Laxmi Kant Mishra v. State Of Bihar — 1988 DIGILAW 296 (PAT)

Judgment S. H. S. Abidi, J. 1. Petitioners have come to this Court under Sec.482 of the Code of Criminal Procedure (for short Cr. P. C.) for quashing the entire proceeding including the order dated 25th June, 1987 passed by Shri A. K. Sarivastava, Judicial Magistrate, 1st Class, Muzaffarpur, by which he has taken cognizance of the offences under Sections 120-B, 420, 465 and 409 of the Indian penal Code (for short I. P. C.) and issued summons to the petitioners. 2. A complanit was filed on 23-11-1984 by one Redhey Shyam Sharma (opposite party no.2) in the court of the learned Judicial Magistrate 1st Class, muzatlarpur, stating that the petitioner No.1 being the Vice-Chancellor of the bihar University and peitioner No 2 his Personal Assistant arranged a meeting of Bihur University Syndicate on 13-6-1984 at Raxaul and went to Birganj (Nepal)where petitioner Nos.1 and 2 purchased two typewriters of Japanese made and smuggle the same which act of theirs is subject matter of the present complaint. Thereafter the accused managed to obtain cash memo of a fictitious firm M/s. Desh Bandhu Traders, Mehsaul, Sitamarhi alleged dealers of custom goods showing the price of the two typewriters at Rs.3070 and duty charge Rs.3070, the total being Rs.7140 that in reality no duty charges was paid by the accused to the said alleged dealers though they drew the amount of Rs.7140 from the Bihar university Fund in the name of P. P. Singh, P. A. to petitioner No.1 by cheque no. CZ/21-997468, dated 16-8-1984 from the state Bank of India, Bihar University against the duty charge the said shop named M/s. Desh Bandhu Traders was not in existance. 3. During the course of enquiry, on the basis of the complaint, the complainant examined four witnesses. Indrajit Ishwar being a member of syndicate, who said that he had seen the purchase of ths two typewriters P. W. Raghunath Jha, who was the then Registrar of the University, supported the complaints case and payment of Rs.6140 on the direction made by petitioner no.1 P. W.3 Dr. Nand Kishore Sharma, Lecturer stated to the effect that no shop like M/s. Desh Bandhu Traders existed. Payment was made to the petitioner No.2 personal assistant to petitioner No.1 who has signed the same. P. W.4 bishundeo Ram was the Finanace Officer of the University who had objected to the said payment. Nand Kishore Sharma, Lecturer stated to the effect that no shop like M/s. Desh Bandhu Traders existed. Payment was made to the petitioner No.2 personal assistant to petitioner No.1 who has signed the same. P. W.4 bishundeo Ram was the Finanace Officer of the University who had objected to the said payment. After examination of the witnesses the court felt essential for calling for a report from the Assistant Collector, Customs, Muzaffarpur and so an order was passed on 15-6-1987 as follows : "the complaint contains the basic allegation of criminal misappropriation of money being Rs.3070, drawn from the University Fund, as a payment of custom duty on the basis of the bill of M/s Desh bandhu Traders, Mehsaul Chauk, Sitamarhi, purporting to be dealer of custom goods. Under the circumstances, in order to give prima facie structure to the root allegation, it appears highly essential that one post from the Assistant Collector Customs, Muzaftarpur be called for to ascertain as to whether the said concern "m/s. Desh bandhu Traders, Mehaul Chauck, Sitamarhi" was its authorised dealer of custom goods on 10-7-84 or not It also appears to be essential for the purpose of order in this inquiry to get the said fact ascertained on some positive evidence Thus, it is also open to the complainant to produce some competent person as his witness on the aforesaid point. " In response to the aforesaid order the Assistant Collector Customs (P) Div. Muzaffarpur sent a report dated 24-6-1987 to the court that the matter was enquired into by the Superintendent, Customs, Sitamarhi, who has reported that there is no such shop in the name of M/s Desh Bandhu Traders, Mehsaul Chauk, sitamarhi in existence either today or on 10-7-1984. Therefore the question of their being authorised dealers of the Customs goods does not arise, at all. In this connection statement of the two witnesses of the area drawn in the presence of the Superintendent, Custom (P) Sitamarhi is enclosed for needful. " The statements of Ram Babu pd. and Baldco Jha are joint statement which they have signed and the endorsement given by the Superintendent, Custom to the effect that the same was recorded in his presence. 4. " The statements of Ram Babu pd. and Baldco Jha are joint statement which they have signed and the endorsement given by the Superintendent, Custom to the effect that the same was recorded in his presence. 4. The court below after considering this report passed the impugned order dated 25-6-1987 saying that a prima facie case was made out to proceed against the accused persons and they were ordered to be summoned. Learned counsel for the petitioners Mr. Braj Kishore Prasad has urged that the learned Magistrate after examination of the complainant and his witnesses could not order for an enquiry by the Assistant Collector, which acording to him, amounted to bifurcation of the enquiry, which was not provided under the law. In support of his contention he has cited the decisions in the cases of Chandra deo Singh V/s. Prokash Chandra Base @ Chabi Bose and another, AIR 1963 SC 1480 ; Radha Kishun Sao v S K. Misra and another, AIR 1949 Patna 86 and shamkumar Chander Ghose V/s. Roopraj S. Bhansali, 1981 Cr LJ 1002. 5. As to this contention looking to Sec.202, Cr. P, C. it appears that any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Sec.192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. This stage of Sec.202 comes after examination of the complainant under Sec.200, Cr. P. C. He is required to examine the complainant on oath and the witnesses present, if any and substance of such examination in to be reduced writing and signed by the complainant and the witnesses, and also by the Magistrate. Thus a ter examination of the complainant and the witnesses if the Magistrate feels that issuance of process is to be postponed, then in that case either he may himself enquire into the matter or direct investigation to be made by a police officer or by such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. 6. 6. The case of Chandradeo Singh (supra), is sheet anchor of the argument of the learned counsel for the petitioners, so it will be relevant to mention some facts of that case. On 25th December, 1957 one Panchanana Roy lodged a first information report at 11 p. m. at the police station saying that Prokash Chandra bose had killed one Nageshwar Singh by shooting his gun in which the police submitted final form after investigation. On November, 3, 1958 one Mahendra singh claiming to be a distant relative of the deceased Daraban, which fact is denied by the widow of the deceased, filed a complaint before Sri C. L Choadhry, the Sub Divisional Magistrate of 24 Parganas, Alipore, against the final report of the police and asked for processes to be issued against certain other persons on the allegation that those persons had murdered Nageshwar Singh. After examining mahendra Singh on oath and looking into the police papers, the learned Sub-Divisional Magistrate asked Mr. N. M. Chowdhry, Magistrate, First Class, to hold a judicial enquiry into the allegations made by Mahendra Singh and to submit a report to him by a certain date. During the pendency of the enquiry into the complaint of Mahendra Singh, Chandra Deo Singh, the nephew of the deceased filed a complaint before Mr. Choudhry on December 30, 1958 stating therein that respondent No.1 had tired a shot at Nageshwar Singh at point blankrange and thereby murdered him. After examining him on oath, the Sub Divisional magistrate referred the matter again to Mr. N. M. Choudhry Magistrate, First class, for enquiry and report to him by a certain date. Thus there are two complaints; one by Mahendra Singh and another by Chandradeo Singh. It was observed at page 1484 (para 10) by the Supreme Court ; "the power to dismiss a complaint rests only with a Magistrate who has taken cognizance of it. If before issue of process, he had sent down the complaint to a Magistrate subordinate to him for making the enquiry, he has the po. It was observed at page 1484 (para 10) by the Supreme Court ; "the power to dismiss a complaint rests only with a Magistrate who has taken cognizance of it. If before issue of process, he had sent down the complaint to a Magistrate subordinate to him for making the enquiry, he has the po. ver to dismiss the complaint, if in his judgment, there is no sufficient ground for proceeding, one of the conditions, however, requisite for doing so is the consideration of the statements on oath if any made by the complainant and the witnesses and of the result of the investigation or the enquiry which he had ordered to be made under Sec.202. Cr. P. C. In the case before us, an investigation by a police officer was not ordered by the learned sub Divisional Magistrate but an enquiry by a Magistrate, First class. He had, therefore, to consider the result of this enquiry. It was not open to him to consider in this connection the statements recorded during investigation by the police on the basis of the first information report lodged by Panchanan Roy or on the basis of any evidence adduced before him during the enquiry arising out of the complaint made by Mahendra Singh. " So in that case neither the first information report nor the statement recorded on the basis thereof during the investigation nor the complaint by Mahendra singh could be looked into, while considering the complaint filed by Chandradeo singh. But the Magistrate could look only into the statement of Ghandradeo singh and his witness recorded under Sec.200, Cr. P. C. and the enquiry report as ordered. In this case, the learned Magistrate has recorded statement of the complainant and his witnesses and thereafter he further ordered for further enquiry which report he got and as such he could and he has rightly looked into these matters. 