Public servants removable by a superior authority, not the government, do not require government sanction for prosecution under Section 197 Cr.P.C.

JUDGMENT :

AMRITA SINHA, J.

1. In the instant application the petitioner has prayed for quashing the criminal proceeding being Special Case No. 1 of 2023 arising out of Alipurduar Police Station Case No. 317 of 2023 dated 24th September, 2023 under Sections 467/468/471/477A/409/420 of the Indian Penal Code, 1860 read with Section 13(1)(A) of the Prevention of Corruption (Amendment) Act, 2018 pending before the learned Special Court-cum-District & Sessions Judge, Alipurduar.

2. The ground agitated by the petitioner for quashing the aforesaid proceeding is that the said proceeding cannot and ought not to be initiated against the petitioner without obtaining sanction of the Government as he is a public servant.

3. The petitioner is serving as a constable of West Bengal Police and he claims to be a public servant within the meaning of Section 21 of the Indian Penal Code. It has been submitted that the proceeding initiated against the petitioner is untenable as he is protected under Section 197 of the Code of Criminal Procedure, 1973. The petitioner stresses upon the aforesaid Section and submits that as the petitioner is a public servant and he was performing public duty, accordingly, prior to initiating any criminal proceeding against him, sanction ought to have been taken from the Government. As no sanction has been taken prior to initiating the subject proceeding, the same is bad in law and is liable to be set aside.

4. The allegation against the petitioner is that he is involved in serious financial misappropriation of funds siphoned from several civic volunteers’ wages amounting to rupees nine lakh fifty thousand and more from eight police stations under the jurisdiction of Alipurduar police. The petitioner was delegated to operate the Human Resource Management System for every salary and non salary bill of police personnel and civic volunteers in the district of Alipurduar. The user ID, password and digital signature certificate was given only to him by the DDO since the beginning of the HRMS system. The petitioner was also dealing with the salary and non salary bills of the office of the Superintendent of police, Alipurduar.

5. An enquiry was conducted which revealed that wages of various civic volunteers was deposited in the bank account of the petitioner and other persons related to him. Bills of the civic volunteers who were absent from duty were generated and the money was deposited in the account of either the petitioner or his relatives. In this manner the wages of the employees were siphoned.

6. On the aforesaid allegation FIR was lodged and the petitioner was arrested on 24th September, 2023. He was produced before the learned Chief Judicial Magistrate, Alipurduar on 25th September, 2023 and remanded to police custody. Search and seizure was made and charge sheet filed against him on 21st December, 2023.

7. The sheet anchor of the petitioner’s contention is that without obtaining sanction under Section 197 Cr.P.C. the petitioner cannot be prosecuted. The petitioner relies upon the expression ‘public servant’ mentioned in Section 21 of the Indian Penal Code and submits that, as he is on the pay roll of the Government for performance of public duty of the Government, accordingly, without obtaining sanction from the Government the prosecution against the petitioner cannot continue.

8. Prayer has been made for quashing the proceeding initiated against him.

9. Whether the petitioner who claims to be a public servant can be prosecuted without any sanction of the Government is to be decided.

10. Section 197(1) Cr.P.C. inter-alia, lays down that when 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 of the State Government.

11. Section 197 Cr.P.C. uses the expression ‘not remova