A Sarpanch elected under the provisions of the Orissa Gram Panchayat Act is a public servant and is removable from office under the provisions of S. 115 (2). In order to prosecute a Sarpanch for an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, sanction under S. 197, Cr. P. C. is essential. However, the act of misappropriation or criminal breach of trust of the Gram Panchayat fund cannot be held to have been done while the Sarpanch acts or purports to act in the discharge of his official duty.

K. P. MOHAPATRA, J.

( 1 ) IN this Criminal Revision, the petitioner has challenged the order of his conviction and sentence under S. 409, I. P. C.

( 2 ) PROSECUTION case in brief is that in the year 1973, the petitioner was the Sarpanch of Rakama Gram Panchayat of Khandapara in Nayagarh Sub-Division of Puri District. On 20-9-1973 he encashed a bank draft bearing No. B567000 dated 11-5-73 for a sum of Rs. 471. 71 representing the value of four loan bonds of Rs. 100/- each with interest thereon belonging to the said Gram Panchayat from Khadapara Sub-Treasury. After encashment, instead of making deposit of the amount encashed in the Gram Panchayat Office, he misappropriated the same. He did not even make the deposit when required to do so by the Sub-Divisional Officer, Nayagarh by letter dated 4-5-77 and personally on 21-6-77. He made the deposit on 13-4-78. Therefore, the Block Development Officer, Bhapur lodged the F. I. R. and after investigation charge-sheet was submitted against the petitioner for having committed the offence under S. 409, I. P. C.

( 3 ) THE defence of the petitioner was that after encashment of the bank draft he had handed over the amount to P. W. 1, Secretary of the Gram Panchayat. Therefore, he did not misappropriate the amount.

( 4 ) THE learned Judicial Magistrate on consideration of the prosecution evidence, both oral and documentary, the explanation offered by the petitioner as well as the defence evidence, came to hold that the petitioner had encashed the bank draft for a sum of Rs. 471. 71 and without making deposit of the same in the Gram Panchayat Office, misappropriated the same. Therefore, the offence committed by him was squarely within the ambit of S. 409, I. P. C. , under which he convicted the petitioner and sentenced him to undergo rigorous imprisonment for three years and to pay a fine of Rs. 300/-, in default to undergo rigorous imprisonment for two months more. On appeal, the learned Additional Sessions Judge, Puri upheld the findings as well as the order of conviction. On being satisfied that it was a case of temporary misappropriation, he reduced the substantive sentence to six months' rigorous imprisonment while he maintained the sentence of fine.

( 5 ) MR. S. P. Misra, learned counsel appearing for the petitioner, did not challenge the fact that the petitioner had encashed the bank draft for a sum of Rs. 471. 71. He, however, urged that there is evidence to show that the said amount was handed over to P. W. 1, Secretary of the Gram Panchayat, and so the finding of the learned Courts below to the effect that the petitioner had misappropriated the amount cannot be supported. He further argued that the Sarpanch being a public servant was not removable from office except by orders of the State Government and as sanction for his prosecution under S. 197, Cr. P. C. had not been obtained prior to submission of the charge-sheet, the entire prosecution, conviction and sentence have been vitiated and, accordingly, the petitioner is entitled to a clean acquittal. Mr. S. K. Das, learned Additional Standing Counsel, on the other hand did not dispute the proposition in view of the principle laid down by this Court in some cases that a Sarpanch elected under the Orissa Gram Panchayat Act (hereinafter referred to as 'the Act') is a public servant and is not removable from office except by orders of the State Government. If a Sarpanch commits an offence acting or purporting to act in the discharge of his official duty, he cannot be prosecuted without prior sanction under S. 197, Cr. P. C. But he contended that misappropriation of Gram Panchayat cash by a Sarpanch is not in the discharge of his official duty as such, and so, for an offence under S. 409, I. P. C. prior sanction of the State Government under S. 197, Cr. P. C. is not necessary. The contentions require careful examination.

( 6 ) I have very carefully considered the evidence, both oral and documentary, adduced by the prosecution as we