IN THE HIGH COURT AT CALCUTTA

CRIMINAL REVISIONAL JURISDICTION

Appellate Side

Present:

The Hon’ble Justice Ajay Kumar Gupta

C.R.R. No. 4495 of 2024

Ujjal Kumar Ghosh and Anr.

Versus

Umesh Chandra Mohapatra and Anr.

For the Petitioners : Mr. Milon Mukherjee, Ld. Sr. Adv.

Ms. Kabita Mukherjee, Adv.

Mr. Gaurab Das, Adv.

Mr. Dattatreya Dutta, Adv.

For the O.P. No. 1 : Mr. Avishek Guha, Adv.

Ms. Sonal Agarwal, Adv.

For the C.B.I. : Mr. Amarjit De, Special P.P.

Heard on : 31.07.2026

Judgment on : 19.08.2026

Uploaded on : 19.08.2026

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Ajay Kumar Gupta, J.:-

1. By filing this Criminal Revisional application under Section 482 of the

Code of Criminal Procedure, 1973 (in short ‘Cr.P.C.’) corresponding to

Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023 (in short

‘BNSS’), the present petitioners seek quashing of the proceedings

being R.C. No. 04/2018 (CBI Case No. 1 of 2023), pending before the

learned Metropolitan Magistrate, 22

nd

Court, Calcutta (re-designated

as the Learned Judicial Magistrate, 22

nd

Court, Calcutta) arising out

of CBI/BSFB/Kolkata Case No. RCBSK2018E0004 dated 17.04.2018

under Sections 120B/420/468/471 of the Indian Penal Code and all

orders passed therein, including the order dated 18.10.2023.

2. By the order dated 18.10.2023, the Learned Magistrate took

cognizance of offence punishable under Sections 120B/420/468/471

of the Indian Penal Code against the petitioners in connection with

the aforesaid proceeding.

FACTS OF THE CASE:-

3. The brief facts of the instant case are that the petitioner no. 1 was the

Assistant General Manager and Branch Head of the Bank of Baroda,

Camac Street Branch, and the petitioner no. 2 joined on 9

th

December, 2013 as the Deputy General Manager (SCH-VI), and Zonal

Head, Bank of Baroda, EZ office, Kolkata.

3

4. On 17.04.2018, the opposite party no. 1- Umesh Chandra

Mohapatra, Deputy General Manager, Bank of Baroda lodged a

written complaint on behalf of Bank of Baroda and other consortium

member banks, IDBI Bank Ltd. and ICICI Bank Ltd. against M/s.

M.K. Patel Exim Pvt. Ltd. (the principal borrower) and its directors.

5. The complainant accused the borrower and its directors, including

Mr. Om Prakash Pandey, Mr. Shree Prakash Pandey and others, of

engaging in fraud, cheating and the diversion of funds. The company

had been granted credit facilities amounting to Rs. 69 crores by the

consortium banks, which were later classified as non-performing

assets (NPAs). Allegations include the misuse of bank funds,

siphoning off money to related parties, and the failure to fulfil

commitments on letters of credit (LCs). The details of the letter of

complaint indicate how the borrower company failed to route sales

proceeds through consortium bank accounts, leading to significant

financial losses. Bank of Baroda, the lead bank in the consortium,

declared the company and its directors as wilful defaulters and

initiated legal actions, including a suit before the Debt Recovery

Tribunal (DRT) and notices under the SARFAESI Act, 2002.

Investigations revealed that the company did not disclose its sister

concerns, to whom significant LCs were issued, thus perpetrating a

4

fraud on the banks. The fraud was reported to the Reserve Bank of

India.

6. On the basis of aforesaid written complaint, an FIR was registered

being CBI/BSFB/Kolkata Case No. RCBSK2018E0004 dated

17.04.2018 under Sections 420/120B of the Indian Penal Code and

under Sections 13(2)/13(1)(d) of the Prevention of Corruption Act,

1988 against six accused persons and initiated investigation.

