Madhya Pradesh High Court
Raj Kishore Jha vs The State Of Madhya Pradesh on 16 July, 2025
NEUTRAL CITATION NO. 2025:MPHC-JBP:31998
1 CRR-3388-2021
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
CRIMINAL REVISION No. 3388 of 2021
RAJ KISHORE JHA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Devendra Kumar Sharma - Advocate for the applicant.
Shri Amit Pandey - Government Advocate for the respondent-State.
Shri Arvind Kumar Sharma - Advocate for the respondent no.9.
WITH
CRIMINAL REVISION No. 3597 of 2021
SMT.SEEMA THAKUR
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Satish Kumar Thakur - Advocate for the applicant.
Shri Amit Pandey - Government Advocate for the respondent-State.
Shri Arvind Kumar Sharma - Advocate for the respondent no.10.
CRIMINAL REVISION No. 3511 of 2023
SMT. SEEMA THAKUR
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Devendra Kumar Sharma - Advocate for the applicant.
Shri Amit Pandey - Government Advocate for the respondent-State.
Shri Arvind Kumar Sharma - Advocate for the respondent no.2.
Signature Not Verified
Signed by: HIMANSHU
KOSHTA
Signing time: 16-07-2025
18:35:06
NEUTRAL CITATION NO. 2025:MPHC-JBP:31998
2 CRR-3388-2021
Reserved on : 23.06.2025
Pronounced on : 16.07.2025
ORDER
These Revisions are heard analogously and are being decided by a common order.
2. This Criminal Revision under Section 397 read with Section 401 of the Code of Criminal Procedure has been preferred against the order dated 09.09.2021 and order dated 14.07.2023 on the ground that both the applicants are the government servant and the protection of Section 197 of Cr.P.C. is available to them but without obtaining the sanction from the competent authority, the prosecution was launched and the trial court has not considered this fact while framing the charges for the offences punishable under Sections 420, 467, 468, 471 and 120-B of IPC and requested that they be discharged from the above offences.
3. The facts giving rise to these cases in brief are that one of the co- accused in the criminal case Mrs. Shashibai Mishra applied for the post of Anganwadi karyakarta and her appointment letter was issued by Raj Kishore Jha who at that time was CEO of Janpad Panchayat, Bahoriband. It is also alleged that the applicant-Seema Thakur was the member of the recruitment committee. A complaint was made by two persons namely Ms. Madhu Paroha and Virendra Mishra that Shashibai Mishra got appointment of Anganwadi Karyakarta on the basis of fraud and forged documents. The matter was reported to higher authorities. As per the order of Additional Commissioner (Revenue), the inquiry was made by SDO, Revenue, Signature Not Verified Signed by: HIMANSHU KOSHTA Signing time: 16-07-2025 18:35:06 NEUTRAL CITATION NO. 2025:MPHC-JBP:31998 3 CRR-3388-2021 Bahoriband in which it was found that Smt. Shashibai Mishra was appointed in the year 1998 using the marksheet of Neelam Choubey who is the daughter of her brother and thus, they are related as a Bua and Bhatiji.
4. On 01.03.2000, Smt. Shashibai Mishra filed a separate application that due to mistake, she has submitted a wrong marksheet and her name be corrected in the service record. On that basis, the name of Neelam was deleted and fresh order was passed in the name of Smt. Shashibai Mishra. When the record from the office of CEO, Janpad Panchayat was called and that was not supplied to SDO. In the inquiry, it was found that the appointment was made by CEO, Janpad Panchayat, Bahoriband, R.K. Jha and his team in which Dr. R.S. Rajput, Uma Awasthi and Seema Thakur were as supervisors. The documents were sought from Dr. R.S. Rajput. He has submitted that on transfer, he has handed over all the documents to S.P. Singh. Lastly SDO, Revenue concluded that the applicant-Raj Kishore Ojha (K.K. Ojha) without making the sufficient inquiry has issued the appointment letter with great carelessness and his act comes in the purview of crime.
