SWARUP SIKDAR Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This is an application under Section 401 read with Section 482 of the Code of Criminal Procedure challenging the order dated 8-12-2010 passed in Special Case No. 2 of 2008 by learned Judge, Special Court, Murshidabad thereby fixing a date for framing charge against the accused person/ petitioner and others. The factual background in a nutshell is that this Court passed an order in writ petition No. 2602(w) of 2002 on 8-2-2002 directing Vigilance Commissioner, West Bengal to hold an enquiry in respect of allegation made in the said writ application and submit a report before the Hon'ble Court. The vigilance commissioner accordingly submitted a report but the writ application was ultimately not placed for final adjudication. The report of the vigilance commissioner was forwarded to officer-in-charge, Sagardighi police station, District-Murshidabad by District Panchayat and Rural Development Officer, Murshidabad. On the basis of such report, Sagardighi P.S. Case No. 102 of 2005 dated 2-9-2005 under Sections 166/167/406/ 409/420/469/471/120B of the Indian Penal Code was initiated against the petitioner and others. There was allegation that the accused person being member of block level selection committee, Sagardighi Block adopted corrupt practice by making interpolation and overwriting in the answer script and gave appointment to six candidates to the post of Sahayak at eight gram panchayat under Sagardighi block in the year 2000 in lieu of unlawful gain. The petitioner was arrested and subsequently enlarged on bail. Charge-sheet submitted. On the date of consideration of charge the petitioner submitted an application before the learned Judge, Special Court stating that the charge-sheet has been submitted by the investigating officer without obtaining valid sanction. It was submitted further that an order of sanction to prosecute the petitioner was accorded to by the District Magistrate, Murshidabad though he-was not the competent authority. The proceeding cannot be proceeded with against the petitioner. The submission was not accepted and date was fixed for framing charge against the petitioner and other accused persons. So this revisional application.

(2.) Mr. Sudipto Moitra, learned senior advocate appearing for the petitioner has contended that the petitioner is a member of West Bengal Civil Service (Executive) and was appointed by the Governor vide Notification No. 2179/P.A.R. (W.B.C.S)(I.D. 51/94, Calcutta), 5th August, 1994. The report of the Vigilance Commissioner which was treated as first information report speaks about an allegation against the petitioner saying that the alleged offence was committed by the petitioner while discharging his official duties as Block Development Officer at Sagardighi. He has further contended that charge-sheet has been submitted under Section 409 of IPC along with other sections. The offence punishable under Section 409 of IPC only be committed by public servant and the very allotment of the case to the learned Judge, Special Court, Murshidabad clearly established that the offences alleged to have been committed by the petitioner in discharge of the duty as public servant. He has contended further that Section 197 of the Code of Criminal Procedure places an embargo to take cognizance of the offence by the Court against the public servant in respect of an offence alleged to have been committed in discharge of official duty and the sanctioning authority is the appointing authority. In the instant case purported sanction under Section 197 of the Cr.P.C. was not granted by the Government of West Bengal but by the District Magistrate, Murshidabad who is neither the appointing authority nor the authority who can remove the petitioner from his service. Therefore the very initiation of the proceeding is vitiated by taking cognizance of the offence without having any proper sanction. The proceeding pending before the learned Court below if allowed to be continued will be an abuse of the process of the Court. It may be quashed. Mr. Moitra has relied on the following decisions reported in:

(3.) Mr. S.K. Mallick, learned advocate appearing for the State/O.P. has contended that the alleged act/action of the petitioner has no nexus with his official duty. Sanction is, therefore, not required to prosecute him. He has placed the decisions reported in (2009) 1 SCC (Cri) 130: 2008 AIR(SC) (supp 1486) [Raghunath Anant Govilkar v. State of Maharashtra and Ors., 2001 SCC(Cri) 1234 [P.K. Pradhan -v. State of Sikkim] in support of his contention.