Prosecution Sanction Not Required for Section 197 CrPC
The offence of breach of trust cannot be part of employee’s official duty. High Court Chandigarh held at time of framing of charges, only Prima Facie case to be seen.
In this post, we will discuss the Punjab and Haryana high court verdict on a case Brij Nand and Anwar Ansari, who works for the Indian Railways in Punjab has filed the petition against their charges under Sections 409 and 120-B of the IPC and discuss the need for change in the concerned laws in the legal opinion section.
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Facts of the case:
Brij Nand and Anwar Ansari, who works for the Indian Railways in Punjab, have filed the petition.
On December 8, 2018, the petitioners were arrested at GRP police station in Sirhind, Fatehgarh Sahib district, under Sections 409 IPC (criminal breach of trust) and 120B IPC (criminal conspiracy). An FIR was filed against them after another railway employee, Ram Singh Meena, complained that they had taken away his official records. According to the allegations, the accused did it to teach the complainant, who had filed a corruption complaint against the accused, a lesson.
They had sought an order quashing the order of Fatehgarh Sahib chief judicial magistrate dated December 20, 2019, in which charges under Sections 409 and 120-B of the IPC were ordered to be filed against them. On November 29, 2021, Fatehgarh Sahib additional sessions judge dismissed their revision petition against the framing of charges.
The petitioners argued in their motion to dismiss charges that the trial court could not have framed charges against the petitioners without prosecution sanction. They also claimed that because the Indian Railways, the petitioners’ and complainant’s employers had not filed a complaint about the documents being taken away or tampered with, the FIR and subsequent proceedings should be quashed.
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Legal Issues (SECTION/ACT/PROVISION/SETTLED LAW):
Section 120B in The Indian Penal Code
120B. Punishment of criminal conspiracy –
(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, [imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.]
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Section 409 in The Indian Penal Code
- Criminal breach of trust by a public servant, or by banker, merchant or agent. Whoever, being in any manner entrusted with property, or with any dominion over the property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
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More often than not, we find the offences of criminal conspiracy and Criminal Breach of Trust charged together in FIRs and criminal complaints.
In fact, now, as a course of practice, one adds these two charges together rather mechanically, without actually considering the intricacies of each section and their application to the facts of the case.
One fails to acknowledge and realize that both these offences have their own unique application and must not co-exist in the same set of facts. Both offences are cognizable and non-bailable in nature, it is the duty of the police officer to be more cautious and responsible while registering a case under these provisions.
Both of these offences, in my humble opinion, are antithetical to each other by definition and should not be charged together. Before we go into detail about how they are antithetical, it is necessary to define these offences and discuss their basic components.
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After hearing the petition, the HC stated that breaking the law under Section 409 of the IPC (breach of trust), for which the petitioners have been charged, is not part of an official duty. “Admittedly, the offence was committed during the petitioners’ service, but not in the performance of their official duties.” As a result, the petitioners’ alleged act of removing the document cannot be considered part of their official duties. As a result, prior sanction for prosecution under Section 197 of the Criminal Procedure Code was not required,” Justice Bedi concluded.
The petitioners’ counsel then claimed that the witness statements were contradictory and that there was insufficient evidence on the record to charge the petitioners, especially since the Indian Railways had decided not to take any action against them.
The HC noted that once these statements under Sections 161/164 of the CrPC are on record, the veracity of the same cannot be examined in a petition by the HC at the stage of framing of charges because that would amount to appreciation of evidence, which is not permitted at this stage.
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The Punjab and Haryana high court has made clear that sanctioning a central government employee for “breach of trust” under Section 197 of the CrPC is not required because taking away or tampering with official documents are never part of their official duty.
“No official can claim that a breach of trust is connected to his official duty,” the HC observed, citing several Supreme Court decisions.
The HC also clarified that only the prima facie case should be considered when framing charges, and that a high degree of suspicion is sufficient, and that the court should not examine the statements or documents in the charge sheet in order to record a judgment of conviction or acquittal.
“Even so, the petitioners’ counsel’s defense documents cannot be examined by this court, and charges must be framed based on the report under Section 173 of the CrPC and the documents attached thereto.” Furthermore, “merely because the railways’ department chose not to proceed against the petitioners despite the material having been collected by the investigating agency and charges having been framed would not be a ground to discharge the accused,” the court observed in dismissing the petition.
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