Misappropriation or criminal breach of trust of Grama Panchayat funds by a Sarpanch is not an act done in the discharge of official duty, and therefore, prior sanction of the government under Section 197 of the Code of Criminal Procedure, 1973, is not necessary for prosecuting the Sarpanch.

JUDGMENT :

K.P. Mohapatra, J. - The Petitioner was accused in I. C. C. Case No. 3 of 1983 instituted by the opposite. party making allegations of commission of offences under Sections 409 and 420., I. P. C. After -enquiry u/s 202, Code of Criminal Procedure the complaint petition was dismissed by the learned Sub-Divisional Judicial Magistrate. The opposite party preferred a revision which was allowed by the learned Sessions Judge, Dhenkanal who directed taking of cognizance of an offence u/s 409, I. P. C., The above order has been challenged in this revision.

2. The facts of the case in short are that the Petitioner was acting as the Sarpanch of Kaintaragarh Grama Panchayat which managed the ferry ghatat Kuleswar on river Mahanadi. In the year 1982-83 at the highest bid of the opposite party of the sum of Rs. 14,000/- the ferry ghat was leased out to him. Out of the amount, he had paid Rs. 8000/- and a moo of Rs. 6000/- was outstanding on him. Therefore, notices were served on the opposite party from the Grama Panchayat office for payment of the balance on or before. 5-2-1983, in default of which he was prohibited to operate the ferry. The opposite party however, could not make the deposit by the date fixed. On 6-2-1983 at about 6 a. m. the Petitioner came to the river ghat and prohibited the opposite party from operating the ferry. He himself operated the same and realised a sum of Rs. 500/- from passengers. In the mean while the opposite. party went home, pledged the necklace of his wife for a sum of Rs. 4000/- and Game back to the ferry ghat. It is alleged that he paid the sum at Rs. 4000/- to the Petitioner, but when he demanded a receipt the latter asked him to come to the Grama Panchayat office to receive the same. The opposite party on subsequent dates came to the Grama Panchayat office and demanded the receipt for Rs. 4500/- which had been received by the Petitioner but the latter did not grant the receipt, did not deposit the said amount in the Grama Panchayat office cash and misappropriated the same. In view of the above facts the opposite party filed a complaint petition alleging commission of offences by the Petitioner under Sections 409 and 420, I. P. C..

3. The learned Sub-Divisional Judicial Magistrate, Athamallik, on the basis of the statements of witnesses examined during enquiry u/s 202, Code of Criminal Procedure found that no criminal offence had been made out and the allegations were of civil nature. Therefore, he dismissed the complaint petition u/s 203, Code of Criminal Procedure The learned Sessions Judge Dhenkanal, however, took the view that there was a prima facie case for offence u/s 409, I. P. C. and further sanction of the State Government u/s 197, Code of Criminal Procedure for prosecution of the Petitioner was not necessary.

4. Mr. N. C. Pati raised the following contentions;

(1) The statements of witnesses recorded during the enquiry u/s 202 of the Code did not male e out a prima facie case of an offence either u/s 409 or u/s 420. I. P. C..

(2) Sarpanch of a Grama Panchayat is a public servant;

and

(3) for prosecuting the Sarpanch of a Grama Panchayat,

prior sanction of the State Government u/s 197 of the Code is necessary. The contentions require careful examination.

5. So far as the first contention is concerned, it is a fondling of fact that on going through the statements, a prima facie impression can be obtained that the Petitioner had collected a sum of Rs. 4.5001- from the opposite party at the Ferry Ghat on 6-2-1983. At the stage of enquiry, sifting of statements of witnesses, as is done after trial, is not permissible according to Jaw. In order to take a prima facie view, it is enough if the Court after application of mind finds that materials are available so as to proceed for trial of the accused of a criminal offence. As rightly held by the learned Sessions Judge, the materials placed by the opposite party during the enquiry were sufficient to take a prima facie view that the Petitioner shoul