CHANDRIKA PRASAD ALIAS CHANDRIKA RAM Vs. THE STATE

JUDGEMENT

(1.) This appeal has been preferred by the sole appellant Chandrika Prasad alias Chandrika Ram, who was Halka Karamchari in the Block Development Officer's office, Daltonganj Block, in the district of Palamau, against the judgment and order of Assistant Sessions Judge convicting him for the offences under Ss. 409, 466, 468 and 471 of the Indian Penal Code (hereinafter referred to as 'the Code'). Under Sec. 409 of the Code he was sentenced to five years' rigorous imprisonment and a fine of Rs. 300/ -, in default, to undergo further rigorous imprisonment for three months. Under Sec. 466 of the Code he was sentenced to five years' rigorous imprisonment and a fine of Rs. 300/ - in default, to undergo further rigorous imprisonment for three months. Under Sec. 471 of the Code he was sentenced to four years' rigorous imprisonment and a fine of Rs. 200/ -, in default, to undergo further rigorous imprisonment for two months. However, under Sec. 468 of the Code no separate sentence was passed. All the sentences imposed under various Ss. were ordered to run concurrently. The prosecution case, in brief, is that the appellant in the capacity of Halka Karamchari, had collected rent on behalf of the Government from various tenants and during the period between November, 1951 to April, 1962, he committed breach of trust in respect of Rs. 264/ - and forged the various Govt. records. The misappropriation of the said amount was brought to light in the following circumstances. Bashir Ahmad (P.W. 11), the then Karamchari, who had taken charge from the appellant on his routine transfer, in December, 1963, went to collect rent from Secretary, Cooperative Bank, Daltonganj, but the original receipt (Ext. 2/1) which was in possession of the Secretary showed that the entire dues were paid. After returning to the office P.W. 11 examined the counterfoil of that particular receipt (Ext. 2/5) which showed that only Rs. 5.88 paise was realised and Rs. 20/ - was showed as arrears in the counterfoil. In Register IIIA also it was shown that Rs. 5.88 paise was realised. He reported about this matter to Bacha Tewari (P.W. 1), the Circle Inspector, who started to investigate and examine the other cases of collections made by the appellant and by examining Register IIIA, counterfoil receipt book for the year 1961 -62 and Register II (tenants' ledger), came to the conclusion that the appellant had managed to misappropriate a total sum of Rs. 264/ - from six tenants including the Co -operative Bank mentioned above, and submitted airport dated 31 -8 -64 (Ext. 1) to Shri C.M. Rai Dewakar (P.W. 4), the Block Development Officer, who submitted a written report (Ext. 6) dated 18 -9 -1964 to the Officer incharge of Daltonganj Police Station, Ram Swarath Singh (P.W. 15). On the basis of the said report, first information report (Ext. 15) was drawn by P.W. 15, who handed over the case to Saligram Mahton (P.W. 14) Senior District Prosecutor, who was under training in the Police Station, for investigation. After conducting investigation for a few days, P.W. 14 handed over charge of the case again to Ram Swarath Singh (P.W. 15) who, after examining some of the witnesses, sent the various documents to the Government Hand Writing Expert Shamsul Haque (P.W. 10) for favour of examination and report. After the receipt of the report, he submitted charge sheet against the appellant under Ss. 403, 466, 468 and 471 of the Code. The Sub -divisional Officer after taking cognizance of the case, transferred it to Shri Indu Bhushan Sahay, Munsif Magistrate for disposal who after making the usual enquiry under Chapter XVIII of the Code of Criminal Procedure, committed the appellant to the court of sessions to stand his trial under these sections.

(2.) On behalf of the prosecution as many as 15 witnesses were examined. A large number of documents, Exts. 1 to 17, including the Expert report (Ext. 13) entries in Register IIIA (Exts. 7 to 7/5), entries in Register II (Exts. 3 to 3/5) and the writings in counterfoil rent receipts (Exts. 2 and 8 series) were exhibited. On the other hand, no witness was examined on behalf of the defence, but certain initial and signature were exhibited as Ext. Ka and Ext. Ka -1 respectively, of Shri L. Swaiya, predecessor -in -interest of P.W. 4. In defence, the appellant pleaded innocence. However the learned Assistant Sessions Judge after considering the evidence on the record, relied on the prosecution story and convicted and sentenced the appellant as mentioned above.

(3.) Mr. J.N.P. Verma, appearing on behalf of the appellant, assailed the judgment and order of the Assistant Sessions Judge convicting the appellant under the various Ss. mainly on a preliminary point for consideration by this Court. He urged that in the instant case no sanction was obtained as required under Sec. 197 of the Criminal Procedure Code for launching prosecution against the appellant. In the absence of the sanction no cognizance could have been taken against the appellant under the terms of said Sec. 197. He added that admittedly the alleged offence was committed by the appellant, while he was acting in discharge of his official duty as a Karmachari. Therefore it was mandatory on the part of the prosecution to have obtained the required sanction. On that score alone, he urged that all the convictions against the appellants have got to be quashed. In order to support his contention he relied on a decision of the Supreme Court in (1) Amrik Singh V. State of Pepsu ( : A.I.R. 1955 S.C. 309) wherein S.R. Das, Bhagwati and Venkatarama Ayyar, JJ. were considering the provisions contained under Sec. 197(1) of the Criminal Procedure Code in respect of an offence under Sec. 409 of the Code committed by a public servant. In that case, the accused was a S.D.O. in the Public Works Department, Pepsu, and was, at the material dates, incharge of certain works at a place called Karbali. It was part of his duties to disburse the wages to the workmen employed in the works, and the procedure usually followed was that he drew the amount required from the treasury, and paid the same to the employees against their signatures or thumb impressions in the monthly acquittances roll. In the roll for April, 1951, one Parma was mentioned as a Khalasi (Menial servant), and a sum of Rs. 51/ - shown as paid to him for his wages, the payment being vouched by thumb -impression. The case of the prosecution was that there was, in fact, no person of the name of Parma, that the thumb impression found in the acquittances roll was that of the accused himself, that he had included a fictitious name in the acquittances roll, with intend to himself draw the amount and that by this expedient he had received Rs. 51/ - and misappropriated the same. It was held that the accused received the sum of Rs. 51/ - alleged to have been misappropriated as Sub -divisional Officer, and he admitted receipt of the same. Then it was his duty to pay that amount to the Khalasi Parma, and take his signature or thumb -impression in acknowledgment thereof. The accused did claim to have paid the amount to Parma, and the acquittances roll recorded the payment, and there was in acknowledgement thereof a thumb -impression as against his name. If what appeared on the face of the roll was true and whether it was true or not was not a matter relevant at the stage of sanction then the acts with which the accused was charged fell within the scope of his duties, and could be justified by him as done by virtue of his office. Their Lordships further held that clearly, therefore, sanction was required under Sec. 197(1), Criminal Procedure Code before the accused could be prosecuted u/s. 409, and the absence of such sanction was fatal to the maintainability of the prosecution. He also referred to the observation of their Lordships in Paragraphs 9 and 12 wherein they observed that when the charge is one of misappropriation by a public servant, whether sanction is required under Sec. 197(1) will depend upon the facts of each case. If the facts complained of are so integrally connected with the duties attaching to the office as to be inseparable from them, then sanction under Sec. 197(1) would be necessary; but if there was no necessary connection between them and the performance of those duties, the official status furnishing only the occasion or opportunity for the acts, then no sanction would be required.