Although, the petitioners were not named in the F.I.R.

7. After culmination of investigation, the investigating agency has

submitted a Charge Sheet being Charge Sheet No. 03 of 2020, dated

31.12.2020, under Sections 120B/420/468/471 of the Indian Penal

Code and under Sections 13(2)/13(1)(d) of the Prevention of

Corruption Act, 1988 against the present petitioners and sixteen

other accused persons. The said case was adjourned for a substantial

period of time due to the pending filing of the sanction order as far as

the petitioners are concerned. Finally, on 04.02.2023, two orders

were filed before the Learned Special Judge, CBI, Court No. 2, Bichar

Bhawan, Calcutta, in which the officials of the Bank of Baroda, being

the General Manager (DP) and the Managing Director and CEO,

declined to accord sanction against the petitioners, resulting in the

dropping of charges under Sections 13(2)/13(1)(d) of the Prevention of

Corruption Act, 1988.

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8. Pursuant to the said order, the Learned Special Judge, CBI, Court

No. 2, Bichar Bhawan, Calcutta was pleased to transfer the instant

case to the Court of the Learned Chief Metropolitan Magistrate,

Calcutta only dropping charges under Sections 13(2)/13(1)(d) of the

Prevention of Corruption Act, 1988. In turn, vide order dated

01.06.2023, the learned Chief Metropolitan Magistrate, Calcutta was

pleased to transfer the case to the Court of the Learned Metropolitan

Magistrate, 22

nd

Court, Calcutta (hereinafter referred to as the

“Learned Magistrate”) for its trial and disposal.

9. Upon receiving and perusal of the case records of the instant case,

the learned Magistrate vide order dated 08.06.2023 was pleased to fix

the next date on 31.07.2023 for hearing on the point of taking

cognizance of the offences punishable under sections

120B/420/468/471 of the Indian Penal Code. The learned Magistrate

further directed the investigating officer to be present on that date

along with the case diary of the instant case.

10. On 31.07.2023, the investigating officer in the instant case failed to

appear before the learned Magistrate, and the case diary was also not

made available for consideration. As a result, the case was adjourned,

and the next date was fixed on 05.09.2023 for hearing on the point of

taking cognizance of the offences. The learned Magistrate further

6

directed the investigating officer to be present on that date along with

the case diary of the pending case.

11. On 05.09.2023, the case was taken up for hearing by the learned

Magistrate in the presence of the investigating officer, who was

present with the case diary of the instant case. Upon hearing, the

learned Magistrate was pleased to observe that the matter was heard

in part with respect to the taking of cognizance of the offence. The

learned Magistrate further fixed the next date as 18.10.2023 for

further hearing on the issue of cognizance. The learned Magistrate

further directed the investigating officer to be present on that date.

12. Finally, by the impugned order dated 18.10.2023, the learned

Magistrate took cognizance of offences punishable under Sections

120B/420/468/471 of the Indian Penal Code against the petitioners.

Although the bank officials of the Bank of Baroda, being the General

Manager (DP) and the Managing Director and CEO, have exonerated

the petitioners from the alleged offence by declining to accord

sanction against them, thereby leading to the dropping of charges

under Sections 13(2) and 13(1)(d) of the Prevention of Corruption Act,

1988. Although, all the sections levelled against the petitioners were

connected with the offences as allegedly committed during their

service period in the official capacity. No case under Sections

120B/420/468/471 of the Indian Penal Code has been made out

7

against the petitioners herein and further no sanction has been

accorded by the competent authorities. Hence, this Criminal

Revisional application.

