Page No.# 1/9 GAHC010084142025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Pet./460/2025 DR. SYED SAMSUZ ZAMAN @ DR SAYEED SAMSUZ ZAMAN S/O LATE OHIDUZ ZAMAN R/ORANGGHAR CHARIALI P.O.RANGGHAR CHARIALI P.S. SIVASAGAR, DIST. SIVASAGAR, ASSAM PIN-785665 (M)- 863881891 VERSUS THE STATE OF ASSAM AND ANR REP BY THE PP, ASSAM 2:SMTI. MINU HAZARIKA W/O LATE JYOTI PRASAD DUTTA C/O SWAHID PEOLI PHUKAN COLLEGE NAMTI P.O. NAMTIDOLE P.S.NAMTI DIST. SIVASAGAR ASSAM PIN-78568 Advocate for the Petitioner : MR. A R SHOME, MR A J GHOSH Advocate for the Respondent : PP, ASSAM, Page No.# 2/9 BEFORE HONOURABLE MR. JUSTICE MANASH RANJAN PATHAK ORDER 23-05-2025 1) Heard Mr. Aunindya Ratan Shome, learned counsel for the petitioner and Mr. Kamal Krishna Parasar, learned Additional Public Prosecutor, Assam for the respondent No. 1. 2) The petitioner, namely, Dr. Syed Samsuz Zaman @ Dr. Sayeed Samsuz Zaman, son of Late Ohiduz Zaman, has filed this application under section 528 of the BNSS 2023 on 22-04-2025, praying amongst others, (i) to quash and set aside the Order dated 29-04-2022 passed by learned Judicial Magistrate First Class (JMFC, in short) at Nazira in PRC Case No. 223/2021 arising out of Namti Police Station Case No. 09/2018 under Sections 420/406/468/471 IPC, corresponding to G.R. No. 243/2018 by which the learned JMFC framed Charge under Sections 409/465/471 IPC against the petitioner and (ii) to quash and set aside the Order dated 25-03- 2025 whereby the learned Additional Sessions Judge, FTC, Sivasagar dismissed the Criminal Revision No. 10(2) of 2022 preferred by the petitioner under Sections 397/399 CrPC against the said Order dated 29.04.2022 passed by the learned JMFC, Nazira in PRC No. 223/2021, noted above, being devoid of merit. 3) In the petition the petitioner has also prayed for stay of the proceeding of said PRC No. 223/2021 pending before the Court of learned JMFC, Nazira during pendency of this proceeding. 4) Before proceeding further, the Court took up the matter at the Motion stage itself. 5) Brief facts of the case is that the petitioner was serving as Principal and Secretary of Swahid Peoli Phukan College, Namti, P.O.-Namtidole, District-Sivasagar, Assam, a provincialised college under the State Government and affiliated with Dibrugarh University (hereinafter referred to as the said college). On attaining the age of superannuation at sixty years, the petitioner retired from service on 31/03/2018. 6) After retirement of the petitioner, the authorities of the said college received a copy of a letter of the University Grants Commission (UGC) dated 31-05-2017 obtained from the Joint Page No.# 3/9 Director, UGC, NERO (North Eastern Regional Office) by which the UGC asked the said college to refund misappropriated UGC fund of Rs.1,09,69,500/-, failing which the college shall face the consequences, like — (i) Withdrawal of approval under sections 2(f) and 12(B); (ii) Withdrawal of affiliation by the University concerned and (iii) Criminal proceedings against the college for embezzlement. As such, the Governing Body of the said college discussed the said UGC letter dated 31-05-2017 in its meeting held on 20-04-2018 and came to the finding that said UGC letter dated 31-05-2017 itself indicates the involvement of the petitioner in gross financial anomalies during his tenure as Principal and Secretary of the college without the knowledge of its Governing Body and accordingly, in the said meeting dated 20-04-2018 the Governing Body of the college unanimously resolved to convey the matter to the Superintendent of Police, Sivasagar. Pursuant to the said resolution dated 20-04-2018 of the Governing Body of the college, its Principal-in- Charge on 27-04-2018 submitted a written complaint before the Superintendent of Police, Sivasagar along with the letter of the UGC dated 31-05-2017 as well as the Resolution of the Governing Body of the college dated 20-04-2018. 7) On receipt of the said written complaint dated 27-04-2018 from the authority of the college, the Superintendent of Police, Sivasagar on 28-04-2018 forwarded the said complaint of the college to the Officer-in-Charge of Namti Police Station directing it to make an enquiry, register a case and to submit the necessary enquiry report. On the basis of the said written complaint dated 27-04-2018 of the College, the same was registered as Namti Police Station Case No. 09/2018 under Sections 420/406/468/471 IPC on 04.05.2018, corresponding to G R No. 243/2018 against the petitioner. 8) On completion of the investigation of the case, the authorities concerned on 31-05-2021 submitted the charge-sheet in said Namti P S Case No. 09/2018 vide chargesheet No. 09/2021 against the petitioner under Sections 420/406/468/471 IPC — (i) for misappropriation of UGC fund of Rs.1,09,69,500/-; (ii) for forging the signatures of teachers showing them to receive honorarium of Rs. 1,10,000/- in the name of SC/ST Coaching Scheme and (iii) for misappropriation of Rs. 35,37,408/- regarding refundable Tuition Fees from the year 2006 to 2018 that was calculated by the Enquiry Team, Financial Inspections, Assam. 