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2012 Supreme(Sikk) 10
SIKKIM HIGH COURT
PERMOD KOHLI, J.
Kul Chandra Baral
Versus
State of Sikkim
Cri. Rev. P No. 7 of 2011
Decided On : 13-06-2012
The sanction for prosecution of a public servant is not invalid merely because it is granted by the complainant herself, who is also the sanctioning authority, provided that the sanction is granted in accordance with the provisions of the relevant law and that there is no evidence of mala fides or abuse of power.
Headnote:
The High Court dismissed the revision petition filed by the petitioner challenging his conviction and sentence for the offence of criminal breach of trust under Section 409 of the Indian Penal Code (IPC). The Court held that the sanction for prosecution of the petitioner was not invalid merely because it was granted by the complainant herself, who was also the sanctioning authority. The Court further held that the prosecution had established the entrustment of the property to the petitioner and that the petitioner had failed to account for the entrusted property, which led to an inference of misappropriation. The Court also held that the charge framed against the petitioner was not vague and that the discrepancy in the alleged misappropriated amount was not substantial enough to vitiate the trial.
Fact of the Case:
The petitioner, a public servant, was convicted and sentenced for the offence of criminal breach of trust under Section 409 of the IPC. The petitioner challenged his conviction and sentence in the High Court by filing a revision petition.
Finding of the Court:
The High Court dismissed the revision petition filed by the petitioner. The Court held that the sanction for prosecution of the petitioner was not invalid merely because it was granted by the complainant herself, who was also the sanctioning authority. The Court further held that the prosecution had established the entrustment of the property to the petitioner and that the petitioner had failed to account for the entrusted property, which led to an inference of misappropriation. The Court also held that the charge framed against the petitioner was not vague and that the discrepancy in the alleged misappropriated amount was not substantial enough to vitiate the trial.
Issues: 1. Whether the sanction for prosecution of the petitioner was invalid because it was granted by the complainant herself, who was also the sanctioning authority? 2. Whether the prosecution had established the entrustment of the property to the petitioner? 3. Whether the petitioner had failed to account for the entrusted property? 4. Whether the charge framed against the petitioner was vague? 5. Whether the discrepancy in the alleged misappropriated amount was substantial enough to vitiate the trial?
Ratio Decidendi: 1. The Court held that the sanction for prosecution of the petitioner was not invalid merely because it was granted by the complainant herself, who was also the sanctioning authority. The Court relied on the judgment of the Delhi High Court in Tirath Prakash v. State, wherein it was held that the object underlying the grant of sanction is to save the public servant from harassment on frivolous or unsubstantiated allegations. The Court further held that the existence of a valid sanction is a condition precedent for taking cognizance of the enumerated offences punishable under the Prevention of Corruption Act, and that any case instituted without a proper sanction must fail. 2. The Court held that the prosecution had established the entrustment of the property to the petitioner. The Court relied on the statements of the prosecution witnesses, who testified that the petitioner was the In-charge of the Food Godown at Pakyong and that the goods were received by him. The Court also relied on the challans, which bore the signatures of the petitioner, as evidence of the entrustment of the property. 3. The Court held that the petitioner had failed to account for the entrusted property. The Court relied on the Physical Verification Report, which showed a shortage of food grains and sugar in the Food Godown. The Court also relied on the petitioner's letter to the Additional Secretary, Food & Civil Supplies & CA Department, Government of Sikkim, wherein he admitted to the shortage and offered to deposit the amount allegedly misappropriated by him. 4. The Court held that the charge framed against the petitioner was not vague. The Court relied on the provisions of Section 212(2) of the CrPC, which states that when the accused is charged with criminal breach of trust or dishonest misappropriation of money or other moveable property, it shall be sufficient to specify the gross sum or, as the case may be, described the movable property in respect of which the offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed, without specifying particular items or exact dates. The Court held that the charge framed against the petitioner complied with the requirements of Section 212(2) of the CrPC. 5. The Court held that the discrepancy in the alleged misappropriated amount was not substantial enough to vitiate the trial. The Court noted that different amounts had been mentioned in different documents as the amount misappropriated by the petitioner, but that the discrepancy was so insignificant keeping in view the huge amount involved that it could not be the ground for vitiating the trial.