7. Learned counsel for the petitioners also referred to the decision in the case of Radha Kishun Sao (supra) in regard to the contention that the learned magistrate could not order for enquiry by any other officer. But this case also does not help him. 7. Learned counsel for the petitioners also referred to the decision in the case of Radha Kishun Sao (supra) in regard to the contention that the learned magistrate could not order for enquiry by any other officer. But this case also does not help him. It was observed at page 37 in para 2 : "it is contended that Sec.202, Criminal P. C. , talks of two alternatives; one altrnative is that the sub-divisional Magistrate may enquire into the case himself; the other alternative is that learned Sub-divisional Magistrate may direct an enquiry or investigation to be made by any Magistrate Subordinate to him or by a police officer or by such other person as he thinks fit lor the purpose of ascertaining the truth or falsehood of the complaint. Having availed himself of the second alternative, it was irregular for the Sub-divisional magistrate to direct that a fresh enquiry will be held by himself at the spot. Learned counsel for the opposite party has contended before me that the terms in which Sec.202, Criminal P. C. , is couched do not warrant the view that an enquiry by the learned sub-divisional Magistrate himself will be without jurisdiction, and that if the learned Magistrate felt that a second enquiry was necessary for ascertaining the truth or falsehood of the complaint it was open to him to order a second enquiry. I do not think it is necessary, at-least in the present case, to go the length of saying that a second enquiry by the learned Sub-divisional Magistrate himself would be without jurisdiction. Ail that need be said in this case is that in the circumstances of this case, it would be irregular to hold a second enquiry. " in the case of Sarkar Chandra Ghose (supra) a Division Bench of the Calcutta high Court referred to the unreported decisions in Cr. Rev, No.157 of 1961 netai Sen V/s. J. B Ghosh ; Cr. Rev. No.223 of 1961 JR. " in the case of Sarkar Chandra Ghose (supra) a Division Bench of the Calcutta high Court referred to the unreported decisions in Cr. Rev, No.157 of 1961 netai Sen V/s. J. B Ghosh ; Cr. Rev. No.223 of 1961 JR. Ghosh V/s. Nitai Charan sen, a Bench decision which were relied on by the learned counsel for the petitioner in that case to the effect that after the receipt of the report it was not open to the magistrate to direct for the second enquiry, as it is prohibited by Sec.202 and it was not the intention, to empower the Magistrate to employ one or the other alternatives; the Bench also considered three single Judge decisions of the same court ( AIR 1966 Cal 633 ; AIR 1967 Cal 114 and ATR 1968 Cal 238) and then observed at page 1005 (paragraph 20) as follows : on going through the provision of Sec.202 of the Code, we are of the opinion that in a particular case if a Magistrate postpones the issue of summons then two courses are open to him. He can either make an enquiry into the case himself or direct that an investigation be made, The Magistrate can direct an investigation to be made either by a Police Officer or by such other preson as he thinks fit. If he makes an enquiry himself, he cannot direct investigation. Again, when he directs an investigation, he cannot enquire into the matter himself. This is exactly what has been found by their lordships in the Bench decision referred to above interpreting the provisions of Sec.202 of the Code. In view of the clear finding of the Division Bench, we cannot accept what has been laid down in the three decisions of the single Judges. " learned counsel for the petitioners referred to paragraphs 11, 14 and 17 of the decision in the case of Nagawwa V/s. Veeranna Shivalingappa Koujalagi and others, 1975 Cri LJ 1367, a single Judge decision of the Karnataka High Court. In paragraph 11 of the said decision, the court refering to Sec.200, Cr. P. C. observed that a Magistrate for taking cognizance of an offence or offences in a complaint has to examine at once the complainant and the witnesses if any. Paragraph No.14 mentions that after taking congizance if a Court feels under section 202, Cr. In paragraph 11 of the said decision, the court refering to Sec.200, Cr. P. C. observed that a Magistrate for taking cognizance of an offence or offences in a complaint has to examine at once the complainant and the witnesses if any. Paragraph No.14 mentions that after taking congizance if a Court feels under section 202, Cr. P. C. that there is some doubt about the involvement of some of the accused, then it can call for a report from the police officer and that the magistrate is prohibited from directly having recourse to Sec.202, Cr. P. C. abdicating the function which he has already assumed or even a portion thereof to a police officer for an enquiry or investigation as envisaged under section 202 Cr. P. C. and that the above position was clearly evident in a division Bench ruling of the Court in (1973) 2 Mysore Law Journal 214 State of mysore V/s. B. M. Burli, which has held that any of the four alternatives laid down under Sec.202, Cr. P. C. could be availed of and not all these alternatives. In para 17 the Court held "what follows on the above discussion is that we have passed the stage of Sec.200. Criminal Procedure Code where respondents 9 and 10 have no say in the matter. Under Sec.202, Criminal Procedure Code, the Magistrate having commenced the enquiry himself is debarred from referring a portion of it to an outside agency in a divided bent of mind as a half way and hybrid measure. " 8. Thus from all these it appears that under Sec.200, Cr. P. C. the magistrate on taking congnizance is to examine the complainant and the witnesses and then under Sec.202, Cr. P. C. if he feels doubt and thinks to postpone the issue of process against the accused, then he can follow any one of the four courses i. e. enquiry into the case or call for a report from a subordinate magistrate or call for a report from a police officer or call for a report from such other persons as he thinks fits for the purpose of his ascertaining the truth or falsehood of the complaint. If the Magistrate receives the report under any of the said alternatives then he can pass an order under Sec.203 or 204, Cr. If the Magistrate receives the report under any of the said alternatives then he can pass an order under Sec.203 or 204, Cr. P. C. looking to the complaint, examination of the complaint on S. A. , examination of the witneses in support of the complainant and the report submitted under any of the said alternatives. In this cass also the Magistrate has done the same in my opinion rightly, in calling for the report after the examination of the complainant his witnesses and that he has also passed to order under section 204, Cr. P. C. issuing process to the petitioners. 9. Learned counsel for the petitioner has urged that the learned Magistrate by order dated 15-6-1987 has called for a report from the Assista Collector which means that the Assistant Collector should have enquired himself and not should have sent a report of the Superintendent, who is said to have taken down the joint statement of two persons. As such the said report should not have been considered. The order dated 15-6-1987, referred to above shows that the report from the Assistant Collector, Customs, was called for. It did not mention that the Assistant Collector should himself make enquiry. The report sent by the Assistant Collector mentions that the Superintendent, Customs (P)Sitamarhi, has sent the joint statement of two persons recorded in his presence. This means that the compliauce of the order of the court has been done when the Assistant Collector has submitted the report. In the result, the report of the assistant Collector being in compliance of the order of the court could be looked into and here it has been looked into. 10. Learned counsel for the petitioner has further stated that though the joint statement of the two persons has been recorded but it is not in a proper form; rather a proper enquiry should have been done and the Assistant Collector should have sent the same after considering the statement. 