1 IN THE COURT OF SH. [ENTITY], ASJ01, NEW DELHI DISTRICT, PATIALA HOUSE COURTS, NEW DELHI. CR No. 88/13 DHARAMPAL THAPAR V. STATE APPEARANCES Present : Dr. [ENTITY], Advocate for the petitioner/revisionist. Mr. [ENTITY], Ld. APP for the State substituting for Mr. [ENTITY], Ld. APP for the State who is on leave. 03.07.2013 ORDER
1. This criminal revision filed u/[SECTION] read with [SECTION] of [ACT] is assailing an order dated 19.9.2012 whereby Ms. [ENTITY], Ld. MM, New Delhi has ordered framing of charge against the accused to proceed against him for offences u/[SECTION] [ACT] in FIR no. 417/05, PS Connaught Place.
2. Briefly stated, the petitioner/revisionist was working as a Cashier in the Central Telegraph Office, Bharat Sanchar Nigam Ltd. at Janpath, New Delhi. The case of the prosecution is that on or about 09.6.2005 he was entrusted with cash amount of Rs. 6,00,000/ in the capacity of a Cashier which amount was allegedly misappropriated by him and the petitioner/revisionist also forging / fabricated one deposit slip of State Bank of India making false entries in the books of account as well.
3. The only challenge to the impugned order of framing of charge is that the Ld. MM failed to appreciate that the petitioner/revisionist was a public servant and the offence, if any, had been committed by him while discharging his official / public duties and no sanction had been obtained for his prosecution in terms of [SECTION] [ACT] In his submissions Ld. Counsel has placed reliance on decisions in [PRECEDENT] and [PRECEDENT].
4. I have heard Ld. Counsel for the petitioner/revisionist and I have gone through the record of the criminal revision petition besides the Trial Court Record.
5. Without much ado, I find no merit in the present criminal revision petition. The plea of the petitioner that sanction for prosecution u/[SECTION] [ACT] has not been obtained and, therefore, the entire proceedings before the Ld. Trial Court are non est in law cannot be sustained since having regard to the facts and circumstances of the case no sanction for prosecution was required.
6. The issue is no longer res integra and this Court can refer to plethora of case law but curbing such temptation I would refer a few on the subject. In the case of [PRECEDENT], where a public servant had been charged for offences u/[SECTION] and [SECTION] of [ACT], it was held that sanction for prosecution u/[SECTION] of [ACT] is not required for every act done by the public servant whilst he is actually engaged in the performance of his official duties.
7. To put it shortly, it was held that it is no part of the duty of the public servant, while discharging his official duty, to enter into criminal misconduct thereby commit breach of trust or criminal misappropriation or fabricate/forge receipts or the documents. The said view was taken in view of the previous case decided by the Apex Court in the case of [PRECEDENT] and followed later in a serious of cases viz. [PRECEDENT] (dead) through [PRECEDENT]; [PRECEDENT].
8. The upshot of the aforementioned case law is that whereas an order of sanction as per [SECTION] [ACT] is required when the offence complained against the public servant is attributable to discharge of public duty or has a direct nexus herewith, but the same would not be necessary when the offence witnesses complained has nothing to do with the same.
9. The case law cited by the Ld. Counsel for the petitioner/revisionist, with due reference on my part, have no bearing on the matter in issue. The case of [PRECEDENT] (supra) is a case where officials of Orissa Forest Department had committed a raid and after arresting the accused publically humiliated him by handcuffing the accused and making him walk on the Bazar road. It was held that a public servant committed some excesses in discharge of official duties but that would not deprived them of the protection u/[SECTION] [ACT] At the cost of repetition, it was not part of the duty of the petitioner/public servant to fabricate receipt and thereby embezzle the amount which was entrusted to him.
10. The case of [PRECEDENT] (supra) is also clearly distinguishable where the issue was answered in the context of [SECTION] of the [ACT]. Suffice to state that in cases covered u/[SECTION] of the [ACT], sanction is of automatic nature and factual aspects have no legal consequence. Conversely, in a case related to [SECTION] of [ACT], the substratum and basic features of the case have to be considered to find out whether the alleged act had any nexus to the performance or discharge of official duties.
11. In the said view of the discussion, I hold that no sanction for prosecution is required u/[SECTION] [ACT] to lanch or take cognizance of offence and proceed against the accused/petitioner in the instant case. The Ld. MM has neither committed any irregularity nor illegality in proceeding against the petitioner/revisionist. The present revision petition is dismissed.
12. A copy of this order be sent to Ld. Trial Court alongwith judicial record.
13. The petitioner/revisionist is directed to appear before the Ld. MM for further proceedings / trial on date already fixed for P.E. on 17TH July, 2013 at 10:00 AM.
14. The present criminal revision petition be consigned to record room.
ANNOUNCED IN THE OPEN COURT ([ENTITY]) TODAY i.e 03.07.2013 ASJ01/PHC/NEW DELHI 03.07.2013 DHARAMPAL THAPAR V. STATE 03.07.2013 Present : Dr. [ENTITY], Advocate for the petitioner/revisionist.
Mr. [ENTITY], Ld. APP for the State substituting for Mr. [ENTITY], Ld. APP for the State who is on leave. Vide separate order of even date, I hold that no sanction for prosecution is required u/[SECTION] [ACT] to lanch or take cognizance of offence and proceed against the accused/petitioner in the instant case. The Ld. MM has neither committed any irregularity nor illegality in proceeding against the petitioner/revisionist. The present revision petition is dismissed.
A copy of this order be sent to Ld. Trial Court alongwith judicial record.
The petitioner/revisionist is directed to appear before the Ld. MM for further proceedings / trial on date already fixed for P.E. on 17TH July, 2013 at 10:00 AM.
The present criminal revision petition be consigned to record room.
([ENTITY]) ASJ01/PHC/NEW DELHI 03.07.2013