Jharkhand High Court
Hasib Ansari vs State Of Jharkhand on 27 September, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Rev. No. 988 of 2013
Hasib Ansari S/o Late Fakhruddin Ansari, R/o Village-
Murma, P.O. and P.S. Mandar, District- Ranchi
... ... Petitioner
Versus
State of Jharkhand ... ... Opposite Party
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. Yogendra Prasad, Advocate
Mr. Mohammad Asghar, Advocate
For the State : Mr. Md. Hatim, A.P.P.
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Through Video Conferencing
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C.A.V. On 05.07.2021 Pronounced on 27/09/2021
1. Heard Mr. Yogendra Prasad, learned counsel appearing
on behalf of the petitioner along with Mr. Mohammad Asghar,
Advocate.
2. Heard Mr. Md. Hatim, learned A.P.P. appearing on
behalf of the opposite party- State.
3. This criminal revision petition is directed against the
judgement dated 31.08.2013 passed by learned Additional
Sessions Judge-XII, Ranchi in Criminal Appeal No. 156 of 2009
affirming the judgement and order dated 27.08.2009 passed by
the learned Judicial Magistrate, 1st Class, Ranchi in G.R. Case
No. 3021/1998 arisen out of Chanho P.S. Case No. 74/1998.
4. The learned Judicial Magistrate has convicted the
petitioner under Sections 409/34, 420/34, 467/34 and 471/34 of
the Indian Penal Code and awarded punishment for the offence
-
under Section 409/34 IPC Rigorous Imprisonment for three
years and fine of Rs. 1,000/- and in default of payment of fine,
additional simple imprisonment of one month;
under Section 420/34 IPC Rigorous Imprisonment for three
years and fine of Rs. 1,000/- and in default of payment of fine
additional simple imprisonment of one month;
under Section 467/34 IPC Rigorous Imprisonment for three
years and fine of Rs. 1,000/- and in default of payment of fine
additional Simple Imprisonment of one month; and,
under Section 471/34 IPC Rigorous Imprisonment for three
years and fine of Rs. 1,000/- and in default of payment of fine,
additional Simple Imprisonment of one month.
It was further directed by the learned trial court that all the
sentences shall run concurrently. The petitioner has prayed for
setting aside of both the judgement and order dated 31.08.2013
and 27.08.2009 as aforesaid.
Arguments on behalf of the petitioner
5. Learned counsel for the petitioner submits that the
impugned judgments are perverse and cannot be sustained in
the eyes of law on account of the fact that the requisite sanction
for prosecution has not been obtained in the present case and
the entire acts and omissions of the present petitioner was in
discharge of official duty. On this proposition, the learned
counsel has referred to the judgment passed by Hon'ble
Allahabad High Court reported in 1997 Supreme (All) 1136 and
also the judgment passed by the Hon'ble High Court of Gauhati
reported in 2018 Supreme (Gau.) 22. The learned counsel has
further submitted that otherwise also the impugned judgments
of conviction are not sustainable in view of the fact that the
Investigating Officer of the case has not been examined which
has caused prejudice to the petitioner. For this, the learned
counsel has referred to the judgment passed by this Court in a
case reported in 2016 Supreme (Jhk) 150 as well as the judgment
reported in 2018 4 JBCJ 29. The learned counsel further submits
that so far as the seizure witnesses are concerned, they have not
fully supported the prosecution case, in as much as, they have
stated that their signatures were taken at the police station.
However, he does not dispute the fact that these seizure
witnesses have not disputed their signatures on the seizure list.
The learned counsel submits that considering the aforesaid
aspect of the matter, the conviction as well as the sentence of
the petitioner is fit to be set-aside.
6. The learned counsel for the petitioner also submitted that
without prejudice to the aforesaid submissions on merit, it may
also be taken into consideration that the case was lodged as
back as in the year 1998 and the petitioner has faced the rigors
of criminal case for more than 23 years and the present age of
the petitioner is approximately 50 years and he does not have
any criminal antecedent. He submits that the petitioner has
remained in custody for a total period of about 6 months
including custody during trial and at the stage of revision. He
has also submitted that there is no minimum sentence, as such,
prescribed under the provisions of sections under which the
petitioner has been convicted. The learned counsel for the
petitioner accordingly submits that considering the totality of
the facts and circumstances of the case, some sympathetic view
may be taken and the sentence may be modified and some fine
amount may be imposed.
