Jyotish Ch. Sarkar Vs the State of Assam and Anr.

Heard Mr. A. K. Gupta, learned counsel appearing for the petitioner. Also heard Ms. A. Begum, learned Additional Public Prosecutor, appearing for the State respondent.

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2. By way of the present revision petition filed under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Cr.P.C.”), the petitioner has assailed the judgment and order dated 17.03.2016 passed by the learned Sessions Judge, Morigaon (hereinafter referred to as the “appellate court”) in Criminal Appeal No.22/2015 whereby the Crl.Rev.P./164/2016 Page 2 of 22

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appeal preferred by the petitioner was dismissed and the judgment and order dated 18.09.2015 passed by the learned Additional Chief Judicial Magistrate, Morigaon (hereinafter referred to as the “trial court”) in G.R. Case No.954/2012 was affirmed. By the said judgment, the learned trial Court convicted the petitioner under Section 409 of the Indian Penal Code, 1860 (hereinafter referred to as the “IPC”) and sentenced him to undergo simple imprisonment for three years and to pay a fine of Rs.10,000/-, in default, to undergo simple imprisonment for a further period of three months.

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3. The prosecution case, in brief, is that on 05.09.2012, the informant, namely the Inspector of Schools, lodged an FIR alleging that the petitioner, who was serving as the Head Teacher of Pub-Baralimari L.P. School under Laharighat Education Block, had misappropriated government funds sanctioned for construction of an additional classroom and toilet under the Sarva Siksha Abhiyan (SSA) Scheme. The allegation was founded upon an enquiry report submitted by the Technical Resource Person (TRP), SSA, Morigaon, which allegedly revealed misappropriation of an amount of Rs.1,64,000/-.

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4. On the basis of the said FIR, Bhuragaon P.S. Case No.41/2012 was registered under Sections 420/409 IPC. Upon completion of investigation, charge-sheet was submitted against the petitioner under Sections 420/409 IPC.

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5. The learned trial Court framed charges under Sections 420 and 409 IPC. The petitioner pleaded not guilty and claimed to be tried.

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6. In support of its case, the prosecution examined eight witnesses including the informant, the Technical Resource Person, the Junior Engineer associated with the project, members of the School Managing Committee and the Investigating Officer. Various documentary exhibits were also brought on record.

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7. Upon completion of the prosecution evidence, the statement of the petitioner was recorded under Section 313 Cr.P.C. The petitioner denied the incriminating circumstances put to him and claimed innocence.

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8. After appreciation of the evidence on record, the trial court acquitted the petitioner of the charge under Section 420 IPC but found him guilty of the offence punishable under Section 409 IPC and sentenced him accordingly.

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9. Aggrieved thereby, the petitioner preferred Criminal Appeal No.22/2015 before the appellate court. Upon reappreciation of the evidence and consideration of the submissions advanced by the parties, the learned appellate Court dismissed the appeal and affirmed the conviction and sentence imposed by the learned trial Court.

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10. Assailing the concurrent findings of the Courts below, Mr. Gupta, learned counsel for the petitioner, submits that the conviction recorded against the petitioner is unsustainable in law and on facts. It is contended that the prosecution is vitiated for want of sanction under Section 197 Cr.P.C. inasmuch as the alleged acts arose out of the petitioner’s official position as Head Teacher entrusted with implementation of the construction project. It is further submitted that the evidence on record does not establish the ingredients of criminal breach of trust beyond reasonable doubt and that the Courts below failed to properly appreciate the materials brought on record.

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11. Per contra, Ms. Begum, learned Additional Public Prosecutor, submits that the learned Courts below have correctly appreciated the evidence and arrived at concurrent findings of fact which do not warrant interference in exercise of revisional jurisdiction. According to the learned Additional Public Prosecutor, the evidence clearly establishes entrustment of government funds, withdrawal of the sanctioned amount by the petitioner and diversion of the same for purposes wholly unconnected with the sanctioned project.

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12. I have considered the rival submissions advanced by the learned counsel for the parties. I have also carefully perused the records of the case including the evidence adduced before the

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learned trial Court and the judgments rendered by the learned Courts below.

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13. In the light of the submissions advanced and the materials available on record, the following questions arise for consideration in the present revision petition:

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(i) Whether the prosecution and conviction of the petitioner are vitiated for want of sanction under Section 197 Cr.P.C.?