Final Decision: The High Court dismissed the revision petition filed by the petitioner. The petitioner's conviction and sentence for the offence of criminal breach of trust under Section 409 of the IPC were upheld.
FIR No. R.C. 6/99 dated 28-9-1999 under Section 409, IPC was registered at Vigilance Police Station, Sikkim against the accused/petitioner on the basis of a complaint dated 28-9-1999 lodged by Smt. Jayshree Pradhan, IAS, Commissioner-cum-Secretary, Food & Civil Supplies Department, Government of Sikkim.
2. On completion of investigation and sanction being granted vide Sanction Order dated 25-7-2000 (Exbt. P-53) by (the complainant) Smt. Jayshree Pradhan, IAS, Commissioner-cum-Secretary, Food & Civil Supplies Department, Government of Sikkim, a charge-sheet for offence under Section 409, IPC was filed with the Chief Judicial Magistrate, East & North District at Gangtok registered as Crl. Case No. 177/2000.
3. The allegations against the accused/petitioner were misappropriated of sale proceeds of rice and sugar from the Food Godown at Pakyong, where the accused was posted as Assistant Sub-Inspector, In-charge, Food Godown. The total misappropriatws amount was worked out to Rs. 31,17,479.84. The trial Court framed the charge against the accused on 29-01-2001. The accused pleaded not guilty and he was put to trial.
4. The prosecution examined as many as 22 witnesses including the Investigating Officer to prove the guilt of the accused/petitioner. The accused/petitioner also led defence evidence and examined 8 defence witnesses. The trial Court vide its judgment dated 18-8-2001 convicted the petitioner for offence under Section 409, IPC and vide Order dated 21-8-2001 sentenced the petitioner to undergo simple imprisonment of seven years and imposed fine of Rs. 5,000/-. In default of payment of fine to undergo further simple imprionsment of six months.
5. The petitioner challenged his conviction and sentence in Criminal Appeal No. 2 of 2002 before the Sessions Judge, (Special Division-I) Sikkim at Gangtok. The Appellate Court vide its judgment dated 13-8-2003 set aside the conviction and sentence ordered by the trial Court and set the accused free.
6. Dissatisfied with the judgment of the Appellate Court, the State of Sikkim filed acquittal appeal being Government Appeal No. 1 of 2003 against the judgment of acquittal dated 13-8-2003 passed by the Sessions Judge, (Special Division-I), Sikkim at Gangtok before this Court. This Court vide judgment dated 11-10-2004 set aside the judgment of acquittal passed by the Sessions Judge, (Special Division-I), Sikkim at Gangtok and remitted the matter to him to decide the appeal afresh. Learned Sessions Judge (Special Division-II), Sikkim at Gangtok, after hearing the parties, decided the appeal afresh vide judgment dated 28-6-2011, renumbered as Criminal Appeal No. 9 of 2010 and upheld the conviction and sentence ordered by the learned Chief Judicial Magistrate, East & North Districts at Gangtok vide its judgment dated 18-8-2001. The present revision petition has been preferred challenging the conviction and sentences awarded against the petitioner by the learned Sessions Judge (Special Division-II) Sikkim at Gangtok and Chief Judicial Magistrate, East & North Districts at Gangtok.
7. Challenge to the impugned judgment is manifold. During the course of hearing, Mr. D. K. Sengupta, learned Senior Counsel appearing for the petitioner, however, emphasized the following :
(i) the sanctioning authority herself being the complainant became Judge in her own cause, rendering entire proceedings against the petitioner vitiated in law;
(ii) the prosecution has failed to prove beyond any shadow of doubt the entrustment as also misappropriation by the accused which are essential ingredients for commission of offence under Section 409, IPC;
(iii) charge framed against the accused/petitioner is defective and in contravention to specific provisions of Section 212, Cr. P.C. invalidating the entire trial; and
(iv) there has been discrepancy in the alleged amount of misappropriation in the FIR, Sanction Order, Charge-sheet, Physical Verification Report and the final judgment of the trial Court as a result whereof cha
