IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.38268 of 2006 HARIHAR PRASAD Versus STATE OF BIHAR & ORS ----------- For the Petitioner:-Mr. Sidhyarth Sharma For State:- Dr. Mayanand Jha, APP For Opposite party:- Mr. Arup Kumar Changdar 7 20.3.2009 Heard learned Counsel for the petitioner, the State and Opposite party No.2. The petitioner is the Block Development Officer, a named accused in the First Information Report questioning the cognizance and the entire proceeding against him in Khanpur P.S. case No. 70 of 2005 under Section 420,120B and 34 of the Indian Penal Code pending before the Judicial Magistrate, Ist Class, Samastipur. The allegations are with regard to selection of beneficiaries and grant of monetary and other benefits to them under the Indira Awash Yojna. The allegations state that three persons - 2 - named therein belonged to well of families and had permanent house construction which has never been damaged in the flood, they wrongly in conspiracy obtained benefits under the Scheme affecting the rights of those who are legitimately entitled to the same. The list was prepared at Panchayat Level and brought to the Block Level. The Block Development Officer disbursed the money without proper verification resulting in grant of benefit to the aforesaid accused. The Block Development Officer appeared to be also involved in the conspiracy as also the Panchayat Sewak. Learned Counsel for the petitioner has argued that the allegations relate to acts done by the petitioner in the discharge of his official duties and therefore he is entitled to the protection of Section 197 of the Code of - 3 - Criminal Procedure. In the absence of any sanction for his prosecution the order of cognizance is vitiated. The petitioner has impleaded as Opposite Nos.2 and 3 the informant, the subsequent Block Development Officer as also by name the Officer Incharge investigating the police case. The submission on behalf of Opposite party no.2 is that the benefit of section 197 of the Cr.P.C. is not available for acts done in the garb of discharge of official duties. The protection provided by Section 197 of the Cr.P.C. is available for acts alleged to have been done or committed in course of what can be described simplicitor as discharge of official duties. This is a provision to protect bonafide action of officials. The protection cannot be available for acts committed in the garb of purported - 4 - discharge of official duties. The allegations are of approval to the list without verification for grant of the benefits to persons who are clearly not eligible in conspiracy for wrongful loss and wrongful gain. Acting in that manner in conspiracy can never constitute acts in discharge of official duty. Whether the person was eligible or not, whether the petitioner verified their credibility or not, was he acting in an illegal conspiracy, are all issues to be considered during the trial on evidence that may surface. On the aforesaid, shall depend the question of applicability of Section 197 of the Code of Criminal Procedure. If the acts are found to be illegal, section 197 of the Cr.P.C. shall have no application. If conspiracy for an illegal act be not there, the converse shall apply. The applicability - 5 - of section 197 Cr.P.C. therefore becomes a mixed issue of fact and law. This Court, therefore, finds it difficult to quash the prosecution at the initial stage on that ground. Nothing shall prevent the Court below to consider the applicability of the aforesaid provision during the trial by reason of the present order in accordance with law. The application is dismissed. (Navin Sinha,J.) A.Kumar