Research › Search › Judgment

Madhya Pradesh High Court · body

2007 DIGILAW 481 (MP)

J B SHARMA v. STATE OF M P

2007-04-26

BRIJ MOHAN GUPTA

body2007
Judgment ( 1. ) PETITIONER by Shri Sanjay Gupta, Advocate. Respondent/state by Shri Mohd. Irshad, P. L. ( 2. ) HEARD finally at motion stage with the consent of both the parties. ( 3. ) THE instant petition is for invoking the extra-ordinary and inherent powers of this Court under Section 482 of Cr. PC, praying therein to set aside the order dated 1-3-06 passed by Ist Additional Sessions Judge, Gwalior in Criminal revision No. 51/06 by which the learned Judge has affirmed the order dated 25-10-05 passed by Additional Chief Judicial Magistrate, Gwalior in Criminal case No. 106/01, wherein the learned Magistrate framed charge against the petitioner for the offence punishable under Sections 420,467,468 and 471 read with Section 120-B of IPC. ( 4. ) FACTS, in brief, are that one written report dated 18th June, 1999was submitted by D. K. Jain, Manager, District Co-operative Bank Ltd. , Gwalior, to in charge Police Station, Morena (Gwalior) against one Bharat Kishan Tiwari, who obtained the loan from the bank, and also against the petitioner, who sanctioned the loan in the capacity of the Manager of the aforesaid bank. It has been alleged in the report that in May, 1995 petitioner sanctioned a loan amounting to Rs. 1,87,500/- to co-accused Bharat Kishan Tiwari. This loan was sanctioned with collusion with co-accused and having conspiracy with him. Vide report the following allegations were made against both the accused persons:-On this report, Crime No. 519/99 was registered and after investigation charge-sheet was filed. Vide order dated 25-10-05 charge as aforesaid was framed. It was challenged in aforementioned revision petition. That was also dismissed vide impugned order dated 1st March, 2006. Impugning the aforementioned two orders, the present petition has been filed on behalf of the petitioner on following two grounds :- (1) That on merits no case is made out against the petitioner. (2) That the cognizance has been taken against the petitioner without any sanction under Section 197 of Cr. PC. ( 5. ) DURING the course of arguments, it could not be clarified as to under what provision the amount was deposited directly in the account of borrower, co-accused Bharat Kishan instead of making payment to the dealer after obtaining quotations. Nothing available on record showing that the petitioner after payment of the first installment and before payment of the second installment physically verified the site. Nothing available on record showing that the petitioner after payment of the first installment and before payment of the second installment physically verified the site. No document could be shown on behalf of the petitioner with regard to the third lapse on his part. By these lapses, as mentioned in the FIR, at this initial stage, the allegation cannot be denied that the petitioner did it by collusion and having conspiracy with co-accused Bharat kishan to cause wrongful loss to the bank. On these facts, the impugned order with regard to the framing of the charge does not appear erroneous. On perusal of Section 87 of M. P. Co-operative Societies Act, 1960, it appears that the registrar and other officers etc. of the Co-operative Bank shall be the public servants. Thus, the petitioner also appears to be a public servant. ( 6. ) THE relevant provision of Section 197 of Cr. PC goes as under:-197. Prosecution of Judges and public servants.- (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction- (a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government; (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the state Government: provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of Article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression "state government" occurring therein, the expression "central government" were substituted. (2 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (2 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (3 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (4 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (Emphasis supplied) Thus, it appears that for seeking protection under Section 197 of Cr. PC petitioner should be a public servant, not removable from his office save by or with the sanction of the Government. Section 87 of M. P. Co-operative Societies act, 1960 qualifies the petitioner as a public servant but admittedly he is not such public servant who is not removable from his office save by or with the sanction of the Government. During the course of arguments, Shri Sanjay Gupta, the learned Counsel for the petitioner, has fairly conceded this point that the petitioner is not an officer who is not removable from his office save by or with the sanction of the Government. For this observation, the judgment delivered by the Apex Court in K. Ch. Prasad Vs. Smt. J. Vanalatha Devi and others, AIR 1987 SC 722 and by a Single Bench of Andhra Pradesh High Court in Govt. of india Vs. Shukhlal Singarenicollieri. es Company Ltd. and others, 1994 Cr. LJ 418, can be perused. ( 7. ) ALTHOUGH the petitioner is a public servant yet he is not such a public servant who is not removable from his office save by or with the sanction of the government. As such, the sanction for prosecution under Section 197 of Cr. PC is not required. ( 8. ) IN view of all, the petition, being devoid of merits, is dismissed. M. Cr. C. dismissed.