Jyotish Ch. Sarkar vs The State Of Assam And Anr.

GAHC010016882016


2026:GAU-AS:7768

IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)

C RL .R EV .P. N O .164 OF 2016
Sri. Jyotish Ch. Sarkar
S/o- Late Khitish Ch. Sarkar,
R/o- Village Baralimari, Mouza-
Bokoni, P.O.- Baralimari, P.S-
Bhuragaon & District- Morigaon,
Assam.
…….Petitioner

-Versus-

1. The State of Assam ,
Represented by the Public
Prosecutor.
2. Md. Jehirul Hoque ,
Deputy Inspector of Schools,
R/o- Village- Jaluguti, P.O.- Jalugati,
P.S.- Mikribheta
District- Morigaon, Assam.


……. Respondent


Crl.Rev.P./164/2016 Page 1 of 22

– B E F O R E –

HON’BLE MR. JUSTICE KAUSHIK GOSWAMI

For the Petitioner(s) : Mr. A. K. Gupta, Advocate.

For the Respondent(s) : Ms. A. Begum, Additional Public
Prosecutor.

Date on which judgment
is reserved : N/A

Date of pronouncement
of judgment : 04.06.2026

Whether the pronouncement
is of the operative part
of the judgment ? : No.

Whether the full judgment
has been pronounced : Yes

UDGMENT RDER (O RAL )
J & O
Heard Mr. A. K. Gupta, learned counsel appearing for
the petitioner. Also heard Ms. A. Begum, learned Additional Public
Prosecutor, appearing for the State respondent.
2. By way of the present revision petition filed under
Sections 397 and 401 of the Code of Criminal Procedure, 1973
(hereinafter referred to as “the Cr.P.C.”), the petitioner has
assailed the judgment and order dated 17.03.2016 passed by the
learned Sessions Judge, Morigaon (hereinafter referred to as the
“appellate court”) in Criminal Appeal No.22/2015 whereby the
Crl.Rev.P./164/2016 Page 2 of 22

appeal preferred by the petitioner was dismissed and the
judgment and order dated 18.09.2015 passed by the learned
Additional Chief Judicial Magistrate, Morigaon (hereinafter
referred to as the “trial court”) in G.R. Case No.954/2012 was
affirmed. By the said judgment, the learned trial Court convicted
the petitioner under Section 409 of the Indian Penal Code, 1860
(hereinafter referred to as the “IPC”) and sentenced him to
undergo simple imprisonment for three years and to pay a fine of
Rs.10,000/-, in default, to undergo simple imprisonment for a
further period of three months.
3. The prosecution case, in brief, is that on 05.09.2012,
the informant, namely the Inspector of Schools, lodged an FIR
alleging that the petitioner, who was serving as the Head Teacher
of Pub-Baralimari L.P. School under Laharighat Education Block,
had misappropriated government funds sanctioned for
construction of an additional classroom and toilet under the Sarva
Siksha Abhiyan (SSA) Scheme. The allegation was founded upon
an enquiry report submitted by the Technical Resource Person
(TRP), SSA, Morigaon, which allegedly revealed misappropriation
of an amount of Rs.1,64,000/-.
4. On the basis of the said FIR, Bhuragaon P.S. Case
No.41/2012 was registered under Sections 420/409 IPC. Upon
completion of investigation, charge-sheet was submitted against
the petitioner under Sections 420/409 IPC.
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5. The learned trial Court framed charges under Sections
420 and 409 IPC. The petitioner pleaded not guilty and claimed to
be tried.
6. In support of its case, the prosecution examined eight
witnesses including the informant, the Technical Resource Person,
the Junior Engineer associated with the project, members of the
School Managing Committee and the Investigating Officer.
Various documentary exhibits were also brought on record.
7. Upon completion of the prosecution evidence, the
statement of the petitioner was recorded under Section 313
Cr.P.C. The petitioner denied the incriminating circumstances put
to him and claimed innocence.
8. After appreciation of the evidence on record, the trial
court acquitted the petitioner of the charge under Section 420
IPC but found him guilty of the offence punishable under Section
409 IPC and sentenced him accordingly.
9. Aggrieved thereby, the petitioner preferred Criminal
Appeal No.22/2015 before the appellate court. Upon re-
appreciation of the evidence and consideration of the submissions
advanced by the parties, the learned appellate Court dismissed
the appeal and affirmed the conviction and sentence imposed by
the learned trial Court.
Crl.Rev.P./164/2016 Page 4 of 22