11. Learnd counsel for the opposite-party complainant referred to a single judge decision of this Court in the case of Ramanand Lal V/s. Ali Hassan and others, air 1924 Patna 797, wherein it was observed at page 799 : "i am of opinion that the enquiry contemplated by Sec.202 by ths magistrate himself does not necessarily mean an enquiry by examining witnesses or by holding an investigation into the case. It is open to the Magistrate to investigate into the matter in order to ascertain the truth or falsity of the complaint in any way he thinks proper. " 12. Thus from this it appears that it is not required of the inquiring officer to follow a particular procedure as no particular procedure has been prescribed in that respect. It has been left open for him to enquire into the matter in the cricumstances as he thinks fit and thereafter submit a report to be considered by the Court. 13. The second main contention of the learned counsel for the petitioners was that the documents produced by the complainant before the learned Magisrate contained the bills which did not contain the signature of the Vice-Chancellor, so it cannot be said that petitioner No.1 is liable for the same. The order sheet, which has been filed, shows that the Registrar forwarded the bill to the Finance officer from which it is clear that nothing is made out against the petitioners. As to this contention, these are question of fact and matters of defence of the accused which can be better looked into and scrutinised after Finance Officer and the Registrar are examined and the bills are scrutinised in the light of the evidence during the trial. It will be for the trial court to examine as to whether the signatures are there or not and in the absence of the signature how far the offence is made out against the petitioners in the light of other materials on the record. One single piece of evidence and that too detached from the other evidence, is not sufficient to doubt the truth or otherwise of the prosecution case. The evidence as a whole has to be considered. If a piece of evidence is such as to set at naught, the other evidence, can definitely be considered. But that stage will come only when the entire evidence has come. At this stage wherever evidence is, cannot be the basis to doubt the veracity of the prosecution case and that too in an application under Sec.482, Cr. P. C. , when the court has taken cognizance and issued process after application of mind 14. But that stage will come only when the entire evidence has come. At this stage wherever evidence is, cannot be the basis to doubt the veracity of the prosecution case and that too in an application under Sec.482, Cr. P. C. , when the court has taken cognizance and issued process after application of mind 14. The next contention of the learned counsel for the petitioners was that it will be absurd to think that a meeting of the Syndicate would be held at Raxaul, when meetings are usually held at the Headquarters, This is a question of fact for the prosecution to establish at the trial stage on the basis of the materials available to it as to why a meeting was held at Raxaul and if they are able to show that the meeting had been held for a valid reason, then it cannot be said to be patently absurd. 15. Learned counsel for the petitioners has further contended there the court was not feeling satisfied on the materials in the statements of the complainant and the witnesses and so it asked for a further report and further that it is also unbelievable that a Vice-Chancellor will indulge in such activities for a petty sum of Rs.3070 was so they are such matter,-; creating doubt in favour of the accused. He placed reliance in the case of Debendra Nath Bhattacharyya and others V/s. The State of West Bengal and another, AIR 1972 SC 1607 and submitted that for these reasons if the proceedings cannot terminate then why the petitioners would be put to harassment and torture of facing the trial. As to these contentions, as seen above, the learned Magistrate thought to be further sure and so he called for a report; which does not mean that he was doubting the truth or otherwise of the prosecution case. The plea of mens rea about the petitioners will be considered in the light of the evidence that will be produced by the parties and this is not the stage to consider. At the stage of taking cognizance and issue of process a Magistrate on a consideration of the case has to find out as to whether there are grounds for proceeding or not ; whether there are essential ingredients of the offence alleged or not and that whether there is a civil dispute or not. At the stage of taking cognizance and issue of process a Magistrate on a consideration of the case has to find out as to whether there are grounds for proceeding or not ; whether there are essential ingredients of the offence alleged or not and that whether there is a civil dispute or not. Not finding any such patent absurdities or lack of jurisdiction or that no case has been made out, the court issues the process. He is not concerned with the correctness or improbability. Individual action or evidence or any allegation, as a whole is to be judged and considered and not detached and piecemeal. If the allegations of the prosecution are not fantastic and are worthy of belief a reasonable man, then they are to be accepted at this stage, subject to final testing of it when full evidence is brought on record. But even this initial testing of the materials and finding out of a prima facie case is not to be mechanical or a routine matter. Once the Magistrate has exercised his jurisdiction then it is not for the High Court to examine the case thread-bare and find out by meticulously examining the allegations against the accused, whether they could be proved and if proved they end in conviction or acquittal. The supreme Court has held from time to time about the scope of such enquiry. In the case of Debendra Nath Bhattacharrya (supra) the Supreme Court has observed at page 109-1610 para 7 as follows : "it has to be remembered that an order of dismissal of a complaint under Sec.203, Criminal Procedure Code has to be made on judicially sound grounds. It can only be made where the reasons given disclose that the proceedings cannot terminate successfully in a conviction, it is true that the Magistrate is not debarred, at this stage, from going into the merits of the evidence produced by the complainant. But, the object of such consideration of the merits of the case, at this statge, could only determine whether there are sufficient grounds for proceeding further or not. The mere existence of some grounds which would be material in deciding whether the accused should be convicted or acquitted does not generally indicate that the case must necessarily fail. But, the object of such consideration of the merits of the case, at this statge, could only determine whether there are sufficient grounds for proceeding further or not. The mere existence of some grounds which would be material in deciding whether the accused should be convicted or acquitted does not generally indicate that the case must necessarily fail. On the other hand, such grounds may indicate the need tor proceeding further in order to discover the truth after a full and proper investigation. If, however, a bare perusal of a complaint or the evidence led in support of it show that essential ingredients of the offence alleged are absent or that the dispute is only of a civil nature or that there are such patent absurdities in evidence produced that it would be a waste of time to proceed further, the complaint could be properly dismissed under Sec.203, Criminal Procedure Code. "8. . . . . What the Magistrate had to determine at the stage of issue of process was not the correctness or the probability or improbability of individual items of evidence on disputable grounds, but the existence or otherwise of a prima facie case on the assumption that what was stated could be true unless the prosecution allegations were so fantastic that they could not reasonably be held to be true. In the case of Smt. Nagawwa V/s. Veeranna Shivalingappa Konjalgi and others, AIR 1976 SC 1947 at 1951 (para 5) is was observed by the Supreme court: "it is true that in coming to a decision as to whether a process should be issued the Magistrate can taken into consideration inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations but there appears to be a very thin line of demarcation between a probability of conviction of the accused and established of a prima facie case against him The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. Once the Magistrate has exercised his discretion it is not for the high Court, or even this Court, to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused. These considerations, in our opinion, are totally foreign to the scope and ambit of an inquiry under Sec.202 of the Code of Criminal Procedure