A Sarpanch is not entitled to the protection under S. 197 (1), Cr. P. C. if he is not acting in discharge of his official duty when he takes the advances for executing the works.

S. C. MOHAPATRA, J.

( 1 ) THIS is an appeal against acquittal of the respondent. The trial Court convicted the respondent under S. 409, Penal Code and the learned Sessions Judge, Mayurbhanj, acquitted him. The appellate judgment is assailed in this appeal.

( 2 ) THE respondent was charged under S. 409 of Penal Code for having committed criminal breach of trust of a gross sum of Rs. 5,220. 80 paise during the year 1975-76 between Dec. 1975 and Feb. 1976.

( 3 ) THE prosecution case, in brief, is that the respondent as Sarpanch took advance of a total sum of Rs. 3,180/- for repair of roads and Rs. 304/- for dewatering wells. He incorrectly entered into account a total sum of Rs. 1,330/- showing to have spent the same on various repair works and he could not account for the empty gamy bags whose price is Rs. 190/- and the ration cards whose price is Rs. 226. 80 paise.

( 4 ) THE trial Court held that the gunny bags were not entrusted to the respondent. The appellate Court has also held that the ration cards were not entrusted to the respondent.

( 5 ) THE respondent admitted entrustment of the advance of Rs. 3,180/- and Rs. 304/- and Rs. 1,330/- shown to have been spent. He took the plea that the amounts have been spent for the purposes they were taken and he is not guilty of misappropriation.

( 6 ) THE appellate Court held that the respondent having been able to prove that he had executed some of the works for which he was entrusted with the various amounts, had no dishonest intention of misappropriation and it is a simple case of gross-negligence on his part in not maintaining the accounts properly and following the rules prescribed and as such, he is entitled to benefit of doubt. The appellate Court further held that in the absence of sanction under S. 197, Cr. P. C. the prosecution is bad.

( 7 ) MR. Ajit Rath, the learned Additional Standing Counsel acting in this appeal as the Public Prosecutor submitted that both the grounds on which the respondent has been acquitted are not sustainable.

( 8 ) MRS. A. K. Padhi, the learned counsel for the respondent justified the acquittal both on facts and law. Her contentions are that: - (I) the cognizance against the respondent is prohibited under S. 197 (2), Cr. P. C. in the absence of sanction of the State Government: (ii) the prosecution is bad in the absence of a notice under S. 138 of the Orissa Gram Panchayat Act, 1964; (iii) one trial for thirty three items of misappropriation is not permissible; and (iv) the removal of the respondent under S. 115 (2) of the Orissa Gram Panchayat Act (hereinafter referred to as 'the Act') having been revoked by the State Government in exercise of the power under S. 120 of the Act, the respondent ought not to be held guilty under S. 409, I. P. C. as the respondent has actually executed the works.

( 9 ) ON the rival contentions, the following points arise for consideration. : - (a) Whether sanction under S. 197 (1), Cr. P. C. is necessary for taking cognizance of an offence under S. 409, I. P. C. against a Sarpanch? (b) Whether notice under S. 138 of the Orissa Gram Panchayat Act, 1964 is necessary for initiating a prosecution against a Sarpanch? (c) Whether one trial for commission of the offence of criminal breach of trust of more than three items during a year is vitiated? (d) Whether the prosecution has been able to bring home the guilt to the respondent? point (a)

( 10 ) IN order to make the protection under S. 197, Cr. P. C. available to a Sarpanch prosecuted it. is necessary to be satisfied that- (i) the accused is a public servant employed in connection with the affairs of a State: (ii) he is not removable from office save by or with the sanction of the State Government; and (iii) he is accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty.

( 11 ) UNDER S. 143 of the Act, a Sarpanch is a public servant. A Sarpanch is also employed in connection with the affai