9) After filing of the chargesheet, said G R No. 243/2018 arising out of Namti P S Case No. 09/2018 was registered as PRC No. 223/2021. After hearing the parties and considering the materials in the relevant charge-sheet dated 31-05-2021 finding sufficient incriminating materials Page No.# 4/9 against the petitioner, being prima facie satisfied that there are sufficient evidence to lead a conclusion of guilt, the learned JMFC, Nazira by order dated 29-04-2022 passed in said PRC No. 223/2021 framed charge under Sections 409/465/471 IPC against the petitioner. 10) Being aggrieved with such framing of charge against him, the petitioner on 11-05-2022 filed Criminal Revision Petition No. 10(2)/2022 under Sections 397/399 CrPC before the learned Sessions Judge, Sivasagar praying to set aside the said the order dated 29-04-2022 passed by learned JMFC, Nazira in said PRC No. 223/2021 framing charge under Sections 409/465/471 IPC against him and to discharge him from the said PRC No. 223/2021 under Sections 409/465/471 IPC. 11) The contention of the petitioner in his said Criminal Revision No. 10(2)/2022 was that — (i) the alleged offence of misappropriation of UGC fund of Rs.1,09,69,500/- is based exclusively on documentary evidence; (ii) sole accusation of misappropriation and its branches are totally unavailable to have a charge against him to go for trial and (iii) the chargesheet No. 09/2021 dated 31-05-2021 filed against him lacks sanction for prosecution as required under Section 197 CrPC. 12) In support of his grounds before the learned Revisional Court, the petitioner relied on the decision of the Hon’ble Supreme Court in the case of Suneeti Toteza - Vs- Sytae of U.P. decided on 25-02-2025, reported in 2025 SCC OnLine SC 433, where in their Lordships also considered the decision of said Hon’ble Court passed earlier in the cases of Gurmeet Kaur -Vs- Devender Gupta, reported in 2024 SCC OnLine SC 3761, Amod Kumar Kanth -Vs- Association of Victim of Uphaar Tragedy and Another, reported in 2023 SCC OnLine SC 578 = 2023 16 SCC 239 and Amrik Singh -Vs- The State of PEPSU, reported in AIR 1955 SC 309. Relying on those decisions, the petitioner stated that since prosecution did not obtain necessary sanction under Section 197 of the CrPC from the competent authority and there being no sanction to prosecute him therefore, the initiation of the criminal proceeding against the petitioner in PRC Case No. 223/2021 has been vitiated and therefore, the charge framed against him in said PRC Case No. 223/2021 by the learned JMFC, Nazira on 29-04-2022 should be set aside and quashed and to discharge him from said PRC No. 223/2021 under Sections 409/465/471 IPC. 13) After hearing the parties and considering the decisions of the Hon’ble Supreme Court, relied by the petitioner in the cases of Suneeti Toteza (supra), Gurmeet Kaur (supra), Amod Kumar Page No.# 5/9 Kanth (supra) and also the decisions of the Hon’ble Apex Court in the cases of State of U. P. -Vs- Paras Nath Singh, reported in 2009 AIR SCW 3712 = (2009) 6 SCC 372, State of H.P. -Vs- M. P. Gupta reported in (2004) 2 SCC 349 and N. Bhargavan Piliai(Dead) by L. Rs.and Another-Vs- State of Kerala reported in (2004) 13 SCC 217, the learned Additional Sessions Judge, Sivasagar, i.e., the concerned Revisional Court by its order dated 25.03.2025 dismissed the said Criminal Revision No. 10(2)/2022, arising out of PRC No. 223/2021, preferred by the petitioner as the said revision petition lacks merit. 14) After receipt of the relevant records from said Revisional Court, the learned JMFC, Nazira, finding that the PRC No. 223/2021 is pending at the stage of evidence of prosecution witnesses, therefore, by its order dated 09.04.2025 passed in said PRC No. 223/2021 fixed the matter for evidence of prosecution witnesses and issued summons directing the Public Prosecutor to take steps in that regard to the prosecution witnesses. 