Calcutta High Court (Appellete Side)

Bandana Mondal Naskar vs State Of West Bengal Anr on 1 August, 2023

                                 1




                IN THE HIGH COURT AT CALCUTTA

                 (Criminal Appellate Jurisdiction)

                          Appellate Side
Present:
The Hon'ble Justice Bibhas Ranjan De


                       C.R.A. (SB) 2 of 2023
                     Bandana Mondal Naskar
                                Vs.
                     State of West Bengal Anr.


For the Petitioner           :Mr. Asimes Goswami, Adv.
                              Ms. Priyanka Dutta, Adv.


For the State                :Mr. Abhra Mukherjee, Adv.
                              Mr. Dipankar Mahata, Adv.


Heard on                     : 28.06.2023,18.07.2023, 19.07.2023
Judgment on                   : August 01, 2023


Bibhas Ranjan De, J.

1. This appeal has been preferred assailing the judgment and

order of conviction dated 14.12.2022 passed by Ld. Judge, 1st

Special Court, Alipore, South 24 Parganas in connection with

special case no 4 / 2018 under Section 409 of the Indian

Penal Code (hereinafter referred to as IPC), whereby Ld. Judge

convicted the appellant/ Bandana Mondal (Naskar) and

sentenced her to suffer simple imprisonment for 2½ years and

to pay a fine of Rs. 5,000/- in default suffer further simple

imprisonment for 2 months.

2. Circle Project Co-ordinator, Sonarpur as per direction of

competent authority (District Magistrate, South 24 Parganas),

lodged FIR before the Officer in-charge of Sonarpur Police

Station alleging inter alia that funds of Rs. 35,000/- was

placed by the Sarbashikha Mission, South 24 Parganas,

through his office to Jardaha Beniabow F.P. School, under

Jurisdiction of Sonarpur Police Station for the year 2011-12

for constriction of TSC toilet. But, the school authority neither

completed the civil construction nor utilized the fund properly.

Moreover, the school authority did not refund the said fund

within stipulated time.

3. On receipt of the complaint Sonarpur PS Case No. 581/ 16

dated 18.03.2016 under Section 409 IPC was started against

the appellant, Bandana Mondal (Noskar). After investigating

charge sheet was filed against the appellant under Section 409

IPC.

4. Ld. Judge, of the 1st Special Court, Alipore, took cognizance of

the offence and the same was registered under special case no.

4 of 2018 and took up for disposal. On 26.06.2018 Ld. Judge,

framed formal charge under Section 409 of the Indian Penal

Code as follows:-

"First - That being the teacher in-charge in respect of Benia- Bow F.P. School entrusted to construct civil work during the period 2011-2012 and a sum of Rs. 35,000/- have been allotted for construction of TSC Toilet but neither you have completed your entrusted work nor refund the amount within stipulated time and moreover you have done the same to give benefit to your husband without any work order and thereby committed offence under section 409 of IPC and is within my cognizance.

And I hereby direct that you be tried by this court on the said charge.

Charge has been read over and explained to the accused person in Bengali, to which they pleaded not guilty and claimed to be tried by saying that "ami nirdosh, bichar chai"

Dated: this 26th day of June, 2018"

5. To prove the charge, prosecution examined five witnesses

namely Nachiketa Das (defacto complainant) as PW1, Dipika

Paul (Field Junior Engineer, Sonarpur block and municipality)

as PW2, Keshida Khatun (Shikha Bandhu attached to SI of

school) as PW3, SI Kishore Kumar Das ( 1st Investigating

Officer)as PW4 and one S.I Susobhon Sarkar (2nd Investigating

Officer ) as PW5. In course of their evidence signature of PW1

on the inquiry report as exhibit 1/1 FIR and signatures

thereon as exhibit 2 series, formal FIR as exhibit 3 and rough

sketch map with index as exhibit 4.

