Piush Kumar Gupta Son Of Kailash ... vs State Of Jharkhand
2022 Latest Caselaw 1643 Jhar

                IN THE HIGH COURT OF JHARKHAND AT RANCHI
                              Cr.M.P. No. 1056 of 2011
        Piush Kumar Gupta son of Kailash Nath Gupta, currently residing at:
        E-1069, Saraswati Vihar, P.O. & P.S.- Saraswati Vihar, Delhi 110
        034, described in the First Information Report as Divisional Signal
        Telecom Engineer, South Eastern Railway, Bandamunda, P.O. P.S.-
        Bandamunda, Dist.- Sundargarh (Orissa)      ...     ...    Petitioner
                                 -Versus-
        1.    State of Jharkhand
        2.    Mani Ban Singh, wife of Late Bhimaram, resident of Village-
              Silphori, Post Office and Police Station: Chakradharpur,
              District West Singhbhum
                                                    ... ... Opp. Parties
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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For the Petitioner : Mr. Ajit Kumar, Senior Advocate Mr. Nipun Bakshi, Advocate For the Opp. Parties : Mr. Veervijay Pradhan, Advocate

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18/25.04.2022 Heard Mr. Ajit Kumar, learned Senior counsel appearing on behalf of the petitioner along with Mr. Nipun Bakshi, Advocate.

2. Heard Mr. Veer Vijay Pradhan, learned counsel appearing on behalf of the opposite party-State.

Arguments on behalf of the petitioner

3. Learned counsel for the petitioner has submitted that the entire criminal proceedings including the order taking cognizance dated 16.09.2011 as against the petitioner for alleged offence under Sections 417, 418, 419, 420, 465, 466, 468/34 of Indian Penal Code is under challenge in the present criminal writ petition. He submits that the case arises out of complaint case which was sent for investigation by the police. Initially charge sheet was submitted and the cognizance was taken vide order dated 01.04.2004 against only two persons and the investigation was kept pending against the petitioner though the petitioner was named accused in the complaint. He submits that upon further investigation, the police submitted supplementary charge-sheet and in the supplementary case diary, there is no material against the petitioner. He has referred to the case-diary to submit that the first charge-sheet was submitted in the year 2004 and further investigation was taken up on 25.08.2010. The learned counsel has further submitted that since the charge-sheet was not submitted against the petitioner initially, it indicates that there was no material against the

petitioner and in the supplementary case-diary, no further material has been collected to charge-sheet the petitioner. The learned counsel submits that the supplementary charge-sheet was submitted in the year 2011 after recording the statement of the petitioner and thereafter, cognizance was taken against the petitioner under the aforesaid sections.

4. The learned counsel for the petitioner further submits that at the relevant point of time, the petitioner was posted as Assistant Signal and Telecom Engineer from 07.01.1991. Prior to his joining, one Bhima Ram died in harness and in the year 1994, the office of the Signal Inspector A.K. Banerjee received an application from Suraj Ban Singh claiming to be son of Bhima Ram and he claimed pensionary and other dues. The learned counsel submits that after necessary verification, on the basis of the documents produced by Suraj Ban Singh, the file was forwarded to the petitioner for sending it to Divisional Office, Chakradharpur for release of post-death benefits and consequently, it was sanctioned by Mr. G.N. Saha, the Assistant Personnel Officer, S.E. Railway, Chakradharpur.

5. The learned counsel for the petitioner has also referred to the Railway Pension Rules and Manual of 1950 paragraphs 1030 to 1040 and submits that as per Rule 1030, the pensionary benefit on death of railway servant can be issued inter-alia on the basis of death report signed by Sarpanch or the head of the village panchayat. He submits that the co-accused namely, Suraj Ban Singh had produced a certificate/death report from Rameshwar Pradhan-accused no.2- the sarpanch and another certificate was also issued by Rameshwar Pradhan- the sarpanch that Suraj Ban Singh is the son and sole legal heir of Bhima Ram. The learned counsel submits that these documents were initially produced before A.K. Banerjee i.e. the Signal Inspector who forwarded the same to the petitioner and the petitioner forwarded the same to the higher authorities for doing the needful. Thereafter, the said Suraj Ban Singh enjoyed the post death benefits of Bhima Ram. In the year 1998, the wife of the deceased Bhima Ram filed a complaint case being C/1 Case No. 17 of 1999 alleging that the entire death benefits were disbursed in the name of Suraj Ban Singh on the basis of the certificates issued by Sarpanch Rameshwar Pradhan-

