BALMIKI PRASAD SHARMA Vs. STATE OF BIHAR

JUDGEMENT

(1.) This is an application under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (in short the 'Code'). It is directed against the order dated 28.8.1987 passed by the Chief Judicial Magistrate, Gaya taking cognizance of the offences against the petitioner in Gaya Civil Lines P.S. Case No. 188/86/G.R. Case No. 2450/86.

(2.) The prosecution case, in short, is that at the relevant time Shri K.N. Rai was the District Superintendent of Education, Gaya and in this capacity he received a Bank draft for Rs. 5,50,000.00 from the Education Department for the payment of salary to the teachers of six schools mentioned in the F.I.R. However, Shri K.N. Rai, against this direction of the Education Department paid a sum of Rs. 1,07,018.46 paise to some other schools not mentioned in this list of the Education Department. The then Director (Administration)-cum-Joint Secretary Department of Education, Bihar, Patna wrote a letter to the Officer Incharge, Civil Lines, P.S. Gaya making allegations under Sections 409 and 417 of the Indian Penal Code against Shri K.N. Rai. On the basis of this information the aforesaid case was instituted in Gaya Lines Police Station against Shri K.N. Rai, the District Superintendent of Education, Gaya. After completing the investigation the police submitted charge-sheet in which it named the present petitioner also as an accused. When this charge-sheet was placed before the Chief Judicial Magistrate, Gaya he by the impugned order took cognizance of the offence against all the four accused named in it including the present petitioner.

(3.) In this case the petitioner has contended that at the relevant time he was posted as Upper Division (Selection Grade) Clerk in the office of the District Superintendent of Education, Gaya but he was not the accountant. He had nothing to do with the receipt of money in the said office or disbursing the same to different schools. He has not been named in the F.I.R. So far as payments to two schools to the tune of Rs. 1,07,018.46 was concerned it was done under the orders of the District Magistrate, Gaya. The petitioner is a Government servant and had acted in discharge of his official duty. As such he cannot be prosecuted without the prior sanction of the State Government. In the present Case the State Government has not sanctioned the prosecution of the petitioner in accordance with Section 197 of the Code. As such the impugned order Taking cognizance of the offence also against the present petitioner is illegal and without jurisdiction. The learned Chief Judicial Magistrate has committed a grave error of record while mentioning in the impugned order that in paragraph No. 203 of the case diary this petitioner had admitted that he had dealt with the register and cheques relating to payments to the alleged two schools. There is no material in the case diary to connect the petitioner with the alleged offence. The petitioner is a public servant and he cannot be prosecuted without the sanction order from the State Government. No sanction order from the State Government was received by the Court. On these grounds it has been contended that the impugned order dated 28.8.1987 passed by the Chief Judicial Magistrate, Gaya be quashed.