6. On behalf of the defence/appellant utilization certificate was

admitted in evidence as exhibit A, audit reports as exhibit B

and copy of resolution book dated 23.2.2013 along with work

order were marked as exhibit C.

Argument advanced:-

7. Ld. Advocate, Mr. Asimes Goswami, appearing on behalf of the

petitioner has advanced his argument as follows:-

7.1. No sanction was obtained under section 197 of code of

criminal procedure before initiating proceeding against

appellant, a public servant with the meaning section 21 of the

Indian Penal Code. In support of his contention he relied on

Mansukhlal Vithaldas Chauhan vs. State of Gujarat

reported in (1997) 7 Supreme Court Cases 622.

7.2. Mr. Goswami assailed the evidence on record and

submitted that there is no cogent evidence to sustain

conviction of the appellant under Section 409 in terms of

defective charge framed by the Ld. Trial Judge, with regard to

incomplete construction of toilet whereas evidence shows

completion of construction work.

7.3. No vital documents relied on behalf of the prosecution

were not admitted in evidence.

7.4. Work order, audit report and utilization certificate were

admitted in evidence as exhibit A to C in terms of reply given

by the appellant in course of her examination under section

313 of the Code of Criminal Procedure. The documents

exhibited on behalf of the defense clearly disproved the

prosecution case.

8. Per contra, Mr. Mr. Abhra Mukherjee, Has contended as

follows:-

8.1. Appellant entrusted her husband with the work of

construction without observing any rules for tender.

8.2. No sanction is required for initiating proceeding as the

appellant did not follow the rules of tender rather entrusted

the construction work with her husband, which was not in

discharge of her official duty.

8.3. Appellant admitted that repair works were done by the

excess money but there is no specific evidence on behalf of the

defence to show other repairing works. Thereby, it is

submitted on behalf of the State that prosecution was able to

prove the charge.

9. Ld. Judge, Special Court, after evaluation of the evidence of

PW1 to PW3 particularly returned his findings that though

appellant was entrusted with the fund of Rs. 35,000/- for the

purpose of construction of toilet but the fund was not utilized

properly that too without following norms. A doubt was

created in the mind of the Judge as fund of Rs. 35,000/- was

shown as expenditure in the column of toilet of the statement

ending 31st March, 2013 in terms of exhibit B (audit report)

though appellant during her examination under Section 313

CrPC replied that toilet was constructed in the month of May,

2013. Regarding utilization certificate Ld. Judge did not act

upon on the ground of absence of any official seal and

signature of concerned block junior engineer. Ld. Judge also

pointed out non-production of cash memo or voucher in

support of expenditure and also the rule for process of tender

was not followed. Above all, Ld. Judge, could not rely on the

documents submitted on behalf of the defence as the entire

construction work was given to the husband of the appellant

without following any tender process.

Decisions with reasons:-

10. It is not disputed by either of the parties regarding status

of the appellant as public servant. Admittedly, at the relevant

point of time appellant was a teacher in-charge Jardaha

Beniabow F.P. School and from that point of view appellant

was a public servant with the meaning of Section 21 of the

Indian Penal Code.

11. Ld. Advocate, Mr. Mukherjee, appearing on behalf of the

State submitted that there was sanction of District Magistrate

to initiate the proceeding as it appears from the evidence. Mr.

Majumder, alternatively, submits that utilization of

government fund by a teacher in-charge of a school not

following the norms that too with the help of her husband

cannot be said to be an act in discharge of her official duty to

attract the Provision of Section 197 of the Code of Criminal

Procedure.

12. Admittedly, appellant was teacher in-charge of the

Jardaha Beniabow F.P. School she defended the criminal

charge under Section 409 of the Indian Penal Code. Therefore,

by no stretch of imagination, I can hold that appellant was not

a public servant. Now, the question is whether the protection

under Section 197 of Criminal Procedure Code was available

to the appellant or not. From the FIR (exhibit 2) it is found

that government fund was allotted to her school for

construction of a toilet for students and it was alleged that

fund was not properly utilized in constructing the toilet for

students. It is trite law that protection under Section 197 of

Criminal procedure Code is available when alleged act done by

public servant is reasonably connected with discharged of his

official duty. Here in this, I cannot come to any conclusion

that offence alleged to have been committed by the appellant is

not connected with discharged of her official duty. Therefore,

prosecution, in our case, must prove that valid sanction was

granted by the sanctioning authority within the meaning of

Section 197 of Criminal Procedure Code.