accused no. 2 and produced by Suraj Ban Singh-accused no.1, although Suraj Ban Singh is not her son. The learned counsel for the petitioner has submitted that during the course of investigation, it has come that Suraj Ban Singh is a close relative of the Informant. The learned counsel submits that the petitioner had acted as per the documents which were produced by the accused no.1 and prepared by the accused no.2 and there is no material as against the petitioner to have been in conspiracy or in common intention with accused no.1 or accused no.2. The learned counsel submits that the entire alleged action of the petitioner is strictly in discharge of his official duty which is manifest from the materials collected during investigation, but the learned court below, while taking cognizance of offence against the petitioner, has not considered this aspect of the matter and has mechanically taken cognizance without there being any sanction for prosecution in terms of Section 197 of the Cr.P.C.

6. The learned counsel for the petitioner has also submitted that the sanction for prosecution under Section 197 of Cr.P.C. was essentially required in view of the nature of allegations and the materials collected against the petitioner during the course of investigation. He submits that even if the best case of the prosecution is taken, it could be a case of negligence in duty, but no criminality as such is found upon perusal of the entire materials on record. The learned counsel submits that the order taking cognizance does not reflect application of mind on this aspect of the matter and in absence of prior sanction under Section 197 of Cr.P.C., the order taking cognizance itself is bad in law.

7. The learned counsel for the petitioner has referred to the following judgments:

(i) Judgment reported in (1980) SCC OnLine Pat 132 [Resham Lal Yadav & Others -vs- The State of Bihar], Para- 4, 5, 6 and 8, to submit that if the person is not charge-sheeted initially, then there has to be some material in further investigation to file supplementary charge-sheet against the accused.

(ii) Judgment reported in (2019) 11 SCC 706 [Anand Kumar Mohatta and Another -vs- State (NCT of Delhi), Department of Home and Another], Para-16, 21, 29 & 30, to submit that if

there is no material against the petitioner to criminally prosecute the petitioner, then the criminal proceedings can be quashed at any stage as furtherance of criminal proceedings would by itself be an abuse of process of law.

(iii) Judgment reported in (2007) 15 SCC 494 [Harishchandra Prasad Mani & Others -vs- State of Jharkhand & Another], Para-12, 13 & 14, to submit that there has to be some material to criminally connect the petitioner with the alleged offence and in absence of such material, the order taking cognizance cannot be sustained in the eyes of law.

(iv) Judgment reported in (1998) 5 SCC 749 [Pepsi Foods Ltd. and Another -vs- Special Judicial Magistrate & Others], Para-22, 26, 28, 29 & 30, to submit that issuance of summon is not a mechanical exercise, rather it calls for application of mind and therefore, the order taking cognizance in the present case is not sustainable.

(v) Judgment reported in (2020) 7 SCC 695 [D. Devaraja -vs-

Owais Sabeer Hussain], Para-29, 30, 31, 32, 33, 66, 68, 69, 70, 74 & 75, to submit that when the allegation is in relation to discharge of official duty, then prior sanction is necessary.

(vi) Judgment reported in (2021) 8 SCC 768 [Indra Devi -vs- State of Rajasthan and Another] to submit that it has been held in Para-10 of the said judgement that the indulgence of an officer in cheating, fabrication of records or misappropriation cannot be said to be in discharge of official duty. However, sanction is necessary, if the offence alleged against the public servant is committed by the accused while acting or purporting to act in the discharge of his official duty and in order to find out whether the alleged offence is committed while acting or purporting to act in the discharge of his official duty, the yardstick to be followed is to form a prima facie view whether the act of omission for which the accused was charged has a reasonable connection with discharge of his official duty. The real question, therefore, is whether the act committed is directly concerned with the official duty.

(vii) Judgment reported in (2022) SCC OnLine SC 167 [Shafiya Khan alias Shakuntala Prajapati -vs- State of U.P. and Another] to submit that the principles of quashing of criminal proceedings laid down in Para-102 of the judgement passed by the Hon'ble Supreme Court in the case of "State of Haryana Vs. Bhajan Lal [1992 Supp (1) SCC 335]" has been elaborately considered in the said judgement.