Arguments on behalf of the opposite party- State
7. The learned counsel appearing on behalf of the opposite
party-State, while opposing the prayer, has submitted that there
are concurrent findings recorded by the learned courts below
and the acts and omissions of the petitioner cannot be said in
discharge of official duty. He has also submitted that the
petitioner had collected money for issuance of NSC etc.
although the post office in which he was posted was not
authorized to do so. The learned counsel has also submitted
that although the Investigating Officer of the case has not been
examined, but the petitioner has not been prejudiced by the
same. He has also submitted that from perusal of the order-
sheet of the learned court below, it appears that appropriate
steps were taken for recording the evidence of Investigating
Officer, but ultimately in the year 2007, it was recorded that the
Investigating Officer has already retired and he ultimately did
not depose before the learned trial court. He has also submitted
that there is no scope for re-appreciation of evidences at a
revisional stage and considering the scope of the revisional
jurisdiction and there being no illegality or perversity in the
impugned judgments, no interference is called for by this Court.
8. The learned counsel for the opposite party-State further
submitted that so far as modification of the sentence is
concerned, he does not have any serious objection and it is for
the Court to consider and pass appropriate order.
Findings of this Court
9. Prosecution case is based on the written report of one
Rajender Prasad, Sub Divisional Inspector (postal) Lohardaga
Sub Division, Lohardaga. As per the written report, the
petitioner was working as Sub Postmaster, Tangar since
01.08.1994. The irregularities committed by him were examined
by the informant. It came to light in the inquiry that the
petitioner issued receipts dated 09.12.1998 and 10.12.1998 for
deposit of money to Gopal Prasad Sahu and Mangra Oraon. It
has been stated to the informant that an amount of Rs. 1,000/-
was given to the co-accused Deep Narayan Singh who gave the
money to Hasib Ansari, the petitioner. Deep Narayan Singh
was working as postal messenger and he was also put off from
duty during inquiry. It has been alleged that the petitioner had
taken money from both the persons for issuance of Kishan
Vikash Patra and National Saving Certificates though they
could not have been issued by Tangar Sub Post-Office. It was
further alleged that Hasib Ansari (petitioner) had fraudulently
withdrawn money from savings banks and term deposit from
different accounts as detailed in the written report. It has been
alleged that despite the best efforts, the accused Hasib Ansari
(petitioner) did not appear before the Inquiry Officer and
accordingly, the First Information Report in the instant case was
lodged under Sections 467, 468, 471/420, 409 of Indian Penal
Code being Chanho P.S. Case No. 74 of 1998.
10. After investigation, charge -sheet was submitted. The
learned judicial Magistrate ultimately framed charge for the
offence under Sections 409/34, 420/34, 467/34, 468/34, 471/34
of Indian Penal Code against the petitioner and one Deep
Narayan Singh.
11. Altogether, fourteen witnesses were examined on behalf
of the prosecution. P.W. 1 is Gopal Prasad Sahu, P.W. 2 is Siriya
Bhaktain, P.W. 3 is Jitu Oraon, P.W. 4 is Sukro Mahali, P.W. 5 is
Shanti Toppo , P.W. 6 is Sukra Kujur, P.W. 7 is Radha Kumari,
P.W. 8 is Dehari Oraoin, P.W 9 is Mangra Oraoin, P.W. 10 is
Manohar Lal, P.W. 11 is Shyam Bihari Mishra, P.W. 12 is
Bishwanath Sahi, P.W. 13 is Rajinder Prasad - informant of the
case and P.W. 14 is Charan Mandi.