which culminate into an order under Sec.204 of the Code. " in the case of Hareram Satpathy V/s. Tikaram Agarwala and others, AIR 1978 SC 1568 , it was observed by the Supreme Court (at page 1570 para 10) as follows : "now as the Magistrate was restricted to finding out whether there was a prima facie case or not for proceeding against the accused and could not enter into a detailed discussion of the merits or demerits of the case and the scope of the revisional jurisdiction was very limited the high Court could not in our opinion launch on a detailed and meticulous examination of the case on merits. As the High Court has clearly exceeded its jurisdiction in setting aside the order of the Sub-Divisional Magistrate, we cannot do otherwise than to allow the appeal In the result the appeal succeeds and the judgment and order of the High Court is set aside " 16. Learned counsel for the petitioners has further urged that the pstiti-oners being public servants could not be prosecuted without sanction as provided under Sec.197, Cr. P. C. as they were employed at the relevant time with the affairs of the State Learned counsel for the otheside in reply to this contention raised a plea that the question whether the petitioners are public servants or not is a question of law and fact and cannot be raised at this stage. He referred to a decision in the case of Thiru V/s. Thanigachalam, AIR 1976 SC 2300 , where the supreme Court has observed (at page 2301 para 3) : "it is submitted that evidence will be led to establish facts showing that the appellant is a public servant within the meaning of Sec.21 of the Code and decision of this question at this stage when no evidence has at all been recorded, would be purely hypothetical and divorced from facts. We also feel that the question involved is a mixed question of law and fact. It requires evidence for its determination. We therefore think that the High Court was in error in deciding this question purely in the abstract without there being any evidence before t. " 17. In this case the prosecution has come out with the case under Section 409, I. P. C. against the petitioner and so the court has taken cognizance of the same. Sec.409, I. P. C. provides that whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Thus not only a person as a public servant or in a capacity as public servant can commit an offence, but others also can commit the offence. The public servant has been defined under Sec.21 of the I. P. C. and so in the light of the same it has to be looked as to whether the petitioners are public servants or not. It also appears from Sec.197, Cr. P. C. that any person, who is or was even a Judge or Magistrate or public servant either in the employment of the union Government or the State Government or any member of the armed forces, commits any offence while acting or purporting to act in the discharge its official duty, then no court shall taken cognizance of such offence except with the previous sanction of the Central Government or the State Government, as the case may be. Thus previous sanction is required for the prosecution of a public servant of the Central or State Government or armed forces, if he commits any offence while acting or purporting to act in discharge of his official duty. So it will have to be seen whether the petitioners are public servants and if so then have they committed these offences while acting or purporting to act in discharge of their official duty. 18. What is "in the discharge of the official duty", is a matter to be seen. So it will have to be seen whether the petitioners are public servants and if so then have they committed these offences while acting or purporting to act in discharge of their official duty. 18. What is "in the discharge of the official duty", is a matter to be seen. In the case of Hori Ram Singh V/s. Emperor, AIR 1949 FC 43 it was held that for a charge under Sec.477-A sanction was required as official capacity to a crime: but no sanction was required for a charge under Sec.409 because the official capacity is material only in connection with the entrustment and does not necessarily enter into the later act of misappropriation or conversion. In the case of H. H. B. Gill V/s. The King, AIR 1948 PC 128 while quoting observations of Lord simond in Hori Ram Singhs case (supra) that" a public servant can only be said to act or to purport to act in the discharge of his official duty if his act is such as to lie within the scope of his official duty, it was held that the acts with which the accused was charged could not be justified as done by virtue of his office and so no sanction was necessary". This view was reiterated in the case of Albert West meads V/s. The King, AIR 1948 PC 156 ; Phanindra Chandra V/s. The King, AIR 1949 PC 117 and R. W. Mathams V/s. State of West Bengal, AIR 1954 SC 455 . This view was reiterated in the case of Albert West meads V/s. The King, AIR 1948 PC 156 ; Phanindra Chandra V/s. The King, AIR 1949 PC 117 and R. W. Mathams V/s. State of West Bengal, AIR 1954 SC 455 . In the case of Amrik Singh V/s. State of Pepsu, AIR 1955 SC 309 , the Supreme court after referring to the above-mentioned decisions of the Privy Council as well as the Supreme Court observed at page 312-para 8 : "the result of the authorities may thus be summed up : It is not every offence committed by a public servant that requires sanction for prosecution under Sec.197 (1), Criminal P. C. ; nor even every act done by him w hile he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary; and that would be so, irrespective of whether it was, in fact, a proper discharge of his duties, because that would really be a matter of defence on the merits, which would have to be investigated at the trial, and could not arise at the stage of the grant of sanction, which must precede the institution of the prosecution. " further after considering the decisions in the cases of Shreekantiah Ramayya munipalli and Albert West Meads (supra) wherein Sulaiman, J. has observed that "whether a criminal breach of turst can be committed while purporting to act with execution of his duty is not capable of being answered hypothetically in the abstract, without any reference to the actual facts of the case. " The Supreme Court observed at page 313:". . The result then is that whether sanction is necessary to prosecute a public servant on a charge of criminal misappropriation, will depend on whether the acts complained of, hinge on his duties as a public servant. If they do, then sanction is requisite. But if they are unconnected with such duties, then no sanction is necessary. . The result then is that whether sanction is necessary to prosecute a public servant on a charge of criminal misappropriation, will depend on whether the acts complained of, hinge on his duties as a public servant. If they do, then sanction is requisite. But if they are unconnected with such duties, then no sanction is necessary. " in the case of Matajog Dobey V/s. H. C. Bhari, AIR 1956 SC 44 at page 49 para 19 the Supreme Court after referring to the various decisions of the Privy council and the Supreme Court observed at page 49 para 19 : "the result of the foregoing discussion is this : there must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty. " in the case of Om Prakash Gupta V/s. State of U. P. , 1957 SCR 423 at 437 it was observed by the Supreme Court: "quite a large body of case law in all the High Court has held that a public servant committing criminal breach of trust does not normally act in his capacity as a public servant, see (a) The State V/s. Pandurang baburao (supra), (b) Bhup Narain Saxena V/s. State (supra) and (c)State V/s. Gulab Singh. We are in agreement with the view expressed by Hari Shankar and randhir Singh, JJ. that no sanclion is necessary and the view expressed by Mulla, J. to the contrary is not correct. " in the case of K. Satwant Singh V/s. The State of Punjab, AIR 1960 SC 266 at 271, para 16 it was observed by the Supreme Court: "it appears to us to be clear that some offences cannot by their very nature be regarded s having been committed by public servants while acting or purporting to act in the d ischarge of their official duty. For instance acceptance of a bribe, an offence punishable under Section 161 cf the Indian Penal Code, is one of them and the offence of cheating or abetment thereof is another. For instance acceptance of a bribe, an offence punishable under Section 161 cf the Indian Penal Code, is one of them and the offence of cheating or abetment thereof is another. We have no hesitation in saying that where a public servant commits the offence of cheating or abets another so to cheat, the offence committed by him is not one while he is acting or purporting to act in the discharge of his official duty, as such offences have no necessary connection between them and the performance of the duties,of a public servant, the official status furnishing only the occasion or opportunity for the commission of the offences [vide Amrik, Singh V/s. State of Pepsu 1955-1 SCR 1302 : (S) AIR 19 )5 SC 309. ] The act of cheating or abetment