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(ii) Whether the prosecution has been able to establish the ingredients of the offence under Section 409 IPC beyond reasonable doubt?

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(iii) Whether the concurrent findings recorded by the learned trial Court and the learned appellate Court suffer from any perversity, illegality or jurisdictional error warranting interference in exercise of revisional jurisdiction under Sections 397 and 401 Cr.P.C.?

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14. The principal contention advanced on behalf of the petitioner is that the prosecution is vitiated for want of sanction under Section 197 Cr.P.C. It is contended that the amount alleged to have been misappropriated was entrusted to the petitioner in his capacity as Head Teacher of the school and, therefore, cognizance could not have been taken without obtaining prior sanction from the competent authority.

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15. At the outset, it is necessary to note that the issue of sanction under Section 197 Cr.P.C. was not raised before the learned trial Court. The petitioner participated in the trial, crossexamined the prosecution witnesses and allowed the trial to culminate in a judgment on merits. The objection appears to have been urged for the first time before the learned appellate Court.

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16. Nevertheless, since the contention pertains to the maintainability of the prosecution, this Court considers it appropriate to examine the same on merits.

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17. Section 197(1) Cr.P.C. provides that when any person who is or was a Judge, Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of an 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 of the competent Government.

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18. A plain reading of the provision makes it evident that two conditions must coexist before the protection under Section 197 Cr.P.C. can be invoked. Firstly, the accused must belong to the category of public servants who are not removable from service save by or with the sanction of the Government. Secondly, the act complained of must have been committed while

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acting or purporting to act in the discharge of official duty. Unless both requirements are satisfied, the bar contained in Section 197 Cr.P.C. does not come into operation.

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19. The aforesaid position stands authoritatively settled by the decision of the Apex Court in K. Ch. Prasad v. Smt. J. Vanalatha Devi and Others , reported in 1987 (2) SCC 52 , wherein the Court observed as follows:

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“ It is very clear from this provision that this Section is attracted only in cases where the public servant is such who is not removable from his office save by or with the sanction of the Government. It is not disputed that the appellant is not holding a post where he could not be removed from service except by or with the sanction of the Government. In this view of the matter even if it is held that appellant is a public servant still provisions of Section 197 are not attracted at all .”

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20. The Apex Court thus made it abundantly clear that mere status as a public servant is not sufficient to attract Section 197 Cr.P.C. The protection is confined to a limited class of public servants who enjoy the statutory safeguard that they cannot be removed from service except by or with the sanction of the Government.

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21. In the present case, the petitioner was serving as Headmaster of a provincialised elementary school. His service conditions are governed by the Assam Elementary Education Provincialisation framework and disciplinary proceedings against

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him are regulated by the Assam Services (Discipline and Appeal) Rules, 1964.

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22. The petitioner has neither pleaded nor established that he held a post from which removal could be effected only by or with the sanction of the State Government. On the contrary, major penalties including dismissal, removal and compulsory retirement are governed by the disciplinary mechanism contemplated under the Assam Services (Discipline and Appeal) Rules, 1964. The petitioner, therefore, does not belong to the class of public servants contemplated under Section 197 Cr.P.C.

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23. In view of the law laid down in K. Ch. Prasad (supra) , the first and foundational requirement for invocation of Section 197 Cr.P.C. is absent in the present case. On this ground alone, the plea regarding absence of sanction is liable to fail.

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24. Once the petitioner is found not to belong to the category of public servants protected by Section 197 Cr.P.C., the prosecution cannot be said to be vitiated merely because no sanction was obtained before taking cognizance.

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25. However, since elaborate arguments have been advanced on the question whether the alleged act bears any nexus with official duty, it would be appropriate to examine the second limb of the argument as well.

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26. Even assuming, for the sake of argument, that the petitioner satisfied the first requirement of Section 197 Cr.P.C., this Court is of the view that the second requirement is equally not attracted in the facts of the present case.

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27. The argument advanced on behalf of the petitioner proceeds on the premise that since the funds were entrusted to him by virtue of his official position as Headmaster, every act connected with the handling of those funds must necessarily be treated as an act done in discharge of official duty. Such a proposition cannot be accepted.

