Neutral Citation No. ( 2025:HHC:19373 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MMO No. 60 of 2021 Reserved on: 16.05.2025 Date of Decision: 23.06.2025. Raj Kumar ...Petitioner Versus State of H.P. ...Respondent Coram Hon’ble Mr. Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 Yes For the Petitioner : Mr. Ashok Sharma, Senior Advocate, with Mr. Sahil Malhotra, Advocate. For the Respondent : Mr. Lokender Kutlehria, Additional AdvocatNeutral Citation No. ( 2025:HHC:19373 ) e General. Rakesh Kainthla, Judge The petitioner (accused before the learned Trial Court) has filed the present petition for quashing of the criminal proceedings pending before the learned Chief Judicial Magistrate, Lahaul and Spiti at Kullu. (Learned Trial Court) 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 Neutral Citation No. ( 2025:HHC:19373 ) (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.) 2. Briefly stated, the facts giving rise to the present petition are that the police filed a challan against the accused for the commission of offences punishable under Sections 420 and 120-B of the Indian Penal Code (IPC). It was asserted that a secret information was received that R.L. Saini and P.K. Saxena, both DET Project (Mandi), in conspiracy with Sunder Lal, Rohitashiv Bhardwaj, Jai Krishan Sharma, Ramesh Thakur, Tek Singh Raghav, Anil Gupta, Jiwan Lal Sharma, Netar Singh, Narinder Bali, P.K. Mahindru, Bhim Chand, Bahadur Singh and others awarded a contract to various contractors for laying optical fibre cable on the Manali, Naggar, Patlikuhal, Kullu route (42 km) in the year 1995-96 at exorbitant rates. R.L. Saini, P.K. Saxena and Sunder Lal falsely and dishonestly certified the works executed by the contractor as correct, and in this manner, they released excess payment in lacs to contractors without verification. They caused wrongful gain to the contractor and wrongful loss to the Government. A technical team of HPPWD and Telecom Department comprising D.R. Shashi (A.E.) PWD, Katrain, Prem Lal, J.E., PWD, Katrain, L.R. Traka, SDO, T.P. 3 Neutral Citation No. ( 2025:HHC:19373 ) Mandi and Harish Kumar, JTO, TP, Mandi, were constituted to conduct the spot inspection/digging. The technical team conducted digging at 23 places on 25.6.1997 and 26.6.1997 to ascertain the actual depth of the cable. As per the specification, optical cable was to be laid at a depth of 165 cm in all types of soil; however, the optical fibre cable was found laid at a lesser depth at 19 places with a deviation ranging from 4 cm to 91 cm. Some differences can occur due to regular vehicular traffic and natural changes, but the differences should not be disproportionate. The depth was much less at most of the places, but the Telecom Officers certified the depth as much more in the measurement book (MB) without making any spot verification. Wrongful payments were made to the contractor with an ulterior motive for causing wrongful gain to them. The work was awarded at an exorbitant rate ranging from 190 per m3 to ₹ 228/- per m3. DGMTP, Shimla, stated that trenching rates were determined as per the report and recommendation of the Committee comprising senior officers of the Department of Telecommunication and Civil Engineers of HP PWD. The rates were determined as per the formula recommended by the High- Level Committee. However, there exists no specific rule/formula 4 Neutral Citation No. ( 2025:HHC:19373 ) issued by the Department of Telecommunications for the determination of trenching rates. The work was awarded in other areas (Kangra-Dehra and Hamirpur-Nadaun) at rates ranging from ₹75/- to ₹114/- per m3. The contractor did not have sufficient experience to carry out the work. FIR was registered by the police. The police conducted the investigation and seized the record. It was found that there was a total loss of ₹28,23,238/- to the Government, and there were various discrepancies in the award of the contract. The payment of the final bills was made despite the pending recoveries. Hence, the challan was prepared and filed before the Court. 