MULSANKAR OJHA Vs. BHAGABAN MISRA

JUDGEMENT

(1.) THE question involved in this revision petition is whether under Section 197, Criminal Procedure Code, sanction of the State Government is necessary for the prosecution of the opposite parties for offences under Sections 448 and 352, Indian Penal Code alleged to have been committed by them. In March, 1958, Government granted a loan of Rs. 40,000/ - to the petitioner under the Bihar and Orissa State Aid to Industries Act, 1923 on the condition that he would repay the same in twenty half -yearly installments, the first installment being payable one year after the date of the receipt of the loan with interest as stipulated in the bond. In accordance with the terms of repayment, the petitioner repaid the installments due on 30.3.1959, 30 -9 -59 and 31.3.1960 - Rs. 6,000/ - towards principal and Rs. 2,310/ - towards interest. As he defaulted to pay the instalments which subsequently fell due, the Director of Industries filed a certificate case on 16.2.1962 in the Court of the Certificate Officer, Cuttack for recovery of the balance amount of Rs. 34,000/ - towards principal and Rs. 2,020/ - towards interest due up to 31.1.1962. From the order sheet of the certificate Case it is seen, that the notice of institution of the case was issued by the Court and was served on the petitioner by 27.10.1962. But as no payment was made, distress warrant was issued. On the first occasion when such a warrant was issued the petitioner paid Rs. 2,000/ - to the process -server. Distress warrant was issued a second time and only a sum of Rs. 1,000/ - was collected. On 12.12.1964, distress warrant and also a warrant of arrest were issued, against him. The petitioner was produced in Court, and on his application, Rs. 2,000/ - which he offered immediately, was accepted and he was given time to pay the balance at the rate of Rs. 2,000/ - per month. Obviously no further payment was made as agreed and therefore by order dated 18.4.1964 a warrant of arrest was issued against him. On this occasion he paid Rs. 500/ -. Arrest warrants and distress warrants were issued thereafter against him, but they could not be executed because the petitioner was found absent from his house. This went on till 9.3.1966 on which day, opposite party No. 1, the Certificate Officer accompanied by opposite party No. 2. the Assistant Director of Industries personally went to the house of the petitioner to realise the balance dues from him. The order recorded on that day by the Certificate Officer shows that the petitioner was absent from his house and therefore they had to wait for two hours there and when he came back the amount due from him was demanded. But he expressed his inability to pay the same and hence he was brought to Court under arrest. After he was brought to Court, he submitted a petition through his Advocate to give him three month's time to pay the dues and he was released from detention. A few days thereafter that is, on 22.3.1966, an application was filed on behalf of the petitioner praying for cancellation of the certificate on the ground that notice of the institution of the case had never been served on him, and that in any case, the State aid given to him having not been terminated by the State Government, no certificate case could be instituted against him. On 4.4.1966, the Certificate Officer set aside the certificate on the ground that the State Aid had not been terminated under Section 19A of the Bihar and Orissa State Aid to Industries Act and as such the certificate filed is not regular.

(2.) ON 14.7.1966, the petitioner filed a complaint petition in the Court of the Sub -divisional Magistrate, Cuttack alleging that on 9.3.1966, the two opposite parties had trespassed into his house at a time when the petitioner was not there, that they abused his mother and threatened to attach his moveables, and that when the petitioner returned home, they demanded payment of the loan amount. When he pointed out the illegality of the initiation of the certificate case and ex -pressed his inability to pay the amount he was physically dragged by the opposite parties to a jeep under arrest in presence of several parsons, who, by then, had gathered near his house and thereby his prestige was also lowered. The Sub -divisional Magistrate sent the complaint for enquiry to another Magistrate, who, after enquiry, found that a prima facie case under Sections 448 and 352, I.P.C., had been made out against the opposite parties. After receipt of this report and before cognisance was taken by the S.D.M., the case was transferred to another Magistrate for disposal before whom it was urged on behalf of the opposite parties that in the circumstances in which they are alleged to have acted in the case they cannot be prosecuted without obtaining sanction under Section 197, Criminal Procedure Code The learned Magistrate accepted this contention and ordered the acquittal of the opposite parties under Section 249, Criminal Procedure Code The correctness of the order passed by him is being challenged in the present case.

(3.) IN Amrik Singh v. State of Pepsu, AIR 1955 SC 309 while dealing with Section 197, Criminal Procedure Code, Venkatarama Ayyar J. observed :