(viii) Judgment reported in (2022) SCC OnLine SC 82 [Mustt Rehana Begum -vs- State of Assam & Another] to submit that where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge, then under such circumstances also, the criminal proceedings cannot proceed.

Arguments of the Opposite Party- State

8. The learned counsel appearing on behalf of the Opposite Party- State, on the other hand, though has opposed the prayer, but during the course of argument, when a specific question was put to him with regard to any material to connect the petitioner with the other co- accused with the aid of Section 120-B of Indian Penal Code or Section 34 of Indian Penal Code, he submitted that there is no such material in the entire case-diary to connect the petitioner to the other accused of the present case. During the course of argument, it is further not in dispute from the side of the opposite party -state that no role has been attributed to the petitioner for the purposes of preparing the certificates which were prepared by accused no.2 at the instance of accused no.1 and was produced before the authorities for the purposes of claiming post-death benefits of deceased Bhima Ram in favour of accused no.1.

9. The learned counsel for the opposite party has however submitted that the petitioner has been reckless in forwarding the documents which were produced by accused nos.1 and 2 and has not made any further enquiry in connection with the actual legal heirs of Bhima Ram and he submits that this is the sum and substance of the allegations levelled against the petitioner. He has referred to Para-46 of the case-diary to refer to the various seized documents and submits that the heirship certificate issued by accused no.2, was endorsed by

the petitioner as well as Assistant Personnel Officer. The learned counsel submits that the sanction for prosecution under Section 197 of Cr.P.C. can come at any stage and therefore, the entire criminal proceedings against the petitioner may not be quashed. However, it is not in dispute that no step for obtaining sanction for prosecution from appropriate authority under Section 197 of Cr.P.C. has been taken by the prosecution.

10. The learned counsel for the opposite party has also submitted that though not admitting, but even assuming that this Court quashes the proceedings against the petitioner for want of sanction for prosecution, then the right to take sanction for prosecution and proceed against the petitioner, should be reserved with the prosecution as admittedly in the present case, the records have not been sent to the competent authority for grant of sanction for prosecution.

11. However, from the detailed counter affidavit filed by the State reference has been made to the materials collected during investigation including the statement of the complainant and other witnesses who have supported the prosecution case and the case diary as well as supplementary case diary has also been produced for consideration by this court. It is not in dispute that the petitioner is one of the named accused in the complaint which was sent for investigation by the police.

Findings of this Court

12. After hearing the learned counsel for the parties and considering the facts and circumstances of the case, this Court finds from the records that one Bhima Ram, Trolley-man working under the direct control and supervision of Signal Inspector, South Eastern Railways, Bandamunda died in harness on 07.07.1990. The petitioner claims to have joined service on the post of Assistant Signal and Telecom Engineer in Indian Railways on 07.01.1991. The office of Signal Inspector A.K. Banerjee received application from Suraj Ban Singh in the year 1994 claiming pensionary benefits, provident fund and other dues projecting himself to be the son and sole legal heir of the deceased employee. Thereafter, the file was prepared and upon necessary verification and certification, it was sent to the Divisional

Office, Chakradharpur for release of post death benefits. At this stage, the file had moved through the petitioner and it is alleged that the petitioner did the required attestation, verification and recommendation. Consequently, the pensionary benefits were sanctioned after satisfaction and appraisal of all documents and certificates by G.N. Saha, Assistant Personal Officer. It is alleged that Suraj Ban Singh, the co-accused had produced certificate/death report from one Rameshwar Pradhan (accused no.2), the Sarpanch who had issued certificate that Suraj Ban Singh was the son and sole legal heir of Bhima Ram. The petitioner claims to have been transferred in the year 1995. Thereafter, in the year 1998, the Complainant-wife of Bhima Ram namely, Mani Ban Singh filed a complaint which was registered as C/1 Case No.17/1999 in the court of Sub-Divisional Judicial Magistrate, Porhat, Chaibasa which was sent for investigation under Section 156(3) of Cr.P.C. and registered as Chakradharpur P.S. Case No.57/2001 dated 16.06.2001 for alleged offence under Sections 417, 418, 419, 420, 465, 466, 467, 468, 120B of Indian Penal Code. The Charge sheet No.9/2004 dated 18.02.2004 was submitted on 20.02.2004 against accused nos.1 and 2 only and the investigation was continued against the petitioner- accused no.3 as well as accused nos.4 and 5. The learned court below took cognizance of offence only with respect to accused nos.1 and 2 vide order dated 01.04.2004 and directed to open a separate record for other accused persons including the petitioner and to submit report after completion of investigation against railway officers. The counter affidavit filed by the opposite party state reveals that after much efforts the petitioner could be traced and on 30.08.2011, a supplementary charge sheet no.136/2011 was submitted against the petitioner and Gopi Nath Saha, but Mr. A.K. Banerjee who had processed the file was not charge-sheeted and it appears that the statement of the co-accused Mr. A.K. Banerjee could not be recorded by the police as the police could not get hold of Mr. A.K. Banerjee. Thereafter, the learned Sub-Divisional Judicial Magistrate, Porhat, Chaibasa directed for issuance of process against the petitioner referring to the earlier order taking cognizance dated 01.04.2004.

