The Allahabad High Court on Friday said that the permission of the government is not necessary to prosecute a public servant for offences like criminal conspiracy, misconduct or taking undue advantage. The court said that the trial can go on without permission.

The division bench of Justices Surya Prakash Kesarwani and Ravi Nath Tilhari clarified that the protection of section 197 of CrPC is available to the public servant only for the offences committed while performing the duty. The permission for prosecution is not necessary if the offence is committed other than on duty.

The court stated that, an accused public servant who claims protection under Section 197 of the CrPC, has to show that there is reasonable connection between the act on which the complaint is and the discharge of official duty. An official act can be performed in discharge of official duty as well as in dereliction of it. The act of the accused complained of must be such that the same cannot be separated from the discharge of official duty. But where there is no reasonable connection between the act complained (about) of and the performance of official duties, no sanction under Section 197, CrPC would be required. In order to come to the conclusion whether claim of the accused that the act which he did was in the course of performance of his duty was a reasonable one and neither pretended nor fanciful, can be examined during the course of trial by giving opportunity to the defence to establish it.

The Court observed: “We find that the first order dated April  25, 2018 was passed by the state government for further investigation by another agency, i.e. CBCID which has attained finality after dismissal of Criminal Misc. Writ Petition No.12373 of 2018 (Dinesh Singh Chahar vs. State of U.P. and others). After the CBCID completed the investigation and submitted a report requesting for grant of sanction for prosecution against the petitioner, prima facie the state government applied its mind and made certain queries and also called for detailed investigation report vide letters dated January 14, 2020 and January 23 , 2020.

“Thereafter, the state government passed the order dated January 27, 2020 granting sanction for prosecution. The order is an administrative order, which prima facie has been passed by the State government after due application of mind. The charge sheet dated March 03, 2020 has already been submitted by the prosecution before the competent Court on July 29, 2020 and the court has taken cognizance.

“For all the reasons afore-stated, the Petition is dismissed, leaving it open for the Petitioner to raise objection in State Trial No.432 of 2020 against the order granting sanction for prosecution, before the court of Additional District and Sessions Judge/ Special Judge, P.C. Act, Meerut”, the Court ordered.

The facts of the case are that, in 2015, the petitioner was selected on the post of treasury officer and was posted as finance and accountants officer in the Basic Education Department, Agra.

Sometime in August, 2016, one Dinesh Singh Chahar was suspended by the competent authority and disciplinary proceeding was initiated but his disciplinary proceeding could not be concluded within three months, therefore, on December 25, 2016 he moved an application before the petitioner and the concerned Basic Education Officer for payment of suspension allowance to the extent of 75% of the salary instead of 50% of the salary which the petitioner forwarded to the Basic Education Officer for orders.

On complaint of the suspended Assistant Teacher against the petitioner for demanding illegal gratification, Vigilance Department constituted a team of officers. On May 2, 2017 the petitioner was allegedly caught red handed by the trap team of officers of the U.P. Vigilance Department when he was allegedly accepting bribe of Rs.50,000/- from the assistant teacher Dinesh Singh Chahar, for payment of his suspension allowance. Accordingly, an FIR dated May 2, 20217 under Section 7, 13(1)(d), 13(2), P.C. Act, P.S. Shahganj, District Agra was registered against the petitioner.

On May 15, 2017, petitioner’s wife submitted a representation before the District Magistrate, Agra, alleging that her husband has been falsely implicated in the criminal case. On November 21, 2017 the petitioner moved a representation before the Finance Controller, Basic Shiksha Parishad, U.P. Allahabad alleging that the Assistant Teacher Dinesh Singh Chahar had made a false complaint against him.

The petitioner also moved a representation before the Additional Director (Basic Shiksha), Uttar Pradesh, Allahabad for action against the aforesaid Assistant Teacher Dinesh Singh Chahar alleging that he moved a false complaint since the sanctioning authority for suspension allowance to the extent of 75% of the salary, was the Basic Education Officer and not the petitioner. On the representation of the petitioner, the Finance Controller issued a letter dated December 08, 2017 for taking action against the suspended Assistant Teacher Dinesh Singh Chahar.

“It appears that the Investigating Officer of the Vigilance Department investigated the matter and requested the state government to grant sanction for prosecution of the petitioner. The state government considered the objections/ representation of the petitioner and order dated April 25, 2018, the state government not accepted the recommendation of the vigilance department for granting sanction for prosecution of the petitioner and directed for further investigation to be carried by the CBCID under Section 173(8), Cr.PC,” the court said.

Counsel for the petitioner submitted as under:-

(i) Once the request for sanction for prosecution of the petitioner was rejected by the state government order dated April 25, 2018 the order dated January 27, 2020 granting sanction could not have been passed by the state government on the basis of the same material on which the sanction was earlier refused.

(ii) When the order dated January 27, 2020 granting sanction for prosecution was passed, the investigation of the case was not complete.

(iii) The petitioner has been falsely implicated as evident from representations made by the Petitioner. Therefore, the grant of sanction for prosecution by the order dated January 27, 2020 is arbitrary and illegal. While granting sanction for prosecution, the State Government has not considered the letter of the Finance Controller dated December 08, 2017 whereby he ordered for taking action against the Assistant Teacher Dinesh Singh Chahar for levelling charges against the petitioner.

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(iv) The petitioner was not the sanctioning authority to sanction suspension allowance to the extent of 75% of the salary of the aforesaid Assistant Teacher. The Petitioner was only the disbursing authority. Therefore, there was no occasion for the Petitioner to demand and accept illegal gratification from the Assistant Teacher Sri Dinesh Singh Chahar. Consequently, the entire case set up by The Trap team is baseless.

(v) The Investigating Officer has not conducted investigation truthfully and fairly. Therefore, the grant of sanction for prosecution on the basis of the investigation report of the CBCID, deserves to be quashed.

(vi) The alleged trap was made with malicious intention only for destroying carrier of the petitioner in conspiracy with the complainant Dinesh Singh Chahar.