HONOURABLE SRI JUSTICE S.RAVI KUMAR CRIMINAL REVISON CASE No.519 OF 2011 Dated 20-1-2014.
Between:
Devarakonda Yanadi.
…Petitioner.
And:
The State of A.P., represented by its Public Prosecutor, High Court of A.P., Hyderabad.
…Respondent.
HONOURABLE SRI JUSTICE S.RAVI KUMAR CRIMINAL REVISON CASE No.519 OF 2011 ORDER:
This revision is preferred against order dated 4-10-2010 on the file of the II Additional Munsif Magistrate, Ongole in C.C.No.413 of 2010.
2. The brief facts leading to this revision are as follows:
Station House Officer, II town Police Station, Ongole filed charge sheet for the offences under Sections 403, 406, 408, 409 and 420 I.P.C. against the revision petitioner herein and another and the learned Magistrate took cognizance of the offence on 4-10-2010 and ordered issue of summons to the accused i.e., revision petitioner herein and another. Now aggrieved by taking cognizance of the offence, present revision is preferred.
3. Heard both sides.
4. The main contention of the revision petitioner is that he is a public servant working as Section Supervisor in the office of General Manager, Bharat Sanchar Nigam Limited, Ongole, Prakasam District and sanction under Section 197 Cr.P.C. is mandatory to take cognizance and as there is no sanction, the cognizance taken by the trial court is to be held as illegal.
5. On the other hand, it is the contention of the learned Public Prosecutor that the offences alleged against petitioner are criminal misappropriation and cheating which are not in discharge of his official duty and therefore, sanction is not necessary. He further contended that even if the acts of the revision petitioner are treated as done in discharge of his official duty, sanction can be considered at any stage and petitioner cannot claim discharge on that ground.
6. Now the point that would arise for my consideration in this revision is whether the order of the court below is legal, correct and proper?
7. POINT:
According to prosecution, the revision petitioner and another misappropriated funds of the Prakasam District Telecom Employees Co-operative Credit Society Limited to a tune of Rs.23,38,236/- which was noticed through the final audit report for the year 2006 and 2007. A.1 in the capacity of President of the said Society and A.2 in the capacity of clerk of the said society are alleged to have committed the act of misappropriation.
8. As per prosecution case, the petitioner and another misappropriated Government funds at a particular point of time. Main plea of the revision petitioner is that sanction is necessary since he is a public servant. It is not necessary in each and every case to obtain sanction under Section 197 Cr.P.C. as and when charge sheet is filed against a public servant. Only in cases where the alleged act is in discharge of official duty or purported to be in discharge of official duty, then only, sanction under Section 197 Cr.P.C. is necessary. The Honourable apex court in SURESH KUMAR BHIKAMCHAND JAIN v. PANDEY
[1]
AJAY BHSUHAN ( ) held as under:
“23. … The legislative mandate engrafted in sub- section (1) of Section 197 debarring a court from taking cognizance of an offence except with a previous sanction of the Government concerned in a case where the acts complained of are alleged to have been committed by a public servant in discharge of his official duty or purporting to be in the discharge of his official duty and such public servant is not removable from his office save by or with the sanction of the Government touches the jurisdiction of the court itself. It is a prohibition imposed by the statute from taking cognizance, the accused after appearing before the court on process being issued, by an application indicating that Section 197(1) is attracted merely assists the court to rectify its error where jurisdiction has been exercised which it does not possess. In such a case there should not be any bar for the accused producing the relevant documents and materials which will be ipso facto admissible, for adjudication of the question as to whether in fact Section 197 has any application in the case in hand. It is no longer in dispute and has been indicated by this Court in several cases that the question of sanction can be considered at any stage of the proceedings.”
Now in this case, the alleged act complained against revision petitioner was done in course of his official duty or otherwise is a matter to be decided only after recording evidence. As rightly pointed out by learned Public Prosecutor, act of misappropriation and cheating and criminal conspiracy can never be treated as official duty or done in course of discharge of official duty. From the observation of the Supreme Court in the decision referred above, it is clear that the revision petitioner can take the plea of sanction under Section 197 Cr.P.C. at any stage of the proceedings. Therefore, it is open to the revision petitioner to take his defence during trial and in such plea being taken, the trial court not being influenced by any of the observation made in this revision shall decide the case on merits with regard to requirement of sanction under Section 197 Cr.P.C.
9. Therefore, for these reasons, I am of the view that there is nothing illegality in taking cognizance against the revision petitioner for the offences under Sections 403, 406, 408, 409 and 420 I.P.C. and there are no grounds to interfere with the order of the trial court and as such, this revision is liable to be dismissed.
10. Accordingly, this Criminal Revision Case is dismissed at the admission stage as devoid of merits.
11. As a sequel to the disposal of this revision, the Miscellaneous Petitions, if any, pending, shall stand dismissed.
Dated 20-1-2014.
Dvs KUMAR JUSTICE S.RAVI HONOURABLE SRI JUSTICE S.RAVI KUMAR Dvs CRIMINAL REVISON CASE No.519 OF 2011 Dated 20-1-2014.
[1] AIR 1998 SC 1524