SUBMISSION ON BEHALF OF THE PETITIONERS:-

13. Mr. Mukherjee, learned senior counsel appearing on behalf of the

petitioners submitted that on the basis of written complaint lodged by

opposite party no. 1, a case was initiated against the petitioners being

CBI/BSFB/Kolkata Case No. RCBSK2018E0004 dated 17.04.2018

under Sections 420/120B of the Indian Penal Code and under

Sections 13(2)/13(1)(d) of the Prevention of Corruption Act, 1988 and

after investigation, a Charge Sheet being Charge Sheet No. 03 of

2020, dated 31.12.2020, under Sections 120B/420/468/471 of the

Indian Penal Code and under Sections 13(2)/13(1)(d) of the

Prevention of Corruption Act, 1988 has been submitted against the

petitioners and sixteen other accused persons although no sanction

was accorded by the Higher Authority to initiate the proceeding

against the present petitioners as per section 19(1)(c) of the

Prevention of Corruption Act, 1988.

14. The learned Special Judge also did not take cognizance against the

petitioners under the P.C. Act as the competent authority has not

accorded sanction for prosecution against the petitioners. However,

the learned Special Judge wrongly appreciated that the petitioners

8

could be proceeded with under other sections in the Indian Penal

Code. Accordingly, the record was transferred to the learned Chief

Metropolitan Magistrate, Calcutta, who, in turn, transferred the case

to the Learned Metropolitan Magistrate, 22

nd

Court at Calcutta (re-

designated as Learned Judicial Magistrate, 22

nd

Court at Calcutta).

The learned Magistrate had taken cognizance against the present

petitioners after observing that a prima facie case had been made out

against the petitioners under Sections 120B/420/468/471 of the

Indian Penal Code, although no sanction was accorded by the higher

authority to proceed further against the petitioners as both the

petitioners were public servants.

15. Learned senior counsel drew attention of this Court with regard to

the order passed by Sanjib Chadda, Managing Director and CEO,

Bank of Baroda, Mumbai being the competent authority. He did not

accord sanction under the P.C. Act, 1988 for prosecution against the

present petitioners. Apart from that, the prosecution also failed to

produce any sanction order for prosecuting the present petitioners

under Sections 120B/420/468/471 of the Indian Penal Code.

16. It was further submitted that even if offences alleged to have been

committed by the petitioners under the IPC, a sanction order by the

competent authority is essential under Section 197 of the Cr.P.C. for

prosecuting a public servant, when the offence is allegedly stated to

9

have been committed during service tenure in official capacity.

Therefore, order of taking cognizance by the learned Magistrate is

required to be set aside and the entire proceeding is also required to

be quashed insofar as the petitioners are concerned, due to lack of

sanction order granted by the appropriate authority for prosecuting

against the present petitioners even under IPC to prevent abuse of

process of law as the petitioners are innocent and were not involved

in the offences as alleged.

SUBMISSION ON BEHALF OF THE C.B.I.:-

17. Mr. De, learned counsel appearing on behalf of the CBI, vehemently

opposed the prayer of the learned senior counsel appearing on behalf

of the petitioners and further submitted that the competent authority

has admittedly not sanctioned to prosecute the petitioners under the

P.C Act. In such a situation, the learned Trial Court could have

proceeded with the trial against the alleged offences committed by the

petitioners under Sections 120B/420/468/471 of the Indian Penal

Code and for that, no necessary sanction is required.

18. To bolster his submission that sanction with regard to offences

punishable under Sections 120B/420/468/471 of the Indian Penal

Code is not mandatory and necessary under Section 19(1)(c) of the

P.C. Act, learned counsel has placed reliance of a unreported

judgment passed by the Hon’ble High Court of Jharkhand at Ranchi

10

in Cr.M.P. No. 400 of 2015 dated 21.01.2020 and the Hon’ble

Supreme Court’s order affirming the said judgment in Special Leave

to Appeal (Crl.) No(s). 2787/2020 dated 29.07.2020.

19. Learned counsel further contended that although sanction for

prosecution under the P.C. Act in connection with the petitioners was

not accorded or sanctioned by the appropriate authority, but the trial

court found there are sufficient materials on record to establish

prima facie case under Sections 120B/420/468/471 of the Indian

Penal Code against the petitioners. Accordingly, the learned Trial

Court took cognizance of offences against the petitioners under the

provisions of IPC correctly. As such, the instant Revisional

application is liable to be dismissed.

