Jharkhand High Court
Anil Kumar Aged About 59 Years Son Of Late ... vs The State Of Jharkhand ... Opposite ... on 15 April, 2025
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
(2025:JHHC:11323)
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No.3476 of 2023
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Anil Kumar aged about 59 years son of Late Rajendra Prasad,
Resident of D2/4, Imli Tola P.O- Imli Tola, P.S.- Imli Tola, District-
Sahibganj, (Jharkhand) ... Petitioner
Versus
The State of Jharkhand ... Opposite Party
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For the Petitioner : Mr. Shyam Sunder Pd. Kushwaha, Advocate
For the State : Mr. Manoj Kumar, GA III
Mr. Deepankar, AC to GA III
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PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
By the Court:- I.A. No.2775 of 2025
Heard the parties.
Learned counsel for the petitioner submits that the petitioner does not
press the instant interlocutory application.
Accordingly, this interlocutory application stands rejected as not
pressed.
(Anil Kumar Choudhary, J.)
This Criminal Miscellaneous Petition has been filed invoking the
jurisdiction of this Court under Section 482 of the Code of Criminal Procedure
with a prayer to quash the order taking cognizance dated 14.08.2023 passed by
the learned Chief Judicial Magistrate, Sahibganj of the offences punishable
under Sections 467, 468, 471, 420, 409, 120B of the Indian Penal Code.
2. It is pertinent to mention here that consequent upon taking the
cognizance, the petitioner has filed a petition for discharge which has been
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rejected by a reasoned order dated 16.01.2025 passed by the learned Chief
Judicial Magistrate, Sahibganj but the said order has not been challenged.
3. The brief fact of the case is that the petitioner, in criminal conspiracy
with the co-accused persons being a public servant, has misappropriated the
Service Records of the co-accused Dilip Kumar Pandey; while conducting the
enquiry with regard to the selection, appointment and posting of Dilip Kumar
Pandey as an Assistant in Yamuna Das Chaudhary Girl's High School. The
petitioner took away the Service Records of the co-accused Dilip Kumar
Pandey. The complicity of the petitioner in the said offence was found to be
true, during the course of the investigation of the case and after finding the
involvement of the petitioner in criminal conspiracy, in committing the said
offence, police submitted charge-sheet. On the basis of the charge-sheet, the
learned Magistrate has taken cognizance of the offence.
4. It is apparent from the copy of the order dated 16.01.2025 which has been
filed in I.A. No.2775 of 2025 that the petitioner in his petition filed with the
prayer to discharge him from the case, did not take the plea that no sanction for
his prosecution was obtained by the prosecution for the reasons best known to
the petitioner and the trial court considering the grounds taken in the said
petition filed with a prayer for discharge, rejected the said petition.
5. Learned counsel for the petitioner submits that the allegations against
the petitioner are false and charge-sheet has been filed on the basis of concocted
facts. It is next submitted that the official records cannot be handed over to any
person without obtaining a receiving or acknowledgment from the person, who
is interested in official records. It is further submitted that without taking
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sanction against the petitioner, the learned court below has taken cognizance of
the offence in a mechanical manner.
6. Relying upon the judgment of the Hon'ble Supreme Court of India in the
case of D. Devaraja vs. Owais Sabeer Hussain passed in Criminal Appeal
No.458 of 2020 arising out of SLP (Crl.) No.1882 of 2018 dated 18.06.2020,
learned counsel for the petitioner submits that in paragraph-80 of the said
judgment, the Hon'ble Supreme Court of India considering the facts of that case
has observed that, in that case, the High Court after having held that the
sanction was a legal requirement which empowers the Court to take
Cognizance, therefore, the High Court ought to have exercised its power to
quash the complaint. Hence, it is submitted that in this case as the petitioner
was allegedly entrusted with the Service Records of Dilip Kumar Pandey while
discharging his official duty, the alleged misappropriation of the same also
comes under the official duty. It is, therefore submitted that the order taking
cognizance without obtaining the sanction for prosecution of the petitioner is
bad in law, hence, the same be quashed and set aside. It is lastly submitted that
the prayer, as prayed for in the instant Cr.M.P., be allowed.
