Page No.# 1/9 vs The State Of Assam And Anr on 28 January, 2026

Author: Manish Choudhury

Bench: Manish Choudhury

                                                                       Page No.# 1/9

GAHC010131482017




                                                                 2026:GAU-AS:1450

                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                               Case No. : Crl.Pet./493/2017

            MOINUL HOQUE AHMED
            S/O LT. ASAHAQUE ALI AHMED R/O VILL and P.O. LANGLA P.S.
            KALGACHIA DIST. BARPETA PIN- 781319

            VERSUS

            THE STATE OF ASSAM and ANR.
            REP. BY PP, ASSAM

            2:FAKRUZ ZAMAN
             S/O HAJI FAZLUL HOQUE R/O VILL and P.O. LANGLA P.S. KALGACHIA
            DIST. BARPETA
            ASSAM
             PIN - 78131

Advocate for the Petitioner   : MSN NASRIN, MR.M U MONDAL,MDI H KHAN

Advocate for the Respondent : , ,PP, ASSAM

BEFORE HONOURABLE MR. JUSTICE MANISH CHOUDHURY

JUDGMENT & ORDER Date : 28-01-2026

By preferring this criminal petition under Section 482, Code of Criminal Procedure, 1973 ['the Code' and/or 'the CrPC', for short], the petitioner has sought for quashing and setting aside of [i] a First Information Report dated 14.08.2012, registered as Kalgachia Police Station Case no. 256/2012; [ii] a Page No.# 2/9

Charge-Sheet dated 08.12.2015 submitted in connection with Kalgachia Police Station Case no. 256/2012; and [iii] the criminal proceedings of G.R. Case no. 2330/2012, arising out of Kalgachia Police Station Case no. 256/2012, pending before the Court of learned Sub-Divisional Judicial Magistrate [S], Barpeta ['the Trial Court', for short].

2. I have heard Mr. A. Alim Sk., learned counsel for the petitioner; and Mr. M.P. Goswami, learned Additional Public Prosecutor for the respondent State of Assam. None has appeared for the respondent no. 2 despite service of notice.

3. The respondent no. 2 as the informant lodged a First Information Report [FIR] before the In-Charge, Babhita Out Post on 14.08.2012. In the FIR, the petitioner who was then serving as the Superintendent of Langla Senior Madrassa, was named as the accused.

4. In the FIR, it was inter alia alleged that at about 11-00 a.m. on 14.08.2012, seven nos. of bags containing Public Distribution System [PDS] rice allotted for the Mid-Day Meal Scheme were found being transported from Langla Senior Madrassa by way of a hand-cart to another place in order to sell them in the open market. The informant and other members of the Students Union of Barpeta and Bongaigaon College intercepted the hand-cart whereby the Mid- Day Meal rice was being carried, on a public road. It was alleged that it was the petitioner as the Superintendent, Langla Senior Madrassa had ordered to take out the rice bags meant for Mid-Day Meal Scheme to sell in the open market.

5. On the basis of the FIR, Kalgachia Police Station Case no. 256/2012 was Page No.# 3/9

registered for the offences under Sections 406/409, Indian Penal Code [IPC] on 15.08.2012 and the matter was investigated into. The I.O. after completing investigation into Kalgachia Police Station Case no. 256/2012, corresponding G.R. Case no. 2330/2012, submitted a charge-sheet under Section 173[2], CrPC vide Charge-Sheet no. 40/2015 on 08.02.2015 finding a prima facie case established to proceed for trial for commission of the offences under Sections 406/409, IPC by the petitioner.

6. During the pendency of investigation, the petitioner sought the benefit of pre-arrest bail before this Court and this Court by an Order dated 12.09.2012 passed in A.B. no. 3470/2012 extended the benefit of pre-arrest bail under Section 438, CrPC in view of the projection made by the petitioner that the rice bags were sent back to a Co-operative Society, since Langla Senior Madrassa was closed during the relevant period.

