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2002 DIGILAW 387 (PAT)

Dina Nath Singh v. State Of Bihar

2002-03-21

CHANDRAMAULI KR.PRASAD

body2002
Judgment 1. This application has been filed for quashing the order dated 23.7.2001 passed by the Judicial Magistrate, Ist Class, Jehanabad in G.R. No. 1037/98 (Tr. No. 745 of 2001) whereby the prayer made by the petitioner for discharge, has been rejected. 2. Short facts giving rise to the present application are that on the basis of a report given by the Director, National Employment Scheme, Karpi P.S. Case No. 71/ 98 dated 21.7.1998 was registered under Section 409 of the Indian Penal Code, against the petitioner. 3. According to the prosecution, for Makhmilpur Ware Project, a sum of Rs. 9,49,150/- was made available to the petitioner on different dates for the execution of the said scheme. On inquiry, it was found that the petitioner had shown expenditure of Rs. 8,17,218.69 but actually a sum of Rs. 73,40,050.75 has only been spent in the scheme. Prosecution story further is that cement of Rs. 83,163.75 was purchased from the fund allocated to this scheme but the said cement was not utilised in this Scheme and the petitioner had wrongly shown that the said cement was utilised in this scheme. Police, after investigation, submitted charge-sheet against the petitioner and he was ultimately put on trial before the learned Magistrate. There he filed an application for discharge, inter alia, contending that even if the allegation of the prosecution is taken to be true, no case of criminal breach of trust is made out because ingredient of dishonest mis-appropriation is lacking as the petitioner had utilised the said cement in other Government Scheme. His plea was that conversion of fund from one scheme to another, is not even an irregularity and does not come within the mischief of Section 409 of the Indian Penal Code (tor short IPC). Further, plea of the petitioner was that the act allegedly done by him relates to his official work and at that point of time, petitioner, being a public servant, not removable from service save by the sanction of the State Government his prosecution without the sanction of the competent authority, as required under Section 197 of the Code of Criminal Procedure (hereinafter referred to as Cr.P.C), is illegal. It is common ground that sanction for the prosecution of the petitioner has not been obtained. 4. The learned Magistrate, referred to the allegation made against the petitioner and observed that according to the prosecution, cement worth Rs. It is common ground that sanction for the prosecution of the petitioner has not been obtained. 4. The learned Magistrate, referred to the allegation made against the petitioner and observed that according to the prosecution, cement worth Rs. 83,163.75 was purchased for the scheme of Makhmilpur Ware Scheme and was shown as utilised in the above scheme, but the said cement was actually not utilised in that scheme. The learned Magistrate had referred to the statements recorded during the course of investigation and found that there is consistent evidence in the case diary that the cement meant for the scheme was not utilised in the same and the quality of the cement was not good. In view of the fact that petitioner had shown to have utilised the cement in Makhmilpur Ware Scheme but the same was not found to be true, the learned Magistrate held that the offence of criminal breach of trust is made out. 5. The learned Magistrate also repelled the contention of the petitioner that his prosecution without the sanction of the State Government is illegal. In this connection, the learned Magistrate has referred to the plea taken by the petitioner that he has utilised the said cement in other Government scheme and as such, his act is in discharge of his official duty. While repelling this plea, the learned Magistrate held that it is the defence of the petitioner that he had utilised the cement in other Government schemes which require to be proved by evidence and at this stage, it cannot be said that the act complained of against the petitioner has any direct relation to the discharge of his official duty. He further observed that at this stage, from the material on record, it cannot be said that the act complained of was in discharge of official duty, accordingly, it rejected the application filed by the petitioner. Mr. Udit Narain Singh appearing on behalf of the petitioner has raised before this court the same very points which were raised before the learned Magistrate. He contends that cement having been utilised in the other Government Schemes, it cannot be said that there is any loss to the Government or gain to the petitioner and as such, no offence of criminal breach of trust under Section 409 IPC is made out. I do not find any substance in the submission of the learned counsel. He contends that cement having been utilised in the other Government Schemes, it cannot be said that there is any loss to the Government or gain to the petitioner and as such, no offence of criminal breach of trust under Section 409 IPC is made out. I do not find any substance in the submission of the learned counsel. It is over simplifying the matter. Allegation against the petitioner is that he has shown to have purchased cement worth Rs. 83,163.75 and utilised the said cement in Makhmilpur Ware Scheme but, in fact, the said cement was actually not utilised. In fact, it is the defence of the petitioner that he had utilised the cement in other Government schemes. This defence of the petitioner required to be proved and at this stage, the case of the prosecution has to be accepted, as true. In my opinion, allegation made against the petitioner, if remains unrebutted, same constitutes an offence of the criminal breach of trust. 6. Mr. Singh then contends that the learned Magistrate erred in law in rejecting the contention of the petitioner as regard to the necessity of sanction under Section 197 Cr.P.C. He points out that the plea of sanction can be raised at any stage of the proceeding and in his submission, the learned Magistrate committed an error of law by not considering this plea, when the petitioner filed an application for discharge. In support of his submission, he has placed reliance on large number of authorities. I had the occasion to consider this question in Cr. Misc. No. 28834 of 2000 (Bhupendra Nath Srivastava & Ors. V/s. The State of Bihar & Anr.) and analogous cases disposed of on 21.3.2002 in which I have held as follows : "In my opinion question of sanction under section 197 of the Code of Criminal Procedure can be raised any time immediately after the cognizance or framing of charge or even at the time of conclusion of trial and after conviction as well. However, there may, be certain cases in which examination of this question may require detail evaluation of the material or the accused may like to bring evidence to show that what he did was in discharge of official duty and in such cases, the accused may not be allowed to raise this question immediately after the cognizance is taken and processes issued. In fact, no hard and fast rule of universal application can be laid as regards the stage at which this question can be allowed to be raised. It will depend upon the facts and circumstances of each case." 7. Here in the present case, the plea of the petitioner is that he has utilised the cement for other schemes whereas, according to the prosecution, the petitioner had shown to have utilised the cement in the Makhmilpur Ware Scheme. So, the plea taken by the petitioner is, in sum and substance, his defence and, therefore, at this stage, it can (sic not ?) be said that the act complained of against the petitioner has any relation to the discharge of official duty. 8. On the basis of the material on record, I am of the opinion that the learned Magistrate did not err in rejecting the plea of the petitioner as regard to the necessity of sanction at this stage. However, after the evidence is led and it is established that the cement was used in another scheme, the petitioner shall be free to raise the question of sanction during the hearing of the case after conclusion of the trial. Needless to state that learned Magistrate shall consider it while pronouncing the judgment. 9. In the result, I do not find any merit in this application and it is dismissed with the aforesaid observation.