10. Assailing the concurrent findings of the Courts below,
Mr. Gupta, learned counsel for the petitioner, submits that the
conviction recorded against the petitioner is unsustainable in law
and on facts. It is contended that the prosecution is vitiated for
want of sanction under Section 197 Cr.P.C. inasmuch as the
alleged acts arose out of the petitioner’s official position as Head
Teacher entrusted with implementation of the construction
project. It is further submitted that the evidence on record does
not establish the ingredients of criminal breach of trust beyond
reasonable doubt and that the Courts below failed to properly
appreciate the materials brought on record.
11. Per contra, Ms. Begum, learned Additional Public
Prosecutor, submits that the learned Courts below have correctly
appreciated the evidence and arrived at concurrent findings of
fact which do not warrant interference in exercise of revisional
jurisdiction. According to the learned Additional Public Prosecutor,
the evidence clearly establishes entrustment of government
funds, withdrawal of the sanctioned amount by the petitioner and
diversion of the same for purposes wholly unconnected with the
sanctioned project.
12. I have considered the rival submissions advanced by the
learned counsel for the parties. I have also carefully perused the
records of the case including the evidence adduced before the
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learned trial Court and the judgments rendered by the learned
Courts below.
13. In the light of the submissions advanced and the
materials available on record, the following questions arise for
consideration in the present revision petition:
(i) Whether the prosecution and conviction of the petitioner
are vitiated for want of sanction under Section 197 Cr.P.C.?
(ii) Whether the prosecution has been able to establish the
ingredients of the offence under Section 409 IPC beyond
reasonable doubt?
(iii) Whether the concurrent findings recorded by the learned
trial Court and the learned appellate Court suffer from any
perversity, illegality or jurisdictional error warranting
interference in exercise of revisional jurisdiction under
Sections 397 and 401 Cr.P.C.?
14. The principal contention advanced on behalf of the
petitioner is that the prosecution is vitiated for want of sanction
under Section 197 Cr.P.C. It is contended that the amount alleged
to have been misappropriated was entrusted to the petitioner in
his capacity as Head Teacher of the school and, therefore,
cognizance could not have been taken without obtaining prior
sanction from the competent authority.
Crl.Rev.P./164/2016 Page 6 of 22

15. At the outset, it is necessary to note that the issue of
sanction under Section 197 Cr.P.C. was not raised before the
learned trial Court. The petitioner participated in the trial, cross-
examined the prosecution witnesses and allowed the trial to
culminate in a judgment on merits. The objection appears to have
been urged for the first time before the learned appellate Court.
16. Nevertheless, since the contention pertains to the
maintainability of the prosecution, this Court considers it
appropriate to examine the same on merits.
17. Section 197(1) Cr.P.C. provides that when any person
who is or was a Judge, Magistrate or a public servant not
removable from his office save by or with the sanction of the
Government is accused of an 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 of the competent
Government.
18. A plain reading of the provision makes it evident that
two conditions must coexist before the protection under Section
197 Cr.P.C. can be invoked. Firstly, the accused must belong to
the category of public servants who are not removable from
service save by or with the sanction of the Government.
Secondly, the act complained of must have been committed while
Crl.Rev.P./164/2016 Page 7 of 22

