Sanction under Section 197 CrPC is mandatory for prosecuting public servants when the alleged acts are connected to their official duties.

JUDGMENT :

S.S. Mishra, J.

The petitioner has invoked the inherent jurisdiction of this Court questioning the order dated 22.02.2024 passed by the learned J.M.F.C., Boden in C.T. Case No.180 of 2019, whereby the learned Court below has taken cognizance of the offence punishable under Section 409 of I.P.C. against the petitioner.

2. An F.I.R. was registered against the petitioner on 10.08.2019 inter alia alleging that the petitioner while working as a District Child Protection Officer at Nuapada has misappropriated government funds under Biju Sishu Surakhya Yojana (BSSY) by selecting fake beneficiary like one Siba Prasad Behera., who is neither an orphan nor affected/infected by HIV/AIDS, hence, intentionally violated BSSY guidelines. The F.I.R. was registered by one Gopal Chandra Das claiming himself to be a social worker. The Investigating Agency picked up the investigation, however, took more than five years to complete the investigation and eventually filed the charge-sheet on 15.02.2024. Subsequently, vide order dated 22.02.2024, the learned J.M.F.C., Boden has taken cognizance of the offence under Section 409 of I.P.C. against the petitioner. The petitioner is aggrieved by the cognizance order and has challenged the same on various grounds.

3. Heard Mr. Satya Narayan Mishra 4, learned counsel for the petitioner and Mr. S. J. Mohanty, learned Additional Standing Counsel for the State.

4. The prominent ground emphasized by Mr. Mishra, learned counsel for the petitioner that the cognizance could not have been taken against the petitioner for the offence under Section 409 I.P.C. without valid sanction as the petitioner is a government servant. He has read out extensively Section 197 Cr.P.C . and also relied upon series of judgments starting from the case of Ramakanta Sahoo vrs Suresh Prasad Panda , CRLMC No.661 of 2004 to the judgment of the Hon’ble Supreme Court in the case of Suneeti Toteja vrs. State of U.P. and another, [2025 SCC OnLine SC 433]

5. On the contrary, Mr. Mohanty, learned Additional Standing Counsel for the opposite party submitted that in order to arrive at any conclusion regarding the question as to whether “the act complained of” is in the discharge of his official duty of the petitioner or not, could only be effectively examined and answered during the course of trial. The question of sanction should be subjected to the final outcome of trial. The applicability of sanction provided U/s 197 Cr.P.C . and its validity being a question poised with facts and law needs to be thrashed out in the trial alone. To substantiate the said submission the learned ASC, has placed reliance on the judgement of Hon’ble Supreme Court in Romesh Lal Jain V. Naginder Singh Rana, (2006) 1 SCC 294.

“33. The upshot of the aforementioned discussions is that whereas an order of sanction in terms of Section 197 CrPC is required to be obtained when the offence complained of against the public servant is attributable to the discharge of his public duty or has a direct nexus therewith, but the same would not be necessary when the offence complained of has nothing to do with the same. A plea relating to want of sanction although desirably should be considered at an early stage of the proceedings, but the same would not mean that the accused cannot take the said plea or the court cannot consider the same at a later stage. Each case has to be considered on its own facts. Furthermore, there may be cases where the question as to whether the sanction was required to be obtained or not would not be possible to be determined unless some evidence is taken, and in such an event, the said question may have to be considered even after the witnesses are examined.”

In light of the rival contention and judicial precedents cited, it becomes necessary to scrutinize the nature of the alleged act “complained of” and to determine whether it was committed in discharge of official duty by the petitioner so as to attract protection under Section 197 Cr.P.C .

6. I ha