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28. The scope and ambit of Section 197 Cr.P.C. came up for consideration before the Apex Court in Shadakshari v. State of Karnataka , reported in 2024 INSC 42 , wherein the Court examined the underlying object of the provision and the circumstances in which its protection can be invoked.

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29. Referring to the earlier decision in State of Orissa v. Ganesh Chandra Jew , reported in 2004 (8) SCC 40 , the Apex Court reiterated that the protection under Section 197 Cr.P.C. is intended to safeguard responsible public servants from vexatious prosecution in respect of acts reasonably connected with discharge of official functions. The Court observed that the protection is available only when the act complained of falls within the scope and range of official duties and bears a

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reasonable nexus thereto. It was further observed that the provision does not extend its protective cover to every act or omission committed by a public servant during the tenure of service.

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30. The Apex Court thereafter considered the decision in Shambhoo Nath Misra v. State of Uttar Pradesh , reported in (1997) 5 SCC 326 , and specifically addressed the issue whether fabrication of records or misappropriation of public funds can be regarded as acts performed in discharge of official duty.

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31. The Court extracted with approval the following observations:

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“ 5. The question is when the public servant is alleged to have committed the offence of fabrication of record or misappropriation of public fund etc. can he be said to have acted in discharge of his official duties. It is not the official duty of the public servant to fabricate the false records and misappropriate the public funds etc. in furtherance of or in the discharge of his official duties. The official capacity only enables him to fabricate the record or misappropriate the public fund etc. It does not mean that it is integrally connected or inseparably interlinked with the crime committed in the course of the same transaction, as we believed by the learned Judge. Under these circumstances, we are of the opinion that the view expressed by the High Court as well as by the trial court on the question of sanction is clearly illegal and cannot be sustained .”

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32. After referring to the aforesaid authorities, the Apex Court concluded that Section 197 Cr.P.C. does not extend its

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protection to every act committed by a public servant while in service and that the protection is restricted only to those acts or omissions which are performed in discharge of official duties.

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33. The ratio of the aforesaid decision applies with full force to the facts of the present case.

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34. The prosecution case is not that the petitioner committed any irregularity while performing an official function. The allegation is that public funds entrusted for a specific public purpose were dishonestly diverted and utilised for purposes wholly unrelated to the sanctioned project.

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35. The petitioner’s position as Headmaster undoubtedly enabled him to receive and operate the funds sanctioned under the SSA Scheme. However, the official position merely furnished the occasion or opportunity for handling the funds. The alleged diversion of those funds for personal purposes cannot be elevated to an act performed in discharge of official duty.

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36. The distinction between entrustment and misappropriation is crucial. Entrustment of funds may arise from the office held by a public servant. Misappropriation of those funds, if established, is not an official act but a breach of the trust reposed in the public servant. Official duty authorises utilisation of the funds for the sanctioned purpose; it does not authorise diversion of the funds for private purposes.

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37. Therefore, even if the petitioner were assumed to be a public servant falling within the first limb of Section 197 Cr.P.C., the allegation of criminal breach of trust and diversion of entrusted public funds would not constitute an act done while acting or purporting to act in discharge of official duty.

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38. For all the aforesaid reasons, this Court finds no merit in the contention that the prosecution is vitiated for want of sanction under Section 197 Cr.P.C. The objection is accordingly rejected.

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39. Having dealt with the issue of sanction, this Court now proceeds to examine whether the prosecution has been able to establish the ingredients of the offence punishable under Section 409 IPC and whether the concurrent findings recorded by the Courts below warrant interference in exercise of revisional jurisdiction.

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40. The prosecution case rests upon the allegation that the petitioner, being a public servant entrusted with government funds for construction of an additional classroom and toilet under the SSA Scheme, dishonestly misappropriated a portion of the entrusted amount.

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41. In order to establish the charge, the prosecution examined eight witnesses and brought on record documentary

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evidence relating to sanction, withdrawal and utilisation of the funds.

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42. PW-1 , Md. Jehirul Haque, the informant and Inspector of Schools, deposed that an amount of Rs.3,28,000/- was sanctioned for construction of an additional classroom in PubBaralimari L.P. School and that the petitioner withdrew the first instalment of Rs.1,64,000/- in his capacity as Secretary-cum-Head Teacher of the school. According to this witness, the petitioner commenced the work by purchasing certain construction materials, but the work was not executed in accordance with the approved plan and estimate.