5. The report was sent to Commissioner, Jabalpur Division and on the report of Revenue Authorities, the FIR was lodged against the applicants.
6. After the investigation, the chargesheet was submitted on 05.03.2016 before Judicial Magistrate First Class and on commitment, the case was sent to Sessions Court. The trial Court as per the order dated 09.09.2021 had dismissed the application. By being aggrieved with that, this revision petitions have been filed.
Signature Not Verified Signed by: HIMANSHU KOSHTA Signing time: 16-07-2025 18:35:06NEUTRAL CITATION NO. 2025:MPHC-JBP:31998 4 CRR-3388-2021
7. Learned counsel for the applicants has submitted that applicant-Raj Kishore Jha was appointed by Madhya Pradesh Government on the basis of recommendation of Madhya Pradesh Public Service Commission Exam in 1989 by order dated 02.11.1991 and submitted that the applicant is an employee of Madhya Pradesh Government and without sanction of the Government of Madhya Pradesh, he cannot be prosecuted as Section 197 of Cr.P.C. creates a bar. He is an employee of the Government of Madhya Pradesh and without sanction of Government of Madhya Pradesh, he cannot be prosecuted for any offence alleged to have been committed by him by acting or purporting to act in the discharge of his official duty, no Court could take cognizance of such offence except with the previous sanction of the Government.
8. Learned counsel for the applicant has further submitted on behalf of Raj Kishore Ojha that as per amended Rules of Women and Child Welfare Department Madhya Pradesh Government, Vallabh Bhawan, Bhopal, the observer will seek the panel of three to five persons for appointment from Gram Panchayat and in recommending the names, the observer shall also intimate the qualification to the village panchayat and the village panchayat within 15 days from the demand of panel shall make available to observer/supervisor. The panel and the supervisor/observer within 15 days shall examine whether the persons recommended in panel have requisite qualification or not? After that, he shall forward to panel through Child Development Project Officer to Janpad Panchayat and observer/Child Welfare Development Officer shall examine the candidature. After that, the Signature Not Verified Signed by: HIMANSHU KOSHTA Signing time: 16-07-2025 18:35:06 NEUTRAL CITATION NO. 2025:MPHC-JBP:31998 5 CRR-3388-2021 candidates have requisite qualification and Project Officer at that time when the name is considered by Janpad Panchayat, shall be present and ensure that the person having requisite qualification is eligible to be appointed. After that, the appointment letter shall be issued by the CEO, Janpad Panchayat.
9. Learned counsel for the applicants has also submitted that the requisite qualification for the post of Aganwadi Karyakarta was metric and non-metric. There was difference that the person having metric certificate was eligible for honorary amount of Rs.500/- per month whereas the person having non-metric qualification was eligible for honorarium amount of Rs.438/- per month. It was also mandatory that she should be the voter of the concerned village from where the Aganwadi is proposed to be opened.
10. Learned counsel has further submitted that the tenth class marksheet was not compulsory. It was the duty of supervisor/observer to ensure that the applicant had the requisite qualification and it was not the personal liability of CEO, Janpad Panchayat. He has submitted that in the case, the applicant-Raj Kishore Ojha had to ensure the qualification for the post in question and also to check the documents. Furthermore, it is also argued that the appointment letter (Annexure A-6) was issued containing a condition that the Joining Officer shall verify the original documents with photocopies and only thereafter, he shall permit the candidates to join.
11. Learned counsel for the applicants has further submitted that the documents stated to have been destroyed or not produced before the Inquiry Officer. It was not his duty as he was not posted at that time as a CEO, Bahoriband. In 1999, he was transferred from Bahoriband to Chhattisgarh Signature Not Verified Signed by: HIMANSHU KOSHTA Signing time: 16-07-2025 18:35:06 NEUTRAL CITATION NO. 2025:MPHC-JBP:31998 6 CRR-3388-2021 and the second letter as stated was forged and the appointment letter dated 11.09.1998 only was issued by him but no amended letter was issued by him. If it was forged by Shashi Mishra, he is not liable for that.