On the point of materials on record for the purposes of cognizance of offence.

13. Upon perusal of the complaint petition which was sent for investigation, it is apparent that the same was instituted in the year 1999 and the petitioner is a named accused. The Complainant stated that upon death of her husband, she made several visits to the office of the Divisional Railway Magistrate, South Eastern Railway, Chakradharpur and to the office of her deceased husband at Bandamunda for settlement and payment of the dues, but she did not get any response. In the month of December, 1998, when she approached the Signal Inspector's office at South Eastern Railway, Bandamunda, she was informed that the dues have been paid to accused no.1. It has been alleged in Para-8 of the complaint that all the accused persons conspired together and prepared and used the forged documents knowing the same to be forged for settlement and release of the dues of her husband from Railways in favour of accused no.1 and thereby they cheated the complainant and the railways. It has been alleged in Para-9 of the complaint that on submission of fake, fabricated and forged documents, accused nos.1 and 2 in collusion with accused nos.3 to 5 succeeded in getting payment of the settlement dues of the husband of the complainant through saving bank account. Amongst the list of forged documents, she has mentioned about the death certificate of the complainant's husband and also mentioned pension papers framed and prepared on the basis of said forged documents and endorsed and attested by accused nos.3 to 5 which includes the petitioner. It was also alleged that on the one hand, the father of accused no.1 was alive and, on the other hand, the complainant i.e. wife of the deceased Bhima Ram was shown in the said certificate as dead though she was very much alive. Late Bhima Ram and the complainant had two sons and the accused no.1 is not the son of Late Bhima Ram. It was also clearly alleged in the complaint that in absence of nomination and in the event of death and retirement of railway employee, the amount is disbursed either on the basis of succession certificate or heirship certificate granted by the court of law, but in the instant case, settlement dues and other money of Late Bhima Ram was disposed of in haste without production of succession

certificate or heirship certificate granted by court and it was alleged that the other accused persons including the petitioner had shown haste in the disposal of the matter and there was malafide intention in their tainted endorsement, recommendation and attestation of the forged documents prepared by accused nos.1 and 2. It has been alleged that all the accused persons acted in collusion and connivance while depriving the complainant from payment of the settlement dues of her deceased husband. The detail of the payments received by the accused no.1 have also been mentioned in the complaint which is alleged to have happened because of malafide endorsement, recommendation and attestation on the forged documents prepared by the accused no.2 and produced by the accused no.1.

14. During investigation, the complainant has fully supported the allegations made, inter alia, against the petitioner, who is a named accused. Further, a number of witnesses have supported the prosecution case during investigation. A detailed counter affidavit has been filed on 01.03.2021 regarding the materials collected during investigation which prima-facie shows the involvement of the petitioner in the alleged offence. The materials pointed out in the detailed counter affidavit filed on 01.03.2021 in the present case and its rejoinder have not been referred to during the course of arguments by the parties. However, there is no scope of detailed consideration of the materials collected during investigation at the stage of taking cognizance and at this stage it has to be seen if prima-facie case is made out against the petitioner.

15. Considering the nature of allegation levelled against the petitioner, who is a named accused in the complaint sent for investigation by police, read with the statement of prosecution witnesses during investigation including the complainant, this Court finds that there are enough materials against the petitioner for the purposes of taking cognizance of the offence, interalia, against the petitioner. Upon perusal of the case diary, it is apparent that the petitioner is alleged to have endorsed, recommended and attested the fabricated documents prepared for commission of the alleged offence and the petitioner had an active role in the matter of endorsement, recommendation and attestation of the fabricated documents relating

to death of the complainant, though she was alive and the certificate that accused no.1 was the only son of the deceased Bhima Ram and on the basis of which, huge amount was disbursed to the accused no.1.