12. A large number of documentary evidences were also
produced from the side of the prosecution. Exhibit 1 and 2 are
the receipts given by Hasib Ansari, Exhibit 3 is the letter given
to the Sub-Post-Inspector by one of the victim, Exhibit 4 series
are the signatures upon the seizure list, Exhibit 5 to 5/1 are the
written report along with annexures and signature thereupon,
the other annexures have been marked as Exhibit- 6 series. The
other written complaint along with annexures and signature
thereupon have been marked as Exhibit 7 series, the other
annexures were marked as Exhibit 8 series, withdrawal slip
dated 01.03.1996 from account No. 1307767 as Exhibit 9, and the
passbook of the account as Exhibit 10, pass book of account No.
1308583 belonging to Shanti Toppo as Exhibit 11, and the
receipt thereof as Exhibit 12, pass book of account no. 1309528
as Exhibit 13, the withdrawal form of Rs. 10,000/- as Exhibit 14
and the receipt thereof as Exhibit- 15, pass book of account No.
1308932 as Exhibit 16, pass book to account No. 6266220 as
Exhibit 17, the receipt of Rs. 3000/- given to Jitu Oraon as
Exhibit- 18, pass book of account No. 2918046 belonging to Jitu
Oraon as Exhibit 19, and the deposit slip as Exhibit 20, the
ledger account of Jitu Oraon as Exhibit 21, the document
relating to deposit of Rs. 100/- in account of Radha Kumari as
Exhibit 22, account ledger regarding account relating to Sukro
Mahli, Shanti Toppo, Jitu Oraon, Dehari Oraoin and Sukuro
Oraoin as Exhibit 23/1 to Exhibit 23/6, specimen book as
Exhibit 24 and the specimen signatures relating to accounts as
stated from Exhibit 23/1 to 23/6 as Exhibit 24/1 to Exhibit 24/5
and 25/1, pass book of account No. 1309127 as Exhibit 26,
withdrawal form of Rs. 14,000/- as Exhibit 27, pass book of
account No. 1307778 as Exhibit 28 and withdrawal form of Rs.
1000/- as Exhibit- 29, the passbook of Manohar Lal as Exhibit
30, Zimmanama and signature thereupon in Exhibit 31 series.
13. After the prosecution evidence, Statement of the accused
persons were recorded under Section 313 of Cr.P.C. wherein the
petitioner denied the allegations levelled against him.
14. The petitioner was 38 years of age at the time of
conviction on 27.08.2009 and accordingly, at present he is more
than 50 years of age. The petitioner had surrendered before the
learned court below on 19.11.2013 and he was released on bail
by this Court vide order dated 06.12.2013 passed in the present
revision application.
15. It is not in dispute in the present case that the petitioner
was working as sub post-master at Tangar during the relevant
point of time.
16. The victims of the case have been examined as P.W-1 to
P.W-10. They have fully supported the prosecution case and
have stated as under:-
a. Gopal Prasad Sahu has been examined as P.W. 1 who has
stated that on 18.04.1998, he had come to the Tangar sub
post-office for purchasing KVP of Rs. 1,000/- and handed
over the money to the co-accused who gave it to the
petitioner. He further deposed that he could not get his
KVP for one year and subsequently he came to know that
Tangar post office was not authorized to issue KVP.
During his cross-examination, this witness has stated that
the money was paid to the co-accused Deep Narayan in
presence of sub-post master.
b. P.W. 2 has stated that she is an illiterate lady. She has
further stated that an amount of Rs. 12,400/- was
deposited by her on different dates, but she could not get
the money when it was required. She identified the
petitioner as the person to whom the money was given.
c. P.W. 3 has said to have deposited Rs. 30,000/- as term
deposit and subsequently came to know that out of Rs.
30,000/- only an amount of Rs. 3,000/- has been
deposited and rest Rs. 27000/- was not entered in the
ledger.
d. P.W. 4 has stated that she had withdrawn an amount of
Rs. 5,000/- and subsequently came to know that the rest
amount was fraudulently withdrawn.
e. P.W. 5 has deposed that she had deposited Rs. 10,000/- in
the post office and came to know that Rs. 7000/- was
fraudulently withdrawn from her account.
f. P.W. 6 has stated that he had initially deposited Rs.
15,000/- which matured to Rs. 30,000/-, He went to the
post office to invest Rs. 30,000/- in KVP and handed over
the money to the co-accused Deep Narayan Singh and
subsequently, came to know that the amount has been
dishonestly taken by the accused persons. He has also
stated that the KVP of Rs. 30000/-was never handed over
to him which was to mature on 21.08.1997 to Rs. 60,000/-.
g. P.W. 7 had opened a recurring deposit account of Rs.