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43. More importantly, PW-1 deposed that the petitioner subsequently informed the departmental authorities that he had spent the money towards medical treatment of his daughter-inlaw and nephew. The witness further stated that despite being granted opportunities to complete the work and restore the amount, the petitioner failed to do so. The FIR was thereafter lodged.

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44. PW-2 , Sri Pranjal Kumar Das, the Technical Resource Person attached to the SSA project, provided a detailed account of the inspections carried out by him. His evidence establishes that although the sanctioned amount had been withdrawn, only a negligible portion of the work had been undertaken. He found

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substantial deviations from the approved plan and estimate and repeatedly directed the petitioner to rectify the defects and proceed in accordance with the sanctioned specifications.

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45. PW-2 further stated that despite repeated directions, the construction remained incomplete and that the petitioner informed the authorities that the money had been spent towards medical expenses of his daughter-in-law and nephew. His testimony finds corroboration from the documentary exhibits brought on record.

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46. PW-3 , Sri Pankaj Sharma, the Junior Engineer associated with the project, substantially corroborated the evidence of PW-2. He stated that the construction was not carried out as per the approved plan and estimate and that the petitioner had admitted utilisation of the funds for treatment of his relatives. According to this witness, the petitioner had withdrawn the amount without completing the sanctioned work.

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47. The evidence of PW-4 , the President of the School Managing Committee, also establishes that substantial amounts were withdrawn by the petitioner and that the sanctioned construction work remained incomplete. This witness stated that some construction materials were purchased and some work had commenced.

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48. The defence has relied heavily upon portions of the testimony of PW-4 and other witnesses to contend that a devastating flood had occurred in the locality and that construction materials including sand, cement and bricks suffered damage.

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49. It is true that certain prosecution witnesses acknowledged the occurrence of flood and the possibility of loss or damage to some construction materials. However, such evidence does not demolish the prosecution case.

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50. Firstly, the occurrence of flood by itself does not explain the utilisation of the entire entrusted amount.

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51. Secondly, no documentary evidence whatsoever was produced by the defence to demonstrate the quantity of materials allegedly damaged, the value thereof, or the exact financial loss occasioned by the flood.

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52. Thirdly, and most importantly, the defence explanation founded upon flood damage stands in direct conflict with the prosecution evidence that the petitioner himself informed the authorities that the money had been spent towards medical treatment of his daughter-in-law and nephew.

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53. Significantly, the letters written by the petitioner to the departmental authorities, which were proved during trial, lend

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assurance to the prosecution version. The evidence regarding such explanation offered by the petitioner remained substantially unshaken during cross-examination.

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54. PW-5, PW-6 and PW-7 also supported the prosecution case to the extent that the sanctioned work remained incomplete despite withdrawal of the funds and that the project was not executed in the manner contemplated under the sanctioned scheme.

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55. Upon an overall appreciation of the evidence, certain facts emerge beyond reasonable controversy.

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56. Firstly, the petitioner was entrusted with dominion over public funds sanctioned for a specific public purpose.

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57. Secondly, the petitioner withdrew the sanctioned amount and exercised complete control over its utilisation.

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58. Thirdly, the sanctioned work remained substantially incomplete and was not executed in accordance with the approved plan and estimate.

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59. Fourthly, the prosecution has brought on record evidence that the petitioner attributed non-completion of the work to utilisation of the funds towards treatment of his daughter-in-law and nephew.

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60. Section 405 IPC defines criminal breach of trust. The offence is committed when a person entrusted with property, or with dominion over property, dishonestly misappropriates or converts the same to his own use, or dishonestly uses or disposes of the property in violation of any direction of law or legal obligation governing such entrustment.

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61. Section 409 IPC is an aggravated form of criminal breach of trust applicable, inter alia, to public servants entrusted with property in that capacity.

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62. In the present case, entrustment is undisputed. Dominion over the funds is equally undisputed. The evidence on record further establishes that the funds entrusted for execution of a public construction project were not utilised for the purpose for which they were sanctioned.