16. It has been held by the Hon'ble supreme court in the Judgement reported in (2022) SCC OnLine SC 167 [Shafiya Khan alias Shakuntala Prajapati -vs- State of U.P. and Another] (supra) that although it is true that it is not open for the court to embark upon an enquiry as to the reliability or genuineness of the allegations made in the FIR , but at least there has to be some factual supporting material for what has been alleged in the FIR and in absence of such material the entire criminal proceedings was quashed. The said judgement does not apply to the facts and circumstances of this case as in the present case, there is not only allegations in the FIR but enough material has been collected during investigation alleging the aforesaid role of the petitioner which led to release of post death benefits of the deceased employee of Railways to the co-accused. For the same reasons, the Judgment reported in (2022) SCC OnLine SC 82 [Mustt Rehana Begum -vs- State of Assam & Another] (supra) also does not apply under the aforesaid facts and circumstances of this case as there are materials on record which can be converted into legal evidence against the petitioner and accordingly, prima-facie case for the alleged offence is made out against the petitioner calling for no interference in the order taking cognizance. This court also finds that there is no allegation of any malice against the petitioner from the side of the prosecution and at this stage it cannot be said that the criminal proceedings is an abuse of process of law calling for any interference. Considering the aforesaid alleged role of the petitioner in the matter of release of post death benefits to a third person other than the wife of the deceased employee, the petitioner is an important link and prima- facie case constituting the alleged offence is made out against the petitioner and accordingly, no case for interference is made out. In the aforesaid circumstances, the judgements relied upon by the petitioner reported in (2019) 11 SCC 706 [Anand Kumar Mohatta and Another

-vs- State (NCT of Delhi), Department of Home and Another], (2007) 15 SCC 494 [Harishchandra Prasad Mani & Others -vs- State of Jharkhand & Another] and (1998) 5 SCC 749 [Pepsi Foods

Ltd. and Another -vs- Special Judicial Magistrate & Others], do not apply to the facts and circumstances of this case and do not help the petitioner in any manner at this stage.

17. So far as the arguments of the petitioner that only the materials arising out of supplementary investigation are required to be considered against the petitioner as the petitioner, though named in the FIR but was not charge sheeted in the first charge sheet is concerned, the same is devoid of any merits. This court is of the considered view that merely because in the initial charge sheet the petitioner was not charge sheeted and made an accused, the same does not mean that there were no materials against the petitioner and only the investigation subsequent to the initial charge sheet is to be looked into for the purposes of considering the materials against the petitioner. The Hon'ble Supreme Court in the case of "Luckose Zachariah @ Zak Appellants Nedumchira Luke and Others -vs- Joseph Joseph and Others" decided on 18.02.2022 in Criminal Appeal No 256 of 2022 reported in 2022 LiveLaw (SC) 230 at Para-16 has held as follows:

"16. In view of the clear position of law which has been enunciated in the judgments of this Court, both in Vinay Tyagi (supra) and Vinubhai Haribhai Malaviya (supra), it is necessary for the Magistrate, to have due regard to both the reports, the initial report which was submitted under Section 173(2) as well as the supplementary report which was submitted after further investigation in terms of Section 173(8). It is thereafter that the Magistrate would have to take a considered view in accordance with law as to whether there is ground for presuming that the persons named as accused have committed an offence. ........."

In view of the aforesaid judicial pronouncement the Judgment reported in (1980) SCC OnLine Pat 132 (Resham Lal Yadav & Others -vs- The State of Bihar) relied upon on behalf of the petitioner does not help the petitioner in any manner what so ever. In the present case, upon further investigation statement of the petitioner was recorded and thereafter the petitioner was charge-sheeted in the supplementary chargesheet. There are sufficient materials against the petitioner upon conjoint reading of the material collected at the stage of initial investigation and supplementary investigation.

18. It is also the case of the petitioner that there is no specific allegation made against the petitioner in the complaint except alleging that he acted in haste and without succession certificate as mentioned in Para- 12 and 13 of the complaint which is a part of the F.I.R. It has been vehemently argued by the learned counsel for the petitioner by referring to the Railway Rules by stating that it did not prescribe that the succession certificate should be obtained for release of post death benefits and it has also been submitted by the petitioner that the payment to the accused no.1 was made through bank account after following the Railway Rules in the year 1994 i.e., after expiry of 4 years from the death of Bhima Ram and consequently, it has been submitted that it cannot be said that the petitioner acted in haste and the allegation made against the petitioner is completely baseless.

