Chattisgarh High Court
Chintamani Shukla vs State Of Chhattisgarh on 28 April, 2009
Author: T.P.Sharma
Bench: T.P.Sharma
HIGH COURT OF CHATTISGARH AT BILASPUR
Criminal Miscellaneous Petition 211 of 2009
Chintamani Shukla
...Petitioners
VERSUS
State of Chhattisgarh
...Respondents
APPLICATION UNDER SECTION 482 OF THE CODE OF CRIMINAL PRCEDURE
! Shri Prakash Tiwari, Advocate for the petitioner
^ Shri Rajendra Tripathi, P.L. for the State/respondent
Honble Mr. T.P.Sharma, J
Dated:28/04/2009 : Judgment ORAL- ORDER (Passed on 28/4/2009)
1. Heard on admission.
2. This is a petition for quashment of the order dated 12/2/2009 passed by Second Additional Sessions Judge, Baloda Bazar in criminal revision affirming 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 cognizance court below has taken cognizance for the offence punishable under Sections 467, 468, 471, 420/34, 409/34 of the Indian Penal Code. Court below has also taken cognizance without sanction as required under Section 197 of the Code of Criminal Procedure, 1973 (hereinafter referred to as `the Code').
4. Learned counsel for the parties are heard.
5. Learned counsel for the petitioner submits that petitioner was working as sub Divisional Officer and was not removable from 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 official 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 would be possible against the 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 sufficient 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 official 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 jurisdiction unless illegality resulted into miscarriage of justice is shown. In case of Arun Shankar Shukla v. State of 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 the process of law" or "to secure the ends of justice"
do not confer unlimited jurisdiction on the High Court and the alleged abuse of the process of law or the ends of justice could only be secured in accordance with law 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 neigh settled that inherent power is 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 dealing with the same question i.e. for invoking inherent jurisdiction Apex Court has held in case of State of Punjab v. Kasturi Lal2, reads as under:-
"Exercise of power under S. 482 of the Code in a case of this nature is the exception and not the rule. 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. It 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 all 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 preserves inherent powers of the High Courts. All Courts, whether civil or criminal possess, in the absence of any express provision, as inherent 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 powers under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone Courts exist".
9. Every public servant is not protected under Section 197 of the Code for his prosecution unless he is removable from the post by or with the sanction of the State Govt. and has committed the offence while acting or purporting to act in the discharge of his official duty.
10. In case of requirement of sanction under Section 197 of the Code two conditions are sine-quo-non (1) that the public servant is only removable from 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 to discharge of his official duty.
11. Charges for the offence punishable under Sections 467, 468, 471, 420/34, 409/34 of the Indian Penal Code have been framed against the petitioner. The act of criminal misappropriation of money is not a official act but occupying the office only facilitate the commission of crime of such nature as held in case of S.B. Saha v. M.S. Kochar3, and State of Kerala v. Padmanabhan Nair4,. The criminal misappropriation of money or property is not a public duty therefore, no sanction for the prosecution of the offence punishable under Sections 406 and 409 of the Indian Penal Code is necessary likewise tampering or interpolation or cheating does not fall within the ambit of public duty or official duty therefore no sanction is necessary for the offence punishable under Sections 467, 468, 471, 420/34, 409/34 of the Indian Penal Code as held in case of Dhananjay Ram Sharma v. M.S. Uppadaya5. The opportunity to commit offence by holding post is not official duty.
12. In the instant case according to material collected on behalf of the prosecution petitioner along with co-accused persons were entrusted with the money and they were 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 of 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 then same could be sufficient for the conviction of the petitioner for the offence punishable under Sections 467, 468, 471, 420/34, 409/34 of the Indian Penal Code. The offence 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 find any illegality or infirmity in the order impugned. Consequently, the petition is liable to be dismissed and it is hereby dismissed.
JUDGE