12. Learned counsel for the applicant has also submitted that the applicant has made the representation and through his Department, he sought the information. At that time, it was not disclosed that any case has been registered against the applicant. No permission was taken from the Government of Madhya Pradesh or Chhattisgarh. The trial Court has wrongly applied the precedent law in the case and the case cited by trial Court in Ramkrishna Shankar Avhad v. Rajendra Jagannath Parikh and another, 1997 CRILJ 183 is not applicable in the case. In the same way, the case law cited by the trial Court in Vimal Kumar v. State of Madhya Pradesh, 2005(3) M.P.H.T. 167 is also not applicable in this case as in that case, the employee was held liable for misappropriation of the bank fund and cheating that does not come in the purview of official duty of any person.
13. Learned counsel has further submitted that when the inquiry was made by the Revenue Authority, no chance was given to him to put his defence and thus, it is violated the principles of natural justice and to that point, he has relied with the judgment of Kailash Kumar Dangi v. State of M.P. and others, 2000(1) M.P.H.T. 143 and Kamal Kishore v. Janpad Panchayat, Nalkheda and others, 2000(1) M.P.H.T. 212 in which it has been held that as per the provision of M.P. Panchayat Raj Adhiniyam, 1993, Section 40 of Panchayat Raj Adhiniyam- Inquiry to be held in conformity with the principle of natural justice.
Signature Not Verified Signed by: HIMANSHU KOSHTA Signing time: 16-07-2025 18:35:06NEUTRAL CITATION NO. 2025:MPHC-JBP:31998 7 CRR-3388-2021
14. Further on relying on the various judgments of the Courts, learned counsel for the applicant has submitted that in the judgment of Sankaran Moitra v. Sadhna Das and others, MANU/SC/1484/2006 , in paragraph no.11 of the above judgment, the Apex Court discussing the case law in Amrik Singh v. the State of PEPSU held that it is not every offence committed by a public servant that requires sanction for prosecution under Section 197(1) of the Code of Criminal Procedure; nor even every act done by him while he is actually engaged in the performance of his official duties, but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary; and that would be so, irrespective of whether it was, in fact, a proper discharge of his duties, because that would really be a matter of defence on the merits, which would have to be investigated at the trial, and could not arise at the stage of the grant of sanction, which must precede the institution of the prosecution. In this case, it was further held that the question may arise at any stage of the proceedings. The complaint may not disclose that the act constituting the offence was done or purported to be done in the discharge of official duty; but facts subsequently coming to light on a police or judicial inquiry or even in the course of the prosecution evidence at the trial, may establish the necessity for sanction. Whether sanction is necessary or not may have to be determined from state to stage. The necessity may reveal itself in the course of the progress of the case.
15. On that basis, it is submitted that in this case, there is direct nexus Signature Not Verified Signed by: HIMANSHU KOSHTA Signing time: 16-07-2025 18:35:06 NEUTRAL CITATION NO. 2025:MPHC-JBP:31998 8 CRR-3388-2021 between the official duty and the act done as he has issued the appointment letter as he was authorised to do that.
16. Learned counsel also relying on the judgment in the case of Anjani Kumar v. State of Bihar and another, AIR 2008 SC 1992 particularly paragraph nos.11, 12, 14 and 15 in which it has been held that if in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, he excess will not be a sufficient ground to deprive the public servant from the protection. Further, it is also held that one safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty, if the answer to his question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant. This aspect makes it clear that the concept of Section 197 of Cr.P.C. does not get immediately attracted on institution of the complaint case. If the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary.
