The central legal point established in the judgment is the need for a delicate balance in prosecuting public servants, emphasizing the distinction between criminal acts and acts done in dereliction of duty.

Chandramauli Kr.Prasad, J.

1. This application has been filed for quashing a portion of the order dated 3.10.2002 passed by the Special Judge (Vigilance) in Special Case No. 5 of 1996 whereby the application filed by opposite party (herein-referred to as the accused) Gangaa... Prasad Singh has been allowed and he has been discharged under section 239 of the Code of Criminal Procedure (hereinafter referred to as the Code).

2. On the basis of a written report given to the vigilance Police Station, Vigilance Case No.5 of 1996 dated 14.2.1996 was registered under sections 409, 420, 468, 471, 201 and 120B of the Indian Penal Code (for short the I.P.C.) and 13(2) of the Prevention of Corruption Act. According to the first information report Gaya Prasad the Assistant Electrical Engineer took out four drums of transformer oil on the basis of a indent containing the forged signature of Mr. M.Q. Hoda, the then Electrical Executive Engineer from Bhagalpur Central Depot of the Bihar State Electricity Board showing it to be needed for replacement of the oil circuit breaker but misappropriated the same. According to the report the act of Mr. M.Q.Hoda in requesting to regularize the delivery of transformer oil, in spite of knowing the fact that his signature is forged, shows his involvement in the case. On the basis of the aforesaid information the case was registered against Sri M.Q. Hoda, the then Electrical Executive Engineer, (Urban) Bhaglapur and Gaya Prasad, Assistant Electrical Engineer, Nath Nagar. The accused has not been named in the first information report. During the course of investigation it transpired that the accused at the relevant time was posted as Electrical Executive Engineer and incharge of the Central Depot from where the delivery of four drums of transformer oil was taken. It further transpired that the competent authority for delivery of transformer oil is the General Manager-cum-Chief Engineer but the accused allowed delivery of the transformer oil without such approval. After investigation, chargesheet was submitted also against this accused and the learned judge took cognizance of the offence under sections 409, 420, 468, 471 and 201 I.P.C. and section 13 (1) (2) of the Prevention of Corruption Act. It is common ground that in the meanwhile the accused had retired and sanction for his prosecution has not been obtained.

3. Accused filed application for discharge. The learned judge found that according to the prosecution itself the indent was prepared by Gaya Prasad and actual delivery of transformer oil was also taken by him from the store and hence no offence under sections 409, 420, 468, 471 and 201 I.P.C. is made out against the accused. The learned judge further observed that there is no direct allegation constituting offence punishable under section 13(1) (2) of the Prevention of Corruption Act, 1988. The learned judge also went into the question of requirement of sanction under section 197 of the Code and found that the cognizance of the offence against this accused without sanction under section 197 of the Code is bad in law and accordingly discharged him from the case under section 239 of the Code.

4. Mr. B.P. Pandey, Senior Advocate appearing on behalf of the petitioner submits that accused being not an employee of the State Government, protection under section 197 of the Code is not available. In support of his submission he has placed reliance on a decision of the Supreme Court in the case of Mohd. Hadi Raja Vs. The State of Bihar and another [(1998) 4 Supreme Court Cases 91)] and my attention has been drawn to paragraph 27 of the judgment, which reads as follows:-

"Therefore in our considered opinion the protection by way of sanction under Section 197 of the Code of Criminal Procedure is not applicable to the officers of government companies or the public undertaking even when such public undertakings are "State" within the meaning of Article 12 of the Constitution on account of deep and pervas