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63. Once public funds entrusted for a specified governmental purpose are diverted and utilised for purposes wholly unrelated to the object of entrustment, the ingredients of criminal breach of trust stand attracted.

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64. The explanation offered by the petitioner does not create any reasonable doubt regarding the prosecution case. At the highest, the evidence regarding commencement of construction and purchase of some materials may indicate that a portion of the funds was initially utilised for the project. On the

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contrary, the evidence on record clearly establishes unauthorized diversion of entrusted public funds for the purpose for which they were sanctioned. Such diversion constitutes a violation of the conditions of entrustment and attracts the ingredients of criminal breach of trust.

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65. The learned trial Court, after a detailed appreciation of the evidence, recorded a finding that the prosecution had succeeded in proving the charge under Section 409 IPC. The learned appellate Court independently re-appreciated the evidence and arrived at the same conclusion.

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66. This Court finds that the concurrent findings recorded by the Courts below are founded upon evidence available on record and are supported by cogent reasons. The conclusions reached cannot be characterised as speculative, doubtful or perverse.

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67. The next question that arises is whether the concurrent findings recorded by the learned Courts below warrant interference in exercise of revisional jurisdiction under Sections 397 and 401 Cr.P.C.

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68. It is trite that the revisional jurisdiction of the High Court is supervisory and corrective in nature. The revisional Court does not function as a second appellate Court. Re-appreciation of

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evidence and substitution of findings merely because another view is possible is impermissible.

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69. Interference in revision is justified only when the findings recorded by the subordinate Courts suffer from patent illegality, manifest perversity, gross misreading of evidence, jurisdictional error or result in miscarriage of justice.

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70. The evidence led by the prosecution in the present case has been subjected to scrutiny by both the learned trial Court and the learned appellate Court. The learned appellate Court, being the final Court on facts, independently re-appreciated the entire evidence before affirming the findings recorded by the learned trial Court.

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71. This Court has carefully examined the depositions of the prosecution witnesses and the documentary evidence exhibited during trial. The findings regarding entrustment of public funds, withdrawal of the sanctioned amount by the petitioner, nonutilisation of the funds for the sanctioned purpose and diversion of the entrusted amount are all borne out by the evidence available on record.

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72. The defence founded upon flood damage and loss of construction materials was duly considered by the Courts below. The said defence was found insufficient to explain either the noncompletion of the project or the utilisation of the entrusted public

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funds for purposes unrelated to the sanctioned scheme. This Court finds no infirmity in such appreciation of evidence.

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73. Equally, this Court does not find any substance in the contention that the prosecution was legally incompetent for want of sanction under Section 197 Cr.P.C. As discussed hereinabove, the petitioner has failed to satisfy the foundational requirements necessary for invocation of the statutory protection. The objection regarding sanction was rightly rejected by the learned appellate Court and merits no acceptance.

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74. The cumulative effect of the evidence unmistakably establishes that public funds entrusted to the petitioner for execution of a specified governmental project were not utilised for the purpose for which they were sanctioned. The ingredients constituting criminal breach of trust by a public servant under Section 409 IPC stand satisfactorily established.

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75. The findings recorded by the learned Courts below are based on legal evidence, are supported by reasons and do not suffer from any perversity or manifest illegality.

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76. This Court, therefore, finds no ground to interfere with the conviction and sentence imposed upon the petitioner.

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77. Consequently, the judgment and order dated 17.03.2016 passed by the learned Sessions Judge, Morigaon in

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Criminal Appeal No.22/2015 affirming the judgment and order dated 18.09.2015 passed by the learned Additional Chief Judicial Magistrate, Morigaon in G.R. Case No.954/2012 call for no interference.

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78. The criminal revision petition is accordingly dismissed.

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79. The conviction of the petitioner under Section 409 IPC and the sentence imposed thereunder are hereby affirmed.

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80. The petitioner shall surrender before the learned trial Court within a period of four weeks from today to serve out the remaining sentence, if not already undergone, failing which the learned trial Court shall take necessary steps in accordance with law.

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81. Send back the records forthwith.

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82. The revision petition stands dismissed.

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83. Pending applications, if any, shall stand closed.

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JUDGE

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Comparing Assistant

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Pranab Digitally signed by Pranab Chandr Chandra Das Date: a Das 2026.06.05 18:51:05 +05'30'