17. It has been further held in paragraph no.15 that it has been widened further by extending protection to even those acts or omissions which are done in purported exercise of official duty. That is under the colour of office. Official duty therefore implies that the act or omission must have been done Signature Not Verified Signed by: HIMANSHU KOSHTA Signing time: 16-07-2025 18:35:06 NEUTRAL CITATION NO. 2025:MPHC-JBP:31998 9 CRR-3388-2021 by the public servant in course of his service and such act or omission must have been performed as part of duty which further must have been official in nature.
18. Learned counsel relaying on the judgment of Rakesh Kumar Mishra v. State of Bihar and others, AIR 2006 SC 820 in which it has been held that no cognizance has been taken even after cognizance having been taken if facts come to light that the acts complained of were done in the discharge of the official duties then the trial may have to be stayed unless sanction is obtained. The word used in Section 197 of Cr.P.C. is that 'no' and 'shall' make it abundantly clearly that the bar on the exercise of power by the court to take cognizance of any offence is absolute and complete. Very cognizance is barred.
19. Learned counsel further relying on the judgment of Anil Kumar Mishra v. State of U.P. and another, order passed in application no.11657 of 2015 dated 14.05.2015 has submitted that the protection given under Section 197 of Cr.P.C. is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant from the protection.
20. Learned counsel further relying on the judgment of Ayush Kumar and other v. State of U.P. passed by High Court of Judicature at Allahabad Signature Not Verified Signed by: HIMANSHU KOSHTA Signing time: 16-07-2025 18:35:06 NEUTRAL CITATION NO. 2025:MPHC-JBP:31998 10 CRR-3388-2021 order passed in application no.17421 of 2011 dated 10.04.2019 in which it has been held that without obtaining the sanction from the competent authority, if the prosecution is launched, the trial Court shall not take cognizance of the offence. He has also relied on paragraph no.12 of the judgment of S.K. Prasad and another v. State of M.P. , the order of Coordinate Bench of this Court passed in Criminal Revision No.1545/2010 dated 09.05.2013 in which it has been clearly held that without sanction of Section 197 of the Cr.P.C., the Court has taken the cognizance that is against the law. He has also cited the judgment of Amal Kumar Jha v. State of Chhattisgarh and another, (2016) 6 SCC 734 particularly in paragraphs no.8 and 9 of the judgment also relied on the judgment of Ganesh Prasad Dubey v. State of Madhya Pradesh and others, order of Coordinate Bench of this Court in M.Cr.C. No.17981/2016 dated 16.07.2018 in which citing the judgment of Shambhoo Nath Misra v. State of UP and others, (1997) 5 SCC 326 , this Court has held that as the public servant to perform his official duty, is entitled to protection under Section 197(1) of Cr.P.C. Without previous sanction, the complaint/charge against him for the alleged offence cannot be proceeded with in the trial court.
21. On citing the some legal positions, learned counsel for the applicant-Seema Thakur has submitted that she is a government servant and she was not involved in the process of selection for the post of Anganwadi Karyakarta and Sahayika in 1998. She was involved in the case as she was transferred from Bahoriband on 23.04.1996 and the selection process for the Development Block Project was started in 1998 and on 30.04.1996, she has Signature Not Verified Signed by: HIMANSHU KOSHTA Signing time: 16-07-2025 18:35:06 NEUTRAL CITATION NO. 2025:MPHC-JBP:31998 11 CRR-3388-2021 joined in Narayanganj District-Mandla. Thus, she was not working at Bahoriband. It has been argued on her behalf that to support his contention, she has also challenged the order dated 14.07.2023 that she has annexed the transfer order so-call the joining order showing that as per the order dated 23.04.1996, she was relieved on 23.04.1996 from Development Block, Bahoriband and she has joined on 30.04.1996. She has also submitted the copy of the service record.
