Prosecution of public servants for actions in official duty requires prior sanction under Section 197 Cr.P.C., necessitating clear evidence of involvement in fraud for cognizance to stand.

JUDGMENT :

R.K. PATTANAIK, J.

1. Instant writ petition under Section 482 Cr.P.C. is filed by the petitioner for quashing of the order of cognizance dated 2nd July, 2022 under Annexure-4 passed in G.R. Case No.1458 of 2021 corresponding to B. Town P.S. Case No.169 of 2021 dated 25th June, 2021 registered under Sections 120 -B, 419, 420, 465, 467, 468, 471 read with 34 IPC pending in the file of learned S.D.J.M., Berhampur on the grounds inter alia that the same is bad in law and hence, liable to be quashed in the interest of justice.

2. An FIR was lodged by opposite party No.2, namely, informant with the allegation that the property situate over Khata No.1842/2295 measuring Ac.0.0743 dec. was purchased by her in 2016 and thereafter, the ownership of the same was changed by mutation but then later on learnt that the accused, namely, Kishore Chandra Mishra by employing fraud managed to record the land in question in his favour having been sold by her, whereafter, on enquiry, it was revealed that such a fake sale transaction to have taken place, consequent upon which, mutation RoR was prepared. On receipt of such a report, B. Town P.S. Case No.169 was registered and finally on completion of investigation, chargesheet under the alleged offences was submitted against the petitioner and two others. The petitioner has challenged the impugned order of cognizance under Annexure-4 passed by the learned court below later to the receipt of the chargesheet in G.R. Case No.1458 of 2021 on the ground that he was not involved in the illicit transaction except responsible for the mutation vis-a-vis the schedule land.

3. Heard Ms. Mohapatra, learned counsel for the petitioner and Mr. S.S. Mohapatra, learned ASC for the State-opposite parties.

4. Ms. Mohapatra, learned counsel for the petitioner submits that the main accused has committed the fraud and forgery and managed to obtain the RoR in respect of the case land vide Mutation Case No.5220 of 2021. It is submitted that as per the order of the Tahasildar, Konisi, the petitioner as RI, Haliapadar submitted a report to him after holding a field enquiry and approved the case for mutation, whereafter, the concerned Tahasildar allowed the same by order dated 27^th May, 2021. While contending so, Ms. Mohapatra refers to copy of the order in Mutation Case No.5220 of 2021 as at Annexure-5 series. It is further submitted that after FIR was lodged by opposite party No.2, the Tahasildar, Konisi cancelled the RoR in the name of accused, namely, Kishore Chandra Mishra and prepared a new RoR (Annexure-6) on 8^th July, 2022 and as against the above backdrop, when the petitioner was in no way connected to the transaction in question nor he was named in the FIR nor any specific allegation was made against him and furthermore when he was involved in the mutation proceeding only, he could not have been chargesheeted along with other accused persons, who are primarily responsible for the fraud which was detected and revealed during investigation. Apart from above, Ms. Mohapatra, learned counsel for the petitioner submits that the petitioner is a public servant and the alleged mischief, if at all was committed, it was during and in course of discharging official duty and hence, in order to prosecute him, sanction under Section 197 Cr.P.C. is necessary, the fact which was lost sight of by the learned court below and in support of such contention, a decision of the Apex Courts in Indra Devi Vrs. State Rajasthan and Another decided in Criminal Appeal No.593 of 2021 and disposed of on 23^rd July, 2021 is placed reliance on. Hence, it is contended that the petitioner since not involved in the alleged fraud, the impugned order under Ann