acting or purporting to act in the discharge of official duty. Unless
both requirements are satisfied, the bar contained in Section 197
Cr.P.C. does not come into operation.
19. The aforesaid position stands authoritatively settled by
the decision of the Apex Court in K. Ch. Prasad v. Smt. J.
Vanalatha Devi and Others , reported in 1987 (2) SCC 52 ,
wherein the Court observed as follows:
“ 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 appellant is a public
servant still provisions of Section 197 are not attracted at
all .”
20. The Apex Court thus made it abundantly clear that mere
status as a public servant is not sufficient to attract Section 197
Cr.P.C. The protection is confined to a limited class of public
servants who enjoy the statutory safeguard that they cannot be
removed from service except by or with the sanction of the
Government.
21. In the present case, the petitioner was serving as
Headmaster of a provincialised elementary school. His service
conditions are governed by the Assam Elementary Education
Provincialisation framework and disciplinary proceedings against
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him are regulated by the Assam Services (Discipline and Appeal)
Rules, 1964.
22. The petitioner has neither pleaded nor established that
he held a post from which removal could be effected only by or
with the sanction of the State Government. On the contrary,
major penalties including dismissal, removal and compulsory
retirement are governed by the disciplinary mechanism
contemplated under the Assam Services (Discipline and Appeal)
Rules, 1964. The petitioner, therefore, does not belong to the
class of public servants contemplated under Section 197 Cr.P.C.
23. In view of the law laid down in K. Ch. Prasad (supra) ,
the first and foundational requirement for invocation of Section
197 Cr.P.C. is absent in the present case. On this ground alone,
the plea regarding absence of sanction is liable to fail.
24. Once the petitioner is found not to belong to the
category of public servants protected by Section 197 Cr.P.C., the
prosecution cannot be said to be vitiated merely because no
sanction was obtained before taking cognizance.
25. However, since elaborate arguments have been
advanced on the question whether the alleged act bears any
nexus with official duty, it would be appropriate to examine the
second limb of the argument as well.
Crl.Rev.P./164/2016 Page 9 of 22

26. Even assuming, for the sake of argument, that the
petitioner satisfied the first requirement of Section 197 Cr.P.C.,
this Court is of the view that the second requirement is equally
not attracted in the facts of the present case.
27. The argument advanced on behalf of the petitioner
proceeds on the premise that since the funds were entrusted to
him by virtue of his official position as Headmaster, every act
connected with the handling of those funds must necessarily be
treated as an act done in discharge of official duty. Such a
proposition cannot be accepted.
28. The scope and ambit of Section 197 Cr.P.C. came up for
consideration before the Apex Court in Shadakshari v. State of
Karnataka , reported in 2024 INSC 42 , wherein the Court
examined the underlying object of the provision and the
circumstances in which its protection can be invoked.
29. Referring to the earlier decision in State of Orissa v.
Ganesh Chandra Jew , reported in 2004 (8) SCC 40 , the Apex
Court reiterated that the protection under Section 197 Cr.P.C. is
intended to safeguard responsible public servants from vexatious
prosecution in respect of acts reasonably connected with
discharge of official functions. The Court observed that the
protection is available only when the act complained of falls
within the scope and range of official duties and bears a
Crl.Rev.P./164/2016 Page 10 of 22

reasonable nexus thereto. It was further observed that the
provision does not extend its protective cover to every act or
omission committed by a public servant during the tenure of
service.
30. The Apex Court thereafter considered the decision in
Shambhoo Nath Misra v. State of Uttar Pradesh , reported in
(1997) 5 SCC 326 , and specifically addressed the issue whether
fabrication of records or misappropriation of public funds can be
regarded as acts performed in discharge of official duty.
31. The Court extracted with approval the following
observations:
“ 5. The question is when the public servant is alleged to
have committed the offence of fabrication of record or
misappropriation of public fund etc. can he be said to have
acted in discharge of his official duties. It is not the official
duty of the public servant to fabricate the false records and
misappropriate the public funds etc. in furtherance of or in
the discharge of his official duties. The official capacity only
enables him to fabricate the record or misappropriate the
public fund etc. It does not mean that it is integrally
connected or inseparably interlinked with the crime
committed in the course of the same transaction, as we
believed by the learned Judge. Under these circumstances,
we are of the opinion that the view expressed by the High
Court as well as by the trial court on the question of sanction
is clearly illegal and cannot be sustained .”
32. After referring to the aforesaid authorities, the Apex
Court concluded that Section 197 Cr.P.C. does not extend its
Crl.Rev.P./164/2016 Page 11 of 22

