Sarat Chandra Dehury vs Sankirtan Behera

K.P. Mohapatra, J.—The Petitioner was accused in I.C.C. Case No. 3 of 1983 instituted by the opposite party making allegations of commission of offences under Sections 409 and 420 I.P.C. After enquiry u/s 202 Code of Criminal Procedure the complaint petition was dismissed by the learned Sub-Divisional Judicial Magistrate. The opposite party preferred a revision which was allowed by the learned Sessions Judge, Dhenkanal, who directed taking of cognizance of an offence u/s 409 I.P.C. The above order has been challenged in this revision.

The facts of the case in short are that the Petitioner was acting as the Sarpanch of Kaintaragarh Grama Panchayat which managed the ferry ghat at Kuleswar on river Mahanadi. In the year 1982-83 at the highest bid of the opposite party of the sum of Rs. 14,000/-, the ferry ghat was leased out to him. Out of the amount, he had paid Rs. 8000/- and a sum of Rs. 6000/- was outstanding on him. Therefore, notices were served on the opposite party from the Grama Panchayat office for payment of the balance on or before 5.2.1983 in default of which he was prohibited to operate the ferry. The opposite party, however, could not make the deposit by the date fixed. On 6.2.1983 at about 6 a.m. the Petitioner came to the river ghat and prohibited the opposite party from operating the ferry. He himself operated the same and realised a sum of Rs. 500/- from passengers. In the meanwhile the opposite party went home, pledged the necklace of his wife for a sum of Rs. 4000/- and came back to the ferry ghat. It is alleged that he paid the sum of Rs. 4000/- to the Petitioner, but when he demanded a receipt the latter asked him to come to the Grama Panchayat office to receive the same. The opposite party on subsequent dates came to the Grama Panchayat office and demanded the receipt for Rs. 4500/- which had been received by the Petitioner, but the latter did not grant the receipt, did not deposit the said amount in the Grama Panchayat office cash and misappropriated the same. In view of the above facts, the opposite party filed a complaint petition alleging commission of offences by the Petitioner under Sections 409 and 420 I.P.C.

The learned Sub-Divisional Judicial Magistrate, Athamallik, on the basis of the statements of witnesses examined during enquiry u/s 202 Code of Criminal Procedure found that no criminal offence had been made out and the allegations were of civil nature. Therefore, he dismissed the complaint petition u/s 203 Code of Criminal Procedure The learned Sessions Judge, Dhenkanal, however, took the view that there was, a prima facie case for offence u/s 409 I.P.C. and further sanction of the State Government u/s 197 Code of Criminal Procedure for prosecution of the Petitioner was not necessary.

Mr. N.C. Pati raised the following contentions.

(1) The statements of witnesses recorded during the enquiry u/s 202 of the Code did not make out a prima facie case of an offence either u/s 409 or u/s 420 I.P.C.

(2) Sarpanch of a Grama Panchayat is a public servant; and

(3) For prosecuting the Sarpanch of a Grama Panchayat, prior sanction of the State Government u/s 197 of the Code is necessary. The contentions require careful examination.

So far as the first contention is concerned, it is a finding of fact that on going through the statements, a prima facie impression can be obtained that the Petitioner had collected a sum of Rs. 4,500/- from the opposite party at the Ferry Ghat an 6.2.83. At the stage of enquiry, sifting of statements of witnesses, as is done after trial, is not permissible according to law. In order to take a prima facie view, it is enough if the Court after application of mind finds that materials are available so as to proceed for trial of the accused of a criminal offence. As rightly held by the learned Sessions Judge, the materials placed by the opposite party during the enquiry were sufficient to take a prima facie view that the Petitioner should be put to trial for an offence of misappropriation u/s 409 of the Indian Penal Code. The first contention of Mr. Pati is untenable.

The second cantention is no longer res integra and is covered by several decisions of this Court, one of the latest being Krupasindhu Prusty Vs. State of Orissa, in which it was held that a Sarpanch elected under the provisions of Orissa Grama Panchayat Act, is a public servant and is removable from office under the provisions of Section 115 thereof. This fact was also not disputed.

The third contention of Mr. Pati though important is also no longer in doubt because of the following decisions of this Court. In 1984 (1) O.L.R. 1073, Bhubaneswar Das v. State of Orissa, the Petitioner, Secretary of a Grama Panchayat was tried far an offence of misappropriation and was convicted u/s 409 of the Indian Penal Code. In revision before this Court a legal paint was taken to the effect that in the absence of sanction u/s 197(1) of the Code, conviction was not in accordance with law. J.K Mohanty, J. noticed Amrik Singh Vs. The State of Pepsu, and held that an act of misappropriation was not in any way connected with the duties of the Petitioners and so Section 197(1) of the Code was not attracted. In State of Orissa Vs. Mukteswar Panda, , the Respondent was a Sarpanch of a Grama Panchayat, who took advance of money from the Grama Panchayat Fund for repairing of roads and for dewatering wells, He could not account for the work and on the allegation that he committed misappropriation he was tried and was found guilty by the trial Court. In appeal, the conviction was set aside on many grounds, one of which was absence of sanction u/s 197 of the Code. In appeal against the order of acquittal, S.C. Mohapatra, J inter alia on the question of sanction u/s 197 of the Code held that it is no part of the duty of the Sarpanch the Naib-Sarpanch, Members and the functionaries of the Grama Panchayat or Panchayat Samiti, according to the provisions of the Orissa Grama Panchayat Act, to take up execution of any work of the Grama Panchayat or Panchayat Samiti. Therefore, in case of misappropriation, in course of execution of the work sanction for prosecution u/s 197 is unnecessary as such act of misappropriation does not amount to discharge of official duties. In 1987 (1) O.L.R. 429, Chitaranjan Patnaik v. Raghuram Reddy and Anr., G.B. Patnaik, J; dealing with a case of misappropriation of a public servant held that public servant committing criminal breach of trust in respect of moneys belonging to Government by interpolating and forging some documents cannot be said to be acting or purporting to act in discharge of his official duty. The act and the official duty must be so interrelated that one can reasonably postulate that it was done in performance of the official duty. In other words, there must be a reasonable connection between the act and the official duty, and the act must bear such relationship to the duty that accused can lay a reasonable claim, but not a pretended or fanciful claim that he did it in course of performance of this duty. In an almost identical case reported in Krupasindhu Prusty Vs. State of Orissa, I had held that the consensus of judicial opinion is that the act of misappropriation or criminal breach of trust of the Grama Panchayat fund cannot be held to have been done while the Sarpanch acts or purports to act in the discharge of his official duty. Criminal misappropriation- and criminal breach of trust are offences of purely personal character unconnected with any official duty.

As held in AIR 1979 S.C. 1941, S.B. Saha and Ors. v. M.S. Kochar, the question of sanction u/s 197 can be raised and considered at any stage of the proceedings. Therefore, there is no impediment to take the plea of absence of sanction for prosecuting a public servant at the stage of cognizance. But according to the settled principle of law discussed above, the misappropriation or criminal breach of trust must have nexus with the discharge of official duty by a public servant. In the case under examination, the Petitioner cannot be said to be discharging his official duty for the alleged act of misappropriation or cheating. Therefore, in my considered opinion and as rightly held by the learned Sessions Judge prior sanction of Government u/s 197 of the Code for his prosecution was unnecessary. The contention of Mr. Pati therefore cannot be sustained.

On the aforesaid analysis, I do not find adequate reasons for interference. The case has to be tried in accordance with law without the learned Magistrate being in any way influenced by any of the observations made here. The L.C.R. should be sent back at once, The Criminal Revision is dismissed.