19. It has also been submitted that no specific overt act has been attributed to the petitioner and the allegation is cryptic and general and that the case diary and supplementary case diary do not record any statement which can disclose involvement of the petitioner with the main accused persons namely, Suraj Bansingh (the imposter) and Rameshwar Pradhan (the Sarpanch) who issued the certificate/death report. Further case of the petitioner is that the supplementary case diary does not contain any new material showing any complicity of the petitioner and the supplementary charge sheet drops all allegations against A.K. Banerjee while pinning the blame on the other two railway officials without recording any reason for making such distinction.

20. Learned counsel for the petitioner has heavily relied upon Page No. 69 of the brief dealing with the relevant Rules of the Railway Pension Rules in connection with pensionary benefits payable on death of railway servant from Para- 1029 to 1041. The relevant provisions mentioned in Para- 1029, 1038, 1039 and 1041 are quoted as under:-

"1029. Ordinary gratuity/pension is not payable in respect of a Railway servant who dies while still in service.

1038. In the case of Railway servants governed by the family pension scheme for Railway employees, 1964, the following action shall be taken in regard to sanctioning of the family pension:

I. Cases where death occurs while in service. (a) On receiving information of death of a Railway servant while in service, the administrative authority will send a letter in Form No. 18 to the family of the deceased and ask for the necessary documents mentioned therein.

(b) On receiving the application in Form No. 19 with the documents referred to in sub-para (a) above the pension sanctioning authority shall sanction family pension in Form No. 20 and send all these documents along with the Service Book of the Railway servant to the Accounts Officer concerned who will then issue the necessary authority to the Accountant General for issue of Pension Payment Order to the beneficiary.

II. Cases where death occurs after retirement.-Where the family pension is payable to the widow/widower, the Treasury Officer will start paying the family pension as mentioned in the Pension Payment Order vide para 1026 (v), on receipt of the death certificate of the pensioner and the application for the grant of family pension to her/him, under intimation to the Accounts Officer concerned.

If the widow/widower is not there and the family pension is payable to minor children through their natural/legal guardian, the guardian will apply on behalf of the children with two copies of his photograph and the other necessary documents to the administrative authorities on surrendering the first Pension Payment Order. The administrative authorities, after certifying the admissibility of the family pension vide Para 801, shall pass on the papers to the Accounts Officer who will issue a fresh authority to the Accountant General for issue of the necessary Pension Payment Order for family pension.

Check on eligibility of the applicant 1039. (i) When the application for family pension under Para 803 is submitted by a person other than a nominee, the head of the Office/Department should examine the eligibility of the person to receive the benefit claimed.

(ii) If an application for a family pension is received from a person referred to in Para 806, the Head of the Office/Department shall make such enquiries as may be necessary to ascertain that the family pension is not payable to any other person mentioned in that para. If the application is from a person mentioned in sub-para (ii) of Para 806, the Head of the Office/Department should satisfy himself, after making such enquiries as may be necessary, that the applicant was dependent on the Railway servant/pensioner for support.

1041. When any documents in Indian languages are submitted, they must be accompanied by translation in English which should be duly attested by the Head of the Office/Department submitting the application."

21. This Court prima facie finds that Para-1029 clearly provides that the procedure outlined in para 1031 to 1041 should be followed on receipt of death report and the death report can inter alia be signed by a sarpanch or the head of the village panchayat as the case may be.

As per the aforesaid paragraph-1038, certain essential steps are required to be taken upon death of a person which occurs while in service and one of the steps is that the administrative authority is required to send a letter in Form 18 to the family of the deceased and ask for necessary documents mentioned therein. Further, there is a proper procedure to check on the eligibility of the applicant as per para 1039 read with para 1041.