3. Being aggrieved by the filing of the charge sheet, the petitioner has filed the present petition, asserting that the petitioner joined the Telecom Department in May 1994 as a Junior Telecom Officer. He was working as a Junior Telecom Officer at Aut, District Mandi in 1997 when an FIR No. 14/1997 dated 19.07.1997 was registered against him in Police Station Enforcement, North Zone, Dharamshala, District Kangra, H.P for the commission of offences punishable under Sections 420, 120B, and 218 of the Indian Penal Code (IPC). The petitioner was not named as an accused in the FIR; however, a charge sheet was 5 Neutral Citation No. ( 2025:HHC:19373 ) filed against him and 15 other persons for the commission of offences punishable under Sections 420, 120B and 218 of the IPC. The allegations against the petitioner were that the optical fibre cables were laid on the Manali Nagar, Patlikul Kullu Route at exorbitant rates. The work was awarded to an inexperienced contractor who executed substandard work. The petitioner wrongly entered the depth of the trench in the measurement books and failed to carry out the 100% checking of the depth. The inspection team conducted test checks at 23 places and found a lesser depth at 19 places. The petitioner failed to perform his duties and helped the contractor by abusing his position. The charge sheet was filed in the year 2007, and no reason was assigned for the delay in the submission of the charge sheet. The charge was not framed against the petitioner by the learned Trial Court. Rakesh Seth preferred a Criminal Revision No. 51/2014 challenging the order dated 04.01.2014 passed by the learned Trial Court dismissing his application under Section 239 of Cr. P.C. The service benefit of the petitioner has been put on hold since 2016. No sanction was accorded by the competent authority, and the Government declined the prosecution sanction sought under Section 197 of the Cr. P.C. 6 Neutral Citation No. ( 2025:HHC:19373 ) The prosecution sanction was also not granted under Section 19 of the Prevention of Corruption Act, and the criminal proceedings cannot continue in the absence of the sanction. The right to a speedy trial is being infringed. No prima facie case is made out against the petitioner. There is no credible material to support the averments made in the FIR; hence, the present petition. 4. The petition is opposed by filing a reply making a preliminary submission regarding the lack of maintainability. The contents of the FIR were reproduced. It was asserted that the delay in finalisation of the charge sheet occurred because BSNL authorities kept the file pending from 1998 till 2007. The prosecution sanction under Section 19 of the Prevention of Corruption Act was denied in the year 2007; hence, the charge sheet was filed for the commission of offences punishable under various provisions of the IPC. The offence punishable under the Prevention of Corruption Act was not mentioned in the charge sheet because no sanction was granted to prosecute the petitioner for the commission of the aforesaid offences. The report submitted by the Technical Committee is credible. Lesser depth was found at 19 places, with deviations ranging from 4 cm 7 Neutral Citation No. ( 2025:HHC:19373 ) to 91 cm. There is sufficient material to connect the petitioner with the commission of the crime; hence, it was prayed that the present petition be dismissed. 5. A rejoinder denying the contents of the reply and affirming those of the petition was filed. 6. A sur-rejoinder was also filed by the State to the rejoinder filed by the petitioner. A supplementary affidavit was also filed by the petitioner. 7. I have heard Mr. Ashok Sharma, learned Senior Counsel, assisted by Mr. Sahil Malhotra, learned counsel for the petitioner and Mr. Lokender Kutlehria, learned Additional Advocate General, for the respondent/State. 8. Mr. Ashok Sharma, learned Senior Counsel for the petitioner, submitted that the prosecution sanction under Section 19 of the Prevention of Corruption Act was not accorded by the Telecom Authorities. The petitioner cannot be prosecuted in the absence of the prosecution sanction. The petitioner is a Government Servant who cannot be removed except with the sanction of the Government. The act was done by the petitioner in discharge of his official duties, and he cannot be prosecuted 8 Neutral Citation No. ( 2025:HHC:19373 ) without the sanction; therefore, he prayed that the present petition be allowed and the proceedings pending before the learned Trial Court be quashed. He relied upon the judgments of State of Orissa vs. Ganesh Chandra Jew, 2004 (8) SCC 40, K. Kalimuthu vs. State, 2005 (4) SCC 512, A. Sreenivasa Reddy vs. Rakesh Sharma and anr, 2023 (8) SCC 711 and Gauri Shankar Prasad vs. State of Bihar and anr, 2000 (5) SCC 15 in support of his submission. 9. Mr. Lokender Kutlehria, learned Additional Advocate General for the respondent/State, submitted that the benefit of Section 197 of the Cr.P.C. is only available to a public servant who is not removable from his office save by or with the sanction of the Government. In the present case, there is nothing to show that the petitioner cannot be removed save or except by the sanction of the Government; therefore, the provisions of Section 197 of Cr.P.C. do not apply to the present case; hence, he prayed that the present petition be dismissed. 10. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 11. Section 197 of the Cr.P.C. reads as under:- 9 Neutral Citation No. ( 2025:HHC:19373 ) “197. Prosecution of Judges and public servants. (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction (a) in the case of a person who is employed or, as the case may be, was at the time of the commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government; (b) in the case of a person who is employed or, as the case may be, was at the time of the commission of the alleged offence employed, in connection with the affairs of a State, of the State Government.” 12. It is apparent from the bare perusal of the Section that before a public servant can claim protection u/s 197 of the Cr.P.C., he should not be removable from his office save by or with the sanction of the Government. It was laid down by the Hon’ble Bombay High Court in Raj Kumar Anandilal Versus State of Maharashtra 2005 Crim. L.J. 4665 that the Section is attracted only to those cases where the public servant is not removable from his office save by or with the sanction of the Government. Even if the accused is a public servant, but can be removed without the sanction of the State Government, the protection of Section 197 of Cr.P.C. will not be available to him. It was observed: “8. With this preliminary discussion relating to the nature of the act committed by the accused, we now come 10 Neutral Citation No. ( 2025:HHC:19373 ) to the legal objection based upon Section 197 (2) of the Criminal Procedure Code, 1973. It is an admitted fact that no sanction was taken under Section 197 (2) of the Criminal Procedure Code, 1973. There was also no dispute raised before us, and it was the admitted position that the Railway Protection Force would be an armed force of the Union of India within the meaning of Section 197 (2) of the Code of Criminal Procedure. It was contended that a sanction under Section 197 (1) was required to be taken from the Government only in respect of "a public servant not removable from his office save by or with the sanction of the Government". There was no such requirement in Section 197 (2). Section 197 (2) applied to any member of the Armed Forces of the Union. The limitation contained in Section 197 (1) was not restated in Section 197 (2) of the said Act and could not be read into the said sub-section. We have heard both sides exhaustively on this aspect of the matter. We find that the matter is not res integra and is covered by three judgments of the Apex Court. In the case of K. Ch. Prasad v. Smt. J. Vanalatha Devi reported in AIR 1987 SC 722, the question before the Apex Court was whether the sanction was required for prosecuting an employee of a nationalised bank who held a post which did not require the sanction of the Government for removal. In paragraph 5 of the said judgment, the Apex Court reproduced the text of the entire Section 197 of the Criminal Procedure Code (inclusive of sub-section 2) and thereafter, observed in paragraph 6 as under: " It is very clear from this provision that this Section is attracted only in cases where the public servant is such who is not removable from his office save by or with the sanction of the Government. It is not disputed that the appellant is not holding a post where he could not be removed from service except by or with the sanction of the Government. In this view of the matter, even if it is held that the appellant is a public servant, still the provisions of Section 197 are not attracted at all." 11 Neutral Citation No. ( 2025:HHC:19373 ) A subsequent judgment of the Apex Court in the case of Dr Lakshmansingh Himatsingh Vaghela v. Naresh Kumar Chandrashankar Jha reported in AIR 1990 SC 1976, the question before the Apex Court was as to whether an employee of the Municipal Corporation of Ahmadabad holding the post of Public Analyst under the Food Adulteration Act, can be prosecuted without sanction under Section 197 of the Criminal Procedure Code, 1973. The Apex Court came to a finding that the appellant before the Apex Court was an employee of the Municipal Corporation of Ahmadabad, and the fact that he was appointed as a Public Analyst did not confer on him the status of an Officer of the Government or Public Servant. In paragraph 5 of the said judgment, the Apex Court observed as under: - "Section 197, Cr. P.C. intends to draw a line between public servants and to provide that only in the case of the higher ranks should