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Judgment
Pratap Singh, J.—The accused in C.C.908 of 1989 on the file of Judicial Magistrate No.VII, Coimbatore has filed this petition u/s 482
Criminal Procedure Code praying to call for the records in the aforesaid C.C.908/89 and quash the same.
The respondent has filed the charge sheet against the accused. The allegations in it are briefly as follows:
In between 4.4.85 and 16.9.85 at Othakkalmandapam Town Panchayat, the accused, being a public servant, in such capacity and having been
entrusted the funds of the said Panchayat, dishonestly misappropriated cash of Rs.2,647.50 by way of showing false expenditure such as purchase
of lime, installation of motor in the well and for repairing of water pipe and thereby committed an offence of criminal breach of trust punishable u/s
409, Indian Penal Code.
Mr. K. Chandramouli, for Mr. K. Venkatasubramaniam the learned counsel appearing for the petitioner would contend that the allegations of
misappropriation against the petitioner herein is in his capacity as a public servant as Executive Officer of the Othakkalmandapam Town Panchayat
and while so, before launching the prosecution, sanction ought to have been obtained, as provided u/s 169 of the Tamil Nadu Panchayats Act,
1958 and as per Section 197 of Criminal Procedure Code and in the absence of any such sanction, the entire prosecution is liable to be quashed.
As indicated above, even in the charge sheet, it is alleged that the petitioner, as public servant in his capacity as Executive Officer of
Othakkalmandapam Town Panchayat had committed this misappropriation of Rs. 2,647.50. Section 169 of Tamil Nadu Panchayats Act, 1958
reads as follows:
Sanction for prosecution. -- (1) When the president or the executive authority or the chairman or vice- chairman of a panchayat Union
council or the Commissioner or any member 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 of the Government.
Section 197 (1) & (b) Criminal Procedure Code reads as follows:
Prosecution of Judges as 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--
(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.
The learned counsel also relied upon the ruling reported Amrik Singh Vs. The State of Pepsu, . In that case, the appellant who was a public
servant received Rs.51/- alleged to have been misappropriated and he admits receipt of the same. With regard to that sum, prosecution was
launched for offence u/s 409 Indian Penal Code. The Apex Court has held that the acts with which the accused was charged fall within the scope
of his duties, and could be justified by him as done by virtue of his office. Clearly, therefore, sanction was required under S.197(1), Criminal
Procedure Code before the accused could be prosecuted u/s 409 and the absence of such sanction was fatal to the maintainability of the
prosecution. He also relied upon the ruling reported in R.P. Kapur Vs. The State of Punjab, . In it, the apex court has listed some of categories of
cases where the inherent jurisdiction to quash proceedings should be exercised. Category No.(i) is as follows:
Where it manifestly appears that there is legal bar against the institution or continuance of the criminal proceedings in respect of the offence alleged.
Absence of the requisite sanction may, for instance, furnish cases under this category.
The learned counsel would contend that case on hand squarely fell within the purview of the rulings mentioned supra.
The learned Government Advocate, fairly concedes that the sanction should have been obtained before launching the prosecution.
Therefore, the launching of the prosecution by the respondent in C.C.908/89 on the file of the Judicial Magistrate No.VII Coimbatore, without
obtaining sanction is liable to be quashed.
In view of the above, this petition is allowed and the proceedings in C.C.908/89 on the file of the Judicial Magistrate No. VII is hereby
quashed.