22. Thus, this Court is of the prima facie view at this stage that the authorities are not to act mechanically merely on the basis of a certificate of death issued by the village headman or sarpanch and enough precaution has been taken in the rule itself that necessary letter in Form 18 is required to be sent to the family of the deceased asking for necessary documents mentioned therein. At the stage of order taking cognizance, there is no scope for appreciating the aforesaid rules and coming to a conclusion that the petitioner has acted as per the rules and the same is essentially a matter of trial. The aforesaid discussion has been made only to deal with the contention of the petitioner that the petitioner had no role to play and that the petitioner had acted on the basis of certificate issued by the accused no.1.

23. In view of the aforesaid, this court is of the considered view that there are enough materials on record to sustain the impugned order taking cognizance at this stage and there is no scope to appreciate the defence version of the petitioner that he has acted as per rules/norms of Railway while dealing with the case of disbursal of post death benefits of the husband of the complainant/informant. On the point of sanction for prosecution under Section 197 of Cr.P.C.

24. The specific case of the petitioner is that the cognizance was taken without required sanction under Section 197 Cr.P.C even though the allegation in the complaint and the material collected during investigation conclusively established that the petitioner was acting in his official capacity and that the forwarding of the pension claim was an official act.

25. So far as the question of sanction for prosecution under section 197 Cr.P.C. is concerned, it would be important to consider some of the judicial pronouncements by Hon'ble the Supreme Court.

26. In the case of "Prakash Singh Badal and Another -versus- State of Punjab and Others" reported in (2007) 1 SCC 1 it has clearly held at Para-50 that the offence of cheating under Section 420 IPC or for that matter offence relatable 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.

27. In the case of Shambhoo Nath Misra v. State of U.P. reported in (1997) 5 SCC 326 it has been held 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."

28. In the judgment reported in (2020) 2 SCC 153 (Station House Officer versus B.A. Srinivasan) 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 at times 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 and 15 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. .......

15. It has also been observed by this Court that, at times, the issue whether the alleged act is intricately connected with the discharge of official functions and whether the matter would come within the expression "while acting or purporting to act in discharge of their official duty", would get crystallised only after evidence is led and the issue of sanction can be agitated at a later stage as well. In P.K. Pradhan v. State of Sikkim, this Court stated: (SCC pp. 712- 13, para 15) "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 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; maybe 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 a 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."

(emphasis supplied)"

29. In the Judgment heavily relied upon by the learned counsel for the petitioner reported in (2020) 7 SCC 695 [D. Devaraja -vs- Owais Sabeer Hussain] the allegation was relating to police excesses at the hand of the appellant, a police officer of the rank of Deputy Superintendent of Police, while the complainant was in police custody and cognizance was taken on the complaint without obtaining sanction for prosecution under section 197 Cr.P.C. read with section 170 of Karnataka Police Act, 1963. It has been held that the alleged police excesses were connected with discharge of official duty of investigation of a recorded criminal case and the alleged act was certainly under the colour of duty, no matter how illegal the act may be. It has been held in para 69, 70 and 71 of the report as under: -

"69. The language and tenor of Section 197 of the Code of Criminal Procedure and Section 170 of the Karnataka Police Act makes it absolutely clear that sanction is required not only for acts done in discharge of official duty, it is also required for an act purported to be done in discharge of official duty and/or act done under colour of or in excess of such duty or authority.

70. To decide whether sanction is necessary, the test is whether the act is totally unconnected with official duty or whether there is a reasonable connection with the official duty. In the case of an act of a policeman or any other public servant unconnected with the official duty there can be no question of sanction. However, if the act alleged against a policeman is reasonably connected with discharge of his official duty, it does not matter if the policeman has exceeded the scope of his powers and/or acted beyond the four corners of law.

71. If the act alleged in a complaint purported to be filed against the policeman is reasonably connected to discharge of some official duty, cognizance thereof cannot be taken unless requisite sanction of the appropriate Government is obtained under Section 197 of the Code of Criminal Procedure and/or Section 170 of the Karnataka Police Act."

30. In the said judgement of D. Devaraja (supra) it has been observed at para 72 that there are diverse decisions of the Hon'ble Supreme Court on the question of the stage at which the trial court has

to examine whether sanction has been obtained and if not whether the criminal proceedings should be nipped in the bud. In para 73 and 74 it has been held as under: -

"73. While this Court has, in D.T. Virupakshappa held that the High Court had erred in not setting aside an order of the trial court taking cognizance of a complaint, in exercise of the power under Section 482 of the Criminal Procedure Code, in Matajog Dobey this Court held that it is not always necessary that the need for sanction under Section 197 is to be considered as soon as the complaint is lodged and on the allegations contained therein. The complainant may not disclose that the act constituting the offence was done or purported to be done in the discharge of official duty and/or under colour of duty. However, the facts subsequently coming to light in course of the trial or upon police or judicial enquiry may establish the necessity for sanction. Thus, whether sanction is necessary or not may have to be determined at any stage of the proceedings.

