. The entire criminal proceedings including orders taking cognizance dated 06.05.2019 passed in both the cases which are under challenge in this batch of petitions and the corresponding cases are said to be pending before the learned Additional C.J.M, Latehar for appearance of the petitioners. 7. Pursuant to the order dated 10.01.2022 passed by this Court, an affidavit dated 21.01.2022 has been filed bringing on record the order of sanction for prosecution which is contained in the order dated 28.08.2020 granting sanction for prosecution against Mritunjay Kumar Singh, Firoz Khan and Awadhesh Kumar Singh. It further appears from the counter-affidavit that the sanction for prosecution has now been forwarded to the concerned court vide order dated 21.01.2022. So far as sanction for prosecution against the petitioner-Bidya Sagar Yadav is concerned, a soft copy of the same has been forwarded to this Court and it is submitted that the prosecution sanction has been granted on 02.02.2022. Learned counsel for the State in Cr. M.P. No. 2753 of 2019 (Bidya Sagar Yadav Vs. State) submitted that the prosecution sanction will be forwarded to the learned court below as well. Arguments of the Petitioners 8. The learned Senior Counsel appearing for the petitioners submitted that although in the charge-sheet, it is mentioned that sanction for prosecution has been sought for, but no sanction for prosecution was given by the time cognizance was taken and accordingly, the impugned orders of cognizance has been taken without obtaining prior sanction for prosecution against the petitioners. 9. The learned Senior Counsel appearing for the petitioners submitted that although in the charge-sheet, it is mentioned that sanction for prosecution has been sought for, but no sanction for prosecution was given by the time cognizance was taken and accordingly, the impugned orders of cognizance has been taken without obtaining prior sanction for prosecution against the petitioners. 9. The learned Senior Counsel further submitted that as per order dated 10.01.2022, the learned counsels appearing on behalf of the State were directed to seek instruction and file affidavit regarding the present status regarding grant of sanction or otherwise in connection with the aforesaid two cases i.e. Manika P.S. Case No.75 of 2010 and Manika P.S. Case No.76 of 2010 and pursuant thereto, the learned counsels for the State have brought on record the orders granting sanction for prosecution in connection with both the cases whereby the sanction for prosecution has been brought on record. 10. Learned Senior counsel further submitted that the sanction for prosecution having been granted after passing of the order taking cognizance, therefore, the same cannot be taken into consideration at this stage. He further submitted that the charge-sheet was submitted in the present case and the Investigating Officer was of the clear view that the entire acts and omissions were in discharge of official duty and therefore, the learned court below could not have taken cognizance in absence of sanction for prosecution. He further submitted that the order taking cognizance also does not reflect such application of mind that no sanction was otherwise required for prosecuting the petitioners. 11. Learned Senior counsel for the petitioners relied upon a judgment passed by the Hon’ble Supreme Court reported in (2016) 2 SCC 143 (N.K. Ganguly Vs. Central Bureau of Investigation) and submitted that if the charge-sheet is submitted mentioning that the alleged acts / omissions were in discharge of official duty, then the sanction under Section 197 of Cr.P.C. is mandatory before taking cognizance of the offence and the present cases of the petitioners are squarely covered by the ratio of the aforesaid judgment. The learned Senior Counsel also submitted that considering the nature of duty being performed by the petitioners, they have been made accused for the alleged offences in both the cases only with the aid of Section 120(B) of the Indian Penal Code. Arguments of the Opposite party-State 12. The learned Senior Counsel also submitted that considering the nature of duty being performed by the petitioners, they have been made accused for the alleged offences in both the cases only with the aid of Section 120(B) of the Indian Penal Code. Arguments of the Opposite party-State 12. The learned counsels appearing on behalf of the Opposite Party-State vehemently opposed the prayer of the petitioners and submitted that sanction for prosecution under Section 197 of Cr. P.C. can come at any stage and sanction for prosecution having been granted, the present petitions