YOGI BHARAT ABROL Vs. STATE OF PUNJAB

JUDGEMENT

(1.) SHRI Yogi Bharat Abrol, Manager, Punjab State Warehousing Corporation, at the relevant time, has sought quashing of the order dated 24th December, 1979 of the Judicial Magistrate, 1st Class, Batala, charging him of an offence under section 409, Indian Penal Code for the defalcation of 100 bags of fertilizer on three grounds, (i) that the Criminal Court could not take cognizance of the offence without prior sanction of the competent authority, (ii) that the police having put his name in column No. 2 while submitting challan under section 173, Criminal Procedure Code, the trial Court is debarred from summoning him and charge him with the offence, and (iii) that a reading of the allegations in the First Information Report No. 22/78, registered at Fatehgarh Churian Police Station, District Gurdaspur, does not disclose any offence under section 409, Indian Penal Code.

(2.) THERE is no merit in any of the grounds on which the order dated 24th December, (sic) is impugned. As regards the sanction of the competent authority as envisaged in Section 197 of the Criminal Procedure Code, it may be observed that defalcation or misappropriation of the property entrusted to a public servant is no part of his duties and in doing so he is not acting in the discharge of his duties and, therefore, the question of prior sanction for prosecution does not arise. Their Lordships of the Supreme Court in Harihari Prasad etc. v. State of Bihar : (1972) 3 S.C.C. 89, negatived a similar contention, by observing that it was no part of the duty of a public servant, while discharging his official duties, to enter into a Criminal conspiracy or to indulge in criminal misconduct, and want of sanction under section 197 of the Code of Criminal Procedure, is, therefore, no bar to a prosecution under section 120 -B read with Section (sic) of the Penal Code

(3.) IN view of the aforesaid view of our own High Court contained in Revision Petition No. 11 of 1965 decided on 26th August, 1965 and as per decision of their Lordships of the Pepsu High Court in 1952 Pepsu 29, I am of the opinion that the aforesaid order of the learned trial Magistrate dated (sic) August, 1969, by which he has ordered the accused to be summoned is not warranted by law and deserves to be set aside.