22. Learned Government Advocate for the State has submitted that the basic case is against the applicants. After inquiry, it was found that the applicant-Raj Kishore Jha has not only issued one letter but also the application of the main accused Shashi Mishra. He has issued the amended letter, then it is also clear that the marksheet was forged and it was the duty of the appointing authority to ensure that the qualified and eligible person is appointed and being in the appointing authority, he is bound by his act and it is clear case of conspiracy and forgery. Hence, no sanction is required while a person as a public servant forged the documents and appointment letter with the conspiracy to the other co-accused person as no sanction is required in the case of forgery and criminal activities while using his post.
23. Learned counsel for the objector has also supported the order passed by the trial Court and submitted that the applicants conspiring with Smt. Shashi Mishra appointed her and they are not entitled for protection and it was not official duty to make appointment on the basis of forged documents.
24. Parties have also relied on the judgments of State of Uttar Pradesh Signature Not Verified Signed by: HIMANSHU KOSHTA Signing time: 16-07-2025 18:35:06 NEUTRAL CITATION NO. 2025:MPHC-JBP:31998 12 CRR-3388-2021 v. Paras Nath Singh, (2009) 6 SCC 372 and Anju Singh Baghel v. Economic Offence Bureau, order passed by Coordinate Bench of this Court in Criminal Revision No.1210 of 2016 dated 18.10.2016 in which it has been laid down and it is alleged that the accused passed the order of exchange of land in her official capacity and there was no allegation of receiving any illegal gratification. The work is of the official capacity and sanction is mandatory. The same principle has also been laid down in the case of Paras Nath Singh (supra).
25. Heard learned counsel for the parties and perused the record.
26. I have gone through the judgments relied by the trial Court and the case diary.
27. The case as submitted before the trial Court by the prosecution whereas the applicant-Raj Kishore Ojha is concerned, no one has taken the objection that he was appointed by Madhya Pradesh Government Panchayat and Rural Department on passing the Civil Service Competitive Exam which was conducted by Madhya Pradesh Public Service Commission. On 02.11.1991, the appointment letter was issued by Deputy Secretary of Department of Panchayat and Village Development. It is also admitted fact that the applicant issued the appointment letter dated 11.01.1998 in favour of the accused Smt. Shashi @ Sadhana Mishra w/o Rameshwar Prasad Mishra as a Aganwadi Karyakarta Sahayika in village Budhna. The applicant has denied that he has issued the amended letter as Annexure A-6 and as SDO, Bahoriband in his inquiry, he has clearly stated that the marksheet was forged by Shashi @ Sadhana Mishra forged the marksheet of Neelam her Signature Not Verified Signed by: HIMANSHU KOSHTA Signing time: 16-07-2025 18:35:06 NEUTRAL CITATION NO. 2025:MPHC-JBP:31998 13 CRR-3388-2021 brother's daughter making it Neelam Shashibai @ Sadhna Mishra. On 30.06.1998, she has submitted two separate affidavits. On 01.03.2000 and 03.04.2000 by filing the affidavits, she has applied for correction of her name whereas affidavit dated 30.09.1998 she has stated that her name is Sadhna and Neelam both.
28. Further, it has been found that Neelam @ Sadhna by scratching the name of Neelam over written name Shashibai. Thus, he has forged the document. On 10.10.1998, she has been given the joining. She has also forged the affidavits. In the conclusion of the inquiry, it has been held that the CEO R.K. Ojha (K.K. Ojha) without making sufficient inquiry, scrutiny, ignoring the conditions and qualification of post issued appointment letter. Thus, the main allegation is that the applicant-Raj Kishore Ojha has not properly scrutinised the document and made inquiry of the document. On that basis, it is stated that his acts come in the purview of crime.
29. Revenue Officer in its report (Annexure A-2) has clearly stated that the documents of appointment were handed over to Dr. S.P. Singh Assistant Veterinary Officer and S.P. Singh has not handed over those documents.
