IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.28933 of 2007 SREENIWAS SINGH son of late Ram Bachan Singh, Ex-Block Development Officer, Banma Itarhi, District Saharsa, presently posted as Block Development Officer, Shambhu Ganj, District. …. Petitioner. Versus 1. STATE OF BIHAR 2. Anup Mukhiya son of late Bachchu Mukhiya, resident of village Kasimpur Tolwa, P. S. Salkhua, District Saharsa. … Opposite parties ----------- 5. 10.08.2009. Heard counsel for the petitioner and counsel for opposite party no. 2. Impugned order taking cognizance for offence under Sections 406, 420, 120(B)of the Indian Penal Code is sought to be assailed by the petitioner, Ex-Block Development Officer of Banma Itarhi Block on the ground that first of all even if the entire allegation made in the complaint petition is believed and taken to be correct on its face value, no offence can be said to have been committed by the petitioner. It is further submitted that there is no difficulty in accepting the admitted portion that the petitioner has been appointed by the State Government as an officer of Bihar Civil Service (Executive Branch) and thus could be removed only by the order of the State Government and accordingly he stood protected by the provision of Section 197 of the Code of - 2 - Criminal Procedure as with regard to any prosecution pertaining to discharge of official duty. Learned counsel for the petitioner in this context has submitted that admittedly from reading of the order-sheet itself it would be clear that no sanction of prosecution was accorded against the petitioner and as such impugned order even otherwise is not sustainable. Learned counsel appearing on behalf of opposite party no. 2 on the other hand would submit that here was a case of misconduct on the part of the petitioner inasmuch as he being the magistrate of the relief distribution when it was brought to his notice that the complainant opposite party no. 2 was not being distributed grains as per government order, the petitioner had not only failed to take action against the erring persons but had also deceived the opposite party no. 2 the complainant/opposite party by compelling him to accept the distributed quantity of food grains whatever was given to him, by itself would amount to committing an offence under Section 406 and 420 I.P.C. and since the petitioner was - 3 - BDO and lesser grain was given to complainant/opposite party no. 2, he was also liable for hatching a conspiracy punishable under Section 120 B of the Indian Penal Code. He would further submit that there would be no requirement of sanction in this case inasmuch as the action taken by the petitioner were much beyond the scope of his official duty and thus not protected by the provisions of Section 197 Cr.P.C. In the opinion of this Court, first of all if the complaint petition itself is perused, there would be hardly any allegation against the petitioner for constituting offence under Sections 406 and 420 IPC. The petitioner is a Block Development Officer and in course of distribution of grains if certain allegation of short supply or wrong procedure followed in distribution is alleged that at best can be a matter of dereliction of duty and thus capable of being subjected to a disciplinary proceeding. It would be very difficult for the functioning of the executive if every gram of grain distributed under the welfare scheme would be made personal liability of the distributing officer and that too at the level - 4 - of Block Development Officer. It is not the case of the complainant that the Block Development Officer was the person who had got this short supply made rather the allegation of the complainant straightway is that others entrusted with the duty of distributing the grains as per government scheme and when this fact was brought to the notice of the petitioner holding the post of B.D.O. as also before Sub divisional Officer they too being the Supervising Officers failed to take any remedial action under Section 406 or 420 I.P.C. The next part of submission of learned counsel for opposite party no. 2 that at least the petitioner will be part of conspiracy is only to be noted for its being rejected. For constituting an offence of conspiracy there has to be a direct allegation to that extent and there is nothing in the complaint petition. Assuming every thing to be in favour of the complainant, it cannot be denied that the petitioner was supervising the distribution of grains in exercise of official duty. The petitioner being the Block Development Officer, for such alleged offence, he would be well protected by provisions of - 5 - Section 197. Admittedly, no sanction for prosecution was taken in this case and it cannot be said that either the supervision work or the advice of the BDO to opposite party no. 2 to receive whatever grain was being given to others will be in excess of officer powers of Block Development Officer so as to constitute any offence, thought it may be misconduct under appropriate Discipline and Control Rules. Once it is an admitted fact that the sanction of the prosecution was not accorded against the petitioner by the State Government, appointing authority, the prosecution of petitioner becomes vulnerable also on this score. In any event, as held above, no offence even otherwise is made out against the against. That being so, this application must be and is hereby allowed and accordingly the impugned order taking cognizance as well as the prosecution so far it relates to the petitioner is quashed. kanchan (Mihir Kumar Jha, J.)