protection to every act committed by a public servant while in
service and that the protection is restricted only to those acts or
omissions which are performed in discharge of official duties.
33. The ratio of the aforesaid decision applies with full force
to the facts of the present case.
34. The prosecution case is not that the petitioner
committed any irregularity while performing an official function.
The allegation is that public funds entrusted for a specific public
purpose were dishonestly diverted and utilised for purposes
wholly unrelated to the sanctioned project.
35. The petitioner’s position as Headmaster undoubtedly
enabled him to receive and operate the funds sanctioned under
the SSA Scheme. However, the official position merely furnished
the occasion or opportunity for handling the funds. The alleged
diversion of those funds for personal purposes cannot be elevated
to an act performed in discharge of official duty.
36. The distinction between entrustment and
misappropriation is crucial. Entrustment of funds may arise from
the office held by a public servant. Misappropriation of those
funds, if established, is not an official act but a breach of the trust
reposed in the public servant. Official duty authorises utilisation of
the funds for the sanctioned purpose; it does not authorise
diversion of the funds for private purposes.
Crl.Rev.P./164/2016 Page 12 of 22

37. Therefore, even if the petitioner were assumed to be a
public servant falling within the first limb of Section 197 Cr.P.C.,
the allegation of criminal breach of trust and diversion of
entrusted public funds would not constitute an act done while
acting or purporting to act in discharge of official duty.
38. For all the aforesaid reasons, this Court finds no merit in
the contention that the prosecution is vitiated for want of
sanction under Section 197 Cr.P.C. The objection is accordingly
rejected.
39. Having dealt with the issue of sanction, this Court now
proceeds to examine whether the prosecution has been able to
establish the ingredients of the offence punishable under Section
409 IPC and whether the concurrent findings recorded by the
Courts below warrant interference in exercise of revisional
jurisdiction.
40. The prosecution case rests upon the allegation that the
petitioner, being a public servant entrusted with government
funds for construction of an additional classroom and toilet under
the SSA Scheme, dishonestly misappropriated a portion of the
entrusted amount.
41. In order to establish the charge, the prosecution
examined eight witnesses and brought on record documentary
Crl.Rev.P./164/2016 Page 13 of 22

evidence relating to sanction, withdrawal and utilisation of the
funds.
42. PW-1 , Md. Jehirul Haque, the informant and Inspector
of Schools, deposed that an amount of Rs.3,28,000/- was
sanctioned for construction of an additional classroom in Pub-
Baralimari L.P. School and that the petitioner withdrew the first
instalment of Rs.1,64,000/- in his capacity as Secretary-cum-Head
Teacher of the school. According to this witness, the petitioner
commenced the work by purchasing certain construction
materials, but the work was not executed in accordance with the
approved plan and estimate.
43. More importantly, PW-1 deposed that the petitioner
subsequently informed the departmental authorities that he had
spent the money towards medical treatment of his daughter-in-
law and nephew. The witness further stated that despite being
granted opportunities to complete the work and restore the
amount, the petitioner failed to do so. The FIR was thereafter
lodged.
44. PW-2 , Sri Pranjal Kumar Das, the Technical Resource
Person attached to the SSA project, provided a detailed account
of the inspections carried out by him. His evidence establishes
that although the sanctioned amount had been withdrawn, only a
negligible portion of the work had been undertaken. He found
Crl.Rev.P./164/2016 Page 14 of 22