the sanction of the Government to their prosecution be necessary." In the case of Director of Inspection and Audit and others v. C.L. Subramaniam reported in 1994 Supp (3) SCC 615: (AIR 1995 SC 866), the accused were customs officers and the question was whether they could be prosecuted without sanction under Section 197 of the Criminal Procedure Code. In paragraph 6 of the said judgment, the Apex Court analysed Section 197 of the Criminal Procedure Code and the object of the said section and observed as under:- "6. If the provisions of Section 197 Cri. P.C. are examined, it is manifest that two conditions must be fulfilled before they become applicable; one is that the offence mentioned therein must be committed by a public servant and the other is that the public servant employed in connection with the affairs of the Union or a State is not removable from his office save by or with the sanction of the Central Government or the State Government, as the case may be. The object of the section is to provide a guard against vexatious proceedings against judges, magistrates and public servants and to 12 Neutral Citation No. ( 2025:HHC:19373 ) secure the opinion of superior authority whether there should be a prosecution." 13. In the present case, the Court noticed on 20.03.2025 that there was no material on record to show that the petitioner cannot be removed except with the sanction of the Government; hence, a direction was issued to place the material if desired. The petitioner filed a supplementary affidavit asserting that he was holding the post of Junior Telecom Officer in the Central Government. He underwent induction training vide office order dated 01.08.1993. He was allotted to the office of G.M Task Force, Mandi for further posting. He filed Annexure P1 issued on behalf of the President of India, showing that he was an employee of the Department of Telecommunications and was ordered to be permanently absorbed in BSNL. Article 309 of the Constitution of India empowers the President to make Rules regarding the Recruitment and conditions of service. The Rules were framed under the authority of the President of India, known as Junior Telecom Officers Recruitment Rules, 1990. Since the petitioner’s appointment was governed by the Rules framed on behalf of the President of India, therefore, his case is covered under Section 197 of Cr. P.C. 13 Neutral Citation No. ( 2025:HHC:19373 ) 14. These averments and the documents do not satisfy the conditions laid down under Section 197 of the Cr. P.C. The Presidential order (Annexure P1) is regarding the permanent absorption of the petitioner in BSNL as per the terms and conditions specified. It does not show that the petitioner was not removable except with the sanction of the Government of India. The Junior Telecom Officer Recruitment Rules, 1990 do not provide that the appointment or the removal of the petitioner can be made with the sanction of the Government. Merely because the Rules have been framed in the name of the President does not mean that the appointment/removal was with the sanction of the Government. Accepting this interpretation will mean that every person appointed in the Government service would be covered under Section 197 of Cr.P.C. because every appointment under the Government is made under the Rules framed under Article 309 of the Constitution of India. This would be violative of the plain language of Section 197 of Cr.P.C. and cannot be accepted. Therefore, the first condition that the petitioner is not removable except with the sanction of the Government is not satisfied. 14 Neutral Citation No. ( 2025:HHC:19373 ) 15. The record shows that the charge sheet was filed for the commission of offences punishable under Sections 420, 120B and 218 of the IPC. It was laid down in Manohar Nath Kaul v. State of J & K, (1983) 3 SCC 429: 1983 SCC (Cri) 647: 1983 SCC OnLine SC 1, that cheating by drawing T.A. does not require any sanction for prosecuting the person for the commission of an offence punishable under Section 420 of IPC. It was observed at page 436: 9. In B. Saha v. M.S. Kochar [(1979) 4 SCC 177: 1979 SCC (Cri) 939: (1980) 1 SCR 111: 1979 Cri LJ 1367], a three-Judge Bench dealt with the same submission advanced on behalf of certain officers of the Customs Department convicted for offences punishable under Sections 120-B, 166 and 409 of the Penal Code. Sarkaria, J. speaking for the court observed: [SCC para 18, p. 185: SCC (Cri) p. 946] “In sum, the sine qua non for the applicability of this section is that the offence charged, be it one of commission or omission, must be one which has been committed by the