74. It is well settled that an application under Section 482 of the Criminal Procedure Code is maintainable to quash proceedings which are ex facie bad for want of sanction, frivolous or in abuse of process of court. If, on the face of the complaint, the act alleged appears to have a reasonable relationship with official duty, where the criminal proceeding is apparently prompted by mala fides and instituted with ulterior motive, power under Section 482 of the Criminal Procedure Code would have to be exercised to quash the proceedings, to prevent abuse of process of court."

31. In the facts of the present case, it cannot be said at this stage of cognizance that the criminal proceedings are ex-facie bad for want of sanction, frivolous or in abuse of process of court. At this stage, it is suffice to say that the petitioner has used his official position in connection with commission of the alleged offence and on the face of the allegations and materials collected during investigation it cannot be said that alleged endorsement, recommendation and attestation on the fabricated documents as mentioned above was in discharge of official duty or such alleged illegal acts of the petitioner have a reasonable relationship with official duty. In the circumstances of the present case, at this stage, the ratio of the judgement passed in the case of Prakash Singh Badal (supra) as well as the judgement passed in the case reported in (2020) 2 SCC 153 (Station House Officer versus

B.A. Srinivasan) (supra) as quoted above, is fully applicable. So far as the point of the petitioner that he had acted in terms of the guidelines of the Railways is concerned, it is essentially a matter of defence which cannot be appreciated at this stage of cognizance. The requirement of sanction or otherwise, in the facts and circumstances of this case will also depend upon the evidence to be produced and considered before the learned court below at appropriate stage and it is for the learned court below to consider the materials and figure out as to whether the petitioner can be proceeded without sanction for prosecution under Section 197 Cr.P.C. The points argued by the petitioner cannot be appreciated at this stage and it is suffice to say that there is sufficient material against the petitioner for taking cognizance of the offence.

32. The present case is related to cheating, cheating by impersonation, misappropriation, forgery and forgery for the purpose of cheating in furtherance of common intention where the petitioner had role to play in the matter of endorsement, recommendation and attestation on the alleged fabricated documents relating to certifying the death of the complainant, though she was alive and further certifying that the accused no.1 was the only son of the deceased employee of Railways namely, Bhima Ram, on the basis of which, the pension papers were prepared, endorsed, attested and recommended by the accused persons including the petitioner resulting in payment to the accused no.1 and consequently, complainant was deprived from getting payment of the settlement dues of her deceased husband. Considering the judgement passed by the Hon'ble supreme court in the case of Prakash Singh Badal (supra) when seen in the light of the allegations levelled against the petitioner, prime-facie at this stage it cannot be said that the alleged acts of recommendation, attestation, endorsement of fabricated documents by the petitioner were in discharge of his official duty. Accordingly, the judgment reported in (2021) 8 SCC 768 [Indra Devi -vs- State of Rajasthan and Another] on the point of sanction for prosecution does not help the petitioner in any manner whatsoever at this stage.

33. Consequently, the contention that the cognizance of the offence is bad in law on account of want of sanction for prosecution in terms

of Section 197 of the Cr.P.C. is devoid of any merits and the point regarding want of sanction for prosecution is required to be considered by the learned court below at appropriate stage and it is for the prosecution to place the records before the competent authority for considering the matter regarding sanction for prosecution. It is pre- mature at this stage considering the facts and circumstances of this case to contend that the order taking cognizance is bad in law for want of sanction for prosecution.

34. 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. Considering the findings with regards to the above two points at this stage of the case, this criminal miscellaneous petition challenging the entire criminal proceedings including order taking cognizance as against the petitioner, is hereby dismissed.

35. However, dismissal of this petition will not prejudice the case of the petitioner before the learned court below and it will be open to the petitioner to raise all points before the learned court below at appropriate stage.

36. Interim order, if any, stands vacated.

37. Pending interlocutory application, if any, is closed.

38. Let this order be communicated to the court concerned through 'FAX/e-mail'.

(Anubha Rawat Choudhary, J.) Pankaj/Saurav