Shamim Ahmed Ansari vs State of Uttarakhand

Hon''ble Prafulla C. Pant, J.—Heard. By means of this petition moved u/s 482 of Code of Criminal Procedure, 1973 (for short Cr.P.C.), the petitioner has challenged the order dated 15.02.2012, passed by the Additional Sessions Judge, Tehri Garhwal, in criminal revision no. 21 of 2010, Shamim Ahmed Ansari vs. State, whereby the order dated 01.04.2009, passed by Chief Judicial Magistrate, Tehri Garhwal, in criminal case no. 1556 of 2003, rejecting the plea of requirement of sanction u/s 197 Cr.P.C., is affirmed.

Supplementary affidavit filed on behalf of the petitioner be taken on record.

Brief facts of the case are that the present petitioner Shamim Ahmed Ansari was Executive Engineer with U.P. Milk Producers Co-operative Federation, Unit Tehri Garhwal. It appears that certain financial irregularities were came to the light of the Federation on which enquiry was made, and thereafter First Information Report was lodged against the officers of aforesaid unit in the year 2000, regarding the embezzlement made in the year 1995. On the basis of the said FIR, crime no. 367 of 2007, was registered relating to offence punishable u/s 409 IPC, at Police Station Tehri. It appears that after investigation charge sheet was filed against the accused persons including the present petitioner. The trial appears to be pending since 2003, registered as criminal case no. 1556 of 2003.

It appears that on 29.01.2008, the present petitioner moved an application for his discharge on the ground that the cognizance of the offences punishable u/s 409, 120B IPC, as against him are barred for the want of sanction required u/s 197 Cr.P.C.. The Chief Judicial Magistrate, vide his order dated 01.04.2009, rejected said application with the observation that in view of the principle of law laid down in Harihar Prasad, etc. Vs. State of Bihar, , the commission of offence punishable u/s 409 IPC read with section 120B IPC, cannot be said to been committed in discharge of any public duties as such, the offence do not attract section 197 Cr.P.C. Aggrieved by said order dated 01.04.2009, the present petitioner filed criminal revision no. 21 of 2010, before the revisional court. Learned Additional Sessions Judge, Tehri Garhwal, after hearing the parties, dismissed said revision vide impugned order dated 15.02.2012, upholding the order passed by the Magistrate. The revisional court has also relied on the principle of law laid down in Harihar Prasad (supra) and Himachal Pradesh vs. M.P. Gupta (AIR 2004 SC 730). In both the above cases, the Apex Court has taken the view that the offence punishable u/s 409 IPC read with section 120 IPC, cannot be said to have been committed in discharge of public duties and does not require sanction u/s 197 Cr.P.C..

Learned counsel for the petitioner drew attention of this Court to the order dated 17.06.2006, passed by the Sessions Judge, Tehri Garhwal, in criminal revision no. 13 of 2006, whereby said court has discharged another accused Radheyshyam Mishra. On going through said order, this Court finds that the case of the co-accused was not similar to the present petitioner. The order dated 17.06.2006, passed by the Sessions Judge, shows that after the amount of Rs. 2,00,000/- received in the account no. 83 of Co-operative Federation, said accused Radheyshyam Mishra got prepared fixed deposit receipt of said amount and left it in the office as he was transferred to Barabanki, U.P., leaving charge to co-accused S.P. Sinha. In the circumstances, this Court is not inclined to interfere with the impugned order passed by the Chief Judicial Magistrate, and affirmed by the revisional court against the present petitioner, following the law laid down by the Apex Court in the case of Harihar Prasad (supra) State of H.P vs. M.P. Gupta (supra). It appears that trial is already very old and still at the stage of framing of the charge. In the above circumstances, without expressing any opinion as to final merits of the case, pending before the trial court, the petition u/s 482 Cr.P.C., dismissed summarily with the observation that the petitioner shall be at liberty to show during trial/at the time of the final arguments that the amount said to have been withdrawn by the present petitioner was not actually criminal breach of trust attracting section 409 Cr.P.C.