are devoid of any merit and accordingly, the same should be dismissed. The learned counsels relied upon a judgment passed by the Hon’ble Supreme Court reported in (2020) 2 SCC 153 (Station House Officer, CBI Vs. B.A. Srinivasan and another) and submitted that the protection under Section 197 Cr.P.C. is available to the public servant when the offence is said to have been committed ‘while acting or purporting to act in discharge of their official duty’, but where the acts are performed using the office as a mere cloak for unlawful gains, such acts are not protected. They further submitted that in the case of N.K. Ganguly (supra), the accused was sought to be prosecuted for the offence under the Prevention of Corruption Act in addition to some offence under the Indian Penal Code. Accordingly, the judgment passed by the Hon’ble Supreme Court in the case of N.K. Ganguly (supra) is distinguishable and the same does not apply to the facts and circumstances of these cases. Findings of this Court 13. After hearing the learned counsel for the parties, this Court finds that as per the allegation made in the F.I.R. in Manika P.S. Case No. 76 of 2010, the prosecution was initiated on the basis of written report of the Deputy Development Commissioner, Latehar on 06.11.2010 which was registered against Santosh Prasad Yadav, Secretary of Gram Vikas Sewa Samiti, Chandwa and Ram Pravesh Yadav, President of the said organization. It was alleged that an enquiry was conducted by the Sub-Divisional Officer, Latehar in cultivation of Jatrofa under MANREGA scheme by the NGO namely, Gram Vikash Sewa Samiti, Chandwa. It was alleged that an enquiry was conducted by the Sub-Divisional Officer, Latehar in cultivation of Jatrofa under MANREGA scheme by the NGO namely, Gram Vikash Sewa Samiti, Chandwa. It has been alleged that the office of the Deputy Commissioner, Latehar vide memo dated 05.10.2007 directed for execution of the scheme for cultivation of Jatrofa plant within an area of 62.5 acres and for that Rs.9,93,375/- was allotted and the work order was issued by the Block Development Officer on 29.10.2007 and the payment was made as per the details given in the F.I.R. It is alleged that upon spot verification, it was found that in the Village-Maile, the plantation of Jatrofa was done in a total area of 3 acres and in Panchayat Dundu, Village-Bichulidag, the plantation was done in a total area of 2.50 acres. It is further alleged that the plants were supposed to be maintained for a period of 5 years, but after plantation, no care was taken and several irregularities have been alleged in the F.I.R. including that the plantation was to be done on 62.5 acres, but it was done in 5.5 acres of land only and advance money was given and there was no remark with respect to adjustment of the said amount. Even the copy of the muster roll was not available to show that the work was done by the labourer and wages were paid to them. It was mentioned in the letter dated 07.03.2008 of the Sub Divisional Officer, Latehar that measurement book and technical report was not available in the records, but in spite of explanation sought for from the Sub Divisional Officer, Latehar, the payment was made on different dates and the plantation was done only on 5.5 acres but payment of Rs.7,67,500/- was received and accordingly, it is alleged that there has been misappropriation/misuse of government money. 14. Similar is the allegation in connection with Manika P.S. Case No. 75 of 2010 which relates to plantation of Jatroffa in Bandua Village. The said F.I.R. was also instituted on the basis of enquiry conducted by Sub-Divisional Officer, Latehar where the NGO involved is Jharkhand Vikas Morcha, Dhanbad and its Secretary was Rakesh Tiwari. The plantation was to be done in an area of 500 acres, but upon enquiry, it was found that the plantation was done in 5.57 acres. The said F.I.R. was also instituted on the basis of enquiry conducted by Sub-Divisional Officer, Latehar where the NGO involved is Jharkhand Vikas Morcha, Dhanbad and its Secretary was Rakesh Tiwari. The plantation was to be done in an area of 500 acres, but upon enquiry, it was found that the plantation was done in 5.57 acres. The enquiry report ultimately indicated that the plantation was done merely on 15.50 acres for which total payment of Rs.51,19,740/- was made and payment of Rs.17,06,580/- was made for the village Bandua, although on site-inspection, it was found that plantation was done only in about 6 acres. The NGO had taken payment of more than 75%, whereas the work of plantation was executed only of small portion of land. 15. Status report has been received