IMPORTANT POINT
The protection under Section 197 Cr.PC is not a shield to protect corrupt officials, and misappropriation of government funds cannot be considered as discharge of official duty.

JUDGMENT :

Heard Mr. I. H. Saikia, learned counsel appearing for the accused/petitioner. Also heard Mr. I. Borthakur, learned counsel representing the respondent PHE.

2. By filing this application u/s 482 Cr.PC, the petitioner has prayed for quashing the impugned FIR in connection with Kachumara, PS case No. 58/2014 and the impugned charge sheet vide CS No. 38/2021 and the entire proceeding of GR case No. 4635/2014, and renumbered as PRC case No. 790/ 2021 pending in the court of learned Additional CJM, Barpeta.

3. The case of the petitioner is that the impugned FIR was lodged by the then Executive Engineer (PHE) Barpeta Division, alleging inter-alia that one Shaikh Mainul Haque, president of the NGO, namely Mohchara Luit Paria, Socio Economic Development Society, had misappropriated government money during construction of individual household latrine (in short IHHL) against the total sanitation campaign under Mahchara GP of Chenga Block. Accordingly, a case was registered vide Kachumara PS case No. 58/2014 u/s 406 IPC.

4. During investigation, while the police was in search of the petitioner, he approached before this court by filing pre-arrest bail, whereby an interim protection was granted to the petitioner and subsequently, the interim order was made absolute. After completion of investigation, charge sheet was submitted against the accused/petitioner.

5. The petitioner joined at Barpeta PHE Division as Assistant Engineer. The IHHL work in question was allotted to the aforesaid NGO, while the petitioner was working as an Assistant Engineer under the said division. Under the said IHHL project, the government granted Rs. 3,000/-for construction of each IHHL with bamboo walls which were very temporary in nature. After completion of the works, the sectional assistant, the GP President as well as the petitioner himself in the capacity of Assistant Engineer, visited the various IHHL sites and after finding the existence of IHHLS, the bills were submitted by the petitioner to the superior officer for necessary action. The petitioner has no authority to make any kind of payment. Thereafter, the petitioner was promoted to the post of Assistant Executive Engineer and posted at Belosar. In the year 2021, he has been retired from his service on his attaining the age of superannuation as Executive Engineer.

6. The learned counsel for the petitioner has argued that the learned trial court has failed to appreciate the case in proper perspective and came to an erroneous conclusion in passing the impugned order dated 15/11/2021 in PRC case No. 790/2021, taking cognizance of the case against the accused/petitioner, as such the same is liable to be set aside.

7. It is also the submission of the learned counsel for the petitioner that the petitioner was the government employee when the incident occurred. The petitioner conducted the verification along with the concerned officials and submitted the bills without any malice. As such he cannot be prosecuted for the acts done in good faith.

8. It is further submitted that Section 197 Cr.PC, deals with sanction of the government which is required for prosecuting any public servant but in the instant case no sanction was accorded for prosecuting the present petitioner who was a public servant at the relevant point of time. Hence, learned counsel for the petitioner prays for quashing of the FIR/charge sheet and entire proceeding of the PRC case No. 790/2021.

9. In support of his submission, learned counsel for the petitioner has relied on the following case laws –

a. (2004) 8 SCC 31 (S.K. Zutshi and another vs. Bimal Debanth and another).

b. (2004) 8 SCC 40 (State of Orissa through Kumar Raghvendra Singh and others vs. Ganesh Chandra Jew).

c. (1993) 3 SCC 339 (State of Maharashtra vs. Dr. Buddhikota Subba Rao)

10. Per contra, learned counsel representing the respondent PHE has submitted that the allegation against the petitioner is that he has misappropriated the government money. The economic offenc