15) Hence this Criminal Petition by the petitioner against the said order dated 25.03.2025 passed by the learned Additional Sessions Judge, Sivasagar dismissing his said Criminal Revision No. 10(2)/2022, arising out of PRC No. 223/2021 as well as the order dated 29-04-2022 passed by leaned JMFC, Nazira in said PRC No. 223/2021 framing charge under Sections 409/465/471 IPC against the petitioner, stating that the same is bad in law as there was no previous sanction to proceed against him as required under Section 197 of the CrPC, asserting that the alleged offence committed by him was in discharge of his official duty as the Principal of said Swahid Peoli Phukan College, Namti. Petitioner stated that he was the full-fledged Principal & Secretary of the said College from the years 2008 to 31-03-2018, till his retirement from service. Petitioner has also contended that the leaned JMFC, Nazira on 29-04-2022 wrongly framed charge under Sections 409/465/471 IPC against him. 16) Relying on the decisions of the Hon’ble Supreme Court in the case of Amod Kumar Kanth (supra) [(2023) 16 SCC 239] and the decision of this High Court in the case of Marnya Ete -Vs- State of Arunachal Pradesh, reported in 2021 (5) GLT 717, Mr. A R Shome, learned counsel for the petitioner submitted that since the prosecution proceeded against the petitioner without obtaining any prior sanction as required under section 197 CrPC the entire proceeding relating to said PRC No. 223/2021 being vitiated and bad in law, should be set aside and quashed. 17) As noted above in the case in hand the petitioner has been charged under Sections Page No.# 6/9 409/465/471 IPC. Section 409 IPC pertains to Criminal breach of trust by public servant, or by banker, merchant or agent. The ingredients of offences under Section 409 IPC are — (i) The accused was a public servant, or a banker or merchant or agent or factor or broker or an attorney; (ii) In such capacity the accused was entrusted with certain property or he gained domain over such property which was not his own; (iii) The accused misappropriated or committed criminal breach of trust with respect to such property. It is settled that the prosecution is only required to prove that the accused, a public servant, was entrusted with the public property in question and once the same is proved, it is for the accused to prove as to how the property entrusted with him/her was dealt with. [Relied on N. Bhargavan Pillai -Vs- State of Kerala, reported in (2004) 13 SCC 217 and Mustafikhan-Vs- State of Maharashtra, reported in (2007) 1 SCC 623] 18) The Hon’ble Supreme Court in the case of Jiwan Dass -Vs- State of Haryana, reported in (1999) 2 SCC 530 have held that — to bring home a charge under Section 409, what is necessary to be proved is that the accused is a public servant and in such capacity he was entrusted with the property in question or with dominion over it and that he committed criminal breach of trust in respect of it. The necessary elements constituted in the offence must be strictly proved by the prosecution. It is true that the prosecution need not prove the actual mode of misappropriation and once entrustment of or dominion over the property is established, then it would be for the accused to explain as to how the property was dealt with. 19) Section 465 IPC relates to Punishment for forgery and the ingredients of offences under Section 465 IPC are — (i) The accused prepared a false document or electronic record; (ii) The accused did it with false meaning of Britain instrument for the purpose of fraud or deceit; (iii) The document or electronic record was prepared dishonestly or fraudulently and (iv) The accused did it which the intention of causing wrongful gain to someone and wrongful loss to another. 20) Section 471 IPC pertains to Using as genuine a forged document. The ingredients of offences under Section 471 IPC are — (i) The accused fraudulently or dishonestly used a document or electronic record as genuine and (ii) The accused new or had reason to believe that the document or electronic record was forged one. 21) With regard to the question to be considered for giving sanction under Section 197 CrPC, the Hon’ble Supreme Court in the case of Romesh Lal Jain -Vs- Naginder Singh Rana,reported in Page No.# 7/9 (2006) 1 SCC 294 have held that — The upshot of the aforementioned discussions is that whereas an order of sanction in terms of Section 197 CrPC is required to be obtained when the offence complained of against the public servant is attributable to the discharge of his public duty or has a direct nexus therewith, but the same would not be necessary when the offence complained of has nothing to do with the same. A plea relating to want of sanction although desirably should be considered at an early stage of the proceedings, but the same would not mean that the accused cannot take the said plea or the court cannot consider the same at a later stage. Each case has to be considered on its own facts. Furthermore, there may be cases where the question as to whether the sanction was required to be obtained or not would not be possible to be determined unless some evidence is taken, and in such an event, the said question may have to be considered even after the witnesses are examined. 