substantial deviations from the approved plan and estimate and
repeatedly directed the petitioner to rectify the defects and
proceed in accordance with the sanctioned specifications.
45. PW-2 further stated that despite repeated directions, the
construction remained incomplete and that the petitioner
informed the authorities that the money had been spent towards
medical expenses of his daughter-in-law and nephew. His
testimony finds corroboration from the documentary exhibits
brought on record.
46. PW-3 , Sri Pankaj Sharma, the Junior Engineer
associated with the project, substantially corroborated the
evidence of PW-2. He stated that the construction was not carried
out as per the approved plan and estimate and that the petitioner
had admitted utilisation of the funds for treatment of his relatives.
According to this witness, the petitioner had withdrawn the
amount without completing the sanctioned work.
47. The evidence of PW-4 , the President of the School
Managing Committee, also establishes that substantial amounts
were withdrawn by the petitioner and that the sanctioned
construction work remained incomplete. This witness stated that
some construction materials were purchased and some work had
commenced.
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48. The defence has relied heavily upon portions of the
testimony of PW-4 and other witnesses to contend that a
devastating flood had occurred in the locality and that
construction materials including sand, cement and bricks suffered
damage.
49. It is true that certain prosecution witnesses
acknowledged the occurrence of flood and the possibility of loss
or damage to some construction materials. However, such
evidence does not demolish the prosecution case.
50. Firstly, the occurrence of flood by itself does not explain
the utilisation of the entire entrusted amount.
51. Secondly, no documentary evidence whatsoever was
produced by the defence to demonstrate the quantity of materials
allegedly damaged, the value thereof, or the exact financial loss
occasioned by the flood.
52. Thirdly, and most importantly, the defence explanation
founded upon flood damage stands in direct conflict with the
prosecution evidence that the petitioner himself informed the
authorities that the money had been spent towards medical
treatment of his daughter-in-law and nephew.
53. Significantly, the letters written by the petitioner to the
departmental authorities, which were proved during trial, lend
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assurance to the prosecution version. The evidence regarding
such explanation offered by the petitioner remained substantially
unshaken during cross-examination.
54. PW-5, PW-6 and PW-7 also supported the prosecution
case to the extent that the sanctioned work remained incomplete
despite withdrawal of the funds and that the project was not
executed in the manner contemplated under the sanctioned
scheme.
55. Upon an overall appreciation of the evidence, certain
facts emerge beyond reasonable controversy.
56. Firstly, the petitioner was entrusted with dominion over
public funds sanctioned for a specific public purpose.
57. Secondly, the petitioner withdrew the sanctioned
amount and exercised complete control over its utilisation.
58. Thirdly, the sanctioned work remained substantially
incomplete and was not executed in accordance with the
approved plan and estimate.
59. Fourthly, the prosecution has brought on record
evidence that the petitioner attributed non-completion of the
work to utilisation of the funds towards treatment of his
daughter-in-law and nephew.
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60. Section 405 IPC defines criminal breach of trust. The
offence is committed when a person entrusted with property, or
with dominion over property, dishonestly misappropriates or
converts the same to his own use, or dishonestly uses or disposes
of the property in violation of any direction of law or legal
obligation governing such entrustment.
61. Section 409 IPC is an aggravated form of criminal
breach of trust applicable, inter alia, to public servants entrusted
with property in that capacity.
62. In the present case, entrustment is undisputed.
Dominion over the funds is equally undisputed. The evidence on
record further establishes that the funds entrusted for execution
of a public construction project were not utilised for the purpose
for which they were sanctioned.
63. Once public funds entrusted for a specified
governmental purpose are diverted and utilised for purposes
wholly unrelated to the object of entrustment, the ingredients of
criminal breach of trust stand attracted.
64. The explanation offered by the petitioner does not
create any reasonable doubt regarding the prosecution case. At
the highest, the evidence regarding commencement of
construction and purchase of some materials may indicate that a
portion of the funds was initially utilised for the project. On the