30. R.K. Ojha was posted as CEO of Janpad from 15.11.1996 to 26.11.1999. He has also stated that the documents were handed over to R.K. Rajput and R.K. Rajput handed over the documents to S.P. Singh and S.P. has admitted that he has received the documents but he has not submitted the documents while he called during the inquiry.
31. Thus, it is not allegation against the applicant that he has forged the Signature Not Verified Signed by: HIMANSHU KOSHTA Signing time: 16-07-2025 18:35:06 NEUTRAL CITATION NO. 2025:MPHC-JBP:31998 14 CRR-3388-2021 documents. Additional Commissioner Revenue in his report to Joint Director integrated Child Development Service, Jabalpur has submitted that the applicant-Raj Kishore Ojha and his team Dr. R.S. Rajput, Uma Awasthi, Seema thakur have given the appointment to Mrs. Shashi Mishra without proper inquiry and no following qualification and condition for appointment.
32. Thus, the basic thrust of the allegation is that the applicant has issued the appointment letter to Shashi Mishra without proper scrutiny. Nowhere it is alleged that the applicant has forged any document or order or held the documents or destroyed the documents of appointment.
33. As per the rules of the appointment of Anganwadi, it is clear that the CEO of Janpad Panchayat was authorised person to issue the appointment letter. In doing that he has not exceeded his jurisdiction and he has not done any act for which he was not authorised.
34. Thus, it cannot be said that the act alleged has been done without the official capacity for which he was authorised.
35. Thus, the principles laid down in the case relied by trial Court in Ramkrishna Shankar Avhad (supra) , and Vimal Kumar (supra) are totally different from the facts of this case.
36. The applicant was not given the opportunity of hearing in inquiry and no department proceeding was held against him by which he could explain his position. Thus, the applicant-Raj Kishore Ojha is entitled for the protection of Section 197 of Cr.P.C. It is not the case of the prosecution and not from the order of the trial Court. It appears that the sanction to Signature Not Verified Signed by: HIMANSHU KOSHTA Signing time: 16-07-2025 18:35:06 NEUTRAL CITATION NO. 2025:MPHC-JBP:31998 15 CRR-3388-2021 prosecution was obtained from Madhya Pradesh Government or Chhattisgarh Government. Hence, the Judicial Magistrate has wrongly taken the cognizance of the offence and the trial Court has wrongly rejected the application and framed the charges against the applicant.
37. Hence, the cognizance cannot be taken and charges could not be framed against the applicant and the order of framing charges cannot be sustained. On that basis, the applicant is discharged from all the charges on the basis of Police chargesheet filed by P.S. Bahoriband in Crime No.340/2014. The Criminal Revision no.3388/2021 filed by the applicant- Raj Kishore Ojha is allowed and he is discharged from the aforesaid offences.
38. Whereas the case of applicant-Smt. Seema Thakur is concerned. She has not submitted her appointment letter and furthermore, the document that she has submitted with the revision is that she has been transferred on 23.04.2016 and joined in the District Women and Child Development Department, Mandla on 30.04.1996 but this is the matter of fact and not the question of law only. The matter of fact could be proved by examining the evidence or cross-examining the prosecution witnesses. Hence, the Revision preferred by applicant-Smt. Seema Thakur could not be allowed. Hence, the Criminal Revision no.3597/2021 and 3511/2023 are dismissed with the direction to the trial Court that the legal point regarding bar/protection under Section 197 of Cr.P.C. shall be decided while passing the judgment.
39. With the copy of this order, the case diary be sent back to the concerned trial Court for necessary action and compliance.
Signature Not Verified Signed by: HIMANSHU KOSHTA Signing time: 16-07-2025 18:35:06NEUTRAL CITATION NO. 2025:MPHC-JBP:31998 16 CRR-3388-2021
40. Copy of this order be kept in connected cases.
(DEVNARAYAN MISHRA) JUDGE HK Signature Not Verified Signed by: HIMANSHU KOSHTA Signing time: 16-07-2025 18:35:06