there of has no reasonable onnectior with the discharge of official duty. The act must bear such relation to the duty that the public servant could lay a reasonable but not a pretended or fanciful claim, that he did it in the course of the performance of his duty [vide Matajog Dobey V/s. H. C. Bhari, 1955-2 SCR 925 : (S) AIR 1956 sc 44 . "1 in the case of Baijnath V/s. State of Madhya Pradesh, AIR 1966 SC 220 the supreme Court following the earlier decisions of the Privy Council, Federal Court as well as Supreme Court observed at page 227 paras 16 and 17 "it is not every offence committed by a public servant that requires sanction for prosecution under Sec.197 (1) of the Criminal procedure Code; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that if questioned it could be claimed to have been done by virtue of the office, then sanction would be necessary. It is the quality of the act that is important and it falls within the scope and range of his official duties the protection contemplated by Sec.197 of the Criminal procedure Code will be attracted. An offence may be entirely unconnected with the official duty as such or it may be committed within the scope of the official duty. Where it is unconnected with the official duty there can be no protection. An offence may be entirely unconnected with the official duty as such or it may be committed within the scope of the official duty. Where it is unconnected with the official duty there can be no protection. It is only when it is either within the scope of the official duty or in excess of it that the protection is claimable. Applying the principle to the present case, we are of opinion that sanction of the State Government was not necessary for the prosecution of gupta under Sec.409 of the Indian Penal Code because the act of criminal misappropriation was not committed by the appellant while he was acting or purporting to act in the discharge of his official duties and that offence has no direct connection with the duties of the appellant as a public servant, and the official status of the appellant only furnished the appellant with an occasion or an opportunity of committing the offence. " In the case of Bakshish Singh Dhaliwal V/s. The State of Punjab, AIR 1967 sc 752 , it was observed by the Supreme Court at page 757 para 19 : " In the case before us as well as in the earlier case of Satwant Singh (1960)2 SCR 89 : AIR 1960 SC 266 (supra, Henderson was not being prosecuted for the act of certification of the correctness of the bills which were sent to him for verification, but was to be prosecuted for abetment of the offence of cheating committed by those persons who had submitted the bills by falsely certifying the correctness of those bills. The act of thus abetting the principal offenders could not possibly be held to have been done in the discharge of official duties as a public servant. " in the case of Akthar Alam V/s. The State of Bihar, (1969) 2 SCR 682 at page 687, it was observed "therefore, the appellant while taking the bribe, cannot be deemed to be a public servant within the meaning of Sec.21, Indian penal Code in view of the language of Sec.81 of the Electricity (Supply)Act, 1948. " in the case of Akthar Alam V/s. The State of Bihar, (1969) 2 SCR 682 at page 687, it was observed "therefore, the appellant while taking the bribe, cannot be deemed to be a public servant within the meaning of Sec.21, Indian penal Code in view of the language of Sec.81 of the Electricity (Supply)Act, 1948. " in the case of Prabhakar V/s. Shanker Anant Verlekar, AIR 1969 SC 686 , deputy Superintendent of Police appeared on the spot and threatened the complainant, that he would arrest him if he interfered with the hawkers and asked hawkers to enter upon the land; complainant was also thereatened that he would be slapped. Prosecution of Deputy Superintendent of Police started on various charges. The Supreme Court after considering various decisions of Privy Council, federal Court and the Supreme Court, held that the sanction was not required as the Deputy Superintendent of Police could not be regarded to have been committed offence while acting or purporting to act in discharge of his official duties and it was left open to the accused to establish during the course of further proceedings that the requisite sanction should have been obtained. In the case of Bhagwan Prasad Srivastava V/s. N. P. Mishra, AIR 1970 SC 1661 , the Supreme Court while considering the cases of Matajog, Amrik Singh and Baij Nath (supra.) observed at page 1664 para 5 : "the question whether a particular act is done by a public servant in the discharge of his official duty is substantially one of fact to be determined on the circumstances of each case. " In the case of Harihar Prasad V/s. The State of Bihar, 1972 Cri LJ 707 :1972, 3 SCC 89, the Supreme Court oberved at page 725 (Cr. L. J.) para 74 : "as far as the offences of criminal conspiracy punishable under Section 120-B read with Sec.409, I. P. C. and also Sec.5 (2) of the prevention of Corruption Act are concerned they cannot be said to be of the nature mentioned in Sec.197 of the Code of Criminal procedure. To put it shortly, it is 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. What of sanction under Sec.197 of the Code of Criminal Procedure is, therefore, no bar. To put it shortly, it is 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. What of sanction under Sec.197 of the Code of Criminal Procedure is, therefore, no bar. " In the case of Pukhraj V/s. State of Rajasthan and another, AIR 1973 SC 1591 at page 2592 para 2 the Supreme Court observed : "the intention behind the section is to prevent public servants from being unnecessarily harassed. The section is not restricted only to cases of anything purported to be done in good faith, for a person who ostengibly acts in execution of his duty still purports so to act, although he may have a dishonest intention. Nor is it confined to cases where the act, which constitutes the offence, is the official duty of the official concerned. Such an interpretation would involve a contradiction in terms, because an offence can never be an official duty. The offence should have been committed when an act is done in the execution of duty or when an act purports to be done in the execution of duty. The test appears to be not that the offence is capable of being committed only by a public servant and not by anyone else, bat that it is committed by a public servant in an act done or purporting to be done in the execution of his duty. The section cannot be confined to only such acts as are done by a public servant directly in pursuance of his public office, though in excess of the duty or under a mistaken belief as to the existence of such duty. Nor need the act constituting the offence be so inseparably connected with the official duty as to form part and parcel of the same transaction. What is necessary is that the offence must be in respect of an act done or purported to be done in the discharge of an official duty. It does not apply to acts done purely in a private capacity by a public servant. Expressions sush as the "capacity in which the act is performed", "cloak of office", and "professed exercise of office" may not always be appropriate to describe or delimit the scope of the section. It does not apply to acts done purely in a private capacity by a public servant. Expressions sush as the "capacity in which the act is performed", "cloak of office", and "professed exercise of office" may not always be appropriate to describe or delimit the scope of the section. An act merly because it was done negligently does not cease to be one done or purporting to be done in execution of a duty. " In the case of S. B. Saha and others V/s. M. S. Kochar, AIR 1979 SC 1941, after referring to the various (above mantioned) decisions in Hori Ram Singh, om Prakash Gupta, Baijnath, Harihar Prasad, the Supreme Court observed in paras 19 and 29 as follows : "in such, the sine qua non for the applicability of this section is that the offence charged, by it one of commission, must bed one which has been committed by the public servant either in his official capacity or under colour of the office held by him. " "in the light of all that has been said above, we are of the opinion that on the facts of the present case, sanction of the appropriate government was not necessary for the prosecution of the appellants for an offence under Sections 409/120-B, Indian Penal Code, because the alleged act of criminal misappropriation complained of was not committed by them while they were acting or purporting to act in the discharge of their official duty, the commission of the offence having no direct connection or inseparable link with their duties as public servants. At the official status of the appellants furnished them with an opportunity or occasion to commit the alleged criminal act. At the official status of the appellants furnished them with an opportunity or occasion to commit the alleged criminal act. " In the case of Manohar Nath Kaul V/s. State of Jammu and Kashmir, AIR 1983 SC 610 , their Lordships