The main legal point established in the judgment is that the act of misappropriation can be considered part of official duty, requiring prior sanction for prosecution under Section 197 of Cr.P.C.

JUDGMENT :

SASHIKANTA MISHRA, J.

In the present revision the petitioner challenges order dated 23.12.2002 passed by Additional Sessions Judge, Malkangiri in Criminal Appeal No. 31 of 1999, whereby the order of conviction and sentence passed by learned C.J.M., Malkangiri in G.R. case No. 317 of 2019 on 22.09.1995 was confirmed. By the said judgment, the trial court had convicted the petitioner accused for the offence under section 409 of IPC and sentenced him to imprisonment for 29 days.

2. The prosecution case, in a nutshell, is that the Divisional Forest Officer, Jeypore (KL) Division lodged an FIR before the Officer-in-charge of Orkel Police Station alleging that as per the audit report it was found that the petitioner while posted as the Range Officer, Balimela K.L. Range had misappropriated cash of rupees 4,52,491 .99. It was stated that he was entrusted with different amounts on different dates in advance for expenditure of Kendu leaves production, transportation, drying and storage etc. Basing on such report, investigation was taken up and charge sheet was submitted under section 409 of IPC.

The accused took the plea of denial during trial, wherein prosecution examined 13 witnesses and also exhibited 59 documents. The defence proved three documents from its side.

After analyzing the evidence on record the trial court found that the petitioner had submitted the accounts in question but after one year and two months from the date of lodging of the FIR and therefore he must be held to have temporarily misappropriated the amount for the said period. Accordingly, the petitioner was convicted and sentenced as aforesaid. Be it noted here that the petitioner had specifically taken the ground that he being a public servant it was necessary to obtain sanction of the appropriate authority before prosecuting him which was not done in the present case and therefore the prosecution was not valid in the eye of law. However learned trial court negatived the contention by referring to some decisions of the Apex Court as well as of this Court to hold that the act of misappropriation cannot be treated as part of official duty of the petitioner so as to obtain sanction.

3. The petitioner carried the matter in appeal to the Court of Session. The learned Sessions Judge after scanning the evidence on record found no reason to interfere with the judgment of conviction and sentence passed by the trial court. As regards the question of sanction, it was held that the trial court had committed no error in rejecting the contention put forth by the petitioner. The lower appellate court also referred to the decisions relied upon by both sides and held that no sanction was necessary in the facts and circumstances of the case.

Feeling further aggrieved, the petitioner has approached this court in the present revision.

4. Heard Mr. G.N. Mishra learned counsel for the petitioner and Mr. Priyabrata Tripathy, learned Standing Counsel for the state.

5. Assailing the impugned judgment, Mr. Mishra has contended that both the courts below have committed illegality in rejecting the contention of the petitioner with regard to the requirement of prior sanction for prosecution. According to Mr. Mishra, both the courts below have held that the act of misappropriation cannot be treated as a part of official duty of the petitioner and thereby ignored the fact that the petitioner was entrusted with some amount which was part of his official duty and he was required to account for the same, which was also part of his official duty. So submission of accounts being on official duty, non-submission of the same must come within the purview of the expression ‘discharge of official duty’ as per Section 409 of IPC. Mr. Mishra has relied upon a decision of this Court rendered in the case of Pramod Kumar Swain vs. State of Odisha, reported in 2022 (I) OLR 622 to support his contention. It is further contended that the finding of the trial court that the petitioner had absconded i