SCARIA V.J v. STATE OF KERALA

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR`** ``` FRIDAY, THE 1[ST] DAY OF DECEMBER 2023 / 10TH AGRAHAYANA, 1945 ``` ## **`CRL.REV.PET NO. 1203 OF 2023`** ``` ORDER DATED 08.08.2023 IN CMP 516/2021 OF JUDICIAL MAGISTRATE OF FIRST CLASS - ``` ## **`II,HOSDRUG`** ## **`REVISION PETITIONER/PETITIONER:`** ``` SCARIA V.J AGED 62 YEARS S/O JOSEPH, VADAKKECHIRAYATH HOUSE, CHALA ROAD VIDYANAGAR POST, KASARAGOD, PIN - 671121 BY ADVS. S.SREEDEV ENOCH DAVID SIMON JOEL RONY JOSE LEO LUKOSE KAROL MATHEWS SEBASTIAN ALENCHERRY DERICK MATHAI SAJI KARAN SCARIA ABRAHAM ``` ## **`RESPONDENTS/STATE & ACCUSED:`** ``` 1STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI, PIN - 682031 2MRS JAYA JETRUDE GEORGE AGED 58 YEARS W/O ANTONY MASTER, RESIDING AT KOVVALPALLY KANHAGAD SOUTH P.O KASARAGOD, PIN - 671531 ADV.SEENA C.-PUBLIC PROSECUTOR ``` ## **`THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION`** ``` ON 01.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.Rev.Pet. No.1203 of 2023 2 ## **ORDER** ``` Dated this the 01[st] day of December, 2023 ``` The petitioner has filed a complaint before the Judicial Magistrate of the First Class-II, Hosdurg, alleging that the 2[nd] respondent committed the offence punishable under Section 167 and Section 465 of the Indian Penal Code 1860. The learned Magistrate as per the order dated 08.08.2023 dismissed the complaint. Aggrieved by that order, this Revision Petition under Section 397 read with Section 401 of the Code of Criminal Procedure 1973, is filed. 2. Heard the learned counsel for the petitioner and the learned public prosecutor. 3. The allegations in the complaint as could be gathered from the Revision Petition are the following: The petitioner retired as the Head Master of the Government Higher Secondary School, Periya. He retired on 31.03.2017. The 2[nd] respondent was the successor Headmistress. In order to get the retirement benefits of the petitioner, the 2[nd] respondent being the competent authority should have submitted non-liability certificate to the Deputy Crl.Rev.Pet. No.1203 of 2023 3 Director of Education. Not only that she did not submit the certificate in time, but also she submitted false documents relating to the salary arrears drawn by the petitioner. As a result of the said acts of the 2[nd] respondent there occurred huge delay in disbursing the pensionary benefits to the petitioner. The court below after recording the sworn statement of the petitioner proceeded to dismiss the complaint stating as follows: “Perused the complainant, affidavit and statement of the complaint. This case reveals that there has been administration lacks on the past of the respondent. This is a classic case of red tapism and delay in government actions. From the case fo the complainant there is no evidence to show that there has dishonest and fraudulent intention on the part of the respondent to cause wrongful loss to the petitioner. Moreover, there is no allegation that the respondent had transferred money to own account. The reply in Spark software can happen due to oversight or due to dereliction in duty. Though it is a wrongful cost to constitute crim there must be fraudulent and dishonest intention at the inception to commit offence. Hence, there is no prima facie case against the respondent and hence this petition is dismissed.” Crl.Rev.Pet. No.1203 of 2023 4 4. The learned counsel for the petitioner would submit that the offences committed by the 2[nd] respondent include creation of false documents and submission of the same before the Deputy Director of Education and therefore, the Court below ought not to have taken a stand that the whole of the offending acts were related to the official inaction alone. The learned counsel further submits that the submission of incorrect/false documents falls beyond the purview of official duty and therefore, the court below should have conduct a detailed enquiry before taking a decision whether or not to issue process to the 2[nd] respondent. 5. The leaned counsel for the petitioner relied on the guidelines laid down by the Apex court in **Devinder Singh & Ors v. State of Punjab through CBI** [2016 12 SCC 187], which are extracted below, in order to fortify his contention that the alleged acts committed by the 2[nd] respondent were totally beyond the official duties of the 2[nd] respondent. 