SUBMISSION ON BEHALF OF THE O.P. No. 1:-

20. Learned counsel appearing on behalf of the O.P. No. 1 also supported

the submissions made by the learned counsel appearing on behalf of

the C.B.I. and also prayed for dismissal of the instant Revisional

application.

DISCUSSIONS, ANALYSIS AND CONCLUSION OF THIS COURT :-

21. Heard the submissions of the learned counsels for the respective

parties and on careful perusal of the materials on record, it appears

that initially a case was registered against the accused persons

without naming the petitioners in the Copy of FIR and subsequently

11

after investigation, the petitioners were arraigned as accused persons

under Sections 120B/420/468/471 of the Indian Penal Code read

with Sections 13(2)/13(1)(d) of the Prevention of Corruption Act, 1988

but due to declining of the sanction order for prosecution against the

petitioners by the competent authority, the learned Special Judge,

CBI, Court No. 2, Bichar Bhawan, Calcutta was pleased to transfer

the instant case to the Court of the Learned Chief Metropolitan

Magistrate, Calcutta dropping the offence as alleged under Sections

13(2)/13(1)(d) of the Prevention of Corruption Act, 1988. In turn, vide

order dated 01.06.2023, the learned Chief Metropolitan Magistrate,

Calcutta was pleased to transfer the case to the Court of the Learned

Metropolitan Magistrate, 22

nd

Court, Calcutta (in short ‘Learned

Magistrate’) for its trial and disposal.

22. Upon perusal of the record, it is revealed that the learned Magistrate

took cognizance against the petitioners under Sections

120B/420/468/471 of the Indian Penal Code. Although it is an

admitted fact that no sanction was accorded by the competent

authority even for the offences allegedly stated to have been

committed by the petitioners under the provisions of the IPC.

23. Copy of the order of the competent authority declining the sanction

for prosecution against the petitioners, inter alia, are as follows: -

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“It is stated in the investigation report of CBI that the aforesaid acts

of omissions and commissions of said Shri Rajendra Laxman

Guttikar, the then General Manager, Bank of Baroda, Eastern Zone,

Kolkata, prima facie constitute offences punishable under Section

120B r/w 420, 468 and 471 IPC and 13(2) r/w 13(1)(d) of PC Act,

1988 and substantive offences thereof.

In this regard, I would like to state as under:

A. Offences alleged under Sec 120B of IPC i.e., Criminal

Conspiracy:

The action of Shri Rajendra Laxman Guttikar in allowing opening of

LCs with "Nil" margin was purely a business decision with a bonafide

intent. He has referred the above decision taken by him to the higher

authority at BCC, Mumbai for confirmation of his action. In other

words, it is apparent that he has not concealed his above action from

the notice of the sanctioning authority.

CBI's investigation report does not establish as to what was the

purpose for the said retired General Manager to do the alleged crime.

What benefits he derived for himself/ his family members from the

borrower/associates concerns of the borrower or from any other

sources by allowing the branch to open of LCs with "Nil" margin

under "Handholding" mechanism. The opening of the LCs was also

against an approved hand holding mechanism which was approved

earlier by a higher Committee at the Corporate level to enable the

company to tide over the difficulties it was facing then. Hence, I

observe that he has not committed any act involving criminal

conspiracy.

B. Offences alleged under Sec 420 of IPC i.e., Cheating &

Dishonesty:

There are no reasonable grounds to believe that the said Ex-General

Manager Shri Rajendra Laxman Guttikar had conspired with the

13

borrower and its associate concerns to cheat the bank by allowing

opening of LCs with "Nil" margin. Moreover, when he has brought his

action in allowing opening of LCs with "Nil" margin to the notice of the

sanctioning authority instantly with a view to ratify his such action, it

is clearly evident that there is no element of malafide and dishonesty

at all in his action. The opening of the LCs were also against an

approved hand holding mechanism which was approved earlier by a

higher Committee at the Corporate level to enable the company to tide

over the difficulties it was facing then. Hence, I observe that the said

retired General Manager has not committed any crime of cheating the

bank.