7. Learned counsel appearing for the State vehemently opposes the prayer
of the petitioner made in the instant Cr.M.P. Learned counsel appearing for the
State relies upon the judgment of the Hon'ble Supreme Court of India in the
case of Devinder Singh & Another vs. State of Punjab through CBI reported
in (2016) 12 SCC 87 and submits that therein the Hon'ble Supreme Court of
India has summarized the principles regarding sanction for prosecution under
Section 197 of the Cr.P.C. in paragraph-39 to 39.9 of the said judgment; which
reads as under:-
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"39. The principles emerging from the aforesaid decisions are
summarised hereunder:
39.1. Protection of sanction is an assurance to an
honest and sincere officer to perform his duty honestly and to
the best of his ability to further public duty. However,
authority cannot be camouflaged to commit crime.
39.2. Once act or omission has been found to have been
committed by public servant in discharging his duty it must
be given liberal and wide construction so far its official
nature is concerned. Public servant is not entitled to indulge
in criminal activities. To that extent Section 197 CrPC has to
be construed narrowly and in a restricted manner.
39.3. Even in facts of a case when public servant has
exceeded in his duty, if there is reasonable connection it will
not deprive him of protection under Section 197 CrPC. There
cannot be a universal rule to determine whether there is
reasonable nexus between the act done and official duty nor
is it possible to lay down such rule.
39.4. In case the assault made is intrinsically
connected with or related to performance of official duties,
sanction would be necessary under Section 197 CrPC, but
such relation to duty should not be pretended or fanciful
claim. The offence must be directly and reasonably connected
with official duty to require sanction. It is no part of official
duty to commit offence. In case offence was incomplete
without proving, the official act, ordinarily the provisions of
Section 197 CrPC would apply.
39.5. In case sanction is necessary, it has to be decided
by competent authority and sanction has to be issued on the
basis of sound objective assessment. The court is not to be a
sanctioning authority.
39.6. Ordinarily, question of sanction should be dealt
with at the stage of taking cognizance, but if the cognizance
is taken erroneously and the same comes to the notice of court
at a later stage, finding to that effect is permissible and such
a plea can be taken first time before the appellate court. It
may arise at inception itself. There is no requirement that the
accused must wait till charges are framed.
39.7. Question of sanction can be raised at the time of
framing of charge and it can be decided prima facie on the
basis of accusation. It is open to decide it afresh in light of
evidence adduced after conclusion of trial or at other
appropriate stage.
39.8. Question of sanction may arise at any stage of
proceedings. On a police or judicial inquiry or in course of
evidence during trial. Whether sanction is necessary or not
may have to be determined from stage to stage and material
brought on record depending upon facts of each case.
Question of sanction can be considered at any stage of the
proceedings. Necessity for sanction may reveal itself in the
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course of the progress of the case and it would be open to the
accused to place material during the course of trial for
showing what his duty was. The accused has the right to lead
evidence in support of his case on merits.
39.9. In some cases it may not be possible to decide the
question effectively and finally without giving opportunity to
the defence to adduce evidence. Question of good faith or bad
faith may be decided on conclusion of trial." (Emphasis
supplied)
and submits that therein the Hon'ble Supreme Court of India has
categorically held that protection of sanction is an assurance to an honest and
sincere officer to perform his duty honestly and to the best of his ability to
further public duty. However, authority cannot be camouflaged to commit
crime.
8. It is next submitted by the learned counsel for the State that though
discharging the duty is to be given a liberal and wide construction so far as its
official nature is concerned; but public servant is not entitled to indulge in
criminal activities and to that extent Section 197 of Cr.P.C. has to be construed
narrowly and in a restricted manner and that cannot be a universal rule to
determine whether there is reasonable nexus between the act done and the
official duty nor is it possible to lay down such rule.
9. It is further submitted that the question of sanction can be raised at the
time of framing of charge but for the reasons best known to the petitioner, the
petitioner has not taken the plea that sanction has not been accorded for his
prosecution in his petition for discharge which has already been rejected by the
court concerned and which rejection order has not been challenged. It is next
submitted that the question of impact of bad faith may be decided at the
conclusion of the trial.
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10. Learned counsel for the State further relies upon the judgment of the
Hon'ble Supreme Court of India in the case of Devinder Singh & Another vs.
