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2026 Supreme(Gau) 1105

IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
Kaushik Goswami, J.
Sri. Jyotish Ch. Sarkar, S/o- Late Khitish Ch. Sarkar - Petitioner
Versus
The State of Assam, Represented by the Public Prosecutor - Respondent
CRL.REV.P. NO.164 OF 2016
Decided On : 04-06-2026

Advocates Appeared:
For the Petitioner:Mr. A. K. Gupta, Advocate.
For the Respondent: Ms. A. Begum, Additional Public Prosecutor

Prosecution for criminal breach of trust against a public servant does not require prior sanction if the accused is not within the specified protected class or if the act of misappropriation lacks a reasonable nexus with the lawful discharge of official duties.

Headnote:(A) Code of Criminal Procedure, 1973 - Section 197 - Indian Penal Code, 1860 - Section 409 - Criminal breach of trust by public servant - Requirement of sanction for prosecution - Protection under Section 197 is not available to every public servant, but only to those who are not removable from office save by or with the sanction of the Government - Misappropriation of public funds cannot be regarded as an act performed in the discharge of official duty as it lacks any reasonable nexus therewith. (Paras 17, 18, 20, 31, 35)

(B) Revision - Scope and ambit - High Court’s revisional jurisdiction is supervisory and corrective - It is not meant to be a second appellate court - Re-appreciation of evidence is impermissible unless the findings recorded by the subordinate courts are perverse, illegal or result in a miscarriage of justice. (Paras 68, 69)

Facts of the case:
A public functionary was convicted for the misappropriation of funds sanctioned for educational infrastructure projects. The accused challenged the conviction in revision, contending that the trial was vitiated for want of prior sanction for prosecution and that the lower courts failed to correctly appreciate the evidence, specifically regarding the utilization of funds.

Findings of Court:
The concurrent findings of the lower courts were based on proof that the accused, being in an official capacity, gained dominion over public funds and failed to utilize them for the designated purpose, instead diverted them for personal use. The defense regarding loss of materials due to natural calamity remained unsupported by documentary evidence and was contradicted by the admissions of the accused.

Issues: Whether the prosecution is legally maintainable without prior sanction; whether the elements of criminal breach of trust were established; and whether the concurrent findings of the lower courts warrant interference in revisional jurisdiction.

Ratio Decidendi: The court affirmed that the statutory protection against prosecution is limited to specific classes of public servants, which the accused did not belong to. Moreover, the act of misappropriating public funds is not an official duty and holds no reasonable nexus with the discharge of public responsibilities. Revisional interference is restricted to cases of manifest perversity, which was not evident in the concurrent findings of the courts below.

Result: Revision petition dismissed.

Table of Content
1. procedural history and factual genesis of the prosecution case. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9)
2. conflicting contentions regarding statutory sanction and evidence appraisal. (Para 10 , 11)
3. requirement and scope of official sanction under section 197 cr.p.c. (Para 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34 , 35 , 36 , 37 , 38)
4. proving elements of criminal breach of trust under section 409 ipc. (Para 39 , 40 , 41 , 42 , 43 , 44 , 45 , 46 , 47 , 48 , 49 , 50 , 51 , 52 , 53 , 54 , 55 , 56 , 57 , 58 , 59 , 60 , 61 , 62 , 63 , 64 , 65 , 66)
5. limitations of high court's revisional jurisdiction in concurrent findings. (Para 67 , 68 , 69 , 70 , 71 , 72 , 73 , 74 , 75 , 76)
6. final affirmation of conviction and sentencing order. (Para 77 , 78 , 79 , 80 , 81 , 82 , 83)

JUDGMENT :

KAUSHIK GOSWAMI, J.

Heard Mr. A. K. Gupta, learned counsel appearing for the petitioner. Also heard Ms. A. Begum, learned Additional Public Prosecutor, appearing for the State respondent.

2. By way of the present revision petition filed under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Cr.P.C.”), the petitioner has assailed the judgment and order dated 17.03.2016 passed by the learned Sessions Judge, Morigaon (hereinafter referred to as the “appellate court”) in Criminal Appeal No.22/2015 whereby the appeal preferred by the petitioner was dismissed and the judgment and order dated 18.09.2015 passed by the learned Additional Chief Judicial Magistrate, Morigaon (hereinafter referred to as the “trial court”) in G.R. Case No.954/2012 was affirmed. By the said judgment, the learned trial Court convicted the petitioner under Section 409 of the Indian Penal Code, 1860 (hereinafter referred to as the “IPC”) and sentenced him to undergo simple imprisonment for three years and to pay a fine of Rs.10,000/-, in default, to undergo simple imprisonment for a further period of three months.

3. The prosecution case, in brief, is that on 05.09.2012, the informant, namely the Inspector of Schools, lodged an FIR alleging that the petitioner, who was serving as the Head Teacher of Pub-Baralimari L.P. School under Laharighat Education Block, had misappropriated government funds sanctioned for construction of an additional classroom and toilet under the Sarva Siksha Abhiyan (SSA) Scheme. The allegation was founded upon an enquiry report submitted by the Technical Resource Person (TRP), SSA, Morigaon, which allegedly revealed misappropriation of an amount of Rs.1,64,000/-.

4. On the basis of the said FIR, Bhuragaon P.S. Case No.41/2012 was registered under Sections 420/409 IPC. Upon completion of investigation, charge-sheet was submitted against the petitioner under Sections 420/409 IPC.

5. The learned trial Court framed charges under Sections 420 and 409 IPC. The petitioner pleaded not guilty and claimed to be tried.

6. In support of its case, the prosecution examined eight witnesses including the informant, the Technical Resource Person, the Junior Engineer associated with the project, members of the School Managing Committee and the Investigating Officer. Various documentary exhibits were also brought on record.

7. Upon completion of the prosecution evidence, the statement of the petitioner was recorded under Section 313 Cr.P.C. The petitioner denied the incriminating circumstances put to him and claimed innocence.

8. After appreciation of the evidence on record, the trial court acquitted the petitioner of the charge under Section 420 IPC but found him guilty of the offence punishable under Section 409 IPC and sentenced him accordingly.

9. Aggrieved thereby, the petitioner preferred Criminal Appeal No.22/2015 before the appellate court. Upon re- appreciation of the evidence and consideration of the submissions advanced by the parties, the learned appellate Court dismissed the appeal and affirmed the conviction and sentence imposed by the le

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2026 Supreme(Gau) 1105

IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)Kaushik Goswami, J.Sri. Jyotish Ch. Sarkar, S/o- Late Khitish Ch. Sarkar - PetitionerVersusThe State of Assam, Represented by the Public Prosecutor - RespondentCRL.REV.P. NO.164 OF 2016Decided On : 04-06-2026

Prosecution for criminal breach of trust against a public servant does not require prior sanction if the accused is not within the specified protected class or if the act of misappropriation lacks a reasonable nexus with the lawful discharge of official duties.

Cases Referred (3)