C. Offences alleged under Sec 468 of IPC i.e., Forgery for the

purpose of cheating:

No evidence is produced by the CBI to establish that the ex-General

Manager Shri Rajendra Laxman Guttikar has committed any offence

which can be termed as forgery for the purpose of cheating nor have

they established that Shri Guttikar has derived any benefit for

himself/his family members by allowing opening of LCs with "Nil"

margin. The opening of the LCs Were also against an approved hand

holding mechanism which was approved earlier by a higher

Committee at the Corporate level to enable the company to tide over

the difficulties it was facing then. Therefore, I observe that he has not

committed any forgery for the purpose of cheating.

D. Offences alleged under Sec 471 of IPC i.e. Using as genuine

a forged document or electronic record:

CBI has not produced any evidence to show that Shri Rajendra

Laxman Guttikar has used any document as genuine which was a

forged document to the best of his knowledge and therefore, I observe

that he has not committed any offence in the above context i.e., using

a forged document or electronic record as genuine.

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E. Offences alleged under Sec 13 (2) of PC Act i.e., Criminal

misconduct by a public servant

As regards the alleged Criminal Misconduct u/s 13 of PC Act, it is

noted that for constituting any criminal offence, there needs to be

criminal intention/ purpose behind such act. Here, the CBI's

investigation report doesn't reveal any criminal intention on the part

of ex-General Manager Shri Rajendra Laxman Guttikar, hence, I

observe that he has not committed any criminal misconduct.

F. Offences alleged under Sec 13 (1)(d) of PC Act i.e., conditions

under which criminal misconduct is committed by a public

servant

If a public servant obtains for himself or for any other person any

valuable thing or pecuniary advantage by corrupt or illegal means or

by abusing his official position or without any public interest, it will

be construed that he has committed the criminal misconduct. In the

subject case, there is no such evidence to show that Shri Rajendra

Laxman Guttikar has obtained for himself or for any other person any

valuable thing/pecuniary advantage by corrupt /illegal means or he

has abused official position for obtention of such valuable thing

/pecuniary advantage. As stated in the aforementioned paragraphs,

there is no malafide intention/criminal overtone in his action in

allowing the branch to open LCs with "Nil" margin in the course of

implementing the handholding as approved by COCC-ED in the

sanction dated 13.12.2013.

The CBI has alleged that criminal misconduct is committed by Shri

Rajendra L Guttikar, ex-General Manager as a public servant under

Section 13 (2) read with Section13(1) (d) of Prevention of Corruption

Act, 1988. The ingredient of Section 13(1) (d) of Prevention of

Corruption Act attracts whenever a public servant by corrupt or illegal

means obtains for himself or for any other person a valuable thing or

pecuniary advantage by abusing his official position. However, CBI

15

has not brought out any evidence to establish that the said ex-

General Manager was benefited with any pecuniary or material gains

from the entire episode.”

24. In the similar way, the competent authority also observed the same

and similar view against the another accused/ petitioner no. 2.

25. The competent authority, finally declined to accord the sanction for

prosecution against both the present petitioners.

26. Upon perusal of the aforesaid observation of the competent authority,

it is crystal clear that the competent authority was of the opinion that

there were no materials to indicate that the petitioners were involved

in any crime or obtained any pecuniary advantage either for himself

or for any other person by corrupt or illegal means or by abusing

their official position as public servants.

