Afr Basanta Kumar Das vs State Of Odisha
2022 Latest Caselaw 2966 Ori

           IN THE HIGH COURT OF ORISSA AT CUTTACK

                      CRLREV No. 249 of 2003

       An application under Section 397 read with Section 401 of
       the Code of Criminal Procedure, 1973.
                                ---------------
AFR    Basanta Kumar Das                     ......     Petitioner

                           -Versus-

       State of Odisha                     .......     Opp. Party

       Advocate(s) appeared in this case:-
       _______________________________________________________

         For Petitioner    :       M/s. G.N. Mishra & P.P.
                                   Mohanty, Advocates

          For Opp. Party   :       Mr. Priyabrata Tripathy,
                                   Addl. Standing Counsel

       _______________________________________________________
       CORAM:
            JUSTICE SASHIKANTA MISHRA

                                JUDGMENT

5th July, 2022

SASHIKANTA MISHRA, J.

In the present revision the petitioner challenges

order dated 23.12.2002 passed by Additional Sessions

Judge, Malkangiri in Criminal Appeal No. 31 of 1999,

whereby the order of conviction and sentence passed by

learned C.J.M., Malkangiri in G.R. case No. 317 of 2019

on 22.09.19 95 was confirmed. By the said judgment, the

trial court had convicted the petitioner accused for the

offence under section 409 of IPC and sentenced him to

imprisonment for 29 days.

2. The prosecution case, in a nutshell, is that

the Divisional Forest Officer, Jeypore (KL) Division lodged

an FIR before the Officer-in-charge of Orkel Police Station

alleging that as per the audit report it was found that the

petitioner while posted as the Range Officer, Balimela K.L.

Range had misappropriated cash of rupees 4,52,491 .99.

It was stated that he was entrusted with different

amounts on different dates in advance for expenditure of

Kendu leaves production, transportation, drying and

storage etc. Basing on such report, investigation was

taken up and charge sheet was submitted under section

409 of IPC.

The accused took the plea of denial during

trial, wherein prosecution examined 13 witnesses and also

exhibited 59 documents. The defence proved three

documents from its side.

After analyzing the evidence on record the

trial court found that the petitioner had submitted the

accounts in question but after one year and two months

from the date of lodging of the FIR and therefore he must

be held to have temporarily misappropriated the amount

for the said period. Accordingly, the petitioner was

convicted and sentenced as aforesaid. Be it noted here

that the petitioner had specifically taken the ground that

he being a public servant it was necessary to obtain

sanction of the appropriate authority before prosecuting

him which was not done in the present case and therefore

the prosecution was not valid in the eye of law. However

learned trial court negatived the contention by referring to

some decisions of the Apex Court as well as of this Court

to hold that the act of misappropriation cannot be treated

as part of official duty of the petitioner so as to obtain

sanction.

3. The petitioner carried the matter in appeal to

the Court of Session. The learned Sessions Judge after

scanning the evidence on record found no reason to

interfere with the judgment of conviction and sentence

passed by the trial court. As regards the question of

sanction, it was held that the trial court had committed

no error in rejecting the contention put forth by the

petitioner. The lower appellate court also referred to the

decisions relied upon by both sides and held that no

sanction was necessary in the facts and circumstances of

the case.

Feeling further aggrieved, the petitioner has

approached this court in the present revision.

4. Heard Mr. G.N. Mishra learned counsel for

the petitioner and Mr. Priyabrata Tripathy, learned

Standing Counsel for the state.

5. Assailing the impugned judgment, Mr. Mishra

has contended that both the courts below have committed

illegality in rejecting the contention of the petitioner with

regard to the requirement of prior sanction for

prosecution. According to Mr. Mishra, both the courts

below have held that the act of misappropriation cannot

be treated as a part of official duty of the petitioner and

thereby ignored the fact that the petitioner was entrusted

with some amount which was part of his official duty and

he was required to account for the same, which was also

part of his official duty. So submission of accounts being

on official duty, non-submission of the same must come

within the purview of the expression 'discharge of official

duty' as per Section 409 of IPC. Mr. Mishra has relied

upon a decision of this Court rendered in the case of

Pramod Kumar Swain vs. State of Odisha, reported in

2022 (I) OLR 622 to support his contention. It is further

contended that the finding of the trial court that the

petitioner had absconded is entirely contrary to the

evidence on record which clearly shows that the petitioner

had gone on leave which was duly sanctioned by the

competent authority. The finding of temporary

misappropriation is sought to be challenged by Mr. Mishra

on the ground that no question was put to the accused

petitioner in his examination under section 313 of Cr.P.C..