from the learned court below. With regard to Manika P.S. Case No. 75 of 2010, first chargesheet is dated 29.05.2013 which was submitted against one Sadhna Jaipuriyar keeping the investigation pending against the other accused persons and cognizance against her was taken on 04.07.2013. Thereafter, second charge-sheet dated 17.07.2015 was submitted against Rakesh Tiwari and cognizance was taken on 21.07.2015. However, subsequently vide order dated 11.08.2015, both the case records were amalgamated and on 28.06.2016, the charges were framed against Sadhana Jaipuriyar and Rakesh Tiwari and thereafter, five witnesses have already been examined and the case is pending at the stage of evidence. In the split-up record, chargesheet dated 16.04.2019 has been submitted on 24.09.2019 against the four petitioners and also against one Ram Bachan Paswan and Anil Kumar Singh and the Investigation has been concluded. Consequently, cognizance has been taken which is under challenge in the present case. 16. The case diary was called for in the present cases and upon perusal of the case diary, it appears that Investigating Officer submitted charge-sheet for the offences under Sections 420, 467, 468, 471, 120(B)/201, 409 of the Indian Penal Code for consideration by the learned court below. He has also clearly stated that the prosecution sanction will be produced before the court as and when the same is granted. 17. Similarly, in Manika P.S. Case No. 76 of 2010, the accused persons namely, Ms. Sadhna Jaipuriyar, Ram Pravesh Yadav and Satyendra Prasad Yadav are facing trial and seven witnesses have already been examined and the case is pending at the stage of evidence. 17. Similarly, in Manika P.S. Case No. 76 of 2010, the accused persons namely, Ms. Sadhna Jaipuriyar, Ram Pravesh Yadav and Satyendra Prasad Yadav are facing trial and seven witnesses have already been examined and the case is pending at the stage of evidence. The petitioners and one Ram Bachan Paswan are accused in the split-up record and Ram Bachan Paswan has been granted bail, but so far as the present petitioners are concerned, summons as well as non bailable warrant of arrest have been issued against them and the case is pending for their appearance. In this case also, supplementary charge-sheet was submitted for offences under Sections 420, 467, 468, 471, 120(B)/409 of the Indian Penal Code for consideration by the learned court below. It was also mentioned in the charge sheet that the sanction for prosecution will be produced before the court as and when the same is granted and the investigation was said to be completed. 18. Upon perusal of the charge-sheets filed in the aforesaid two cases, this court finds that although the Investigating Officer has mentioned that the sanction for prosecution will be produced before the learned court below as and when it is obtained, but the investigating officer in both the cases also clearly mentioned that the charge-sheet was being submitted for consideration by the learned court below. Considering the aforesaid aspect of the matter, it does not reflect from the charge-sheets that the Investigating Officer was of the view that the alleged offences were committed by the petitioners in discharge of their official duty although the prosecution sanction was also sought for. 19. In the judgment passed by the Hon’ble Supreme Court reported in (2007) 1 SCC 1 (Prakash Singh Badal and Another Vs. State of Punjab and Others), it has been clearly held at Para-50 that the offence of cheating under Section 420 IPC or for that matter, offence relating to Sections 467, 468, 471 read with section 120(B) of the Indian Penal Code can by no stretch of imagination, by their very nature, be regarded as having been committed by any public servant while acting or purporting to act in discharge of official duty. In such cases, official status only provides an opportunity for commission of the offence. In such cases, official status only provides an opportunity for commission of the offence. The judgment of Prakash Singh Badal (supra) has also been considered by the Hon’ble Supreme Court in the case reported in (2016) 2 SCC 143 [N.K. Ganguly (supra)] which has been heavily relied upon by the learned counsel appearing on behalf of the petitioners. In the case of N.K. Ganguly (supra), the alleged offence was punishable under Section 120(B) of IPC read with Section 13(1)(d) and 13(2) of the Prevention of Corruption Act and the requisite sanction for prosecution against the co-accused was declined by the competent authority. The Hon’ble Supreme Court framed the following issues for consideration in Para-11 which