PIARE LAL Vs. STATE OF HARYANA

JUDGEMENT

(1.) THIS revision petition, is directed against the judgment dated 5.4.1986, passed by the learned Sessions Judge, Hissar, by which the conviction of the petitioner under Section 409, Indian Penal Code was upheld but his sentence of imprisonment was reduced to that till the rising of the Court and, the sentences of fine was enhanced to Re. 2000/- and, in default of payment of fine, to undergo further rigorous imprisonment for one-year.

(2.) THE facts are in a very narrow compass. It is beyond the pale of controversy that Piare Lal-accused was employed as a Postal Clerk in the old Ketchri Post Office at Hissar during the years 1977, 1978 and 1979. He has been arraigned to have embezzled and misappropriated the amount of Rs. 4440/- given to him for depositing in the Saving Bank. Accounts, the details of which are given below :-

(3.) DURING the course of arguments in the lower appellate Court, a question arose as to whether sanction for prosecution of the accused, was required under section 197 of the Code of Criminal Procedure. Shri J. C. Sethi, learned counsel for the appellant, overly placed reliance on the ratio of Ram Kishan's case reported as 1981 CLR 624. In that case, the accused was Incharge of P. R. Godowns, Ambala City, on Physical verification, shortage of 49 Kgs. of rice, 5 Kgs. of rice Basmati, one bag of rice Sela, one bag of rice Sela Joshi besides some other articles, were detected. It was held that sanction in such a case in receipt of act done by the accused in his official capacity was a sine qua non for his prosecution under section 409, Indian Penal Code, and the result of the omission to obtain the said sanction was that the trial against him was to be held nonest in the eye of law. In the next ruling B.P. Srivastava v. N.P. Misra, AIR 1970 Supreme Court 1661, a Civil Assistant Surgeon filed a complaint against a Surgeon that, while in operation theatre, the latter had abused the former before patients and hospital staff and ordered the hospital cook to "turn out that Badmash," meaning the complainant, and the cook actually pushed out the complainant. It was held that there was nothing to show that that act was a part of the official duty the Civil Surgeon and that no sanction was required under section 197 of the Code of Criminal Procedure for his prosecution. In Amrik Singh v. State of Pepsu, (1955) 1 SCR 1302 at page 1307 : AIR 1955 SC 309 at page 312, the Supreme. Court observed :