6. Mr. Tripathy, learned Addl. Standing Counsel

has supported the impugned judgments by contending

that misappropriation cannot be treated as part of official

duty or an act done in due discharge of official duty for

which no sanction for prosecution is necessary. It is

further contended that the concurrent findings of fact

rendered by the courts below being based upon

appreciation of evidence on record do not warrant any

interference by this court in its revisional jurisdiction

because more so as no illegality whatsoever has been

committed.

7. As regards the requirement of prior sanction

to prosecute, there is no dispute that the petitioner was

working as a Range Officer at the relevant time under the

administrative control of the Conservator of Forests,

Bolangir Range. As such, he was a public servant at the

relevant time. Section 197 of Cr.P.C. requires prior

sanction of the competent authority for prosecution of

public servants and reads as follows:

197. Prosecution of Judges and public servants.--(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction 1 [save as otherwise provided in the Lokpal and Lokayuktas Act, 2013 (1 of 2014)]--

(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in

connection with the affairs of the Union, of the Central Government;

(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government:

[Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression "State Government" occurring therein, the expression "Central Government" were substituted.] Explanation.--For the removal of doubts it is hereby declared that no sanction shall be required in case of a public servant accused of any offence alleged to have been committed under section 166A, section 166B, section 354, section 354A, section 354B, section 354C, section 354D, section 370, section 375, section 376, section 376A, section 376C, section 376D or section 509 of the Indian Penal Code (45 of 1860).] (2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.

(3) The State Government may, by notification, direct that the provisions of sub-section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression "Central Government" occurring therein, the expression "State Government" were substituted.

[(3A) Notwithstanding anything contained in sub- section (3), no court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a

Proclamation issued under clause (1) of article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government.

(3B) Notwithstanding anything to the Contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991 (43 of 1991), receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the court to take cognizance thereon.] (4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held.

From a reading of the above provision it is

clear that no prosecution can be launched without

sanction of the competent authority. Now, the question is,

whether sanction was required in the present case. It is

settled law that to decide this question reference to the

facts and circumstances of the case along with the

prosecution allegations are to be considered. In the

instant case, the prosecution allegation is that the

petitioner was entrusted with some money which he failed

to account for and therefore, was held guilty of

misappropriation. There is no doubt that the money was

entrusted to him in his official capacity and a part of his

official duty. The petitioner was required to utilize the

money in the work of Kendu leaf production, cultivation

and transportation etc. and as such was required to fully

account for the same. So what is important to note, the

petitioner was duty bound to account for the money that

was entrusted to him. Obviously, this was a part of his

official duty. The allegation relates to something not done

by him which was officially required to be done. It is held

by both the courts below that not accounting for the

amount in question within the stipulated period amounts

to temporary misappropriation which cannot be treated as

official duty.

Whether an act falls within the purview of

official duty or not has been examined by the apex court

in several cases including the case Shreekantiah

Ramayya Munipalli vs The State Of Bombay reported

in AIR 1955 SC 287 wherein it was observed as under:

"18. Now it is obvious that if Section 197 of the Code of Criminal Procedure is construed too narrowly it can never be applied, for of course it is no part of an official's duty to commit an offence and never can be. But it is not the duty we have to examine so much as the act, because an official act can be performed in the discharge of official duty as well as in dereliction of it. xxxxxxx"

19. Now an offence seldom consists of a single act. It is usually composed of several elements and, as a rule, a whole series of acts must be proved before it can be established. Now it is evident that the entrustment and/or dominion here was in an official capacity, and it is equally evident that there could in this case be no disposal, lawful or otherwise, save by an act done or purporting to be done in an official capacity."

The above observations were relied upon by

the Apex Court in a subsequent decision reported in

(2016) 2 SCC 143 that for the purpose of obtaining

previous sanction from appropriate government under

Section 197 Cr.P.C. it is imperative that the alleged

offence is committed in discharge of official duty by the

accused and that it is also imperative for the Court to

examine the allegations against the accused, to decide

whether previous sanction is required to be obtained

before taking cognizance of the alleged offence against

him.