State of Punjab through CBI (supra) paragraph-23 of which reads as under:-
"23. In P.K. Pradhan v. State of Sikkim [P.K. Pradhan v. State of
Sikkim, (2001) 6 SCC 704 : 2001 SCC (Cri) 1234] this Court
considered the provisions contained in Section 197(1) of the Code of
Criminal Procedure whether an offence committed "while acting or
purporting to act in the discharge of his official duty" and laid down
that the test to determine the aforesaid is that the act complained of
must be an offence and must be done in discharge of official duty. In
any view of the matter there must be a reasonable connection
between the act and the official duty. It does not matter that the act
exceeds what is strictly necessary for the discharge of the official
duty, since that question would arise only later when the trial
proceeds. However, no sanction is required where there is no such
connection and the official status furnishes only the occasion or
opportunity for the acts. The claim of the accused that the act was
done reasonably and not in pretended course of his official duty can
be examined during the trial by giving an opportunity to the defence
to prove it. In such cases, the question of sanction should be left
open to be decided after conclusion of the trial. The decision
in Abdul Wahab Ansari [Abdul Wahab Ansari v. State of Bihar,
(2000) 8 SCC 500 : 2001 SCC (Cri) 18] has also been taken into
consideration by this Court." (Emphasis supplied)
and submits that in the case of P. K. Pradhan vs. State of Sikkim
represented by the Central Bureau of Investigation reported in (2001) 6 SCC
704, the Hon'ble Supreme Court of India has categorically held that when the
official status of an accused furnishes only the occasion or opportunity for the
acts, the claim of the accused that the act was done reasonably and not in
pretended course of his official duty, can be examined during the trial by
giving an opportunity to the defence to prove it.
11. It is further submitted that misappropriation of the Service Records of
the co-accused person, by no stretch of imagination can be termed as the act
having any reasonable connection of the official duty of the petitioner. Hence, it
is submitted that this Cr.M.P., being without any merit, be dismissed.
(2025:JHHC:11323)
12. Having heard the rival submissions made at the Bar and after carefully
going through the materials available in the record, it is pertinent to mention
here that the contention of the petitioner that the allegations against him are
true or that there was no occasion for him to commit the offence, is a defence
which the petitioner can take at the appropriate stage during the trial but
certainly this Court cannot conduct a mini trial in exercise of its power under
Section 482 of the Cr.P.C. to return a finding regarding the innocence of the
petitioner; as the Hon'ble Supreme Court of India has held in the case of Uttar
Pradesh & Another vs. Akhil Sharda & Others reported in 2022 LiveLaw SC
594 wherein the Hon'ble Supreme Court of India has reiterated the settled
principle of law that no mini trial can be conducted by the High Court in
exercise of power under Section 482 Cr.P.C, the relevant portion of which reads
as under :-
"Having gone through the impugned judgment and order
passed by the High court has set aside the criminal proceedings in
exercise of powers under Section 482 CrPC, it appears that the High
Court has virtually conducted a mini trial, which as such is not
permissible at this stage and while deciding the application under
Section 482CrPC. As observed and held by this court in a catena of
decisions, no mini trial can be conducted by the High Court in
exercise of power under Section 482CrPC, jurisdiction and at the
stage of deciding the application under Section 482CrPC, the High
Court cannot get into appreciation of evidence of the particular case
being considering. (Emphasis supplied)
13. So far as the contention of the petitioner regarding cognizance against
him being bad in law for want of sanction for prosecution is concerned, as has
been held by the Hon'ble Supreme Court of India in the case of Devinder
Singh & Another vs. State of Punjab through CBI (supra); the authority
cannot be camouflaged to commit a crime. Certainly misappropriation of a file
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is a crime. The entrustment of Service Records of Dilip Kumar Pandey
furnishes only the occasion or the opportunity for the petitioner to get a
dominion over the Service Records of Dilip Kumar Pandey. The claim of the
petitioner that such act of misappropriation was done reasonably in connection
of the course of his official duty and not in pretended course of official duty;
can be examined during the trial by giving an opportunity to him to prove it.
14. As has rightly been submitted by the learned counsel appearing for the
State that for the reasons best known to the petitioner; in his discharge petition
which has already been rejected by the learned Chief Judicial Magistrate,
Sahibganj vide the order dated 16.01.2025 in G.R. No.819 of 2014, the petitioner
has not taken the plea for his discharge on the ground that no sanction for his
prosecution has been accorded. The said order of rejection of the discharge
petition has not been challenged.
15. Under such circumstances, this Court is of the considered view that this
is not a fit case where the order taking cognizance dated 14.08.2023 passed by
the learned Chief Judicial Magistrate, Sahibganj warrants interference of this
Court in exercise of its power under Section 482 of the Code of Criminal
Procedure.
16. Accordingly, this Cr.M.P., being without any merit, is dismissed.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 15th of April, 2025
AFR/ Animesh
