Dismissed

Samarendra Das v. the State of Tripura

Tripura HC14 Sept 2017Crl.Petn./42/2017

Case brief

AI extract

What is this about?

The court dismissed a criminal petition seeking quashing of an FIR and charge sheet under Sections 468 and 471 IPC. It held that forgery offences do not fall within the official duty of a public servant, rendering Section 197 Cr.P.C. inapplicable and prosecution sanction unnecessary.

What did the court decide?

The criminal petition for quashing the FIR and charge sheet was dismissed; the trial court is directed to complete the trial within six months.

Samarendra Das Vs the State of Tripura — Cheating and Forgery | Tripura HC (2017)

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Crl. Petn. No.42/2017

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B E F O R E

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THE HON’BLE THE CHIEF JUSTICE MR. T. VAIPHEI

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Present :

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For the petitioner : Mr. N. Majumder, Advocate. For the respondent : Mr. S. Sarkar, P.P.

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14.09.2017.

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Heard Mr. N. Majumder, the learned counsel for the petitioner. Also heard Mr. S. Sarkar, the learned Public Prosecutor appearing for the State.

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This criminal petition is for quashing the FIR dated 17.05.2006 as well as the Charge Sheet dated 20.09.2007 submitted by the I.O. against the petitioner, who is charged under Sections 468/471 IPC.

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The case of the petitioner is that he has been falsely accused of forging the Resolution of the Minutes of the Meeting held on 29.04.2004 and was ultimately charge sheeted under Section 468/471 IPC. On the basis of the charge sheet filed by the police, the following charges have been framed by the learned Chief Judicial Magistrate, West Tripura, Agartala:-

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“…That at any time in between 29.04.2004 to 05.05.2004 any place at Ambassa, Dhalai, Jirania and Agartala under West Agartala P.S. in the capacity of Government Service and being the Divisional Forest Officer of Ambassa forged the certain documents to wit (i) Minutes of the Meeting held in the chamber of the D.F.O., Ambassa on 29.04.2004 at about 12.15 hours vide No.F.1-8/AD2004/701-710, dated 05.05.2004 regarding disposal of logs/timbers from the cyclone-damaged at Jeolcherra Plantations (2) Facts finding report vide No.F.N.B.Debnath/TFS/for2004/1, dated 02.11.2004 (3) the Despath Register of Ambassa Forest Division w.e.f. 01.04.2004 to 23.09.2004 and others documents in connection with this matters, with intending that those will be used for cheating and that you hereby committed an

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offence punishable under section 468 of the Indian Penal Code and within my cognizance;

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AND

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That you on the same dates and time and of same places fraudulently or dishonestly used as genuine the documents to wit (1) Minutes of the Meeting held in the chamber of the D.F.O., Ambassa on 29.04.2004 at about 12.15 hours vide No.F.1-8/AD-2004/701-710, dated 05.05.2004 regarding disposal of logs/timbers from the cyclone-damaged at Jeolcherra Plantations (2) Facts finding report vide No.F.N.B.Debnath/TFS/for 2004/1, dated 02.11.2004 (3) the Despath Register of Ambassa Forest Division w.e.f. 01.04.2004 to 23.09.2004 and others documents in connection with this matters and other documents in connection decisions and disposal of the logs timbers from the cyclone-damaged at Jeolcherra plantation of Dhalai District of Tripura, which you knew at the time and you used it to be forged documents and that you thereby committed an offence punishable under section 471 of the Indian Penal Code and within my cognizance;

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And I do hereby direct that you be tried on the

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said charges.”

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The contention of the learned counsel for the petitioner is that assuming without admitting that he made forged the resolution, the same was done in the discharge of his official duty and he is, accordingly, protected by Section 197 Cr.P.C. inasmuch as no prosecution sanction is accorded by the appropriate Government. He draws my attention to the decision of the Apex Court in Anil Kumar & ors. v. M.K. Aiyappa & anr. reported in (2013) 9 SCR 869 to fortify his submission.