100/- per month and an amount of Rs. 4400/- had
accumulated. She further stated that when the matter was
inquired by the postal inspector, she was informed that
Rs.2000/- only has been entered against her name in the
ledger.
h. P.W. 8 has stated that an amount of Rs. 22,000/- was
deposited by her out of which, Rs. 6000/- was withdrawn
and an amount of Rs. 14000/- was fraudulently
withdrawn from her account.
i. P.W. 9 has stated that an amount of Rs. 2500/- was given
to the present petitioner for purchasing KVP and in
receipt thereof, a chit of paper (Exhibit 2) was given by
the petitioner, but the said KVP was never given to her as
the branch was not authorized to issue KVP certificates.
j. P.W. 10 had opened an account in the post-office and
came to know that an amount of Rs. 2100/- was not
entered into his ledger account.
17. Thus, altogether ten victims have been examined in the
present case. It has come in evidence that the Tangar sub post-
office was not authorized to issue KVP certificate, but the
evidence of these victims indicates, inter alia, that money was
taken by the accused persons for the purposes of issuance of
KVP, but the same were neither issued nor could have been
issued as the branch was not authorized to issue such
certificates. Some of the victims have also supported the case of
fraudulent entries in the ledger and fraudulent withdrawals
from their accounts.
18. P.W. 11 and 12 are the seizure witnesses and their
signatures have been marked as exhibit 4 and 4/1. These
witnesses have stated that 10 to 11 pass books, deposit slips and
withdrawal slips were recovered and that, the defalcation was
done by the two accused persons. These witnesses have taken
the name of the petitioner.
19. P.W. 13 is the informant of the case who had conducted
the inspection and found that the accused persons had taken
money from the account holders and had made wrong entry in
their account. He has exhibited number of documents before
the court below. He has also stated that the villagers had
complained about their grievance before him and thereafter, he
filed the case. This witness has also stated that he had lodged
two First Information Reports; one was dated 15.12.1998 and
other was dated 05.01.1999 in two different police stations i.e. in
Mandar P.S. and Chanho P.S. respectively and both the First
Information Reports have been proved before the learned court
below and exhibited as Exhibits 5, 5/1, 7 and 7/1. The
annexures to the First Information Reports were marked as
Exhibit 8 and 8/1. This prosecution witness has fully supported
the prosecution case. He has stated that the petitioner had taken
Rs. 1000/- from Gopal Prasad Sahu, Rs. 2500/- from Mangra
Oraoin for issuance of KVP and NSC though the branch was
not authorized to issue such certificates. It was also found that
Rs. 11,000/- was fraudulently withdrawn from the saving bank
account opened in the name of Smt. Sukru Mahali. The amount
was withdrawn from account, but it was not entered into the
pass book. This witness has also given details of the fraudulent
withdrawals by the accused persons from several accounts and
has stated that a total amount of Rs. 7,75,000/- was defalcated
by the accused persons. This witness has also given the details
of the information lodged on 05.01.1999 in which details of
other fraudulent withdrawals were given by him. He has stated
that before posting of the petitioner and the co-accused in the
branch, he was posted as Branch Manager by way of officiating
arrangement and after joining of the present petitioner, the co-
accused Deep Narayan Singh started working as departmental
delivery agent. He has also stated in his cross-examination that
after getting the more irregularities, the second First
Information Report was lodged, but for both the First
Information Reports only one criminal case was pending. P.W.
14 has stated that the seized articles were released in his favour
at his Zimmanama. A large number of documentary evidences
were produced and exhibited before the learned court below
whose details have been mentioned in paragraph 7 of the
appellate court's judgement, which also includes written
complaints and the various documentary evidences produced
in support of the allegations made by the victims and the
informant of the case.
20. The sole defence witness on behalf of the present
petitioner has brought on record Exhibit A whereby he has
taken a stand that the co-accused Deep Narayan Singh had
confessed his guilty regarding irregularity in the post-office.