7. On submission of the charge-sheet, the case was transferred to the Court of learned Sub-Divisional Judicial Magistrate [S], Barpeta for disposal. On receipt of summons, the petitioner appeared before the Trial Court on 06.03.2017 and on a prayer being made, he was allowed to remain on previous bail. After taking cognizance and after hearing the learned counsel for the parties, the learned Trial Court framed charges under Sections 406/409, IPC against the petitioner on 10.04.2017. The petitioner pleaded not guilty and claimed to be tried. Thereafter, the Trial Court directed to issue summons to the prosecution witnesses. It was at that stage, the petitioner has approached this Court by the present criminal petition.

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8. The only ground raised by the petitioner is that the petitioner, at the relevant point of time, was serving as a Government employee and sanction of the prosecution under Section 197, CrPC was a condition precedent for the Trial Court to take cognizance of the offences. Admittedly, the petitioner is a Government servant under the Directorate of Madrassa Education, Government of Assam. As there was no prosecution sanction, the Trial Court could not have taken cognizance to proceed further with the proceedings of G.R. Case no. 2330/2012. To support such contention, the petitioner has referred to a resolution, Resolution no. 1 [annexed as Annexure-2 to the instant petition] taken in an Executive Committee Meeting of Langla Senior Madrassa on 22.07.2012.

9. As per the Resolution no. 1, taken purportedly in an Executive Committee Meeting of Langla Senior Madrassa, held on 22.07.2012, the Executive Committee resolved that even after feeding mid-day meals under the Mid-Day Meals [MDM] Scheme to the students, seven bags of MDM Rice, sanctioned on 27.02.2012, remained unused. As rats/mice had started infesting the same, there was possibility of damage to the MDM Rice in view of the long vacation in the Madrassa. The Executive Body appeared to have taken a Resolution suggesting that the Superintendent of Langla Senior Madrassa, that is, the petitioner would deposit the seven bags of MDM Rice to Uttar Titapni Co- operative Society and bring fresh rice from the Chairman of the said Co- operative Society after reopening of the Madrassa. The Superintendent was thereby, entrusted with the responsibility of exchanging the bags of MDM Rice with the Chairman of the Co-operative Society.

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10. The law is settled that the High Court while exercising its jurisdiction under Section 482, CrPC is not required to evaluate the truthfulness or otherwise of the allegations levelled by the prosecution against the accused. In a criminal petition under Section 482, CrPC, a document relied upon by the petitioner which is not part of the investigation and/or the charge-sheet cannot be relied upon ordinarily. Only in exceptional cases where a document is produced by the petitioner is of sterling and unimpeachable character, the same can be taken into consideration. The document relied upon by the petitioner in the form of the proceedings of the Executive Committee Meeting of Langla Senior Madrassa cannot be termed, at this stage, as one which is of such sterling and unimpeachable character. Therefore, such document cannot be taken into consideration while considering the criminal petition seeking quashing and setting aside of the entire criminal proceedings. The defence may have the liberty to lead evidence with regard to the Minutes of the Meeting of Executive Committee during the stage of the trial.

11. Section 197[1] and Section 197[2], CrPC reads as under :-

197.[1] When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction--

[a] in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;

[b] in the case of a person who is employed or, as the case may be, was at the time of Page No.# 6/9

commission of the alleged offence employed, in connection with the affairs of a State, of the State Government:

[2] No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.

12. The provision of Section 197, CrPC deals with the condition requisite for initiation of proceedings against a public servant and it is mentioned that if the conditions mentioned therein are not made out or are absent then no prosecution can be set in motion. The jurisdiction of a Magistrate to take cognizance of any offence is provided by Section 190 of the Code, either on receipt of a complaint, or upon a police report, or upon information received from any person other than police officer, or upon his knowledge that such offence has been committed. So far public servants are concerned the cognizance of any offence, by any court, is barred by Section 197 of the Code unless sanction is obtained from the appropriate authority, if the offence, alleged to have been committed, was in discharge of the official duty or any purported discharge of official duty. Use of the expression, 'official duty' goes to indicate that the act or omission must have been done by the public servant in the course of his service and that it should have been in discharge of his official duty or purported in discharge of his official duty. The Section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty.

