Sanction under Section 197 of Cr. P. C. is not necessary for the prosecution of a public servant for an offence under Section 409 of the Indian Penal Code if the alleged offence was not committed by the public servant in the discharge of his official duty.

( 1 ) THE petitioner in these rules holds a gazetted civil post in the department of Education, Government of West Bengal. Since May 10, 1966, he was the District Soeial Education Officer at Cooch Bchar till July 14, 1971 when he was transferred to Burdwan. The petitioner according to his case holds high academic qualifications and was appointed to his present office on selection by the Public Service Commission. Prior to his posting at Cooch Bchar, the petitioner was posted at Bankura as the District Social Education Officer from July 13, 1962 to July 9, 1964 and thereafter to Midnapore after making over charge to his successor Smt. Kana Sen Gupta. During his stay at Bankura the petitioner incurred the displeasure of Sukumar Sen Gupta, then the District Magistrate and Collector of Bankura respondent No. 3 over arrangement of stalls of book exhibits in the local exhibition in February 1964 made ultimately by him overriding the arrangement of the petitioner leading to damages by heavy rains. Sen Gupta who was the ex-officio President of the District Library Association was annoyed at this and he threatened the petitioner of dire action. Thereafter false charge of negligence of duty regarding the stall was made by him against the petitioner which he denied causing further irritation in Sen Gupta. At the instance of the librarian K. Biswas, whose unlawful activity in the library affairs were controlled by the petitioner, again baseless charges were made against the petitioner by Sen Gupta which were proved on enquiry to be without foundation. His further attempts to disgrace the petitioner also proved fruitless. Smt. Sen Gupta, his successor in office at Bankura, who is related to Sen Gupta, also complained against the petitioner to the Director of Public Instruction but matter was dropped on the statement filed by the petitioner. Even after his transfer to Midnapore a fruitless Enquiry Committee against the petitioner was set by Sen Gupta maliciously to feed his ancient grudge. Thereafter at the instance of the said persons, while the petitioner was at Cooch Behar, proceedings against him were started before the Vigilance Commissioner and as his prayer for assistance of a lawyer was disallowed, the petitioner obtained a rule in this Court being C. R. 6414 (W) of 1968 which is pending. The petitioner's case that the above proceeding was initiated at the instance of Sen Gupta was supported in the affidavit-in-opposition and the petitioner in his affidavit-in-reply affirmed on December 14, 1971 stated that the Education Secretary respondent No. 2 out of malice stopped increments to the petitioner since July 13, 1971.

( 2 ) AFTER the service of this affidavit, a criminal case has been started at Cooch Bchar after his transfer therefrom under Section 409/109 in respect of three incidents viz.-- (1) Over payment of Rs. 2,000/- to M/s. Orient Book Co. (II) Payment of Rs. 85. 12 to M/s. Kaluram Scthea twice and (III) Payment for motor parts on October 17, 1970 to fictitious firm on the basis of an Enquiry Report by respondent No. 5. The petitioner contends that there was no misappropriation regarding items (I) and (III) while he had no responsibility regarding (II ). The said report which was hasty and motivated one made on the directions of other respondents was submitted in the Court of the Sub-Divisional Judicial Magistrate Sadar of Cooch Behar, as the first information of a cognisable crime by the petitioner and another, under Section 409/109 and a prosecution has been started against the petitioner in the said Court. The petitioner contends that he is a public servant in the Service of the State of West Bengal and under the provisions of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949, hereinafter referred to as the said Act, only a Special Court can try an offence under Section 409 of the Indian Penal Code, if committed by a public servant or by a person dealing with property belonging to Go