Basant Lal Gir vs State of U.P.

Rajeshwari Prasad, J.—This is a petition in revision by Shri Basant Lal Giri who was convicted u/s 409, I.P.C. and sentenced to rigorous imprisonment for a period of four years and further to pay a fine of Rs. 400/- by an order dated 31-3- 65 passed by Shri P.S. Jain, Assistant Sessions Judge, Budaun.

The Petitioner made an appeal before the learned Sessions Judge, but the appeal was dismissed by the Additional Sessions Judge, Budaun, and the order of conviction of the Petitioner so also the sentence awarded to him was maintained.

The Petitioner was a Pradhan of Gram Sabha of village Mira Sarai in the Police circle Kotwali for a number of years. In his position as a Pradhan he had direct control over the funds of the village body according to the provisions of the Panchayat Raj Act and the Rules framed thereunder. The case of the prosecution was that the Appellant was in possession of the sum of Rs. 1843. 9 p. in his capacity as Pradhan, which amount was held by him as in trust. The Petitioner defalcated and misappropriated that amount and thereby committed the offence of criminal breach of trust. It was also the prosecution case that there were several complaints against the Petitioner while he was holding the office of Pradhan. Ultimately this led to an order by the authorities concerned for his removal. That order was made on 22-12-1960. It so happened that, before that order could be communicated to the Panchayat Raj Department, the Petitioner sought reelection in January, 1961 and was successful in getting himself re-elected as Pradhan. It was thereafter on 18-8-1963, that he was removed from office. While handing over charge he failed to make over the said amount of Rs. Rs. 1843.9 p., when the defalcation was brought to light. The Panchayat Raj Officer made a report to the Police, which is Ext. Ka. 3 on the record. After investigation the Petitioner was charge-sheeted and tried for the offence with which he was charged.

The Petitioner pleaded not guilty before the learned Sessions Judge. It was, however, admitted that he was the Pradhan at the relevant time and that funds were entrusted to him with the object of the same being kept and appropriated for lawful purposes. It was also not denied by the Petitioner that the aforesaid sum of Rs. 1843.9 p. was like-wise with him in trust for the Gram Sabha. The defence taken by him was that the aforesaid amount had been duly spent by him over the welfare of the village and its population in accordance with the prescribed rules and procedure. In this connection it was, however, not denied by the Petitioner that necessary entries relating to such expenditure were not made in the account books. The omission to make entries, according to the Petitioner, was on account of the latches of the Panchayat Secretary. According to the Petitioner, it was the Panchayat Secretary who was liable to maintain such accounts. His case further was that at the time he handed over charge, the relevant papers and receipts relating to the expenditure of the aforesaid amount were not demanded from him, which according to him, he eventually made over to the Block Pramukh, Harnam Singh. In short the defence raised was that there was no defalcation or misappropriation of the amount, which was entrusted to the Petitioner.

Believing the evidence produced on behalf of the prosecution, the trial Judge, convicted the Petitioner as mentioned above. The trial Judge further disbelieved the defence theory.

Somehow or the other, before the Additional Sessions Judge, Budaun, irrelevant contentions appear to have been made on behalf of the Petitioner. An instance of such a contention may be found in the submission that the prosecution had failed to establish that the Petitioner had ever been removed from the office of village Pradhan. It was contended that the Petitioner must be deemed to be continuing to enjoy the office. Further the order of removal of the Petitioner was assailed to be invalid and illegal. All the above questions were wholly besides the mark.

The other submission made before the learned Sessions Judge was that the Petitioner was a public servant, removable from the office only by the State Government. That being so, it was urged that he could not be prosecuted unless sanction was obtained in that behalf from the prescribed authority. Even in the grounds of appeal, before the learned Additional Sessions Judge, the Petitioner asserted that he was a public servant, and the entire argument made before that court was based on that premise. Subsequent to that stage a further argument was advanced to the effect that the Petitioner was not a public servant within the meaning of Section 409 I.P.C. consequently he could not be convicted under that section. Reliance was placed on Section 28 of the U.P. Panchayat Raj Act, and it was contended that under that section, it is only the member or servant of Nyaya Panchayat or a Gram Panchayat or a Joint Committee or any other Committee constituted under the Panchayat Raj Act, who could be deemed to be ''public servant'' within the meaning of Section 21 of the IPC. It was urged that the Petitioner did not come in any of the descriptions given in Section 28 and that, therefore, he cannot be said to be a public servant within the meaning of Section 21 IPC. The learned Judge rightly repelled that contention, because it is a fallacy to say that it is only those persons, who are enumerated in Section 28 of the aforesaid Act, who can be ''public servants'' within the meaning of Section 21 IPC. In fact persons enumerated in Section 28 are not public servants within the meaning of Section 21 IPC and it is only by fiction of Section 28 that they have to be deemed to be public servants within the meaning of Section 21 IPC.