27. In the present case, sanction under Section 197 of the Cr.P.C. applies

to the public servant who falls under the provisions of Section 197 of

the Indian Penal Code. For better understanding and for ready

reference, Section 197 of the Cr.P.C. is set out herein below: -

“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 [save as otherwise provided in the Lokpal

and Lokayuktas Act, 2013]—

16

(a) in the case of a person who is employed or, as the case may be,

was at the time of 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 commission of the alleged offence employed, in

connection with the affairs of a State, of the State Government:

[Provided that where the alleged offence was committed by a person

referred to in clause (b) during the period while a Proclamation issued

under clause (1) of Article 356 of the Constitution was in force in a

State, clause (b) will apply as if for the expression “State

Government” occurring therein, the expression “Central Government”

were substituted.]

[Explanation.—For the removal of doubts it is hereby declared that no

sanction shall be required in case of a public servant accused of any

offence alleged to have been committed under Section 166-A, Section

166-B, Section 354, Section 354-A, Section 354-B, Section 354-C,

Section 354-D, Section 370, Section 375, Section 376, [Section 376-A,

Section 376-AB, Section 376-C, Section 376-D, Section 376-DA,

Section 376-DB] or section 509 of the Indian Penal Code (45 of 1860).]

(2) No Court shall take cognizance of any offence alleged to have been

committed by any member of the Armed Forces of the Union while

acting or purporting to act in the discharge of his official duty, except

with the previous sanction of the Central Government.

(3) The State Government may, by notification, direct that the

provisions of sub-section (2) shall apply to such class or category of

the members of the Forces charged with the maintenance of public

order as may be specified therein, wherever they may be serving,

and thereupon the provisions of that sub-section will apply as if for

the expression "Central Government" occurring therein, the expression

"State Government" were substituted.

[(3-A) Notwithstanding anything contained in sub-section (3), no court

shall take cognizance of any offence, alleged to have been committed

by any member of the Forces charged with the maintenance of public

order in a State while acting or purporting to act in the discharge of

his official duty during the period while a Proclamation issued under

17

clause (1) of Article 356 of the Constitution was in force therein,

except with the previous sanction of the Central Government.

(3-B) Notwithstanding anything to the Contrary contained in this

Code or any other law, it is hereby declared that any sanction

accorded by the State Government or any cognizance taken by a

court upon such sanction, during the period commencing on the 20th

day of August, 1991 and ending with the date immediately preceding

the date on which the Code of Criminal Procedure (Amendment) Act,

1991, receives the assent of the President, with respect to an offence

alleged to have been committed during the period while a

Proclamation issued under clause (1) of Article 356 of the Constitution

was in force in the State, shall be invalid and it shall be competent for

the Central Government in such matter to accord sanction and for the

court to take cognizance thereon.]

(4) The Central Government or the State Government, as the case may

be, may determine the person by whom, the manner in which, and

the offence or offences for which, the prosecution of such Judge,

Magistrate or public servant is to be conducted, and may specify the

Court before which the trial is to be held.”

28. Therefore, petitioners herein are entitled to get protection under the

provisions of IPC as well as under the provisions of the P.C. Act in the

present case. Therefore, they are entitled to get protection from

prosecution under Sections 13(2)/13(1)(d) of the P.C. Act as well as

under sections 120B/420/468/471 of the Indian Penal Code.

29. So far as the judgment relied upon by the learned counsel appearing

on behalf of the C.B.I. is concerned, this Court finds the said

judgment is not applicable in the present facts and circumstances of

the case. In the said case, the learned trial court at the time of

framing charge, did not consider the fact that there was no

prosecution sanction with regard to prosecute the petitioners under

18

the provision of P.C. Act, 1988 and further the learned trial court had

taken note of the fact at the time of rejecting the prayer for discharge

of the petitioners directing to consider the aspect of sanction order

not sanctioned while passing the final judgment. In the said case, the

evidence of prosecution was over and statement of the petitioners has

already been recorded under Section 313 of the CrPC and the matter

was pending for evidence of defence side.