included as to whether an offence under Section 120(B) of IPC is made out against the appellants and if so, whether the previous sanction of the Central Government was required to prosecute them for the same and whether the order taking cognizance of offence was legal and valid. While considering these two points, the Hon’ble Supreme Court recorded at Para-12 that these two points are inter-related and the issue of prior sanction in order to prosecute them for the offence under Section 120(B) of IPC was required to be examined in the light of the allegations contained in the charge-sheet. In the case of N.K. Ganguly (supra), the allegations contained in the charge-sheet suggested that a conspiracy was hatched to commit the offence under Section 13(1)(d) of the Prevention of Corruption Act and the charge-sheet revealed that there was sufficient material to indicate existence of alleged conspiracy and therefore, Section 197 of Cr.P.C. was applicable. The Hon’ble Supreme Court in Para-35 of the said judgment clearly recorded that for the purposes of obtaining previous sanction from the appropriate government under Section 197 Cr.P.C., it is imperative that the alleged offence is committed in discharge of official duty by the accused and it is also important for the court to examine the allegations contained in the final report to decide whether the previous sanction is required to be obtained before cognizance of the alleged offence. In the said case, the Hon’ble Supreme Court was of the clear view that as per the allegation made against the appellants in the final report, the alleged offence was committed by them in discharge of their official duty, therefore it was essential for the special judge to correctly decide as to whether the previous sanction from the Central Government under Section 197 Cr.P.C. was required to be taken before taking cognizance and passing an order issuing summons to the appellant. 20. Considering the facts of the present cases including the chargesheet, which were forwarded to the learned court below for passing appropriate orders and simply mentioning that sanction for prosecution will be produced as and when it is obtained and considering the nature of allegations involved in the present cases i.e. for the offences under Sections 420, 467, 468, 471, 120(B) and 409 of the Indian Penal Code, this Court is of the considered view that the judgment passed in the case of N.K. Ganguly (supra) as relied upon by the petitioners does not apply to the facts and circumstances of the present cases on account of two reasons, firstly, the investigating officer never made a remark that the alleged offence was committed in discharge of official duty although he stated in the chargesheet that prosecution sanction will be produced as and when it is obtained and forwarded the chargesheet for consideration by the learned court below, secondly, in view of the judgment passed in the case of Prakash Singh Badal (supra), the alleged offences in the instant case under section 420, 467, 468, 471, 120(B) and 409 of the Indian Penal Code cannot be said to be committed in discharge of official duty. 21. The learned counsel for the State has relied upon the judgment reported in (2020) 2 SCC 153 (supra) wherein it has been clearly held that protection under Section 197 Cr.P.C. is available to public servants when an offence is said to have been committed while acting or purported to act in discharge of their official duty, but where the acts are performed using the office as a mere cloak for unlawful gains, such acts are not protected. It has also been held that the issue whether the alleged act is intricately connected in discharge of official function and whether the matter would come within the expression while acting or purporting to act in discharge of their official duty would get crystallized only after evidence is led and issue of sanction can be agitated at the later stage as well. It has been held in Para-14 of the aforesaid judgment as under : 14. Again, it has consistently been laid down that the protection under Section 197 of the Code is available to the public servants when an offence is said to have been committed “while acting or purporting to act in discharge of their official duty”, but where the acts are performed using the office as a mere cloak for unlawful gains, such acts are not protected. ……. 