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contrary, the evidence on record clearly establishes unauthorized
diversion of entrusted public funds for the purpose for which they
were sanctioned. Such diversion constitutes a violation of the
conditions of entrustment and attracts the ingredients of criminal
breach of trust.
65. The learned trial Court, after a detailed appreciation of
the evidence, recorded a finding that the prosecution had
succeeded in proving the charge under Section 409 IPC. The
learned appellate Court independently re-appreciated the
evidence and arrived at the same conclusion.
66. This Court finds that the concurrent findings recorded
by the Courts below are founded upon evidence available on
record and are supported by cogent reasons. The conclusions
reached cannot be characterised as speculative, doubtful or
perverse.
67. The next question that arises is whether the concurrent
findings recorded by the learned Courts below warrant
interference in exercise of revisional jurisdiction under Sections
397 and 401 Cr.P.C.
68. It is trite that the revisional jurisdiction of the High
Court is supervisory and corrective in nature. The revisional Court
does not function as a second appellate Court. Re-appreciation of
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evidence and substitution of findings merely because another
view is possible is impermissible.
69. Interference in revision is justified only when the
findings recorded by the subordinate Courts suffer from patent
illegality, manifest perversity, gross misreading of evidence,
jurisdictional error or result in miscarriage of justice.
70. The evidence led by the prosecution in the present case
has been subjected to scrutiny by both the learned trial Court and
the learned appellate Court. The learned appellate Court, being
the final Court on facts, independently re-appreciated the entire
evidence before affirming the findings recorded by the learned
trial Court.
71. This Court has carefully examined the depositions of the
prosecution witnesses and the documentary evidence exhibited
during trial. The findings regarding entrustment of public funds,
withdrawal of the sanctioned amount by the petitioner, non-
utilisation of the funds for the sanctioned purpose and diversion
of the entrusted amount are all borne out by the evidence
available on record.
72. The defence founded upon flood damage and loss of
construction materials was duly considered by the Courts below.
The said defence was found insufficient to explain either the non-
completion of the project or the utilisation of the entrusted public
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funds for purposes unrelated to the sanctioned scheme. This
Court finds no infirmity in such appreciation of evidence.
73. Equally, this Court does not find any substance in the
contention that the prosecution was legally incompetent for want
of sanction under Section 197 Cr.P.C. As discussed hereinabove,
the petitioner has failed to satisfy the foundational requirements
necessary for invocation of the statutory protection. The objection
regarding sanction was rightly rejected by the learned appellate
Court and merits no acceptance.
74. The cumulative effect of the evidence unmistakably
establishes that public funds entrusted to the petitioner for
execution of a specified governmental project were not utilised
for the purpose for which they were sanctioned. The ingredients
constituting criminal breach of trust by a public servant under
Section 409 IPC stand satisfactorily established.
75. The findings recorded by the learned Courts below are
based on legal evidence, are supported by reasons and do not
suffer from any perversity or manifest illegality.
76. This Court, therefore, finds no ground to interfere with
the conviction and sentence imposed upon the petitioner.
77. Consequently, the judgment and order dated
17.03.2016 passed by the learned Sessions Judge, Morigaon in
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Criminal Appeal No.22/2015 affirming the judgment and order
dated 18.09.2015 passed by the learned Additional Chief Judicial
Magistrate, Morigaon in G.R. Case No.954/2012 call for no
interference.
78. The criminal revision petition is accordingly dismissed.
79. The conviction of the petitioner under Section 409 IPC
and the sentence imposed thereunder are hereby affirmed.
80. The petitioner shall surrender before the learned trial
Court within a period of four weeks from today to serve out the
remaining sentence, if not already undergone, failing which the
learned trial Court shall take necessary steps in accordance with
law.
81. Send back the records forthwith.
82. The revision petition stands dismissed.
83. Pending applications, if any, shall stand closed.

JUDGE
Comparing Assistant

Pranab
Chandr
a Das
Digitally signed
by Pranab
Chandra Das
Date:
2026.06.05
18:51:05 +05'30'
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