However, this witness could not testify that the Exhibit-A was
written before him or that the same was voluntarily ascribed by
the co-accused Deep Narayan Singh and was not written under
duress and coercion. However, when the accused were
examined under Section 313 of Cr.P.C., both of them i.e. the
petitioner as well as Deep Narayan Singh, denied the
allegations against them.
21. After considering the materials on record, the learned
trial court convicted the accused for offence under Section
409/34, 420/34, 467/34 and 471 /34 of Indian Penal Code and
sentenced them accordingly.
22. The learned appellate court also considered the materials
on record and affirmed the conviction as well as the sentence
and refused to interfere with the sentence considering the fact
that poor depositors have been cheated by the public servants.
23. Altogether 14 witnesses were examined from the side of
the prosecution and out of them, P.W.1 to P.W.10 were the
victims. Some of the victims have, inter alia, exhibited the
money receipts issued by the present petitioner and other
documentary evidences as mentioned above and have fully
supported the case of the prosecution. P.W. 7 Radha Kumari
has exhibited money receipt as Ext.1. P.W.9 Mangra Oraoin has
exhibited the money receipt as Ext.2. Some of the withdrawal
forms in connection with the victims, some of the pass books in
connection with the victims and specimen book and specimen
signature were also exhibited. The case of the prosecution is
supported by oral as well as documentary evidences. The
informant of the case who had conducted the enquiry in the
post office has also fully supported the prosecution case and
has exhibited the records of the post office. It has clearly come
in evidence that the concerned post office was not entitled to
issue KVP and NSC though money was also collected for such
purpose by the accused persons apart from other acts and
omissions leading to commission of the alleged offences.
24. The learned trial court considered the oral and
documentary evidences on record adduced from the side of the
prosecution as well as defence. The learned trial court recorded
that the accused persons including the petitioner had
interpolated the withdrawal form, deposit form, pass book and
also other documents concerning deposit and withdrawal of the
amount in the post office. It further recorded that accused
persons had also made cuttings and overwriting in some of the
documents and even the dates were not mentioned. From the
prosecution evidences, it was proved that in the name of
issuance of Kishan Vikash Patra and National Saving
Certificate, the accused persons had taken money and also
given receipts pursuant to the money taken by them, although,
the concerned Tangar Post Office was not authorized to issue
Kishan Vikash Patra and National Saving Certificate. The
learned trial court also recorded that during the course of
examination of the account holders, they had deposed
regarding giving money to the accused persons and issuance of
some documents by them. With this background, the learned
trial court was of the considered view that the present
petitioner along with co-accused Deep Narayan Singh,
connived with each other and committed the alleged offence
against the account holders and others and convicted the
petitioner and the co-accused Deep Narayan Singh for offence
under Section 409/34, 420/34, 467/34/ and 471/34 of Indian
Penal Code.
25. The argument advanced on behalf of the petitioner before
this court is that the requisite sanction for prosecution was not
available and the conviction of the petitioner cannot be
sustained in the eyes of law as the entire acts and omissions of
the petitioner was in discharge of his official duty. The other
argument is that the investing officer of the case having not
been examined, has caused prejudice to the petitioner and on
this count also, the conviction and sentence of the petitioner
cannot be sustained. For these arguments, the learned counsel
for the petitioner has relied upon a number of judgements as
mentioned above.
On the point of non-examination of the investigating
officer of the case
26. So far as the judgment passed by this Court reported in
2016 2 JLJR 558 (Babaji Vs. State of Jharkhand) is concerned,
the said judgment was passed in the appellate jurisdiction of
this Court and this judgment has been relied upon by the
learned counsel for the petitioner to submit that non-
examination of Investigating Officer of the case weakens the
prosecution case. This Court finds that in the present case, the
victims have been examined, who have fully supported the
prosecution case and the allegation against the petitioner is
supported by documentary evidences, which have been seized
from the official records of the concerned Post Office as well as
produced and exhibited from the side of the prosecution. This
Court also finds that sufficient steps were taken for the
purposes of examination of the Investigating Officer of the case,
but he could not be produced for the purposes of his
examination before the learned trial court as is apparent from
the records of this case and also submitted by the learned
counsel for the state. Further, the learned counsel for the
petitioner has not demonstrated before this Court as to how
non-examination of the Investigating Officer of the case has
prejudiced the petitioner. Rather, this Court is of the considered
view that the non-examination of the Investigating Officer of
the case has not prejudiced the petitioner in any manner
whatsoever as the case against the petitioner is by and large
based on the evidences of the victims, official witnesses and
documentary evidences on record. Accordingly, the said
judgment does not help the petitioner in any manner
whatsoever.