public servant either in his official capacity or under colour of the office held by him.” The rule in Amrik Singh case [AIR 1955 SC 309: (1955) 1 SCR 1302:1955 Cri LJ 865] was quoted with approval. It was observed: [SCC para 17, pp. 184-85: SCC (Cri) pp. 945-46] “The words ‘any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty’ employed in Section 197(1) of the Code, are capable of a narrow as well as a wide interpretation. If these words are construed too narrowly, the section will be rendered altogether sterile, for ‘it is no part of an official duty to commit an offence, and never can be’. In the wider sense, these 15 Neutral Citation No. ( 2025:HHC:19373 ) words will take under their umbrella every act constituting an offence, committed in the course of the same transaction in which the official duty is performed or purports to be performed. The right approach to the import of these words lies between these two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection of Section 197(1), an act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution under the said provision.” (emphasis supplied) We are of the definite view that the rule quoted above from the Amrik Singh case [AIR 1955 SC 309: (1955) 1 SCR 1302:1955 Cri LJ 865] correctly lays down the legal proposition as to invocability of the protection under Section 197(1) of the Code. The observations of Imam, J. in Satwant Singh case [AIR 1960 SC 266: 1960 Cri LJ 410 : (1960) 2 SCR 89] that there could be no hesitation in saying that where a public servant commits the offence of cheating or abets another so to cheat, the offence committed by him is not one while he is acting or purporting to act in the discharge of his official duty, as such offence has no necessary connection between it and the performance of the duties of a public servant, the official status furnishing only the occasion or opportunity for the commission of the offences, is also the correct exposition of the law. It has not been contended before us that the official duty of the appellant was to draw travelling allowance bills, though his status as a public servant authorised him to draw such bills. Drawing of T.A. bills cannot be said to have been directly and reasonably connected with the appellant's duty as Regional Officer of the Directorate, and the official status furnished the opportunity for doing the acts which constitute ingredients of the offence. He was, therefore, not entitled to claim the protection of Section 197(1) of the Code. The 16 Neutral Citation No. ( 2025:HHC:19373 ) prosecution is not vitiated for want of sanction. The appeal has, therefore, to be dismissed. 16. This position was reiterated in Inspector of Police v. Battenapatla Venkata Ratnam, (2015) 13 SCC 87: (2016) 1 SCC (Cri) 164: 2015 SCC OnLine SC 339 wherein it was observed at page 91: “11. 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. Unfortunately, the High Court missed these crucial aspects. The learned Magistrate has correctly taken the view that if at all, the said view of sanction is to be considered, it could be done at the stage of trial only.” 17. It was laid down by the Hon’ble Supreme Court in Bholu Ram v. State of Punjab, (2008) 9 SCC 140: (2008) 3 SCC (Cri) 710: 2008 SCC OnLine SC 1317, that the offence punishable under Sections 409, 420, 467, 468 and 471 cannot be said to have been committed in the discharge of official duties and hence no sanction is required. It was observed at page 159: “60. We express our inability to agree with the learned counsel. It is settled law that offences punishable under Sections 409, 420, 467, 468, 471, etc. can by no stretch of imagination by their very nature be regarded as having been committed by a public servant while “acting or purporting to act in discharge of official duty” (vide Parkash Singh Badal v. State of Punjab [(2007) 1 SCC 1 : (2007) 1 SCC (Cri) 193] ).” 17 Neutral Citation No. ( 2025:HHC:19373 ) 18. Hence, no sanction is required for the prosecution of cheating. 19. Section 218 of the IPC deals with framing an incorrect record or writing with the intent to save any person from punishment. Thus, it is akin to the falsification of the record. Since this is not the job of the public servant to falsify the record, therefore, the requirement of sanction will not apply to the present case. 20. It was submitted that the Court has allowed the Criminal Revision No. 51/2014, and the proceedings are liable to be quashed against the petitioner as well. A perusal of the order passed in Criminal Revision No. 51 of 2014 shows that it was passed because of the peculiar situation of the petitioner, Rakesh Seth, which is quite distinct from the case of the petitioner. Therefore, the proceedings cannot be quashed because the revision filed by the co-accused was allowed. 