IMPORTANT POINT
An offence which arises out of the abuse of official position could never be said to require a sanction for prosecution for it.

JUDGMENT

L. Rath, J. - The petitioner's conviction under section 409 IPC and sentence to undergo R.I. for one year and to pay a fine of Rs. 3,000/-, In default to undergo S.I. for three months having been upheld in appeal, he has preferred this revision.

2. The petitioner was an Assistant District Welfare Officer at Talcher and was prosecuted for having committed misappropriation during the period 6.6.1978 to 22.12.1978 of a sum of Rs. 10,803.88 out of an entrusted amount of Rs, 19,933.53 which he had received towards the boarding charges, staff salary of Ashram School and stipend of scheduled caste and scheduled tribe students. The petitioner though admitted to be the disbursing officer along with the S.D.O. and the D.W.O. in respect of boarding charges, salary of staff of the school and the stipend of scheduled caste and scheduled tribe students, yet maintained in plea of complete denial of any entrustment of money to him.

3. Mr. S. Misra-I, learned counsel for the petitioner, assailing the conviction of the petitioner, has urged two contentions firstly, that there was no valid sanction for the petitioner's prosecution inasmuch as the sanction order was never proved; and secondly, there was no proof of any entrustment having been made to the petitioner of the sums alleged to be misappropriated by him. The submissions of Mr. Misra have been strenuously contested by the learned Addl. Standing Counsel submitting that the offence of the petitioner was such that no sanction was necessary to prosecute him and that even If such sanction was necessary, the sanction exhibited in the case was the proper and valid sanction legally proved. He has further urged that the entrustment of the amount to the petitioner has been fully established and that in the absence of the petitioner's showing that the amount had not been misappropriated, it must be held that the charge under section 409 IPC had been completely brought home against the petitioner.

4. In view of the submissions and counter submissions. it is necessary to examine as to the requirement of sanction for the prosecution of the petitioner for the offence alleged against him. There is no dispute that the petitioner is a person removable by the sanction of the Government and hence as stipulated under section 197 Cr. P.C., if the offence levelled against the petitioner is alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, the cognizance in respect of the same could not have been taken except with the previous sanction of the State Government.

5. It has been tenaciously urged by Mr. Misra that the offence alleged against the petitioner had no independent existence than the very discharge of his duties and the two being inseparable, the conclusion is inevitable that he could not have committed the act complained of otherwise than while discharging official duty and hence sanction for prosecution is a must. Developing the contention he has submitted that the allegation against the petitioner being that he had been entrusted with money and that though he had submitted some vouchers in respect of disbursements of the money yet had not submitted voucher for a portion of the amount, in the first place it could not be said to be a misappropriation at all, and secondly, such non-submission of vouchers by him, if at all true, would only point to an action by him connected with normal duty and not otherwise.

6. The question whether sanction is required for prosecution of a public servant with relation to any offence alleged against him is always one of fact to be determined on the basis of the duties discharged by him and relation of such duties to the conduct complained of, it was observed in H.H.B. Gill and another v. The Kind1, that when a question arises to determine whether the offence is one committed while acting or purporting to act in the discharge of official duty, the test may well be whether the public servant, if challenge