of the Supreme Court after considering some of the above decisions observed at page 614 para 9 : "the observations of Imam, J. in Satwant Singhs case that there could be no hesitation in saying that where a public servant commits the offence of cheating or abets another so to cheat, the offence committed by him is not one while he is acting or purporting to act in the discharge of his official duty, as such offence has no necessary connection between it and the performance of the duties of a public servant, the official status furnishing only the occasion or opportunity for the commission of the offences, is also the correct exposition of the law. It has not been contended before us that official duty of the appellant was to draw travelling allowance, bills though his status as a public servant authorised him to draw such bills. Drawing of T. A. bills cannot be said to have been directly and reasonably connected with appellants duty as Regional Officer of the Directorate and the official status furnished the opportunity for doing the act which constitutes ingredients of the offence. He was therefore, not entitled to claim the protection of Sec.197 (1) of the Code. The prosecution is not vitiated for want of sanction. The appeal has, therefore, to be dismissed. " In the case of Bakhahish Singh Brar V/s. Smt. Gurmej Kaur and another AIR 1988 SC 257 , the Supreme Court while referring to the decision in the case of pukhraj V/s. State of Rajasthan (supra) oberved at page 260, para 6 : "in the instant case, it is alleged that grievous injuries were inflicted upon the complainant and as a result of injuries one of the alleged accued had died. The question is while investigating and performing his duties as a police officer was it necessary for the petitioner to conduct himself in such a manner which would result in such consequences. It is necessary to protect the public servants in the discharge of their duties. The question is while investigating and performing his duties as a police officer was it necessary for the petitioner to conduct himself in such a manner which would result in such consequences. It is necessary to protect the public servants in the discharge of their duties. They must be made immune from being harassed in criminal proceeding and prosecution, that is the rationale being Sec.196 and Sec.197, Cr. P. C. But it is equally important to emphasise that rights of the citizens should be protected and no excesses should be permitted. "encounter death" has become too common. In the facts and circumstances of each case protection of public officers and public servants functioning in discharge of official duties and protection of private citizens have to be balanced by finding out as to what extent and how far is a public servant working in discharge of his duties, and whether the public servant has exceeded his limit. " In the case of Harihar Rai V/s. State of Bihar and other, 1988 PLJR 230 : 1988 BLJ 198 a learned single Judge of this Court observed at page 232 page 5 : "this section was introduced by an alien regime to protect its own officers who, in order to serve the interest of the raj, even went beyond their brief. This legacy has been preserved by the citizens of a free india also as a protective cover against mala fide prosecution with an eye of victimization. The Supreme Court in numerous decisions has how enunciated the law clearly and specifically. Putting this in my own language, if a public servant is acting within the bounds of his duty howsoever strong and harsh his action, he is protected, but if, however he acts in a manner that has no nexus to the duty of a public servant, then the protection under Sec.197 of the Code disappears and the Court will take cognizance for that offence, if any committed. There is yet another situation. The occurrence is in such a close proximity that it may not be easy for the Court to decide whether the public servant committed an act in exercise of his public duty or in derogation to or in excess of it. There is yet another situation. The occurrence is in such a close proximity that it may not be easy for the Court to decide whether the public servant committed an act in exercise of his public duty or in derogation to or in excess of it. Then the matter has to be examined at the trial and if it is found that the complained of act cannot be separated and was within the bounds of duty, then the prosecution will fail without any further ado on the ground of absence of sanction. Apart from Sec.197 of the Code, there are numerous laws and statutes which bar prosecution without sanction. These provisions are not fettered in any way by the qulifications introduced by Sec.197. " 19. Thus from all these it appears that commission of offence is not a part of the official duty and no body can take shelter for offence behind the cover of official duties. But if an act is committed which is an offence, during the direct discharge of his duties and is reasonably and inseparably connected with the official duties, then it requires sanction. Thus the quality of the act is to be seen whether it is coming in the way and scope of discharge of official duties. But if an act is committed under the umbrella of official duties or colour of official, but the offence complained of has no connection or has nothing to do with the discharge of the official duty them no protection of official duty is available. If an entrustment is made during the course of discharge of official duty, but subsequent dishonest misappropriation or conversion of those entrusted things is done, then the plea of "in the discharge of official duty" cannot be available to him. Official duty and official status only provide opportunity tor the commission of the offence but they cannot give protection to the offencer if that offence, alleged to have committed is not reasonably and inseparably connected or related or has no nexus, with the discharge of duty. Act of abetting in the commission of the offence also cannot come under the umbrella of discharge of official duties as public servant- 20. Learned counsel for the petitioners has contended that the petitioners being public servants sanction was necessary before launching the prosecution as provided under Sec.197, Cr. Act of abetting in the commission of the offence also cannot come under the umbrella of discharge of official duties as public servant- 20. Learned counsel for the petitioners has contended that the petitioners being public servants sanction was necessary before launching the prosecution as provided under Sec.197, Cr. P. C. This plea is, no doubt, available to the petitioners in defence. If a public servant is being prosecuted, then sanction is essential to be obtained. But at what stage the plea can be taken is a matter to be considered. At the stage of taking cognizance the court is concerned only whether on the facts alleged in the complaint, it could be said that the acts complained of were done in the exercise or purported exercise of his duties. If there is allegation of commission of an offence during the discharge of duty like misappropriation of the money entrusted or beating of a person by a police officer or offences of the similar type, then the facts which will come subsequently during the course of judicial inquiry, will have to be seen whether on those facts during inquiry the accused gets protection of Sec.197 or not. If the protection is available to him then the prosecution cannot continue. But if on the basis of the judicial inquiry it is found that the accused does not come under the umbrella of the discharge of official duty then he will have to face the ordeal of trial and consequential puninshment if offence established. 21. In the case of Pukhraj V/s. State of Rajasthan (supra) the accused had taken the plea by way of an application that the court could not take cognizance of the offence without sanction of the Government as the acts alleged, if at all done by him, were done while discharging his duty as public servant. The learned Magistrate had dismissed the application but the High Court in revision allowed the same and when this matter went to the Supreme Court, their Lordships held that the police officer, who was said to have kicked the complainant in his abdomen and had abused him also, could not be said to have done this offence complained of during the discharge of duty, though their Lordships did not then express any opinion about the truth or falsity of the allegations complained of in that case. As regards the sanction to i e obtained before the trial to proceed as provided under Sec.197, their Lordships observed at page 2593 (para 3) as follows: "we must also make it clear that this is not the end of the matter. As was pointed out in Sarjoo Prasad V/s. King Emperor, 1945 FRC 227 air 1946 FC 25 referring to the observations of Sulaiman, J. in hori Ram Singhs case (supra) the mere fact that the accused proposes to raise a defence of the act having purported to be done in execution of duty would not in itself be sufficient to justify the case being thrown out for want of sanction. At this stage we have