Criminal Revns. Nos. 1447 and 1509 of 1986

13th September, 1991.

Petitioner Counsel: S. P. Singh Raghava, for
Respondent Counsel: A. G. A., .

Cases Cited:
(Him Pra) (Rel. on.), 1983 Cri LJ 1896 [Para 13]
(Him Pra), 1980 Cri LJ 154 [Para 13]
ILR (1973) Him-Pra 762 [Para 13]
1966 Cri LJ 179,AIR 1966 SC 220 [Para 13]
1957 Cri LJ 575,AIR 1957 SC 458 [Para 13]
1955 Cri LJ 865,AIR 1955 SC 309 [Para 13]
(1948) 49 Cri LJ 503,AIR 1948 PC 128 [Para 13]
(1939) 40 Cri LJ 468,AIR 1939 FC 43 [Para 13]

JUDGMENT

ORDER :-The above mentioned two criminal revisions have been filed against one and the same judgment and order dated 21-8-1986 passed by the then 1st Additional Sessions Judge, Budaun dismissing the Criminal Appeal, No. 196 of 1985 connected' with Criminal Appeal No. 194 of 1995 and Criminal Appeal No. 210 of 1985 filed against the judgment and order dated 27-6-1985 passed by the then VII Additional Munsif Magistrate Budaun in Criminal Case No. 159 of 1984 convicting and sentencing the applicant-revisionist Todar Singh Premi under S. 409 and 120-B, I.P.C. to one year and six months rigorous imprisonment and imposing a fine of Rs. 500/- and Gulveer Singh u/ S. 409, IPC to two years rigorous imprisonment and a fine of Rs. 3000/-.

2. The facts of the case briefly stated are that a sum of Rs. 2000/- through a cheque No. 091640 was given by Todar Singh Premi, the then Block Development Officer on 23-1-79 to Gulveer Singh, the then Assistant Block Development Officer for construction of a well for the benefit of Harijans. It was on 6-4-1979 that 25 bags of cement costing Rs. 630-25 Paise were also given to him. On the written request made by Gulveer Singh on 11-6-1979 a sum of Rs. 300/ - more was given to him by Todar Singh Premi for the completion of the construction of the well. The well was not constructed at all. A complaint was made and a case was registered against Todar Singh Premi Gulveer Singh and the then Accountant Jwala Prasad Arya. After completion of the investigation into the case, charge-sheet was submitted against them.

3. The prosecution examined Naubat Singh P.W. 1, Rajendra Kumar P.W. 2, Ragghu P.W. 3, Dharambeer Singh P.W. 4 and the Investigating Officer Trilok Chandra P.W. 5 and relied upon certain documents in support of its case.

4. The accused-revisionists pleaded not guilty. They have stated that all the allegations made against them are wrong and incorrect. They have, however, examined one Bhoop Singh D.W. 1 and relied upon certain documents in support of their contentions.

5. The learned VII Additional Munsif Magistrate Budaun convicted and sentenced all the three accused vide his judgment and order dated 27-6-1985 in Criminal Case No. 159 of 1984. Aggrieved of his judgment and order, they preferred three separate appeals against the same.

6. The learned 1st Additional Sessions Judge, Budaun vide his impugned judgment and order acquitted the Accountant Jwala Prasad Arya, but confirmed the conviction and sentence awarded to the revisionists Todar Singh Premi and Gulveer Singh, by the learned VII Additional Munsif, Magistrate. Aggrieved, the accused-revisionists preferred the above criminal revisions separately which have, however, been connected with each other for disposal.

7. Heard the learned counsel for the parties in both the revisions and perused the record.

8. Section 405, I.P.C..reads as under:

"405. Criminal Breach of trust - whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposses of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust."

Section 409, I.P.C. reads as follows:

"409. Criminal Breach of trust by public servant, or by banker, merchant or agent.- whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant,

factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

9. Admittedly Todar Singh Premi is the Block Development Officer. Admittedly he is a disbursing Officer. While referring to Ss. 405 and 409, I.P.C., the learned counsel for the revisionist Todar Singh Premi has argued that no offence u/ S. 409, IPC. can be said to have been made out against accused- revisionist Todar Singh Premi because there is no evidence on record to show that he was entrusted with the amount in question in any manner whatsoever and therefore, the question of misappropriation of the same by him does not arise. The contention of the learned counsel for the revisionist is not without substance.