22. The Hon’ble Supreme Court also considered the judgement passed in the case of Inspector of Police v. Battenapatla Venkata Ratnam reported in (2015) 13 SCC 87 wherein it has been observed that in the matter of sanction for prosecution the question is not whether the accused were in service or on duty or not but whether the alleged offences have been committed by them ‘while acting or purporting to act in discharge of their official duty’ and observed that it has been held in the case of Shambhoo Nath Misra v. State of U.P. reported in (1997) 5 SCC 326 at para 5 as under :- ‘5. The question is when the public servant is alleged to have committed the offence of fabrication of record or misappropriation of public fund, etc. can he be said to have acted in discharge of his official duties. It is not the official duty of the public servant to fabricate the false records and misappropriate the public funds, etc. in furtherance of or in the discharge of his official duties. The official capacity only enables him to fabricate the record or misappropriate the public fund, etc. It does not mean that it is integrally connected or inseparably interlinked with the crime committed in the course of the same transaction, as was believed by the learned Judge. Under these circumstances, we are of the opinion that the view expressed by the High Court as well as by the trial court on the question of sanction is clearly illegal and cannot be sustained.’ 23. Under these circumstances, we are of the opinion that the view expressed by the High Court as well as by the trial court on the question of sanction is clearly illegal and cannot be sustained.’ 23. In the said judgment reported in (2020) 2 SCC 153 (supra), the judgment passed in the case of N.K. Ganguly relied upon by the petitioner has been clearly explained and distinguished on facts. In para 16, the Hon’ble Supreme Court observed that the offences involved in N.K. Ganguly were under Section 120-B IPC read with Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act i.e. relating to conspiracy to commit offences punishable under the provisions of the Act. Secondly, the conclusion was drawn in the context of the facts available therein. 24. Thus conspiracy to commit offence under section 13(1)(d) and 13(2) of the Prevention of Corruption Act which was involved in the case of N.K. Ganguly(supra) is certainly different from conspiracy to commit offence under section 420, 467, 468, 471, 120(B) and 409 of the Indian Penal Code particularly in view of the judgment passed in the case of Prakash Singh Badal(supra) wherein it has been held that such offences of cheating, forgery etc. under Indian Penal Code cannot be said to be committed in discharge of official duty. 25. So far as application of mind while passing order taking cognizance is concerned this court finds that the impugned orders reflect application of mind by the learned court below on the basis of materials on police report which is enough to sustain the impugned orders taking cognizance. Moreover, it is not the case of the petitioner during the course of arguments that no case is made out for offence under any of the section in which cognizance has been taken. 26. In view of the aforesaid discussions, this Court is of the considered view that the learned court below has not committed any illegality or irregularity while passing the order taking cognizance after perusing the case diary submitted before the learned court below and non-availability of previous sanction at the time of taking cognizance is not fatal to the order taking cognizance. Consequently, these criminal miscellaneous petitions are dismissed. 27. Consequently, these criminal miscellaneous petitions are dismissed. 27. It is observed that dismissal of these petitions will not be an impediment in way for the petitioners to take all the points before the learned court below at appropriate stage and any observations made in this order will not prejudice the case of the petitioners before the learned court below in any manner whatsoever. 28. Pending Interlocutory Applications, if any, stands dismissed as not pressed. 29. Interim order, if any, stands vacated. 30. Let this order be communicated to the court concerned through FAX/e-mail. 31. After the dictation of the order, learned counsel appearing on behalf of the State has submitted that the cases of the co-accused namely, Sadhna Jaipuriyar is pending before this Court in Cr. M.P. No. 2510 of 2016 with Cr. M.P. No. 2518 of 2016 which are listed on 25.02.2022 and therefore, the case diaries which are available in the present batch of cases may be directed to be tagged with the aforesaid record. 32. Accordingly, the office is directed to place the case diaries of Manika P.S. Case No. 75 of 2010 and Manika P.S. Case No.76 of 2010 with the case record of Cr. M.P. No. 2510 of 2016 with Cr. M.P. No. 2518 of 2016 which are fixed on 25.02.2022.