27. Learned counsel for the petitioner has also relied upon
another judgment passed by this High Court reported in 2018
( 4) JBCJ 29 (Kandu Murmu @ Khandu Murmu Vs. State of
Jharkhand) and has referred to para 5 thereof and has
submitted that on account of non-examination of the
Investigating Officer, the Criminal Appeal D.B. No.823 of 2010
was allowed. This Court finds that the said judgment does not
help the petitioner in any manner. In the said case, the
examination of the Investigating Officer of the case was
essentially required with regard to what was narrated by the
prosecution witnesses about the place of occurrence and blood
stain etc. and non-examination of the Investigating Officer was
held to be fatal to the prosecution case. This Court finds that the
said judgment also does not help the petitioner in any manner
in view of the fact that the material evidences, both oral and
documentary, to prove the offence, were duly brought on
record by the prosecution witnesses including the victims
before the learned court below and accordingly no prejudice
has been caused on account of non-examination of the
Investigating Officer of the case.
On the point of absence of sanction for prosecution
28. So far as the sanction for prosecution is concerned, this
Court finds that the point regarding absence of sanction for
prosecution against the petitioner was never taken before the
learned courts below.
29. The learned counsel for the petitioner has also relied
upon another judgment passed by Hon'ble High Court of
Gauhati reported in 2018 0 Supreme (Gau) 22 (Sri Rupak
Choudhury Vs. Smti Jaimati Deka) to submit that the petitioner
being a government servant, the conviction of the petitioner
cannot be sustained in the eyes of law on account of absence of
sanction for prosecution. In the said case, the witnesses had
stated that the accused had misappropriated certain amount,
but there was no proof that the amount was deposited by the
witnesses and in such circumstances, it was held that it cannot
be said that the accused had received the amount. The Hon'ble
High Court of Gauhati was of the view that if the accused
received the amount as alleged by the prosecution witnesses
and did not enter into the relevant records of the post office, the
same amounts to failure to discharge of her necessary duty as
public servant resulting in misappropriation of the aforesaid
amount and in this background, the Hon'ble High Court of
Gauhati was of the view that the alleged act committed by the
accused was reasonably linked with her official responsibilities
and sanction was considered to be necessary. The said case was
filed against the judgment of acquittal. In the aforesaid
background, the High Court of Gauhati sustained the order of
acquittal not only on merits, but also on account of absence of
sanction for prosecution.
30. The other judgement relied upon by the petitioner is
judgment reported in 1997 0 Supreme (All) 1136 (State of Uttar
Pradesh Vs. Amin Beg) whereby again the judgment of acquittal
was under challenge. In the said case also, arguments were
advanced that there was no prosecution sanction. There were
omissions in making entries in the postal ledger and an
inference was sought to be drawn that the amount was
misappropriated by the accused, but when and how the said
mis-appropriation was made, was not clear from the records of
the case and in the post office, and neither the investigating
officer of the case nor the Post Master was examined as a
witness. In the said case considering the facts of the matter, it
was found that there was direct connection between the act of
receiving money and of account for the same in the postal
ledger in discharge of official duty by the accused. In the facts
of the case, it was held that the sanction of the competent
authority for prosecution of the accused was necessary and
accordingly, the judgment of acquittal was sustained. This
Court finds that so far as principle of law is concerned, the said
judgment clearly laid down that there must be reasonable
connection between the act and the discharge of the official
duty and the act must bear such relation to the duty that the
accused could lay a reasonable but not a pretended or fanciful
claim that he did the act in course of performance of his official
duty. The judgement passed by Hon'ble Supreme court in the
case of "Shambhoo Nath Misra vs. State of U.P. and others"
reported in AIR 1997 SC 2102 was also considered but in the
facts of the case it was held that the sanction for prosecution
was required and the judgement of acquittal was sustained.
