A valid sanction under Section 197 of the Code of Criminal Procedure is required for the prosecution of a public servant for an offense alleged to have been committed in the discharge of their official duty.

JUDGMENT :

(Bibhas Ranjan De, J.)

1. This appeal has been preferred assailing the judgment and order of conviction dated 14.12.2022 passed by Ld. Judge, 1st Special Court, Alipore, South 24 Parganas in connection with special case no 4/2018 under Section 409 of the Indian Penal Code (hereinafter referred to as IPC), whereby Ld. Judge convicted the appellant/Bandana Mondal (Naskar) and sentenced her to suffer simple imprisonment for 2½ years and to pay a fine of Rs. 5,000/- in default suffer further simple imprisonment for 2 months.

2. Circle Project Co-ordinator, Sonarpur as per direction of competent authority (District Magistrate, South 24 Parganas), lodged FIR before the Officer in-charge of Sonarpur Police Station alleging inter alia that funds of Rs. 35,000/- was placed by the Sarbashikha Mission, South 24 Parganas, through his office to Jardaha Beniabow F.P. School, under Jurisdiction of Sonarpur Police Station for the year 2011-12 for constriction of TSC toilet. But, the school authority neither completed the civil construction nor utilized the fund properly. Moreover, the school authority did not refund the said fund within stipulated time.

3. On receipt of the complaint Sonarpur PS Case No. 581/16 dated 18.03.2016 under Section 409 IPC was started against the appellant, Bandana Mondal (Noskar). After investigating charge sheet was filed against the appellant under Section 409 IPC.

4. Ld. Judge, of the 1st Special Court, Alipore, took cognizance of the offence and the same was registered under special case no. 4 of 2018 and took up for disposal. On 26.06.2018 Ld. Judge, framed formal charge under Section 409 of the Indian Penal Code as follows:-

“First – That being the teacher in-charge in respect of Benia- Bow F.P. School entrusted to construct civil work during the period 2011-2012 and a sum of Rs. 35,000/- have been allotted for construction of TSC Toilet but neither you have completed your entrusted work nor refund the amount within stipulated time and moreover you have done the same to give benefit to your husband without any work order and thereby committed offence under section 409 of IPC and is within my cognizance.

And I hereby direct that you be tried by this court on the said charge.

Charge has been read over and explained to the accused person in Bengali, to which they pleaded not guilty and claimed to be tried by saying that “ami nirdosh, bichar chai”

Dated: this 26th day of June, 2018”

5. To prove the charge, prosecution examined five witnesses namely Nachiketa Das (defacto complainant) as PW1, Dipika Paul (Field Junior Engineer, Sonarpur block and municipality) as PW2, Keshida Khatun (Shikha Bandhu attached to SI of school) as PW3, SI Kishore Kumar Das ( 1st Investigating Officer)as PW4 and one S.I Susobhon Sarkar (2nd Investigating Officer ) as PW5. In course of their evidence signature of PW1 on the inquiry report as exhibit 1/1 FIR and signatures thereon as exhibit 2 series, formal FIR as exhibit 3 and rough sketch map with index as exhibit 4.

6. On behalf of the defence/appellant utilization certificate was admitted in evidence as exhibit A, audit reports as exhibit B and copy of resolution book dated 23.2.2013 along with work order were marked as exhibit C.

Argument advanced:-

7. Ld. Advocate, Mr. Asimes Goswami, appearing on behalf of the petitioner has advanced his argument as follows:-

7.1. No sanction was obtained under section 197 of code of criminal procedure before initiating proceeding against appellant, a public servant with the meaning section 21 of the Indian Penal Code. In support of his contention he relied on Mansukhlal Vithaldas Chauhan vs. State of Gujarat reported in (1997) 7 Supreme Court Cases 622.

7.2. Mr. Goswami assailed the evidence on record and submitted that there is no cogent evidence to sustain conviction of the appellant under Section 409 in terms of defective charge framed by the Ld. Trial Judge, with regard to incomplete construction of toilet whereas evidence shows comp