37. The principles emerging from the aforesaid decisions are summarized hereunder: I. Protection of sanction is an assurance to an honest and sincere officer to perform his duty honestly and to the best of his ability to further public duty. However, authority Crl.Rev.Pet. No.1203 of 2023 5 ## cannot be camouflaged to commit crime. II. Once act or omission has been found to have been committed by public servant in discharging his duty it must be given liberal and wide construction so far its official nature is concerned. Public servant is not entitled to indulge in criminal activities. To that extent Section 197 CrPC has to be construed narrowly and in a restricted manner. III. Even in facts of a case when public servant has exceeded in his duty, if there is reasonable connection it will not deprive him of protection under section 197 Cr.P.C. There cannot be a universal rule to determine whether there is reasonable nexus between the act done and official duty nor it is possible to lay down such rule. IV. In case the assault made is intrinsically connected with or related to performance of official duties sanction would be necessary under Section 197 CrPC, but such relation to duty should not be pretended or fanciful claim. The offence must be directly and reasonably connected with official duty to require sanction. It is no part of official duty to commit offence. In case offence was incomplete without proving, the official act, ordinarily the provisions of Section Crl.Rev.Pet. No.1203 of 2023 6 ## 197 CrPC would apply. V. In case sanction is necessary it has to be decided by competent authority and sanction has to be issued on the basis of sound objective assessment. The court is not to be a sanctioning authority. VI. Ordinarily, question of sanction should be dealt with at the stage of taking cognizance, but if the cognizance is taken erroneously and the same comes to the notice of Court at a later stage, finding to that effect is permissible and such a plea can be taken first time before appellate Court. It may arise at inception itself. There is no requirement that accused must wait till charges are framed. VII. Question of sanction can be raised at the time of framing of charge and it can be decided prima facie on the basis of accusation. It is open to decide it afresh in light of evidence adduced after conclusion of trial or at other appropriate stage. VIII. Question of sanction may arise at any stage of proceedings. On a police or judicial inquiry or in course of evidence during trial. Whether sanction is necessary or not may have to be determined from stage to stage and material brought on record depending upon facts of each Crl.Rev.Pet. No.1203 of 2023 7 case. Question of sanction can be considered at any stage of the proceedings. Necessity for sanction may reveal itself in the course of the progress of the case and it would be open to accused to place material during the course of trial for showing what his duty was. Accused has the right to lead evidence in support of his case on merits. IX. In some case it may not be possible to decide the question effectively and finally without giving opportunity to the defence to adduce evidence. Question of good faith or bad faith may be decided on conclusion of trial. 6. This court followed the said proposition of law and explained when is a sanction under Section 197 of the Code is to be insisted if the offending act is committed by a public servant in **A.Anoop v. Baby Joseph** (order dated 21.07.2023 in criminal M.C. No.3112/2016). 7. In the instant case, the specific allegations of the petitioner is that the 2[nd] respondent did not submit the nonliability certificate despite repeated requests and further that the Treasury Bills pertaining drawing of the salary arrears by the petitioner submitted were not the correct ones. The allegation is that the 2[nd] respondent with knowledge that the Crl.Rev.Pet. No.1203 of 2023 8 said Treasury Bills were incorrect and with a view to delay the disbursement of the pensionary benefits of the petitioner owing to personal enmity, submitted such incorrect bills. Applying the test as laid down by the Apex Court in **Devinder Singh** (Supra) the aforesaid acts can only be said to be done by a public servant during the course of discharge of his duty. 8. Of course, whether such acts amounted the offences under Section 167 and Section 465 of the IPC is a matter to be decided after an appropriate inquiry under Section 202 of the Code. It is contended that the learned Magistrate did not conduct such an inquiry and therefore the impugned order is incorrect. But when the offending act was closely connected to the discharge of the official duty of the 2[nd] respondent, there cannot be a direction to the learned Magistrate to conduct an inquiry since cognizance of such an offence can be taken only with the sanction of the Government as contemplated in Section 197(1) of the Code. 9. In that view of the matter, the impugned order is not liable to be set aside, although the reason assigned for dismissing the complaint is not tenable. However, it is made clear that this order shall not create any bar for filing a complaint in relation to the same offence after getting sanction Crl.Rev.Pet. No.1203 of 2023 9 under Section 197(1) of the Code. The Criminal Revision Petition is disposed of as above. In the event of the petitioner obtaining and producing a sanction under Section 197(1) of the Code and files a new complaint, the learned Magistrate shall inquire into the matter and take a fresh decision in accordance with law. Sd/- **P.G.AJITHKUMAR JUDGE** SMF