Shri Nek Ram vs The State

H.C.P. Tripathi, J.—Applicant Nek Ram was convicted by a Magistrate First Class, Sundernagar, for an offence u/s 409 I.P.C. and sentenced to one year''s rigorous imprisonment and to a line of Rs. 1,000. In default of payment of line, he was directed to undergo a further period of six months rigorous impisonment.

On appeal the learned Additional Sessions Judge, Mandi, confirmed the conviction of the applicant but reduced his sentence of imprisonment from one year to four months and enhanced the sentence of fine from Rs. 1,000 to Rs. 2,600. The learned judge directed that in default of payment of fine, applicant was to undergo rigorous imprisonment for a further period of six months.

Applicant has now come up in revision to this Court against his conviction and sentence.

I have heard the learned Counsel for the applicant and the learned Advocate General for the State. Without going into the merits, I am of opinion, that the prosecution case must fail of want of a requisite sanction u/s 197(1) of the Code of Criminal Procedure.

According to the prosecution, applicant in his capacity as President of Gram Panchayat, Saklana, District Mandi, drew various sums of money on different occasions totalling to an amount of Rs. 6,568.30 P. from the Block Development Officer, Dharampur, for the construction of development works such as the schools and Khatis. Out of this amount a sum of Rs. 4,063.17 P. stood accounted for in the account books of the Gram Panchayat as maintained by the applicant himself at the time of its audit.

There was however, no account of the balance of Rs. 2,505.13 in the books of the Gram Panchayat and the applicant when called upon to reimburse the amount or to account for it he failed to do so. Accordingly, prosecution was launched against the applicant for having embezzled the aforesaid balance of Rs. 2,505.13 P. which had been given to him for the prosecution of the development activities of the Panchayat.

Applicant in his statement u/s 342 of the Code of Criminal Procedure admitted to have received the entire amount of Rs. 6,568.30 P. in his capacity as President of the Gram Panchayat but denied to have embezzled any part of it. He stated that the entire amount had been spent for the purpose for which it was advanced and the auditors in their report had not taken into account many of the items of expenditure.

On the facts alleged by the prosecution, it is obvious, that the entire amount was advanced to the ''applicant in his capacity as President of the Panchayat for carrying on development activities and it is a portion of that amount which according to the prosecution the applicant is alleged to have misappropriated to himself. In my opinion, therefore, the acts complained of are inseparably connected with the duties attached to the office of the applicant as President of the Panchayat and a sanction u/s 197(1) of the Code of Criminal Procedure was essential for his prosecution.

Learned Advocate General invited my attention to a decision of the Supreme Court in the case of Om Prakash Gupta Vs. State of U.P., in which it was inter alia held that "quite a large body of case law in all the High Courts has held that a public servant committing criminal breach of trust does not normally act in his capacity as a public servant and as such no sanction is necessary". That was, however, a case under the Prevention of Corruption Act and their Lordships were pleased to hold on the facts of that case that no sanction was necessary in that case for prosecution of an offence u/s 409 of the Indian Penal Code. In the cases of Amrik Singh Vs. The State of Pepsu, whose facts were similar to the facts of the present case their Lordships of the Supreme Court after referring to the judgment of Varadachariar J. in Hari Ram Singh v. The Emperor 1939 FC 43 and to the decision of the Privy Council in H.H.B. Gill. v. The King 1948 P.C. 128 were pleased to hold that:

It is not every offence committed by a public servant that requires sanction for prosecution u/s 197(1), Code of Criminal Procedure; not even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary; and that would be so, irrespective of whether it was, in fact, a proper discharge of his duties because that would really be a matter of defence on the merits, which would have to be investigated at the trial, and could not arise at the stage of the grant of sanction, which must precede the institution of the prosecution.

In that case the accused was a Sub-Divisional Officer in the Public Works Department, Pepsu, and was incharge of certain works at a place near Karhali. It was part of his duties to disburse the wages to the workmen employed in the works and the procedure usually followed was that he drew the amount required from the treasury and paid the same to the employees against their signatures or thumb impression in the monthly acquittance roll. In the roll for April, 1951, one Parma was mentioned as a Khalasi and a sum of Rs. 51 was shown as paid to him for his wages, the payment vouched by thumb impression. The ease of the prosecution was that there was in fact no person of the name of Parma, that the thumb impression found in the acquittance roll was that of the accused himself, that he had included a fictitious name in the acquittance roll with intent to himself draw the amount, and that by this expedient he has received Rs. 51 and misappropriated the same. The accused did claim to have paid the amount to Parma. On these facts the Supreme Court held that if what appeared on the face of the roll was true and whether it was true or not was not a matter relevant at the stage of sanction then the acts with which the accused was charged fell within the scope of his duties and could be justified by him as clone by virtue of his office. Clearly, therefore, sanction was required u/s 197(1) before the accused could be prosecuted u/s 409 and the absence of such sanction was fatal to the maintainability of the prosecution.

Section 16 of the H.P. Panchayati Raj Act, 1952, describes the duties and funtions of the Gram Panchayat and the applicant as President and Chief Executive of the Panchayat was charged with the duty of carrying on development activities on behalf of the Panchayat. It was for such development activities that the amount a part of which is said to have been embezzled by him was advanced to the applicant. u/s 118(a) of the H.P. Panchayati Raj Act, the State Government alone is competent to remove the President on certain grounds. On the principle enunciated in Amrik Singh''s case referred to above, I am of opinion that sanction by the State Government for the prosecution of the applicant for an offence u/s 409 I.P.C. was indispensable and the absence of such sanction is ''fatal to the maintainability of the prosecution.

Accordingly, this revision is allowed. The conviction and sentence passed on the applicant are set aside. Fine, if paid, will be refunded.