8. This court had the occasion of dealing with a

similar matter involving the offence under section 409 of

IPC [Pramod Kumar Swain (supra)] wherein it was held

that it would be fallacious to segregate different parts of

the transaction that make up the official duty in question

to hold that for the act committed in violation of a

particular part thereof, it would not partake the nature of

official duty. To elucidate, a person may be engaged as a

night watchman in office and his duty obviously would be

to keep watch over the building at night. In case theft is

committed by him during the night and it is intended to

prosecute the night watchman for such act, sanction

would be necessary as it was his official duty to guard the

premises during the night solely to prevent the occurrence

of theft. However, if the same watchman commits any

other offence not connected to his work, say murder or

assault, during the night then obviously no sanction

would be necessary as committing murder or for that

matter any other offence in his private capacity would not

come within the purview of official duty. Therefore, the act

in question must have a nexus with his official duties. If it

does, sanction is necessary. If not, sanction is not

necessary. So misappropriation, per se, cannot be treated

as official duty undoubtedly but in the instant case

misappropriation is sought to be inferred from the fact

that the petitioner allegedly did not account for the money

that was entrusted to him. As has been held in the case of

Shreekantaiah Ramayya Munipalli (supra) an official

act can be performed in the discharge of official duty as

well as in dereliction of it. Here the petitioner is sought to

be held guilty of dereliction of his duty to account for the

amount entrusted to him. Had he done so it would have

been his official duty. Therefore, in the considered view of

this Court, non-furnishing of accounts by the petitioner of

the amount entrusted to him has to be treated as

dereliction of his official duty and therefore, prior sanction

to prosecute him is absolutely necessary. The case laws

relied upon by the trial court and the lower appellate

court can be distinguished easily on facts. In the case of

Dhulamani Behera vs State Of Orissa, reported in

1987 SCC OnLine Ori 102: 1988 Cri LJ 1027 the

decision was rendered keeping in mind the requirement of

section 6 of the Prevention of Corruption Act 1947 and

Section 409 of IPC, which is not the case at hand. In the

case of B. Saha v. M.S. Kochar, reported in (1979) 4

SCC 177, it was held that when a public servant acting in

discharge of his official duty uses it as a cloak, and

dishonestly converts the money in his trust to his own

use, it could most certainly be said is not an act which is

anticipated and in any way related to the duties assigned

to him. In the instant case there is no such allegation that

the petitioner had converted the money entrusted to him

to his own use rather the only allegation against him is

that he had failed to account for the same, as required, in

time. There is a sea of difference between the case before

the Apex Court and the case at hand which both the

courts below seem to have overlooked.

Being entrusted with the money in his official

capacity, it was incumbent on his part to explain as to

what happened to it. In view of the very absence of the

allegations that he converted it for his own use and in

view of the evidence of P.W.-12 & 17, the only inference

that can be drawn that his failure to account for the

entrusted amount in time is an omission on his part

which he was officially bound to do. This omission can be

treated as a gross failure of the discharge of his of his

official duty and hence section 197 Cr.P.C has clear

application to the facts of this case

9. From the above analysis of the settled

position of law made in the background of the facts and

circumstances of the case, this Court has no hesitation in

holding that both the courts below have committed

manifest error of law in rejecting the defence contention

that sanction was necessary to prosecute the petitioner. In

view of what has been observed here in before, this court

holds that the prosecution was invalid for want of

sanction from the competent authority as required under

section 197 of Cr.P.C.

10. Even on merits it is observed that the courts

below have not appreciated the evidence in the proper

perspective particularly that of P.Ws. 17 and 12. It is in

the evidence of P.W.-1 that the petitioner received the

money from him and disbursed it to the field staff on the

same day which was duly reflected in the cash book

marked Exhibit-30. P.W.-7 admits to have received the

leave application of the petitioner as well as his request for

extension of leave. Therefore the finding that the petitioner

had absconded has to be treated as perverse. The I.O.

being examined as P.W.-12 has admitted that he had

received Exhibit-C submitted by the petitioner reflecting

the accounts of the amount allegedly misappropriated by

him. While this has been held to be an act of temporary

misappropriation yet this Court finds that such a question

was not put to the petitioner in his examination under

section 313 of Cr.P.C. It is trite that an accused cannot be

convicted on the basis of an incriminating circumstance

appearing in the evidence against him if the same has not

been put to him for explanation.

11. From the foregoing discussion it is clear that

the trial court has committed an error of law in negativing

the contention of the petitioner regarding absence of

sanction as also in holding the petitioner guilty of the

offence under section 409 of IPC and in sentencing him to

imprisonment for 29 days for which the impugned order of

conviction and sentence cannot be sustained in the eye of

law. It is also clear that the lower appellate court has

committed illegality in confirming the judgment of

conviction and sentence passed by the trial Court.

12. In the result, the criminal revision is allowed.

The impugned judgment of conviction and sentence

passed by the trial court as well as the judgment passed

by the lower appellate court in confirming the same are

hereby set aside and the accused petitioner is acquitted of

the charge under section 409 of IPC. The accused being

on bail, his bail bonds be discharged.

...............................

Sashikanta Mishra, Judge

Orissa High Court, Cuttack, The 5th July, 2022/ A.K. Rana