A W9 @ HIGH COURT OF CHHATTISGARH AT BILASPUR Crimimi Minemneous Petition 2 1 1 [2009 Chintamani Shukla, S/o Bn‘jbhushan. Shukla, Aged about 51 years, Village— Baxaon, Pfs Shahpur, District—Reeva {MR} APPLICANT VERSUS RESPONDENT The State of Chhattisgarh, Though : Collcctor, Raipur (C.G.}. APPLICATION UNDER SECTION 482 OF ’THE CODE OF CRIMINAL RCEDURE. (SB :Hon’ble Mr. T.P.Sharma, J.) Presgnt : Shri Prakash Tiwari, Advocats for the petitioner. Shri Redendra Tripathi, RL. for tha State/respondent. ORAL- ORDER (Passed on 28/ 47/2009) 1. Heard on admission. 2. This is a petition for quashment of the order dated 12/ 2/2009 pa3sed by Second Additional Sassions Judge, Baloda Bazar in criminal revision aiiirming the order dated 13/3/2007 passed by Judicial Magistrate First Class, Baloda Bazar in criminal case No. 629/04 whereby prayer for discharge was rejected. 3. Order is challenged on the ground that without any prima—facie material for taking cognim‘nce court below has taken cognizance for the oifence punishable under Sections 467, 468, 471, 420/34, 409/34 of the Indian Penal Code. Court below has also taken cognizance without sanction as xequired under Section 197 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’). 4 Learned counsel for the parties are heard P . 5. Leaméd counsel for the petitioner submits that petitioner was working as sub Divisional Omcer and was not removable &om the post by or without sanction of the State Government. According to the prosecution alleged offence has been committed by the petitioner in dis~ charge of his oilicial duty therefore, court below was not competent to take cognizance without any sanction as required under Section 197 of the Code. Learned counsel for the petitioner further submits that if allegation made in charge sheet is admitted in its face value then even no conviction wo’uld‘ be possible againstthe petitioner. 6. On the other hand, learned counsel for the State/respondent submits that this is a petition for quashment of the criminal proceeding under Section 482 of the Code and present case is not the case for invoking extraordinary inherent jurisdiction. Prosecution has collected sunicient material for initiation of the proceeding against the petitioner who has committed criminal misappropriation of the public money, forgery and cheating which were not his ofdcial duty therefore, no sanction is required under Section 197 of the Code. 7. This is a petition for the quashment of the order taking cognizance of the offence by the criminal Court. The exercise of powers under Section 482 of the Code is in exception and not rule. The High Court is not required to interfere by invoking extraordinary inherent jurisdicn‘on unless illegality resulted into miscarriage of justice is shown. In case of Arun Shankar shukla v. State oi‘ U.P1. Apex Court has held that:- “it is true that under Section 482 of the Code, the High Court has inherent powers to make such orders as may be necessary to give effect to any order under the Code or to prevent the abuse of process of any Court or otherwise to secure the ends of justice. But the expressions “abuse of I 1999 Cr.LJ S964 (3965) AIR 1999 SC 2554 / ,/ the process of iaw‘ or “to secure the ends of justice” do not bonfer unlimited jurisdiction on the High Court and the alleged abuse of the process of Iaw or the ends ofjustice could oniy be secured in accordance with {aw including procedural law and not otherwise. Further, inherent powers are in the nature of extraordinary powers to be used sparingly for achieving the object mentioned in Section 482 of the Code in cases where there is no express provision empowering the High Court to achieve the said object. it is well nelgh settled that inherent power ls not to be invoked in respect of any matter covered by specific provisions of the Code or if its exercise would infringe any specific provision of the code.” 8. While deah'ng with the same question i.e. for invoking inherent jurisdiction Apex Court has held in case of State of Punjab v. Kasturi z, reads as under:- “Exercise of power under S. 482 of the Code in a case of this nature is the exception and not the ruler The section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. it envisages three circumstances under which the inherent jurisdiction may be exercised, namely (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of Court, and (iii) to otherwise secure the ends of justice. lt is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction, No legislative enactment dealing with procedure can provide for aii cases that may possibly arise, Courts therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and ‘preseNes inherent powers of the High Courts. All Courts, whether civil or criminal r 2 2004 or. Lu. 3866 (3868) (so) g Lal @ possess, in the absenc of any express provision, as inhrent in their constitution: all such powers as are necessary to do the right and to undo a wrong in course of administration of justice While exercising powere under the section thoug wide has to be exercised sparingly, carefully and with cautio and only when such exercise is justified by the tests specifically laid down in the section itself. lt is to be exercised ex debito justitiae to do real and bstantial justice for the administration of which alone Couits exist". acting or purporting to act in the discharge of his 0&icial duty. 10. In case of requirement of sanction under Section 197 of the Code two conditions are sine~qo-non (1) that the public. svant is only removable &om the office by the State Govt. or with the sanction of the State Govt. and (2) — that he has committed the alleged act in discharging or purporting todischarge of is ohicial duty. 11. Charges for the oen punishable under Sections 467, 468, 471, 420134, 409/34 of the Indian Penal Code have been framed against the petitioner. The act of criminal misappropriation of money is not a omcial act but occupying the othce only facilitate the commission of crime of such nature as held in case ofS.B.N Saba v. M.S. Kochar3, and State of Kerala v. Padmanabhan Nair4 . The eliminal misappropn‘ation of money N ZAIR 1979 so 1841 AAIR 1999 SC 2405 e e h n su u er h dce A}/ m,. '_ w Penal Cod€ is necessaxy" likewise tampering or interpolation or cheating does not fall Withiil the’a‘mbit of public duty or official duty therefore no sanction is necessaxy for the offence punishable under Sections 467, “468, 471, 420/34, 409/34 of the Indian Penal Code as hem in case of Dhananjav Ram Sharma v. M.S. Uppadava5. The opportunity to commit oEence by holding post is not onicial duty. 12. “in the instant case aggommg to material collected on behalf of the prosecution petitioner along‘with co-accused persons were entrusted with the money‘and theywere required to discharge the entrustment in accordance with the procedure prescribed but in stead of complying the procedure the petitioner along with other co~accused persons have forged the document and used the same as genuining shown the disbursement of the money even in the name of the dead person which shows the criminal misappropriation 5T the public money and forgery and cheating punishable under Sections 467, 468, 471, 420/34, 409/ 34 of the Indian Penal Code. If the allegation made in the charge sheet is admitted by the petitioner men same could be sufficient for the conviction of the petitioner for the oh‘ence punishable under Sections 467, 468, 471, 420/34, 409/34 of the Indian Penal Code. The oh‘ence of forgery and cheating and criminal misappropriation is not a public duty therefore no \ such sanction is necessary under Section 197 of the Code. Court below has rightly framed the charges and has taken cognizance without any sanction under Section 197 of the Code. I do not nnd any illegality or infirmity in the order impugned. Consequently, the petition is liable to be dismissed and it is hereby dismissed. Sdl— T.P. SHARMA Judge 5AIR 1960 SC 745