only to see whether the acts alleged against the 2nd respondent can be said to be in purported execution of his duty. But facts subsequently coming to light during the course of the prosecution evidence at the trial may establish the necessity for sanction. Whether sanction is necessary or not may have to depend from stage to stage. The necessity may reveal itself in the course of the progress of the case [see observations in (1955) 2 SCR 925 : AIR 1956 SC 44 (supra ). ] In (1971) 1 SCR 317 : AIR 1970 SC 1661 (supra) also it was pointed out that it would be open to the appellant (the 2nd respondent in this case) to place the malarial on record during the course of the trial for showing what his duty was and also that the acts complained of were so interrelated with his official duty so as to attract the protection afforded by Sec.197, Cr. P. C. " 22. In the case of Thiru (supra) the observations of the Supreme Court, which have alredy been quoted earlier are to the effect that at this stage when there is no evidence, decision on this point will be hypotechnical and so it requires evidence for its determination. In the case of S. B. Saha and others V/s. M. S. Kochar (supra) the Supreme Court in para 14 observed : "we have no quarrel with the proposition that the question of sanction under Sec.197, Cr. P. C. can be raised and considered at any stage of the proceedings. In the case of S. B. Saha and others V/s. M. S. Kochar (supra) the Supreme Court in para 14 observed : "we have no quarrel with the proposition that the question of sanction under Sec.197, Cr. P. C. can be raised and considered at any stage of the proceedings. We will further concede that in considering the question whether or not sanction for prosecution was required, it is not necessary for the Court to confine itself to the allegations in the complaint, and it can take into account all the material on the record at the time when the question is raised and falls for consideration. . . . . It is true that the precise time and manner of the misappropriation and the detailed particulars of the items of goods alleged to have been misappropriated at the preliminary stage are not given in the complaint. But it seems that some foundation for the allegation that the goods in question had been misappropriated by the appellants sometime after their seizure and before their deposit in the Customs House, had been laid during the preliminary enquiry made by the Magistrate. This allegation has been reiterated by the complainant in paragradh 12 of his counter-affidavit that he had filed in this Court in opposition to the special leave petition of the appellants. " "para 15. Thus, the material brought on the record up to the stage when the question of want of sanction was raised by the appellants, contained a clear allegation against the appellants about the commission of an offence under Sec.409, Indian Penal Code. To elaborate, it was substantially alleged that the appellants had seized the goods and were holding them in trust in the discharge of their official duty, for being dealt with or disposed of in accordance with law, but in dishonest breach of that trust they criminally misappropriated or converted those goods. Whether this allegation or charge is true or false, is not to be gone into at this stage. In considering the question whether sanction for prosecution was or was not necessary, these criminal acts attributed to the accused are to be taken as alleged. Whether this allegation or charge is true or false, is not to be gone into at this stage. In considering the question whether sanction for prosecution was or was not necessary, these criminal acts attributed to the accused are to be taken as alleged. " In the case of Bakhshish Singh Brar (supra) the Supreme Court again referred to the decision of Pukhraj (supra) in details and held that the kicking the complainant and abusing will have to be seen during the course of judicial inquiry or during the course of trial when the prosecution will lead the evidence as to whether sanction is needed or not. The Supreme Court observed at page 260 para 6 : "it is true that Sec.196 states that no cognizance can be taken and even after congizance having,been taken if facts come to light that the acts complained of were done in the discharge of the official duties then the trial may have to be stayed unless sanction is obtained. But at the sametime it has to be emphasised that criminal trials should not be stayed in all cases at the preliminary stage because that will cause great damage to the evidence. " 23. Learned counsel for the petitioners has urged that petitioner No.1 is vice-Chancellor and the petitioner No.2 is the Personal Assistant to petitioner no.1 and so both of them are public servants and this question may be decided first. As to this contention the Supreme Court has said in the case of Thiru (supra) that whether an accused is a public servant or not, is a mixed question of fact and law and it cannot be decided in a reference or revision because it requires evidence for determination and it cannot be decided at this stage hypothetically or divorced from facts. In the case of S. B. Saha (supra) the Supreme Court has considered that in deciding the question whether or not a sanction for prosecution was required, it is not necessary for the Court to confine itself to the allegations in the complaint, as it can take into account all the material on the record at the time when the question is raised and falls for consideration. 24. 24. For the question as to whether a Vice-Chancellor is a public servant or not, reference can be made to the decision in the case of State of Gujarat V/s. M. P. Dwivedi, AIR 1973 SC 330 , where an examiner of Gujarat University had sought the protection of Sec.21 of the Code. At page 334 the Supreme Court observed : "before the amendment made in Sec.21 by Act 40 of 1964 a person who is appointed an examiner and receives remuneration by fee would fall within the term public servant if he is holder of an office. But persons in the regular service of the University would not be covered by 9th clauses. If. at all, it would be the 12th clauses which will be relevant in their case. It is, however, a moot point whether the University is a legal authority within the meaning of the first part of the 12th clause before the amendment Sec.21. The expression legal authority has a definite meaning. It has always been used in a status with reference to such bodies as are connected with local-self-Government e. g. Municipalities, Municipal Corporations, zila Parishad, etc. , As a matter of fact Sec.3 (1) of the general Clauses Act, 1987 definies local authority to mean a municipal Committee, District Board, Body of Part Commission or other authority legally entitled or entrusted by the Government with the control on management of Municipal or local fund. It would never be intended that only such officers of University should be public servant who are remunerated by fee or commission and not those who are in the regular service of the University. Sec.10 of the Bihar State Universities Act 23 of 76 as amended by Act 68 of 82 provides for the Vice-Chancellor, his appointment, powers and jurisdiction, and for his removal. But nowhere it has been mentioned that he is a public servant. However, these questions of facts and when the petitioners appear before the court below they can raise these questions as to whether they are public servants; whether they have done the acts complained of in the discharge of the official duty giving them the protection of Sec.21, I. P. C. and 197, Cr. P. C. 25. However, these questions of facts and when the petitioners appear before the court below they can raise these questions as to whether they are public servants; whether they have done the acts complained of in the discharge of the official duty giving them the protection of Sec.21, I. P. C. and 197, Cr. P. C. 25. Learned counsel for the petitioners raised the question that with the coming into force of the Criminal Law Amendment Act 46 of 1952, provisions of Prevention of Corruption Act will apply to the case of the petitioners. As to this contention the Prevention of Corruption Act 2 of 1947 is to be looked into, which provides that Sec.164 A of the Indian Penal Code will be cognizable offence notwithstanding anything contained to the contrary in Cr. P. C. Sec.4 provides for presumption against the public servant when he accepts gratification other than legal representation. Sec.5 provides that the criminal misconduct in the discharge (in the discharge of his duty has been omitted by Act 40 of 1964) Sec.6 of the Act provides for barring the taking of cognizance by the court of the offence punishable under Sec.164, or 165 I. P. C. and under sections 5 (2) or 3 (a) of the said Act. Thus it is apparent that if a prosecution is for the offence under Sections 161, 164 or 165 of the I. P. C. or under the provisions of the Sec.5 of the Act then sanction is essential and the court cannot take cognizance of the same without the sanction. Here in this case the prosecution has been launched under Sec.409, I. P. C. Sec.409 