31. In the judgment passed by the Hon'ble Supreme Court
reported in AIR 1997 SC 2102 (Shambhoo Nath Misra vs. State
of U.P. and others), the complaint was dismissed on account of
absence of sanction and the said order of the Magistrate
dismissing the complaint was upheld by the High Court and
was the subject-matter of consideration by the Hon'ble
Supreme Court.
In the aforesaid background, the Hon'ble Supreme Court
considered the scope of requirement of sanction under Section
197(1) of Cr.P.C. and held that the essential requirement
postulated for sanction to prosecute the public servant is that
the offence alleged against the public servant must have been
done while acting or purporting to act in the discharge of his
official duties and it postulates that the public servant's act
should be in furtherance of his performance of his official
duties. If the act/omission is integral to performance of public
duty, the public servant is entitled to the protection under
Section 197(1) of Cr.P.C. It has also been held that the
protection of sanction is an assurance to an honest and sincere
officer to perform his public duty honestly and to the best of his
ability and the performance of public duty under the colour of
public duty cannot be camouflaged to commit crime. It was
held that it is not the official duty of a public servant to
fabricate the records and misappropriate the public fund etc. in
furtherance of or in the discharge of his official duties and
fabrication of official record or misappropriation of public fund
is not integrally connected or inseparably interlinked with the
crime committed in the course of same transaction and in this
background, the Hon'ble Supreme Court set-aside the order of
Magistrate dismissing the complaint and restored the same.
32. In another judgment passed by the Hon'ble Supreme
Court in the case of "Prakash Singh Badal and Another Vs.
State of Punjab and Others" reported in (2007) 1 SCC 1, it has
been held that the offence of cheating under Section 420 of
Indian Penal Code or for that matter offences relatable to
Sections 467, 468, 471 and 120(B) of IPC 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 and in such cases, official status
only provides an opportunity for commission of offence and
accordingly, sanction for prosecution of the competent
authority is not required.
33. In the instant case the judgments relied upon by the
learned counsel for the petitioner do not apply to the facts and
circumstances of this case as fabricate the records and
misappropriate the public fund etc. can never be said to be in
furtherance of or in the discharge of his official duties. Such acts
and omissions as alleged and proved in the instant case do not
form a part of or linked to the official duty of the petitioner
particularly when it has been, inter alia, proved that the
petitioner along with the co-accused collected money for
issuance of Kishan Vikash Patra and National Saving
Certificate, although, the concerned Post Office was not entitled
to issue the same at all. In the instant case official status only
provided an opportunity for commission of offence.
Accordingly, this court is of the considered view that there was
no requirement of sanction for prosecution in the instant case.
34. So far as the sentence is concerned, this court is of the
considered view that though 23 years have elapsed from the
institution of the case but the manner in which the offence has
been committed, the petitioner does not deserve any sympathy
of this court calling for any modification of sentence. The
sentences awarded by the learned courts below are appropriate
and adequate.
35. From the records of this case, it appears that there was a
co-convict in the instant case, but he has not joined the
petitioner in the present case and the case, if any, filed by the
co-convict could not be traced by this Court. The learned court
below is directed to proceed in connection with the co-convict
of the case also in accordance with law.
36. This Court finds that there are concurrent findings
recorded by the learned courts below after scrutinizing the
materials on record both oral and documentary adduced on
behalf of the petitioner as well as the prosecution and there
being no material irregularity or perversity in the impugned
judgements, no interference is called for in revisional
jurisdiction of this Court.
37. As a cumulative effect of the aforesaid findings, the
present revision petition is devoid of any merits, hence rejected.
38. Bail bonds furnished by the petitioner are hereby
cancelled.
39. Let the Lower Court Records be immediately sent back to
the court concerned.
40. Pending interlocutory application, if any, is closed.
41. Let a copy of this Judgement be communicated to the
learned court below through 'FAX/E-mail'.
(Anubha Rawat Choudhary, J.)
Pankaj/Saurav
