Cri. Appln. No. 958 of 2002,Cri. Appln. No. 960 of 2002,Cri. Appln. No. 961 of 2002,Cri. Appln. No. 962 of 2002,Cri. Appln. No. 963 of 2002,Cri. Appln. No. 964 of 2002,Cri. Appln. No. 965 of 2002,Cri. Appln. No. 966 of 2002,Cri. Appln. No. 967 of 2002,Cri. Appln. No. 968 of 2002,Cri. Appln. No. 969 of 2002,Cri. Appln. No. 970 of 2002

4th September, 2002

Petitioner Counsel: Mr. S. A. BRAHME

Cases Cited:
A.I.R. 1955 S.C. 287 [Para 5]
A.I.R. 1955 S.C. 309 [Para 5]
Omprakash Vs. State of Uttar Pradesh, A.I.R. 1957 S.C. 458 [Para 5]
Baijnath Vs. State of Madhya Pradesh, A.I.R. 1966 S.C. 220 [Para 5]
Harihar Prasad Vs. State of Bihar, 1972 Cri.L.J. 706 [Para 5]
State of Kerala Vs. Padmanabhan Nayar, Cri.L.J. 1999(4) 3696 [Para 5]
State of Maharashtra Vs. Shankar Wagh, 2001 (4) Mh.L.J. 786 [Para 6]
Rizwan Ahmed Javed Shaikh Vs. Jammal Patel, 2001 5 SCC 7 [Para 7]

JUDGMENT

Judgment :- Rule. By consent rule is made returnable forthwith.

2. As the common point is involved in all these applications, all the applications are disposed of by way of common judgment.

3. In this criminal application, the applicant who is a police constable, in-charge of Malkhana seeks to quash and set aside the order passed by the Chief Judicial Magistrate, Nagpur dated 3/4/2000 refusing discharge on the ground of non obtaining of sanction U/s 197 Cri.P.C. as well as the order of the Revisional Court dated 4/8/2000 rejecting the revision against the aforesaid order of the Chief Judicial Magistrate, Nagpur.

4. It is an admitted fact that the prosecution is under section 409 of the Indian Penal Code.

5. On behalf of the applicant reliance is placed on two judgments of the Apex Court reported in A.I.R. 1955 S.C. 287 and A.I.R. 1955 S.C. 309. It is contended that from the ratio laid down in these judgments, the sanction is required to for the prosecution U/s 409 I.P.C. In my opinion there is no substance in the contention raised on behalf of the applicant. These two judgments of the Apex Court cited, can no longer said to be a good law in view of the judgment of the Constitutional Bench of the Apex Court in the case of Omprakash Vs. State of Uttar Pradesh A.I.R. 1957 S.C. 458 which categorically holds that no sanction is required for an offence U/s 409 I.P.C. Besides the judgment cited in A.I.R. 1955 S.C. 309 was referred to in a subsequent judgment of the Apex Court in the case of Baijnath Vs. State of Madhya Pradesh A.I.R. 1966 S.C. 220 and the Apex Court has held that it was not necessary to examine how far the decision in Amriksingh's case (A.I.R. 1955 S.C. 309) can stand in view of earlier decision of the Judicial Committee with two subsequent decisions of larger bench of this Court in Omprakash Vs. State of U.P. Even, subsequently there are decisions of the Apex Court which laid down that no sanction for an offence U/s 409 I.P.C. is required. In this connection reference can be made to the decision of the Apex Court in the case of Harihar Prasad Vs. State of Bihar - 1972 Cri.L.J. 706 in which both A.I.R. 1955 S.C. 287 as well as A.I.R. 1955 S.C. 309 were considered. Again these very two judgments have been considered by the Apex Court more recently in the case of State of Kerala Vs. Padmanabhan Nayar reported in Cri.L.J. 1999(4) 3696. The Apex Court has laid down that no sanction is required for an offence U/s 406 and 409 r/w sec. 120-B of the Indian Penal Code.

6. This Court also considered almost all the relevant judgments right from the Judgment of our Court in the case of State of Maharashtra Vs. Shankar Wagh Mh.L.J. 2001 (4) 786. On the point and concluded that no sanction is required.

7. Reliance on behalf of the applicant was also made on the case of Rizwan Ahmed Javed Shaikh Vs. Jammal Patel reported in (2001) 5 Supreme Court Cases 7. The facts in the aforesaid cases were completely different, there was no charge u/s 409 I.P.C. The facts of that case were that the police officer had kept persons in police custody without producing them before the Magistrate within 24 hours of arrest. In such circumstances it was held that sanction was required. The act in the said case was clearly different from the act alleged in this case.

8. The reasoning given by the Federal Court in the case of Hori Ram Singh Vs. Emperor while making a distinction between section 409 I.P.C. and Sec. 477-A I.P.C. is very relevant and lucid. In that case it was held that sanction was necessary for prosecution u/s 409 of the Penal Code. While making distinction, it was held that in the case of offence under section 409 I.P.C., the official capacity was material only in connection with "entrustment" and does not necessarily enter into later act of the misappropriation or conversion which is the act complained of. Whereas, in the charge under sec. 477-A, official capacity is involved in the very act complained of is amounting to a crime. In so far as the act u/s 409 is concerned, the fact that the applicant was Police head constable, at the very highest can be said to have provided him with an opportunity of committing the offence. But, for these reasons, it can not be said to be an official act or an act purporting to be so.

9. Thus, there being no substance in these applications, the rule is discharged in all the aforesaid matters.

10. I am informed that the cases are of the year 1991 of the alleged misappropriation for the period 1988 to 1990. In the circumstance, the trial of the applicant will be expedited in all cases.

11. The copy of this judgment and order be kept in all the connected matters.

Application dismissed.