13. The validity of sanction for prosecution under Section

197 of the Code of Criminal Procedure was expounded with

clarity in Mansukhlal (supra) which is being reproduced

below:-

"17. Sanction lifts the bar for prosecution. The grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to government servants against frivolous prosecutions. (See Mohd. Iqbal Ahmed v. State of A.P. [(1979) 4 SCC 172 : 1979 SCC (Cri) 926 : AIR 1979 SC 677] ) Sanction is a weapon to ensure discouragement of frivolous and vexatious prosecution and is a safeguard for the innocent but not a shield for the guilty.

18. The validity of the sanction would, therefore, depend upon the material placed before the sanctioning authority and the fact that all the relevant facts, material and evidence have been considered by the sanctioning authority. Consideration implies application of mind. The order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. This fact can also be established by extrinsic evidence by placing the relevant files before the Court to show that all relevant facts were considered by the sanctioning authority. (See also Jaswant Singh v. State of Punjab [AIR 1958 SC 124 : 1958 SCR 762] and State of Bihar v. P.P. Sharma [1992 Supp (1) SCC 222 : 1992 SCC (Cri) 192 : 1991 Cri LJ 1438] .)."

14. On careful perusal of the evidence as well as documents

exhibited on behalf of the prosecution, I do not find any

sanction of competent authority let alone valid sanction in

compliance with the principle laid down in Mansukhlal

(supra).

15. Admittedly, government fund of Rs. 35,000/- was allotted

to Jardaha Beniabow F.P. School for construction of a toilet for

girls. from the evidence it is also an admitted position of fact

that said construction of toilet was completed before lodging of

complaint. But, unfortunately, charge was framed by the Ld.

Court with the accusation of incomplete construction of toilet.

16. Neither PW1 (Circle Project Coordinator Sonarpur) nor

PW2 (Field Junior Engineer) uttered any single word in

support of construction toilet in question by the husband of

the appellant though PW3 in her evidence in chief has stated

that appellant got the toilet constructed with the help of her

husband during summer vacation and that was not

corroborated by any other witnesses.

17. I failed to make me understand that why field engineer of

concerned block and municipality did not submit the

completion certificate instead of shifting responsibility upon

the teacher in-charge/appellant of Jardaha Beniabow F.P.

School. That apart, it is not duty of teacher in-charge to issue

work order after following prescribed tender process. From the

resolution of Village Education Committee (exhibit C) it is

found that decision was taken for construction of toilet after

receiving fund therefor. From the audit report (exhibit B)

under the signature of auditor who was appointed by District

Project Officer, also shows that fund of Rs. 35,000/- was spent

for construction of toilet in question.

18. Therefore, the conviction of appellant is not sustainable

either on the issue of „no sanction‟ or in terms of evidence

adduced on behalf of the prosecution.

19. Before parting with, once again, I would like to reproduce

the principle enunciated in Mansukhlal (supra) particularly

paragraph 39 which runs below:-

"39. Normally when the sanction order is held to be bad, the

case is remitted back to the authority for reconsideration of

the matter and to pass a fresh order of sanction in

accordance with law. But in the instant case, the incident is

of 1983 and, therefore, after a lapse of fourteen years, it will

not, in our opinion, be fair and just to direct that the

proceedings may again be initiated from the stage of sanction

so as to expose the appellant to another innings of litigation

and keep him on trial for an indefinitely long period contrary

to the mandate of Article 21 of the Constitution which, as part

of right to life, philosophises early end of criminal

proceedings through a speedy trial."