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Refuting the contention of the learned counsel for the petitioner, Mr. S. Sarkar, the learned Public Prosecutor, submits that Section 197 Cr.P.C. cannot be invoked when the acts of commission or omission complained of have been committed within the scope of the authority of the office. According to the learned counsel, it is no part of the duty of the petitioner to falsify or forge an official meeting resolution and cannot therefore cry foul even if he is prosecuted

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without prosecution sanction as the same is uncalled for on the facts and in the circumstances of the case. In support of his contention, learned Public Prosecutor relies on the decisions of the Apex Court in State of U.P. v. Paras Nath Singh, 2009 AIR SCW 3712 and Romesh Lal Jain v. Naginder Singh Rana and others, (2006) 1 SCC 294 .

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Section 197 Cr.P.C. is in the following terms:-

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“197. Prosecution of Judges and public servants - (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 [save as otherwise provided in the Lokpal and Lokayuktas Act, 2013] -

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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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Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression “State Government" occurring therein, the expression “Central Government" were substituted.

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The Apex Court has an occasion to examine the extent of protection granted to a public servant under Section 197 Cr.P.C. in Paras Nath Singh (supra) and held as follows:-

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“11. Above views are reiterated in State of Kerala v. Padmanabhan Nair (1999 (5) SCC 690) . Both Amrik Singh (supra) and S.R. Munnipalli (supra) were noted in that case. Sections 467, 468 and 471, IPC relate to forgery of valuable security, Will etc; forgery for purpose of cheating and using as genuine a forged document respectively. It is no part of the duty of a public servant while discharging his official duties to commit forgery of the type covered by the aforesaid offences. Want of sanction under Section 197 of the Code is, therefore, no bar.”

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In Romesh Lal Jain (supra) , the Apex Court has also

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held:

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“20. However, in State of U.P. vs. M.P. Gupta , [(2004) 2 SCC 349 ] upon, inter alia, noticing Shreekantiah Rammayya Munipalli and Amrik Singh vs. State of Pepsu [(1955) 1 SCR 1302 ], in a case where offences alleged against a public servant were under Sections 406, 409, 467, 468 and 471 IPC , this Court held :

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"21. That apart, the contention of the respondent that for offences under Sections 406 and 409 read with Section 120-B IPC sanction under Section 197 of the Code is a condition precedent for launching the prosecution is equally fallacious. This Court has stated the legal position in Shreekantiah Ramayya Munipalli case and also Amrik Singh case that it is not every offence committed by a public servant which requires sanction for prosecution under Section 197 of the Code, nor even every act done by him while he is actually engaged in the performance of his official duties. Following the above legal position it was held in Harihar Prasad v. State of Bihar as follows: (SCC p. 115, para 66)

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„As far as the offence of criminal conspiracy punishable under Section 120-B, read with Section 409 of the Indian Penal Code is concerned and also Section 5(2) of the Prevention of Corruption Act are concerned, they cannot be said to be of the nature mentioned in Section 197 of the Code of Criminal Procedure. To put it shortly, it is no part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction under Section 197 of the Code of Criminal Procedure is, therefore, no bar."

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Above views are reiterated in State of Kerala v. V. Padmanabhan Nair . Both Amrik Singh and Shreekantiah were noted in that case. Sections 467, 468 and 471 IPC relate to forgery of valuable security, Will etc; forgery for the purpose of cheating and using as genuine a forged document respectively. It is no part of the duty of a public servant while discharging his official duties to commit forgery of the type covered by the aforesaid offences. Want of sanction under Section 197 of the Code is, therefore, no bar."

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In the light of the decision rendered in Romesh Lal Jain (supra) , even if there still lingering doubt in the mind of the petitioner in this regard, such doubt has been dispelled. Consequently, the petitioner cannot complain of want of prosecution for framing the charges against him U/s 468/471 IPC by the trial court. This criminal petition has no merit and is, accordingly, dismissed.

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An attempt will, however, be made by the trial court to complete the trial of the case within a period of 6 (six) months.

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CHIEF JUSTICE

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Crl. Petn. No.42/2017

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Samarendra Das v. the State of Tripura

Case brief

What is this about?

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Samarendra Das v. the State of Tripura

Case brief

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