10. Section 120-A reads as follows:

"120-A. Definition of criminal conspiracy.- When two or more persons agree todo, or cause to be done -

(1) an illegal act, or

(2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:

Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof."

11. Referring to the said section, the learned counsel for the revisionist Todar Singh Premi has further argued that there is likelihood that act and conduct of Todar Singh Premi might have constituted his negligence and carelessness in the discharge of his official duties, but there is no evidence on record to show that he and Gulveer Singh agreed or conspired together or were in league with each other to commit the offence punishable u/ S. 120-B, I.P.C. He has also argued that the learned 1st Additional Sessions Judge has drawn inferences only in respect of the offence punishable u/S. 120-B, IPC and therefore, his impugned judgment and order cannot be sustained. His contentions do not appear to be devoid of force.

12. Section 197, Cr. P. C. reads as under:-

"197. Prosecution of Judges and public servants -

(1) when any person who is or was a Judge or Magistrate or a public servant 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 such offence except with the previous sanction -

(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;

(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government.

13. While referring to the said S. 197, Cr. P.C. and laying much emphasis in the course of his arguments upon the words "while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction." Occurring in Sub-sec. (1) of S. 197, Cr. P.C. he has submitted that Gulveer Singh is admittedly a State Govt. employee and that the offence alleged to have been committed, can very well be said to have been committed by him, while acting or purporting to act in the discharge of his official duty and there- fore, the court could not have taken cognizance of the alleged offence in the absence of the previous sanction. He has, for this purpose, placed reliance upon a Division Bench decision in "State of Himachal Pradesh v. Nand Lal" reported in 1983 Cri LJ 1896 wherein 1980 Cri LJ 154 (Him Pra); (2)

ILR 1973 Him Pra 762; (3) 1966 Cri LJ 179: AIR 1966 SC 220; (4) 1957 Cri LJ 575: AIR 1957 SC 458; (5) 1955 Cri LJ 865: AIR 1955 SC 309; (6) (1948) 49 Cri LJ 503: AIR 1948 PC 128; (7) (1939) 40 Cri LJ 468: 1939 FC 43 have been referred to. The following observations have been made in the Division Bench case, State of Himachal Pradesh v. Nand Lal, (supra):-

"In order to determine whether a public servant is entitled to protection u/S. 197 what is to be considered is whether the act complained of against him was committed by him while discharging his official duty and that such act had a reasonable connection with his official duty. For determining as to whether there was reasonable connection between the act and the official duty one safe and sure test would be to consider if the omission or neglect on the part of the public servant to commit the act could have made him answerable for the charge of dereliction of his official duties. If the answer to this question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty. Where the Pradhan of Gram Pranchayat a public servant, was entrusted with funds for the purchase of articles to be utilised for public purposes the act of the Pradhan in making the purchase must be held to be within the ambit of his official duty as a Pradhan and therefore there is connection between the act and the official duty. So also the Pradhan as a public servant is entitled to T.A. and if there is wrong calculation in adding up the amounts, then it is also one of the functions which, has to be performed by him in the discharge of his official duties. Therefore, the charges of misappropriation on both the counts namely the act of purchase and the preparation of the T.A. bill have a close connection with his official duties and therefore sanction under S. 197 would be necessary for the prosecution of the pradhan on the charges of misappropriation of amounts."

14. Gulveer Singh had received the amount in question for the purpose of getting a well constructed in the capacity of Assistant Block Development Officer. The offence alleged to have been committed by him, appears to have been committed in the discharge of his official duties. This being so, the sanction was a must for his prosecution. But there is no sanction in the instant case and therefore the impugned judgment and order of the learned 1st Additional Sessions Judge as well as those of VII Additional Munsif Magistrate are bad in law. The contention of the learned counsel for the revisionist Gulveer Singh to this effect appears to be correct.

15. The learned counsel for the revisionist Gulveer Singh has also argued that the learned VII Additional Munsif Magistrate had no jurisdiction to try the case in view of S. 6 of Criminal Law Amendment, Act, 1952. There does not appear any substance in this contention.

16. In the result these two criminal revisions are allowed. The impugned judgments and orders of the courts below are set aside. The revisionists in both the criminal revisions are acquitted of the charges levelled against them. They are on bail. Their bail bonds are cancelled and sureties stand discharged.

Revision Allowed