NATHU RAM Vs. STATE OF HARYANA

JUDGEMENT

(1.) THIS is a revision petition against the order of Judicial Magistrate Ist Class, Jagadhari, dated 27th November, 1982, by which he overruled the objection of the petitioner regarding sanction for prosecution and ordered the framing of the charge under sections 466, 469 and 471, Indian Penal Code.

(2.) THE petitioner, in the year 1980, was employed as a Junior Auditor in the office of Municipal Committee, Yamuna Nagar, Haryana. Municipal Committee Yamuna Nagar had accepted tenders of M/s Raghunath Printing Press, Jagadhari on 18.12.1980 as the same was found to be the lowest one. The rate quoted in that tender was Rs. 50/ - per hundred covers. A tender was also given by M/s Ashwani and Company Yamuna Nagar. This Company had quoted Rs. 80/ - per hundred covers. The petitioner is alleged to have altered this amount of Rs. 80/ - to Rs. 50/ - and also altered the date of the submission of the tender from 10.12.1984 to 12.12.1980. Thus the case of the prosecution was that the petitioner had committed offences under sections 466, 469 and 471, Indian Penal Code.

(3.) WHEN the matter came up for consideration of charge against the petitioner, an objection was raised on behalf of the petitioner that since he was a Government servant and alleged act which amounted to aforesaid offences was committed in his official capacity, the Court was not competent to take cognizance unless sanction under section 197 of the Code of Criminal Procedure was obtained. The petitioner in this behalf has placed reliance on a Single Bench authority of this Court cited as Ram Kishan v. The State of Haryana, 1981 C.L.R. 624. However, the trial Magistrate overruled this objection placing reliance on a Supreme Court authority Baijnath v. State of Madhya Pradesh, 1966 Supreme Court 220. In Baijnath's case (supra), appellant as a public servant, had been convicted under section 477 -A read with sections 109 and 409, Indian Penal Code. The plea raised before the Hon'ble Supreme Court by the appellant was that since the act which was held to be actionable under section 477 -A read with 109 and section 409, Indian Penal Code was done by him in performance of his duties as public servant no cognizance could taken by the trial Judge unless sanction for the prosecution under section 197 of the Criminal Procedure Code was obtained. The Hon'ble Supreme Court set aside the conviction of the appellant under section 477 -A read with section 109, Indian Penal Code but came to a finding that since the act of misappropriation attributed to him was not in the discharge of his official duties, his conviction under section 409, Indian Penal Code was maintained. It appears that the learned Magistrate has not cared to go through this judgment properly and had just a cursory look on the same. In the case in hand the petitioner was charged for offences under sections 466, 469 and 471, Indian Penal Code which were alleged to have been committed by him in performance of this official duties. There is no charge against the petitioner under Section 409, Indian Penal Code and by no stretch of imagination it could be said that the act for which he was held liable was not done by him in performance of his official duties. The view taken by the learned Magistrate is absolutely erroneous. The learned Magistrate has the audacity to observe that Supreme Court judgment was not brought to the notice of Surinder Singh, J. at the time of the decision of Ram Kishan's case (supra).