So far as the merits of the prosecution case is concerned, I am unable to find any fault with the decision of the two courts below and the Learned Counsel for the revisionist has rightly not led emphasis on that part of the case. What has been urged in support of this revision petition Js that Section 409 IPC was not applicable to the present case, inasmuch as the Petitioner is not a public servant. The Learned Counsel has invited my attention to Section 21, IPC and has urged that so far as Clauses 1 to 11 of that section are concerned, they deal with cases of Government servants. The Pradhan of the Gram Sabha could be a public servant within the meaning of Section 21, provided his case was covered by the twelvth clause of Section 21. It is contended that so far as the twelvth clause of Section 21 is concerned, it is not applicable to the present case--the reason for saying so is, that the Pradhan is neither an officer nor an Officer in the service or pay of a local authority. That the Gram Sabha is a local authority is something which cannot be disputed and in this case there is no controversy with regard to it. The question, therefore, is whether the Pradhan is an Officer within the meaning of the 12th clause of Section 21 IPC and if so, whether he is an Officer in the service or pay of a local authority. So far his being an Officer is concerned, I have no manner of doubt that the Pradhan is an Officer within the manner of the 12th clause of Section 21. Learned Counsel has referred to me to the decision of the Supreme Court in the case of G.A. Monterior v. The State of Ajmer 1956 AWR (Supp). 137 SC. The question in that case, however, was whether a Class III servant employed as a metal examiner known as Chaser in the Railway Carriage Workshop and working under the Works Manager, who is an officer of the Government could be deemed to be a public servant within the meaning of Section 21 IPC. Their Lordships of the Supreme Court referred to Bacon''s Abridgment Vol. 6, page 2 in the article headed "Of the nature of an Officer and the several kinds of officers" and proceeded to refer to a passage from that book, which runs as follows:

The word ''officium'' principally implies a duty, and in the next place the charge of such duty and that it is a rule that where one man that to do with another''s affairs against his will, and without his leave, chat this is an office, and he who is in duty is an officer.

On the facts of that case it was found that the case before their Lordships of the Supreme Court was a case of a public servant within the meaning of Section 91 IPC

In the instant case also it is not in controversy that a code of duty has been prescribed for such a Pradhan which he is under a lawful obligation to fulfill. In the event of failure of duty on his part, it can be enforced by process of law. This being so, I have no manner of doubt that such a Pradhan is an Officer within the meaning of the 12th clause of Section 21 IPC. The next question is whether he can be deemed to be in the service or pay of local authority. So far his being in pay is concerned, that question does not arise in the instant case, because there is no rule or law making any salary payable to the person holding the office of Pradhan. The question is whether a Pradhan can be deemed to be an Officer in the service of the local authority. My answer to the question is in the affirmative. The Learned Counsel for the revisionist has urged that nobody can be deemed to be in service, unless a relationship of master and servant is established. I have no doubt that the submission made by the Learned Counsel, so far as it goes, is perfectly correct. But if the matter is pursued further, it has to be found as to what is the incidence of that relationship of master and servant. I am of the view that in case duties are attached to the office that is held, and those duties are enforceable in law, then it is enough to constitute the relationship of master and servant, if another person is bound to act for the benefit of a different person. I am, therefore, more inclined to the view that the Pradhan is an Officer in service within the meaning of 12th clause of Section 21 IPC. Apart from the above consideration I am further of the opinion that Section 409 IPC is not applicable only to the cases of a public servant but to others also. The words used in Section 409 IPC are whoever being in any manner entrusted with property or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits a criminal breach of trust...to fine''. The accused may or may not be a public servant, but if the entrustment of the property with him is on account of the.way of his business as an agent, it is sufficient to invite the application of Section 409 IPC to his case. The funds that were in trust with the Petitioner were not his own. That fund could not come under his control or dominion except for the fact that he occupied the office of a Pradhan and the further fact that that office carried on the duty with it of controlling public funds of that Gram Sabha. In this view of the matter also I tail to see how Section 409 IPC is not applicable to the facts of the present case.

The object with which an attempt was made to show that Section 409 IPC is not applicable was to bring the case u/s 406 IPC and to get a lesser sentence.

I am fully satisfied with the decisions arrived at by the trial Judge and the appellate court are correct and no interference with the same is called for by me in my revisional jurisdiction.

The revision petition is dismissed. The conviction and sentence awarded to the Petitioner are maintained.