30. The Hon’ble Court also took note that the prosecution certainly

cannot be treated as a bar for fresh trial against the petitioners under

the provisions of the PC Act or IPC if any prosecution sanction under

the PC Act is received subsequently.

31. In the facts and circumstances of the present case, this Court relied

upon a judgment passed in the case of Suneeti Toteja v. State of

U.P. & Anr.

1

where the Hon’ble Supreme Court held in particular

paragraphs nos. 23, 29, and 30, set out below: -

“23. Now coming to the contentious issue of sanction for prosecution

arising in the present case, the test to decide whether sanction is

necessary in a particular case is, whether, the act is totally unconnected

with the official duty or whether, there is a reasonable connection with

the official duty. In the present case, the letter requesting sanction for

prosecution was sent to FSSAI, Delhi by the Additional Chief Secretary,

Department of Home (Police), Government of UP, but the same was not

sent to BIS, even though at that time, the appellant had gone back to

BIS from her deputation at FSSAI. The letter seeking sanction for

prosecution is said to have been received by BIS only on 29.07.2022. By

that time, the chargesheet had already been filed and the summoning

1

2025 INSC 267 [SLP (Crl.) No. 6898 of 2023]: 2025 SCC OnLine SC 433.

19

order was issued by the Magistrate. Thereafter, BIS sought for further

documents, including the FIR, and upon furnishing of the FIR and the

chargesheet, BIS denied the sanction for prosecution of the appellant

vide its letter dated 14.11.2022. This issue of sanction was decided by

BIS within the stipulated period of four months. The relevant paragraph

of the letter dated 14.11.2022 reads as under:

“2. To examine the matter, the related documents i.e. the report of

Internal Complaints Committee (ICC) and the copy of FIR was sought

from FSSAI vide BIS letter dated 25 Aug 2022 and 22 Sep 2022

respectively. On perusal of the records received, the following facts

are observed:

i. The alleged offence (based on the complaint filed by Dr. Manisha

Narayan against Dr. S. S. Ghonkrokta) took place during the period

May 2012 to December 2012 and the ICC submitted its report in

June 2015.

ii. Smt. Suneeti Toteja Scientist-E was relieved on 27 April 2016

(FN) from BIS to lake up her assignment on deputation as Director

in FSSAl, long after the occurrence of the alleged incident and

submission of the report by the ICC. She was relieved from FSSAl

on 25 July 2019 and reported back to BIS on 26 July 2019.

iii. Dr S.S. Ghonkrokta had filed a case in CAT (O.A. No. 1505 of

2016) for setting aside the constitution of ICC. its proceedings and

findings. Smt. Suneeti Toteja had signed the counter affidavit (to

dismiss the referred OA) in this ease in her official capacity' as the

presiding officer of the ICC. alter the erstwhile presiding officer Dr.

Sandhya Kalra was repatriated to the Ministry of Health on

completion of her tenure in April 2016.”

29. As per the aforementioned proposition, it is only to be seen if the

accused public servant was acting in the performance of his/her official

duties, and if the answer is in the affirmative, then prior sanction for

their prosecution is a condition precedent to the cognizance of the cases

against them by the courts. It is therefore largely a disputed question of

fact here and not a question of law. However, this fact of appellant

herein acting in her official capacity is not seriously contested by the

respondents herein. In the instant case, the appellant had filed the

counter affidavit and interacted with the complainant in her capacity of

a Presiding Officer, ICC. The correctness of the allegations with regard

to the conduct of the appellant need not be ascertained herein by this

Court but the fact that she was acting in her official duty is sufficient to

hold that a prior sanction from the department was in fact necessary

20

before the Magistrate taking cognizance against her. The Magistrate

therefore erred in proceeding to take cognizance against the appellant

without the sanction for prosecution being received from BIS, and since

BIS has eventually refused to grant sanction for the prosecution of the

appellant, the prosecution against the appellant could not have been

sustained.

