Allowed

Bishambhar Nath Tewari v. State of U.P.

Allahabad HC7 Feb 2019CRLR/268/1993

Case brief

AI extract

What is this about?

A single judge in a criminal revision allowed the plea, directing the lower court to decide the discharge application arising from an alleged official act. The court held that sanction under Cr.P.C. is mandatory since approving the beneficiary list falls within the official duty of the public servant.

What did the court decide?

Revision allowed; lower court directed to decide the pending discharge application based on mandatory compliance of Section 197 Cr.P.C.

Bishambhar Nath Tewari Vs State of U.P. — Service and Employment | Allahabad HC (2019)

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Court No. - 17

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Case :- CRIMINAL REVISION No. - 268 of 1993

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Revisionist :- Bishambhar Nath Tewari Opposite Party :- State Of U.P. Counsel for Revisionist :- Gopal S. Chaturvedi,Sameer Jain Counsel for Opposite Party :- A.G.A.

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Hon'ble Suresh Kumar Gupta,J.

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This criminal revision has been preferred against the judgement and order dated 19.01.1993, passed by Special Judge/IInd Additional Sessions Judge, Jaunpur in Case No. Sessions Trial No. 19 of 1987 (State Vs. Thakur Deen and Others) rejecting the application of the petitioner for discharge for the offence under Sections 409 & 120-B of Indian Penal Code.

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I have heard Sri Sameer Jain, learned counsel for the revisionist and well as learned A.G.A. for opposite party. Perused the material available on record.

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Sri Sameer Jain argued that initially this case was registered under Section 5(2) of the Prevention of Corruption Act (hereinafter referred as Act), 1947 but sanction to prosecution the petitioner was refused and afterward the investigation officer submitted charge sheet under Section 409& 102-B of Indian Penal Code against the revisionist. He further contended that Section 409 of Indian Penal Code is akin and identical in terms of Section 5(i)(e) of the Act and the ingredients of both the offences are the same, and therefore, once sanction was refused for prosecuting the petitioner under Section 5(2) of the Act the charge sheet ought to have been submitted not under Sections 409 & 120-B of Indian Penal Code.

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On perusing the record, it transpires that revisionist was Block Development Officer (Public Servant) in Vikas Khand, Sujanganj. A list of landless agriculturist of the block submitted by the A.D.O. and Gram Sevak. Only allegation of the prosecution against the revisionist was that this list approved by revisionist and due to this fake and false list, revisionist get benefited and misappropriate the public money. Learned court below opined that misappropriation of money is not within the discharge of official capacity. So question of prosecution sanction under Section 197 Cr.P.C. is not attracted in this case. Now question arises whether the allegation made against the revisionist in discharge of official duty or not.

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Section 197 provides that:-

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"197. Prosecution of Judges and public servants.

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(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction-

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(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;

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(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government."

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Learned counsel for revisionist relied upon the judgment of Apex Court in Amal Kumar Jha Versus State of Chhattisgarh and Another (2016) 6 Supreme Court Cases 734. Protection under Section 197 Cr.P.C. available only when alleged act doing by public servant is reasonably connected with discharge of his official duty and is not merely a cloak for doing objectionable act. It is doing of his official duty, hence in excess of his official duty but there is a reasonable connection between act and performance of his official duty, excess will not be sufficient ground to deprive public servant of prosecution.

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In this case revisionist only approve the list of beneficiary agriculturist prepared by Gram Sevak and A.D.O. So it is wrong to say that performance of his act of revisionist not within the purview of discharge of official duty. So compliance of the provision under Section 197 Cr.P.C. is mandatory in this regard.

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Court below is directed to decide the discharge application as observation made above.

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With the abovesaid direction, revision is allowed.

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A copy of this order be transmitted to the court below for further compliance within one month.

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Order Date :- 7.2.2019 Vibha Singh

Bishambhar Nath Tewari v. State of U.P.

Case brief

What is this about?

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Bishambhar Nath Tewari v. State of U.P.

Case brief

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What did the court decide?

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