K S DORAISWAMY IYER Vs. STATE

JUDGEMENT

(1.) THIS is an application to quash the four charges framed against the petitioner, by the Additional First Class Magistrate of Banipet in c. C. No. 231 of 1947 on his file, The first of these charges relates to an offence under Section 120b, Penal Code, in that the petitioner, between 1st May 1946 and 1st June 1946 at Arkonam, with a person who is accused 2 in the Court below, agreed to do an illegal act, viz. , fairing out the military vehicles entrusted to the petitioner for allotting to the Sub-Divisional Officers for military works, to p. w. 2, a civilian building contractor, and that the same act, viz. , the hiring out of the military lorries to the private contractor, having been done in pursuance to an illegal agreement the petitioner hereby committed an offence of criminal conspiracy. The next three charges relate to cases of criminal breach of trust by a public servant, viz. , the petitioner, in that he as Sub-Divisionl Officer, M. E. S. , Arkonam, being entrusted with military lorries for allotment to other Sub-Divisional Officers for military work, used those military lorries dishonestly in contravention of such entrustment and thereby committed criminal breach of trust on three occasions.

(2.) THE contention raised in this application is that the charges should be quashed for the reason that the Magistrate bad no jurisdiction to entertain the proceedings before him on the ground that there was no sanction as contem plated by Section 270 (1), Government of India Act, 1935, and also that the petitioner being a public servant under a contract of service with the Governor-General in Council and not removable from his office save by or with the sanction of the said authority, and the offences alleged against him being said to have been committed by him while acting or purporting to act in the discharge of his official duty, the Court should not have taken cognizance of the said offences without the previous sanction of the Governor. General in Council under Section 197, Criminal P. C. Both these objections converge to the same point, viz. whether the petitioner in committing the alleged acts which form the subject of the charges was doing an act or purporting to do an act in execution of his duty as a servant of the Crown is India.

(3.) ACCORDING to the prosecution, the petitioner who was employed as a Sub Divisional Officer in the Transport Garrison Engineering Office at Arkonam was entrusted with the duty of allotting trucks to the various military departments for their use. These trucks belong to a company known as the General Provisions Transport Company and were at the disposal of of the military authorities to be used for military purposes. According to the evidence now let in, it is seen that the driver of each vehicle takes it to the petitioner every day for the purpose of getting the work allotted and when it is so taken, it is the duty of the petitioner to indicate in the duty slip of the driver which place he was to go, Such allotment should be only for military purposes and not for anything else. The prosecution case is to the effect that instead of allotting certain lorries on the dates mentioned in the charge for military purpose, the petitioner entered falsely in the duty slips some bogus military work and hired out the lorries to private contractors for their own work after receiving illegal gratification in each case for so hiring out. It is said that the offence of criminal breach of trust arises from the fact that the lorries entrusted to him in his official capacity for the purpose of using them for military work alone were diverted for private use after he received consideration for such diversion. This was done as a result of a conspiracy between the petitioner and accused 2 in the lower Court. Such being the case, the two accused have been arraigned firstly for the offence of criminal conspiracy and secondly for the various instances of criminal breach of trust on specific dates.