Awdhesh Narain Rai vs State of U.P.

N.B. Asthana, J.—The revisionist was convicted in criminal case No. 641 of 1981 on 29.4.1982 by Judicial Magistrate, Duddhi, Mirzapur for the offence punishable u/s 409, I.P.C. and sentenced to undergo rigorous imprisonment of two years and pay fine of Rs. 500. In default of payment of fine he was to undergo further rigorous imprisonment for six months. He was however, acquitted of the offence u/s 411, I.P.C. Criminal Appeal No. 65 of 1982 filed by him was dismissed on 2.11.1982 by the then IIIrd Additional Sessions Judge, Mirzapur. He has now come to this Court in appeal.

The revisionist was at the relevant time working as Gram Sewak in the office of the Block Development Officer, Duddhi, Mirzapur. Road was being constructed from Pakari to Haripura under the Government scheme of "Foodgrains for work." The revisionist was given charge of looking after the construction of this road and was given 393 bags of rice for giving it to the labourers in lieu of their wages.

The charge against him was that he misappropriated 8 bags of rice and kept them at the houses of different persons. These persons were also challaned but were acquitted. It further appears that from the possession of the revisionist one bag of defective rice and 60 kgs. of good rice were recovered. On the basis of this recovery it was found by the two courts below that the revisionist misappropriated that much of rice out of the rice handed over to him for payment to the labourers in lieu of their wages.

The first point in this revision is that the revisionist was working as Gram Sewak at the time the recovery is alleged to have been made from his possession and since he was a public servant his prosecution could not have been ordered without proper sanction of competent authority and since no such sanction was obtained the prosecution is barred u/s 197, Code of Criminal Procedure.

From the allegations of the prosecution story it is clear that the embezzlement of rice is said to have been made by the revisionist in the discharge of his official duties. Prior sanction u/s 197, Code of Criminal Procedure was necessary. In the absence of prior sanction the trial court could not have taken cognizance of the case against the revisionist. In the absence of sanction the trial court did not acquire any jurisdiction to proceed in the case against revisionist. The revision has to be allowed upon this ground alone.

The revision is allowed. The conviction and sentence imposed upon the revisionist are set aside holding that the trial court had no jurisdiction to proceed in the matter without proper sanction u/s 197, Code of Criminal Procedure. If the State or the prosecuting agency wants to proceed against the revisionist after obtaining proper sanction, then this judgment would not be a bar in proceeding afresh against the revisionist.