13. In K. Kalimuthu vs. State by DSP, [2005] 4 SCC 512 , the Supreme Court has observed as under :-

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11. It has been widened further by extending protection to even those acts or omissions which are done in purported exercise of official duty. That is under the colour of office. Official duty therefore implies that the act or omission must have been done by the public servant in course of his service and such act or omission must have been performed as part of duty which further must have been official in nature. The Section has, thus, to be construed strictly, while determining its applicability to any act or omission in course of service. Its operation has to be limited to those duties which are discharged in course of duty. But once any act or omission has been found to have been committed by a public servant in discharge of his duty then it must be given liberal and wide construction so far its official nature is concerned. For instance a public servant is not entitled to indulge in criminal activities.

14. The protection under Section 197 of the Code has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule.

15. It is apposite to refer to the following observations made in P.K. Pradhan vs. State of Sikkim, [2001] 6 SCC 704 :-

15. Thus, from a conspectus of the aforesaid decisions, it will be clear that for claiming protection under Section 197 of the Code, it has to be shown by the accused that there is reasonable connection between the act complained of and the discharge of official duty. An official act can be performed in the discharge of official duty as well as in dereliction of it. For invoking protection under Section 197 of the Code, the acts of the accused complained of must Page No.# 8/9

be such that the same cannot be separated from the discharge of official duty, but if there was no reasonable connection between them and the performance of those duties, the official status furnishes only the occasion or opportunity for the acts, then no sanction would be required. If the case as put forward by the prosecution fails or the defence establishes that the act purported to be done is in discharge of duty, the proceedings will have to be dropped. It is well settled that question of sanction under Section 197 of the Code can be raised any time after the cognizance;

may be immediately after cognizance or framing of charge or even at the time of conclusion of trial and after conviction as well. But there may be certain cases where it may not be possible to decide the question effectively without giving opportunity to the defence to establish that what he did was in discharge of official duty. In order to come to the conclusion whether claim of the accused, that the act that he did was in course of the performance of his duty was reasonable one and neither pretended nor fanciful, can be examined during the course of trial by giving opportunity to the defence to establish it. In such an eventuality, the question of sanction should be left open to be decided in the main judgment which may be delivered upon conclusion of the trial.

16. It is well settled that question of sanction under Section 197 of the Code can be raised any time after the cognizance; may be immediately after cognizance or framing of charge or even at the time of conclusion of trial and after conviction as well. But there may be certain cases where it may not be possible to decide the question effectively without giving opportunity to the defence to establish that what he did is in discharge of official duty.

17. In order to come to a conclusion whether claim of the accused that he sent the seven bags of MDM Rice under the Mid-Day Meal [MDM] Scheme rice for the students of Langla Senior Madrassa to a place outside Langla Senior Madrassa purportedly in pursuance of the Resolution of the Executive Committee of Langla Senior Madrassa was in course of his office duty was a reasonable one can only be examined during the course of the trial by giving an Page No.# 9/9

opportunity to him to establish it. Whether such a Resolution was taken by the Executive Committee of Langla Senior Madrassa or not can be gone into only during the trial and the veracity of such contention cannot be gone into in a criminal petition under Section 482, CrPC. The existence or otherwise of the Minutes of the proceedings of the Executive Committee of Langla Senior Madrassa and for that matter, the Resolution adopted therein are not matters which can be gone into in a criminal petition under Section 482, CrPC.

18. The question of sanction should, therefore, be best left open to be decided by the Trial Court in the main Judgment which would be delivered upon the conclusion of the trial. The claim made by the petitioner that the bags of MDM Rice were sent outside the premises of Langla Senior Madrassa and he did not abuse his position as a public servant are required to be established during the course of the trial.

19. Therefore, it is not possible to extend any relief to the petitioner at this stage. Observing that during the course of the trial, the Trial Court shall examine the question regarding requirement of prosecution sanction afresh and deal with the same in course of the trial or in its main Judgment, in the light of the settled proposition, this criminal petition stands dismissed. The interim order passed earlier stands recalled. No cost.

JUDGE

Comparing Assistant

Date: 2026.02.04 22:19:13 +05'30'