Official sanction to prosecute Govt servant must: HC

Excelsior Correspondent
SRINAGAR, Aug 6: The High Court today said that Government sanction for prosecution of an employee is a must and quashed both challan as well as cognizance taken by trial court against an officer of the Education Department and described it as bad in law.
Court raised a question as to whether by subverting the process of the provisions of the Prevention of Corruption Act, and second, the Code of Criminal Procedure which
require the sanction of the competent  authority as a condition precedent for the initiation of prosecution against an erring accused can be diluted when the factual aspect prima facie disclose the commission of an offence that falls within the fours of the Provisions of the Prevention of Corruption Act or relates to the discharge of official duties.
One Najam-ud-Din Lone, while working as Zonal Education Officer, Budgam, was placed under suspension by an order issued by the Secretary to Government, School Education Department, Jammu and Kashmir. Simultaneously, an FIR for the commission of offences under Section 409/420 RPC was registered against him at Police Station Budgam on the basis of a complaint addressed to the Inspector
General of Police, Crime Branch, J&K, wherein Lone was implicated along with others in a number of cases involving fake appointments, misappropriation of school funds and mid-day meals etc.
On the completion of the investigation of the case, a charge sheet was filed against the petitioner-Lone  before the Court of the learned Chief Judicial Magistrate, Budgam, for the commission of the offence and the trial court charged him under Sections 420 and 409 RPC.
Justice M K Hanjura said as there is no sanction from the Government obtained for
prosecution against the erring official as such the cognizance taken by the trial court a challan filed by the police is bad in law and unless the same is quashed it will be abuse of process of the Court.
“Viewed thus, for all that have been said and done above the petition of the petitioner is allowed as a sequel to which both the charges dated 25.03.2017 framed against the petitioner for the commission of offences under Sections 420/409 RPC and the prosecution initiated against him by the Court of the learned Chief Judicial Magistrate, Budgam, in File No. 208 are quashed”, the Court concluded.
Lone approached the court with a plea that the prosecution could not have been launched against him for the offences alleged to have been committed by him while discharging the duties in official capacity otherwise than by a sanction from the Government as required under Section 197 Cr.P.C. especially in presence of the contemplated departmental enquiry which has been initiated against him.
Lone’s alleged offence is due to his official position, court said, for which the sanction to prosecute is necessary under the provisions of Prevention of Corruption Act.
Therefore, the prosecution launched for the offences under RPC cannot be resorted to for avoiding the necessary sanction”, the court said while referring the principle of law emerging from Apex Court.
“…prosecution of the petitioner cannot be launched without obtaining a prior sanction as envisaged by the provisions of the Code of Criminal Procedure because the act of the accused constitutes an offence in discharge of the public duties”, read the judgment. court said the sanction is not a mere adherence to the laws but
intended to act as a shield to a public servant when prosecuted for an offence which puts his honesty and integrity at stake.
Court further added that the prosecution will not be in accordance with law where sanction is required but is given a goby and in that context it will affect the jurisdiction of the Court to take cognizance.
“From the gravamen of charge, it becomes manifest that the case falls within the specie of the cases classified for the grant of statutory sanction as per the principle of law laid down and evolved in the above referred judgments”, read the Judgment.