IN RE: SRI JAMI VEERABHADRASWAMY Vs. STATE

JUDGEMENT

(1.) THIS is a reference by the Additional District Magistrate of Vizaga -patam made under Section 438(1) of the Code of Criminal Procedure in the following circumstances.

(2.) THE President of the Panchayat Board, Narasannapeta, was charged by the police for having committed criminal breach of trust in respect of certain moneys collected as subscriptions to the War Fund from the employees of the Panchayat Board and from contractors. A preliminary objection was taken on behalf of the accused to the maintainability of the prosecution on the ground that there was no sanction by the Provincial Government as required under Section 197 of the Code of Criminal Procedure. The Additional First Class Magistrate, Chicacole, to whom the case had been transferred from the file of the Sub -Divisional Magistrate, Chicacole, where it was first filed, made an order ruling that the question whether the alleged criminal breach of trust was committed while discharging the official duties as such could only be gone into after evidence was recorded. It is against this order that the Additional District Magistrate has submitted this reference and his view is that the provisions of Section 227 -A of the Madras Local Boards Act would stand in the way of the prosecution in the absence of the previous sanction of the Provincial Government. It is pointed out by him that the alleged acts were committed by the accused when he disbursed the salaries of the employees and when he paid the contractors qua President of the Panchayat Board. Although powers of removal of the Presidents of Panchayat Boards have been delegated to the Inspector of Municipal Councils and Local Boards, the specific power of sanctioning prosecutions vested in the Provincial Government under Section 227 -A has been reserved under Section 233 of the Madras Local Boards Act for the Provincial Government. So far as the learned Additional District Magistrate's view is correct; but even under Section 227 -A it is necessary that the act attributed to the president should have been done or purported to have been done in the discharge of an official duty. The collection of subscriptions for the war fund cannot be deemed to be an official duty which had to be performed by the President of the Panchayat Board as such and it cannot be held that, after the war fund subscriptions had been collected - -presumably by consent of the respective subscribers - -and subsequently misappropriated, the misappropriation was while acting or purporting to act in the discharge of his official duty. In any view of the matter it is clear that Section 227 -A of the Local Boards Act is not applicable to the facts of this case.

(3.) THE reference is rejected and the records are returned.