21. It was submitted that there is a violation of the right to a speedy trial, and the petition is liable to be quashed on this ground. This submission is not acceptable. It is apparent from 18 Neutral Citation No. ( 2025:HHC:19373 ) the petition itself that the record was summoned by this Court at the instance of the co-accused. A person cannot take the benefit of the proceedings stalled at the instance of the accused to claim that his right to a speedy trial is being violated. 22. It was submitted that there is a delay in the progress of the trial, and a direction should be issued to expedite the trial. It was laid down in M. Gopalakrishnan v. Pasumpon Muthuramalingam, 2022 SCC OnLine SC 1968, that any order of expediting the hearing might upset the calendar and schedule of the subordinate Court, and might result in assigning an unwarranted priority to that particular case over and above other cases pending in that Court. It was observed: - “4. Looking to the nature of the order passed by the High Court, we are not inclined to grant leave to appeal in this matter but feel impelled to observe that ordinarily, before passing any such order for expeditious proceedings in a particular case (which might appear to be rather innocuous), it would be appropriate for the higher Court to appreciate that any such order for one case, without cogent and extremely compelling reasons, might upset the calendar and schedule of the subordinate Court; might result in assigning an unwarranted priority to that particular case over and above other cases pending in that Court; and progression of such other cases might suffer for no reason and none of the faults of the litigants involved therein.” 19 Neutral Citation No. ( 2025:HHC:19373 ) 23. This position was reiterated in Shaikh Uzma Feroz Hussain vs. State of Maharashtra Writ Petition Criminal no. 587 of 2023 decided on 10.11.2023 (SC) wherein it was observed: “We are of the view that since every High Court and every Court in the country has a huge pendency, the Constitutional Court should avoid the temptation of fixing a time-bound schedule for the disposal of any case before any Court unless the situation is extraordinary.” 24. A similar view was taken in the Allahabad High Court Bar Assn. v. State of U.P., (2024) 6 SCC 267: 2024 SCC OnLine SC 207 wherein it was observed: 41. Therefore, constitutional Courts should not normally fix a time-bound schedule for the disposal of cases pending in any Court. The pattern of pendency of various categories of cases pending in every Court, including High Courts, is different. The situation at the grassroots level is better known to the judges of the concerned Courts. Therefore, the issue of giving out-of-turn priority to certain cases should be best left to the concerned Courts. The orders fixing the outer limit for the disposal of cases should be passed only in exceptional circumstances to meet extraordinary situations. 42. There is another important reason for adopting the said approach. Not every litigant can easily afford to file proceedings in the Constitutional Courts. Those litigants who can afford to approach the constitutional Courts cannot be allowed to take undue advantage by getting an order directing out-of-turn disposal of their cases while all other litigants patiently wait in the queue for their turn to come. The Courts, superior in the judicial hierarchy, cannot interfere with the day-to-day functioning of the other Courts by directing that only 20 Neutral Citation No. ( 2025:HHC:19373 ) certain cases should be decided out of turn within a time frame. In a sense, no Court of law is inferior to the other. This Court is not superior to the High Courts in the judicial hierarchy. Therefore, the Judges of the High Courts should be allowed to set their priorities on a rational basis. Thus, as far as setting the outer limit is concerned, it should be best left to the concerned Courts unless there are very extraordinary circumstances. 25. Therefore, no direction can be issued to expedite the hearing. However, this Court hopes and trusts that the learned Trial Court shall deal with the matter as expeditiously as possible in the facts and circumstances of the case. 26. No other point was urged. 27. In view of the above, the present petition fails and the same is dismissed. 28. The observation made herein before shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case. (Rakesh Kainthla) Judge 23rd June, 2025 (saurav pathania)