Fabricating Documents, Misappropriating Funds Not Part Of 'Official Duty' For Purposes Of Claiming Protection U/S 197 CrPC: Allahabad HC

For context, Section 197 CrPC seeks to protect an officer from unnecessary harassment, who is accused of an offence committed while acting or purporting to act in the discharge of his official duties and, thus, prohibits the court from taking cognizance of such offence except with the previous sanction of the competent authority.

A bench of Justice Arun Kumar Singh Deshwal also opined that in cases where there exists even a minor uncertainty regarding whether a public servant's action or omission falls within the purview of official duty, the determination of this issue should be reserved for trial proceedings based on evidence.

“Unless that issue was decided on the basis of evidence during the trial, the criminal proceeding cannot be quashed in the exercise of power u/s 482 Cr.P.C., mainly because a person claiming himself to be a public servant alleges that his act was in discharge of his official duty,” the Court observed.

Noting thus, the High Court rejected a quashing petition moved by a former Government Executive Engineer who has been booked under Section-465 IPC on the allegation of producing a forged disconnection slip.

In 2019, he moved the High Court challenging the impugned criminal proceeding on the ground that prior sanction u/s 197 IPC was not taken before lodging the complaint above or before taking cognizance of the aforesaid complaint.

On the other hand, the AGA, appearing for the state argued that the impugned proceeding itself is at the evidence stage, and the applicant has also obtained bail in the impugned proceeding, he can raise this objection at the appropriate stage.

At the outset, the Court noted that the Apex Court has held in the case of Shambhoo Nath Mishra Vs. State of U.P. & Others 1997 that it is not the official duty of a public servant to fabricate records or to misappropriate public funds

The Court also referred to the recent ruling of the Top Court in the case of Shadakshari Vs. State of Karnataka & Another 2024 LiveLaw (SC) 42 wherein it has been held that the prior sanction for prosecution as per Section 197 of the Code of Criminal Procedure is not required to prosecute a public servant for the act of creating fake documents as the alleged acts do not form a part of his official duty.

In view of this, the Court noted that whether a particular act of fabricating official documents is a part of the official duty of a public servant or not, is a matter of trial and the proceeding cannot be quashed on that basis.

Further, perusing the case records, the Court said that the entry in 2009 in the register of the electricity department, the alleged disconnection slip, which was produced as a defence by the applicant, was itself prepared in 2008 and therefore, prima facie, his act cannot be said to be in discharge of his official duty.

“Even otherwise, it is a matter of evidence. This issue can be decided during the trial whether the applicant, while producing the forged disconnection slip, was performing his duty or it was beyond his duty to produce the forged disconnection slip as a defence in the proceeding before the consumer forum. The issue is still open for the applicant to take this defence during the trial,” the Court further noted as it refused to quash the impugned proceedings.

Appearances

Counsel for Revisionist: Jainendra Kumar Mishra

Counsel for Opposite Party: G.A., Nawal Kishor Mishra, Upendra Vikram Singh

Case title - Ved Prakash Govil vs. State of U.P. and Another 2024 LiveLaw (AB) 55 [APPLICATION U/S 482 No. - 21858 of 2019]

Case Citation: 2024 LiveLaw (AB) 55

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