30. The argument advanced by the respondent-State and the

complainant with respect to “deemed sanction” is also not

tenable. Section 197 of CrPC does not envisage a concept of deemed

sanction. The chargesheet, as well as the counter affidavit of the

respondent-State, have relied upon the judgment of this Court in Vineet

Narain to contend that lack of grant of sanction by the concerned

authority within relevant time would amount to deemed sanction for

prosecution. However, a perusal of the said judgment reveals that it did

not deal with Section 197 CrPC and rather it dealt with the investigation

powers and procedures of Central Bureau of Investigation and Central

Vigilance Commission. While it did mention that the time limits for grant

of sanction for prosecution must be strictly adhered to, there is no

observation to the effect that lack of grant of sanction for prosecution

within the time limit would amount to deemed sanction for prosecution.”

32. Applying the aforesaid principles enunciated by the Hon'ble Supreme

Court to the facts of the present case, it is evident that the alleged

acts of the petitioners, acting in discharge of their official duties in

connection with the sanction and disbursal of credit facilities to the

borrower company, bear a reasonable and direct connection with the

discharge of their official functions, and were not de hors to their

office. The competent authority, upon a detailed examination of the

role played by the petitioners, has in unequivocal terms declined to

accord sanction for their prosecution, holding that no material

existed to indicate any criminal intent, conspiracy, or pecuniary

benefit derived by the petitioners. It is well settled that the character

21

of the offence, whether falling under the Prevention of Corruption Act,

1988 or under the Indian Penal Code, does not dilute the requirement

of sanction under Section 197 of the Cr.P.C. so long as the act

complained of is referable to the discharge of official duty; the two are

not mutually exclusive protections, and denial of sanction under the

P.C. Act, arrived at after due consideration of the very same

allegations, cannot be circumvented by permitting prosecution to

proceed under the general provisions of the Indian Penal Code alone.

33. In such circumstances, sanction under Section 197 of the Cr.P.C.,

being a condition precedent to the taking of cognizance, and the same

having been consciously and specifically declined by the competent

authority, the learned Magistrate committed a manifest error in

taking cognizance of the offences under Sections 120B/420/468/471

of the Indian Penal Code against the petitioners vide the impugned

order dated 18.10.2023 in absence of sanction order. The infirmity

goes to the very root of the initiation of the proceeding.

34. In view of the above discussions, it appears that sanction is

mandatory for prosecution against the petitioners even under the

provisions of IPC prior to taking cognizance against a public servant,

against whom there is an allegation of committing offence of acting in

discharge of their official duties.

22

35. Accordingly, CRR No. 4495 of 2024 is, thus, allowed. Connected

applications, if any, are also, thus, disposed of.

36. Consequently, the proceedings being R.C. No. 04/2018 (CBI Case No.

1 of 2023) pending before the learned Metropolitan Magistrate, 22

nd

Court, Calcutta (re-designated as the Learned Judicial Magistrate,

22

nd

Court, Calcutta) arising out of CBI/BSFB/Kolkata Case No.

RCBSK2018E0004 dated 17.04.2018 under Sections

120B/420/468/471 of the Indian Penal Code is quashed and all

orders passed therein including the order dated 18.10.2023 passed

by the Learned Metropolitan Magistrate, 22

nd

Court, Calcutta thereby

taking cognizance of offences punishable under Sections

120B/420/468/471 of the Indian Penal Code in connection with the

aforesaid case are hereby set aside insofar as the petitioners are

concerned.

37. Case Diary, if any, is to be returned to the learned Advocate for the

State.

38. Let a copy of this Judgment be sent to the Learned Court below for

information.

39. Interim order, if any, stands vacated.

40. Parties shall act on the server copies of this Judgment uploaded on

the website of this Court.

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41. Urgent photostat certified copy of this Judgment, if applied for, is to

be given as expeditiously to the parties on compliance of all

formalities.

(Ajay Kumar Gupta, J.)

(P.A.)