Mohinder Singh vs State of Haryana

S.S. Dewan, J.

The primary question which arises for determination in this revision is; whether in a prosecution under S. 406 Indian Penal Code, against a Sarpanch, it is necessary to obtain sanction of the State Government under S. 197 of the Code of Criminal Procedure, 1973 (for short the Code).

Mohinder Singh petitioner who was a Sarpanch of the Gram Panchayat Saketri was authorised vide resolutions dated May 24, 1967 and August 6, 1969 to withdraw the amount of Rs. 12,500/ from the post Office, which had been deposited to purchase 12 years National Defence Certificates. In the present case, however, we are concerned with five such National Defence Certificates of the value of Rs. 500/ each. These were encashed by the petitioner on August 12. 1969 and in this way he was entrusted with a sum Rs. 2500/ belonging to the Panchayat. It is alleged that he misappropriated the said amount inconspiracy with, Babu Ram and Kartara, members of the said Panchayat. The legal machinery was set into motion against the petitioner and his companions on a letter dated January 10, 1975, written by the Deputy Commissioner. Ambala and addressed to the Superintendent of Police. Ambala. This resulted in the registration of the present case against the petitioner and others. After necessary investigation, they were sent up for trial. The Judicial Magistrate Ist Class, Ambala City, framed separate charges against Mohinder Singh and his companions punishable under Ss. 406 and 120B, Indian Penal Code. In support of its case, the prosecution examined as many as 14 witnesses. The accused denied the prosecution allegations and pleaded false complicity in the case, but led no evidence in defence. Kartara and Babu Ram accused were acquitted of the charges while Mohinder Singh petitioner was convicted under S 406, Indian Penal Code and sentenced to 2 years rigorous imprisonment and a fine of Rs. 1000/. He was, however, acquitted of the charge under S. 120B, Indian Penal Code. On appeal, the learned Additional Sessions Judge, Ambala in an elaborate and lucid judgment upheld his conviction and sentence and hence the revision.

Section 197 of the Code requires that when a public servant, who is 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 the offence except with the previous sanction .......

(b) in the case of a person who is employed.. ....in connection with the affairs of a State, of the State Government."

The petitioner, who was the Sarpanch at the alleged time of occurrence, is a public servant admits of no dispute. As per Punjab Government Notification No 11508/LB53110558 dated 651954, the powers of the Government under S.102 of the Gram Panchayat Act (for short the Act) have been delegated to the Director of Panchayats. It is thus apparent that the Sarpanch is now removable from his office by an authority lesser than the Government. On a plain reading of S. 102 of the Act, it seems to me that the petitioner not being removable from his office by sanction of the Government, no previous sanction was essential under S. 197 of the Code. The revision petition is otherwise bound to fail on this point because the act of misappropriation was not one which was committed in the discharge of the public duties performed by the petitioner. As observed by Lord Simonds in H.H.B. Gill v. The King, A.I.R. 1948 P.C. 128 :

"a public servant can only be said to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty. The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office."

The same view was held in a subsequent Privy Council decision reported in the same volume in Albert West Meads v. The king, A.I.R. 1948 P.C. 156 Applying the test envisaged by Lord Simonds, it seems clear that the petitioner could not justify the acts done by him by virtue of the office that he held. The petitioner had obtained money for and on behalf of the Panchayat as a Sarpanch and the prosecution alleges that this sum was misappropriated by him to his own purpose. There is no suggestion of any kind that the money was spent for purposes of the Panchayat, indeed it is not the allegation of the complainant on which the case was to proceed that the act of misappropriation formed part of his public duties. By no stretch of imagination could it be said that act of the petitioner which was sought to be made a subject for the prosecution, was done or purported to have been done in the discharge of his official duties.

Can it be said that the act of misappropriation alleged to have been committed by the petitioner bore any relation to the public duties of a Sarpanch ? In my opinion, the answer must be given in the negative. The money was received by the petitioner on behalf of the Panchayat and the office which the petitioner held merely provided him with an opportunity to misappropriate the amount to himself. A mere opportunity to commit an offence provides no connection between the act of misappropriation and the performance of duties has recently been reiterated in the Supreme Court decision in Dhannjay Ram Sharma v. M.S. Uppadaya, A.I.R. 1960 S.C. 745.

It was then contended on behalf of the petitioner that cognizance of the offence was wrongly taken by the magistrate as the first information report was registered against the petitioner beyond the period of limitation. This contention does credit to the ingenuity of the learned counsel for the petitioner but does not seem to bear the scrutiny of a close logical analysis. 1 have perused the record. The trial Magistrate found from the facts that the latter for the registration of the case moved by the Deputy Commissioner to the police was filed within the period of limitation and the learned Additional Sessions Judge rightly confirmed the view taken by the trial Magistrate. S. 469(1)(b) of the Code reads as follows :

"469(1) The period of limitation, in relation to an offender, shall commence (a)* * * * * *

(b) Where the commission of the offence was not known to the person aggrieved by the offence or to any police officer, the first day on which such offence comes to the knowledge of such person or to any police officer. whichever is earlier."

A perusal of the above provisions would show that the limitation in relation to the present case will commence from the first day on which offence came to the knowledge of the police officer or the person aggrieved. There is no particular individual aggrieved by the offence. The aggrieved person in this case is the Gram Panchayat. There is not a (sic) of evidence from the record to suggest as to when the Gram Panchayat came to know of the offence committed by the petitioner. In the circumstances the date on which the police officer came to know of the offence has to be taken as the starting point of limitation. The Deputy Commissioner addressed a letter to the Superintendent of Police on January 10, 1975, whereas the challan was presented by the police in the Court in April, 1976 and hence it cannot be said that the case was registered against the petitioner beyond the period of limitation even if the offence falls under S. 406. Indian Penal Code. No other point has been urged on behalf of the petitioner.

Inevitably, a prayer has been made for reduction in the sentence. Emphasis is laid on the fact that the occurrence took place as far back as 1975 There is some scope for reduction in the sentence. I accordingly reduce his sentence of imprisonment to one year. The sentence of fine with its default clause shall, however, remain. With this modification in the sentence, the revision petition fails and is herein dismissed.