provides that whoever entrusted with a property commits criminal breach of trust in respect of that properly shall be punished with imprisonment for life or with imprisonment upto ten years and shall also be liable to fine. Sec.5 (2) of the Act provides for a sentence to a public servant, who commits criminal misconduct and Sec.5 (3) provides for a public servant who habitually commits offence under Sections 162, 163 and 165, I, P. C. and sentence for the said offences not less than one year but extending to seven years and also to fine. Sec.5 (2) of the Act provides for a sentence to a public servant, who commits criminal misconduct and Sec.5 (3) provides for a public servant who habitually commits offence under Sections 162, 163 and 165, I, P. C. and sentence for the said offences not less than one year but extending to seven years and also to fine. Section 5 (3) (a) provides for sentence to a person who attempts to commit offence as provided under Sections 5 (1) (c)and (d) of the Act for a term upto three years or fine or both. 26. Thus from it appears that a person, who commits offences coming under Sec.409, I. P. C. is to be awarded more severe punishment than those who commit offences under Sections 161, 164, 165 and the various provisions of section 5 of the Prevention of Corruption Act. Moreover, the nature of the offence is quite different. It is the nature of the offence which determines the section and it is for the prosecution to launch the prosecution for the offence committed. It will be for the court to look into the offence and find out if any offence has been made out. But it is the liberty of the prosecution to launch the prosecution under the section under which the offence comes. In the case of state V/s. Sahebrao Govindrao Jadhav, AIR 1954 Bombay 549 the Full Bench considered the question as to whether the prosecution can lie under Sec.409, i. P. C. or under any provision of the Prevention of Corruption Act. The Full bench observed that the Criminal Law Amendment Act created certain new offences and that the provisions of Sec.409 have not been superseded by the prevention of Corruption Act in view of the amendment in the Prevention of corruption Act and by Act No.59 of 1952 which enacted sub-section (4) of section 5, which provides that the provisions of this section shall be in addition to and not in derogation on any other law for the time being in force, and nothing contained hereuuder shall exempt any public servant from any proceeding which might, apart from this section, be instituted against him. The Bench held : "therefore, it is clear that the provisions of Sec.5 do not derogate from any other provision of law. The Bench held : "therefore, it is clear that the provisions of Sec.5 do not derogate from any other provision of law. They do not derogate from the provision of Sec.409 or the Criminal Procedure Code with regard to that section. It is equally clear that the special procedure set up under the Prevention of Corruption Act does not entitle a public servant to insist that the only proceeding which could be instituted against him must be under the special Act and not under the Criminal procedure Code. Therefore, the Courts would have jurisdiction as they had before to proceed against a public servant under Section 409 according to the procedure laid down under the Criminal procedure Code notwithstanding the special provisions contained in the Prevention of Corruption Act and the Criminal Law Amendment Act. " in another Full Bench decision of State V/s. Pandurang Baburao, AIR 1955 bombay 451 reference of Full Bench State V/s. Sahebrao Govindrao Jadhav (supra)has been made and also the decision of the Supreme Court in Basirul Hague V/s. State of Bengal, 1953 SC 293 which was also considered by the earlier Full bench. The following passage was quoted in the latter Full Bench at page 452 (in para 4): "though, in our judgment, Sec.195 does not bar the trial of an accused person for a distinct offence disclosed by the same facts and which is not included within the ambit of that section, it has also to be borne in mind that the provisions of that section cannot be evaded by resorting to devices or camouflages. The test whether there is evasion of the section or not is whether the facts disclose primarily and essentially an offence for which a complaint of the court or the public servant is required. In other words, the provisions of the section cannot be evaded by the device of charging a person with an offence to which that section does not apply and then, convicting him of an offence to which it does, upon the ground that such latter offence is a minor offence of the same character. " "where an act or omission constitutes an offence under two, or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence. " "where an act or omission constitutes an offence under two, or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence. " Thereafter the Full Bench referred to Sec.26 of the General Clauses Act which is as follows : "therefore, there is clear legislative sanction in favour of the option to be exercised by the prosecution where an act or omission constitutes an offence under two different enactments, and the Legislature has made it quite clear that the offender is liable to be prosecuted either under one or the other enactment. The only prohibition contained in Sec.26 is that the offender is not liable to be punished twice, for the same offence. " It was further observed at page 453 (para 9) : "therefore, in our opinion, it is open to the prosecution to launch a prosecution either under Sec.409, Penal Code, or under Sec.5 (2), Prevention of Corruption Act even before the amendment of act 2 of 1947 by Act 59 of 1952, and if the prosecution is launched under Sec.409 and if the status of the accused is such that no sanction is required under the provisions of the Criminal Procedure code, then the prosecution is good and the conviction is proper notwithstanding the fact that (if the prosecution has been launched under Sec.5 (2) a sanction would have been necessary. " 27. " 27. The Supreme Court in the case of Om Prakash Gupta V/s. State of U. P. , air 1957 SC 458 at page 468 quoted with approval the said Full Bench judgment in the State V/s. Sahebrao Govindrao Jadhav (supra) and overruled the Division bench decision in State V/s. Guru Charon Singh, AIR 1952 Punjab 89 and also approved the decision in AIR 1953 Madras 137-Re V. V. Satyanarayana Muni, which held that the Prevention of Corruption Act does not repeal Sec.409, i. P. C. The Supreme Court compared Sec.409, I. P. C. with Sections 5 (l) (c)and (d) of the Prevention of Corruption Act and considered their advantage and disadvantage and held that the offence under Sec.5 (1) (c) is different from one under Sec.405, I. P. C. It was held, as mentioned earlier, that for a prosecution under Sec.409, I. P. C. sanction is not required and that a public servant, who commits criminal breach of trust, does not normally act in his capacity as public servant. 28. Thus a public servant cannot commit criminal breach of trust in his capacity as a public servant; that for an offence under Sec.409, I. P. C. no sanction is required; that the offences under Sec.409, I. P. C. are different from those under the provisions of Sections 5 (1 ) (c) and (d) of the prevention of Corruption Act,; that the prosecution has got choice to prosecute the accused under the section which it likes, and in the accused has got no say that he should be prosecuted under any other section. Thus in this case the petitioners have got no case that the sanction has not been obtained and further the prosecution is bad because they are being prosecuted under Section, 409 I. P. C If, however, during the course of trial it comes out that the petitioners, as public servant, have committed criminal breach of trust and that was inseparable or has done during the course of official business which cannot be said to be separate or detached from the official duty, then the petitioners can raise the objetions in the court below and the corut on the basis of the material and circumstances of the case will consider the same. If on consideration of the same petitioners can get any benefit, the court will be within its jurisdiction to pass such order in accordance with law. If on consideration of the same petitioners can get any benefit, the court will be within its jurisdiction to pass such order in accordance with law. But, at this stage, there is no such thing as to discard the prosecution on the ground of want of sanction. 29. Further it may also be mentioned that there is no illegality or infirmity in asking any other authorities under Sec.202, Cr. P. C. to submit report. It appears that the court has acted within its jurisdiction and applied its mind to the order taking cognizance. As such the order does not surfer from any infirmity or illegality. 30. In the result, this application is dismissed. The stay order passed by this Court is vacated. Let the records be sent down immediately for disposal of the case expeditiously in accordance with law. , application dismissed.