The State (CBI) vs Daya Shankar Mishra and Others

D.N. Baruah, J.—This revision is directed against the Judgment and order dated 21.4.87 passed by the Ex-Officio Assistant Commissioner and Judicial Magistrate, 1st Class, Naharlagun in Case No. GR 48 of 1983 discharging the accused persons from charges under Sections 120B/409/468/477-A I.P.C. for want of prior sanction as required u/s 197 Code of Criminal Procedure and special procedure under the Arunachal Pradesh Co-operative Societies Act, 1978 (for short, the Act). The State of Arunachal Pradesh has filed this application against the said order.

The facts of the case may, briefly, be stated as follows:

On the basis of a First Information Report dated 30.6.81 Shillong Branch of C.B.I. (S.P.E. Division) registered a case and commenced investigation. On completion of investigation a charge-sheet was submitted against the opposite party u/s 120B/409/468/477(A) I.P.C. On the basis of the charge sheet a case (GR 48/93) was started against the opposite party in the Court of Ex-Officio Assistant Commissioner and Judicial Magistrate, 1st class, Naharlagun. The charge was read over to the opposite party to which they pleaded not guilty.

The prosecution story is that the opposite party misappropriated 106,27,500 Kgs. of various pulses under two challans (challan No. 1524 dated 16.5.80 and challan No. 1531 dated nil) worth Rs. 31,882.50 approximately calculating at the rate of Rs. 3/- per Kg.

The Ex-Officio Assistant Commissioner and the Judicial Magistrate, 1st Class, Naharlagun by his Judgment and order dated 21.4.87 discharged the accused/opposite party for want of sanction as envisaged u/s 197 Code of Criminal Procedure and also for violation of special procedure under the Arunachal Pradesh Co-operative Societies Act, 1978. According to the prosecution, sanction was not at all required inasmuch as the members of the opposite party are not entitled to get such protection in view of the fact that while they committed the offence they were not engaged in the performance of their official duties. Besides, they are removable by the Registrar of Co-operative Societies and not by the State Government of Arunachal Pradesh. Hence, the present petition.

According to the Petitioner the Court below misconceived the provisions of law and most erroneously dismissed the complaint. The prosecution having proved -ill the ingredients necessary for prosecution, the order of discharge is contrary to the provisions of law and liable to be set aside. The offences alleged are-misappropriation of properties belonging to the Suite, criminal conspiracy, forgery and falsification of accounts, misusing of public office. The alleged offences not being connected with honest and legitimate discharge of official duty, the accused persons are not entitled to get protection u/s 197 Code of Criminal Procedure.

I have heard both sides.

Mr. A. Roy, learned Public Prosecutor for the State of Arunachal Pradesh has strenuously argued that the trial Court committed manifest error of law by holding that the Court cannot take cognizance of the offence without prior sanction as required u/s 197 Code of Criminal Procedure as the opposite party were officers under the State Government and the act was done in the discharge of their duty.

Mr. A.K. Bhattacharyya, learned Counsel appearing on behalf of the opposite party, on the oilier hand, raised a preliminary point regarding maintainability of this revision inasmuch as this revision has been filed by the State of Arunachal Pradesh though the case was investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946. Therefore, it is the Central Government who should instruct the Public Prosecutor to file the revision. As the Central Government has not come forward, the State Government has no authority and jurisdiction to file the revision petition. Secondly, the opposite party are officers of the State Government not removable from their offices save by or with the sanction of the Government.

On the rival contendons of the parties it is to be seen first whether the revision petition is maintainable in law or not as contended by Mr. Bhattacharyya.

Mr. Bhattacharyya submitted that though there is no provision in the Code of Criminal Procedure in respect of filing of revision by the State Government in a case investigated by the, Delhi Special Police Establishment Act, 1946, there is a specific provision for filing of appeal against acquittal u/s 378 Code of Criminal Procedure. I quote Section 378(2):

(2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may also direct the Public Prosecutor to present an appeal, subject to the provisions of Sub-section (3), to the High Court from the order of acquittal.

In this regard Mr. Roy had drawn my attention to a decision in Khemraj Vs. State of Madhya Pradesh, In the said case the Supreme Court held thus:

The word ''also'' in Sub-section (2) of Section 417 is very significant. This word seems not to bar the jurisdiction of the State Government to direct the public prosecutor to present an appeal even in cases investigated by the Establishment. Sub-section (1) of Section 417 is in general terms and would take in its purview all types of cases since the expression used in that sub-section is ''in any case''. We do not see any limitation on the power of the State Government to direct institution of appeal with regard to any particular type of cases. Sub-section (1) of Section 417 being in general terms is as such of wider amplitude. Sub-section (2) advisedly uses the word ''also'' when power is given to the Central Government in addition to direct the public prosecutor to appeal.

Mr. Bhattacharya made an attempt to distinguish this decision inasmuch as this decision related to the provision of appeal against, acquittal prior to 1973 Code. According to him, 1973 Code has changed the law regarding appeal against acquittal to a (sic) and, therefore, the aforesaid decision is not applicable. Mr. Roy, on the other hand, submitted that though there have been some changes in Section 378 Code of Criminal Procedure relating to the procedure for appeal against acquittal, but in substance it is more or less same and, therefore, this decision is applicable in the present case. The provisions laid down for appeal against acquittal under the old Code of Criminal Procedure of 1898 was not all comprehensive Section 417(2) related to an order of acquittal in cases investigated by the Delhi Social Police Establishment. I quote Sub-section (2) of Section 417 of the old Code:

(2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police, Establishment Act, 1946, the Central Government may also direct the Public Prosecutor to present an appeal to the High Court from the order of acquittal.

A comparison of the provisions contained both in the old and the new Codes will only show that in the old Code the Central Government had also the power to direct the Public Prosecutor to present an appeal only in those cases where the Delhi Special Police Establishment investigated the cases. Other cases did not come within the purview of Sub-section (2) of Section 417. But the new Code has introduced some changes and by such changes the Central Government may direct the public prosecutor to prefer an appeal not only in cases investigated by the Delhi Special Police Establishment, but also in cases investigated by any other agency empowered to make investigation into an offence under any Central Act other than Code of Criminal Procedure From reading of the provisions of both the old and the new Codes it does not appear that the power of the Slate Government has been taken away. In my view, the spirit of the aforesaid provisions shall be applicable in revision also. In this view I find that the decision in Khemraj v. State of Madhya Pradesh (supra) is applicable in the present case. Therefore, I hold that the State Government may file a revision and the preliminary objection raised by Mr. Bhattacharyya is rejected.

The next contention of the learned Public Prosecutor was that the provisions of Section 197 Code of Criminal Procedure would not be applicable as the members of the opposite party are removable by the Registrar of Co-operative Societies and not by the Slate Government In this regard I find that the learned Ex-officio Assistant Commissioner and Judicial Magistrate did not deal with this matter and did not come to a conclusion on the point whether the members of the opposite party could be removed only by the Slate Government, Finding on this point is essential to consider the necessity of sanction u/s 197 Code of Criminal Procedure Therefore, I am of the opinion that the matter requires proper scrutiny. Accordingly I set aside the impugned Judgment and remand the case to the trial Court to decide whether the members of the opposite party are removable by the Registrar of Co-operative Societies (sic) submitted by the learned Public Prosecutor. If after considering that aspect of the mutter the court copies to the finding that they are actually removable by the Registrar of Co-operative Societies no sanction will be necessary. Else sanction will be necessary.