Judgement

VENKATARAMA AYYAR J.: The appellant was a Sub-Divisional Officer in the Public works Department, Pepsu, and was, at the material dates, in charge of certain works at a place called Karhali. It was part of his duties to disburse the wages to the workmen employed in the works, and the procedure usually followed was that he drew the amount required from the treasury, and paid the same to the employees against their signatures or thumb-impression in the monthly acquittance roll.

In the roll for April 1951, one Parma was mentioned as a khalasi (menial servant),and a sum of Rs. 51 shown as paid to him for his wages, the payment being vouched by thumb-impression. The case of the prosecution was that there was, in fact, no person of the name of Prama, that the thumb-impression found in the acquittance roll was that of the appellant himself, that he had included a fictitious name in the acquittance roll, with intent to himself draw the amount, and that by this expedient he had received Rs. 51 and misappropriated the same.

2. The First-Class Magistrate of Patials, before whom the appellant was put up for trial, framed charges against him under S. 465, I. P. C. for forging the thumb-impression of Parma, and under S. 409, I. P. C. for criminal misappropriation of Rs. 51, and after a full trial, acquitted him. He held on the evidence that "there was a khalasi Parma by name in the service of the accused at Kehrauli", and that though the thumb-impression in the acquittance roll was that of the appellant, the prosecution had not established that the amount drawn by him did not reach the hands of Parma.

Against this judgment, there was an appeal by the State to the High Court of Pepsu, which held that proof that the thumb-impression in the acquittance roll was that of the appellant was sufficient, when taken along with other circumstances, to establish his guilt, and accordingly convicted him both under S. 465 and S. 409, I. P. C This appeal by special leave is directed against this judgment.

3. In support of the appeal it is argued by Mr. Jai Gopal Sethi that the conviction of the appellant is illegal, as sanction had not been obtained under S. 197 (1), Criminal P. C. for his prosecution, that the evidence on record is insufficient to establish an offence either under S. 465 or S. 409,I. P. C. and that there having been an acquittal of the appellant by the trial Magistrate, the materials on record did not justify a reversal of that verdict by the appellate Court.

4. The question of sanction under S. 197 (1), Criminal P. C. may be taken up first for consideration, as it goes to the root of the matter. The facts bearing on this question are that there was an application by the Department for sanction to prosecute the appellant for an offence under S. 409, and that, the Chief Secretary, Home Department, sent the communication, Ex. PX, stating that he had been "directed to convey sanction of the Government to his prosecution". In view of this, no question was raised before the trial Magistrate or the High Court that the prosecution was bad for want of sanction.

But after the disposal of the appeal by the High Court, it was discovered that, in fact, there was no order of the Government sanctioning the prosecution, and that the Chief Secretary had committed a mistake in sending the communication, Ex. PX. The position, therefore, is that the prosecution which has resulted in the conviction of the appellant was initiated without any sanction under S. 197(1), Criminal P. C. and if sanction under that Section is necessary, as contended for by Mr. Sethi, then the entire proceedings including the conviction must be quashed. According to the respondent, however, the main charge against the appellant is under S. 409, and no sanction is required for a prosecution under that Section. The point for decision is whether sanction under S. 197 (1), Cr. P. C. is necessary for prosecuting the appellant under S. 409.

5. There has been considerable divergence of j