22) In the case of Shambhoo Nath Misra -Vs- State of U.P., reported in (1997) 5 SCC 326 the Hon’ble Supreme Court have observed that — The essential requirement postulated for the sanction to prosecute the public servant is that the offence alleged against the public servant must have been done while acting or purporting to act in the discharge of his official duties. In such a situation, it postulates that the public servant’s act is in furtherance of the performance of his official duties. If the act/omission is integral to the performance of public duty, the public servant is entitled to the protection under Section 197(1) of CrPC. Without the previous sanction, the complaint/charge against him for the alleged offence cannot be proceeded with in the trial. The sanction of the appropriate Government or competent authority would be necessary to protect a public servant from needless harassment or prosecution. The protection of sanction is an assurance to an honest and sincere officer to perform his public duty honestly and to the best of his ability. The threat of prosecution demoralises the honest officer. The requirement of the sanction by competent authority or appropriate Government is an assurance and protection to the honest officer who does his official duty to further public interest. However, performance of official duty under colour of public authority cannot be camouflaged to commit crime. Public duty may provide him an opportunity to commit crime. The Court to proceed further in the trial or the enquiry, as the case may be, applies its mind and records a finding that the crime and the official duty are not integrally connected. 23) Their Lordships in the said case of Shambhoo Nath Misra (supra) have held that — The public servant alleged to have committed the offence of fabrication of record or misappropriation Page No.# 8/9 of public fund etc. cannot be said to have acted in furtherance of or in thedischarge of his official duties, for which sanction under Section 197 CrPC not necessary. 24) The Hon’ble Supreme Court in the caser of Parkash Singh Badal -Vs- State of Punjab, reported in(2007) 1 SCC 1 where dealing with the issue of public servant while acting or purporting to act in discharge of their official duty have held that — The principle of immunity protects all acts which the public servant has to perform in the exercise of the functions of the Government. The purpose for which they are performed protects these acts from criminal prosecution. However, there is an exception. Where a criminal act is performed under the colour of authority but which in reality is for the public servant’s own pleasure or benefit then such acts shall not be protected under the doctrine of State immunity. 25) In the case of Inspector of Police -Vs-Battenapatla Venkata Ratnam, reported in (2015) 13 SCC 87 the Hon’ble Supreme Court have held that —The alleged indulgence of the officers in cheating, fabrication of records or misappropriation cannot be said to be in discharge of their official duty. Their official duty is not to fabricate records or permit evasion of payment of duty and cause loss to the Revenue. 26) Recently, the Hon’ble Supreme Court in the case of Shadakshari -Vs- State of Karnataka and Another, reported in 2024 SCC OnLine SC 48 where their Lordships in details have discussed the Section 197 CrPC and about the immunity/protection to a public servant in discharging his/her official duties, have held that — The question whether the alleged accused was involved in fabricating official documents by misusing his official position as a public servant is a matter of trial. Certainly, a view can be taken that manufacturing of such documents or fabrication of records cannot be a part of the official duty of a public servant. If that be the position, the High Court was not justified in quashing the complaint as well as the chargesheet in its entirety. 27) From the above it can be seen that the alleged offence under Sections 409/465/471 IPC against the petitioner, relating to criminal breach of trust by him; fabrication of documents by him by misusing his official position - forgery - and using of forged document as genuine by him, while the petitioner was a public servant serving as Principal of said Swahid Peoli Phukan College, Namti cannot be said to have acted in the discharge of his official duties. 28) For the reasons above this Court is of the opinion that the order of the learned Additional Sessions Judge, FTC, Sivasagar dated 25-03-2025 dismissing the Criminal Revision No. 10(2) of Page No.# 9/9 2022 preferred by the petitioner and the Order of the learned Judicial Magistrate First Class, Nazira dated 29-04-2022 passed in PRC Case No. 223/2021 arising out of Namti Police Station Case No. 09/2018 corresponding to G R No. 243/2018 relating to framing of charge under Sections 409/465/471 IPC against the petitioner does not call for any interference. 29) Accordingly, this Criminal Petition of the petitioner, being devoid of merit, stands dismissed. JUDGE Comparing Assistant