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1997 Supreme(All) 1521
IN THE HIGH COURT OF ALLAHABAD
P. K. JAIN
DAYA RAM - Appellant
Versus
STATE OF UTTAR PRADESH - Respondents
CRIMINAL REVISION 766 Of 1997
Decided On : 12/23/1997
WAJAHAT HUSAIN KHAN
No sanction is required for prosecution of a public servant under Section 409, IPC, as the offence of criminal breach of trust is not normally committed in the discharge of official duty.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 197(1) - PUBLIC SERVANT - SANCTION FOR PROSECUTION - EMBEZZLEMENT OF GOVERNMENT FUNDS - OFFENCE NOT COMMITTED IN DISCHARGE OF OFFICIAL DUTY - NO SANCTION REQUIRED - GENERAL ALLEGATIONS AGAINST ACCUSED - SPECIFIC FINDING NECESSARY BEFORE SUMMONING - ORDER QUASHED AND CASE REMANDED.
Fact of the Case:
Complaint filed against 30 Engineers in the U.P. Public Works Department, Rampur, alleging irregularities, misappropriation of government funds, and falsification of records. Magistrate summoned the accused under Sections 409 and 468, IPC, without obtaining prior sanction under Section 197(1), Cr.P.C.
Finding of the Court:
1. No sanction is required for prosecution of a public servant under Section 409, IPC, as the offence of criminal breach of trust is not normally committed in the discharge of official duty. 2. General allegations against a large number of accused persons, without specific evidence connecting each accused with the alleged embezzlement and falsification of records, are not sufficient to summon all the accused. 3. The Magistrate should have given specific findings as to who amongst the accused were prima facie related to each of the several transactions and against whom there was evidence of commission of embezzlement of public money and falsification of records.
Issues: 1. Whether sanction is required for prosecution of a public servant under Section 409, IPC. 2. Whether general allegations against a large number of accused persons, without specific evidence connecting each accused with the alleged embezzlement and falsification of records, are sufficient to summon all the accused.
Ratio Decidendi: 1. The Supreme Court has held in subsequent decisions that no sanction is necessary to prosecute a public servant under Section 409, IPC, as the offence of criminal breach of trust is not normally committed in the discharge of official duty. 2. In the absence of specific allegations and evidence connecting specific accused with the alleged embezzlement and falsification of records, on the basis of general allegations no accused could be tried or convicted.
Final Decision: Both criminal revisions allowed. Impugned order dated 19-6-1997 set aside. Cases sent back to the Court below for decision afresh in the light of the observations made by the High Court.
( 1 ) THESE two revisions by different set of accused persons have been filed challenging the order dated 19-6-97 passed by Sri P. K. Gupta, First Additional Judicial Magistrate Civil Judge, Junior Division, Rampur summoning the revisionist and others under Ss. 409 and 468, IPC.
( 2 ) OPPOSITE party No. 2 in the aforesaid revisions namely, Riyasat Khan alias Putti Khan filed a complaint against 30 accused persons, all Engineers in the U. P. Public Works Department, said to be posted at Rampur at the relevant time, for commission of the Offences under Ss. 467/468/471 and 409, IPC. The allegations made in the complaint were that the accused persons are government servants in Division I and II of the P. W. D. They have committed irregularities and thereby misappropriated government funds and prepared false records, details of which will be given at the relevant time. During the financial year ending March, 1997 several lakhs of Rupees were drawn from government exchequer and fictitious expenditure was shown and entries were made in the ledger. During the year 1996-97 false muster-roll of Daily Wagers was prepared in respect of Rampur-Swar-Bajpur road and Swar Milak Khanam Road. The earth work shown on Khaud-Tanda road is also fictitious. A road between Gandhi Samadhi to Mandi Samiti was broadened but the amount relating to the laying of kharanja has been misappropriated. Some other instances of similar nature were mentioned in the complaint.
( 3 ) BEFORE the learned Magistrate the complainant examined himself under S. 300, Cr. P. C. and also summoned certain papers from the Public Works Department, Rampur. The learned Magistrate after perusing the material on record summoned 29 accused persons except Sri Vijay Singh Verma, Superintending Engineer. It is this order which is being challenged in the present revisions. Criminal Revision No. 766 of 1997, has been filed by all accused persons, namely, Sri Daya Ram, Assistant Engineer, Sri R. M. Gupta, Assistant Engineer, Sri P. C. Mishra, Sri C. K. Saxena, Sri B. B. L. Verma, Sri V. K. Saxena all Junior Engineer, Sri P. K. Banerji, Executive Engineer. Sri Rajesh Kumar, Assistant Engineer, Sri Param Singh, Sri I. M. Ansari and Sri Arvind Kumar Gupta, all junior Engineers. Criminal Revision No. 767 of 1997 has been filed by 8 accused persons, namely, Sri Tara Chand Gupta, Executive Engineer, Sri Abid Hussain, Assistant Engineer, Sri Pramod Kumar, Assistant Engineer, Sri Rajvir Singh, Sri Param Singh, Sri D. K. Rastogi, Sri Mahendra Singh and Sri Balram Singh, all junior Engineers.
( 4 ) I have heard Sri W. H. Khan, Sri Madhur Prasad, learned counsel for the revisionists and learned Additional Government Advocate for the State and Sri N. A. Khan, learned counsel for opposite party No. 2 (complainant ). Both the above revisions are finally disposed of at the admission stage.
( 5 ) THE impugned order is being challenged on two grounds, viz. , (1) that all the revisionists and other accused persons are government servants and the alleged acts of misappropriation and forgery are said to have been committed in the course of performance of their official duty and that the cognizance could not have been taken by the learned Magistrate without prior sanction in view of the provisions contained in S. 197 (1) of the Cr. P. C. and Secondly that the allegations contained in the complaint are of general nature and without reference to any specific accused. The learned Magistrate while passing the impugned order has also not specifically stated in the order in question as to which accused was responsible for which of the several offences. Therefore, the impugned order is bad in law. For the complainant-opposite party No. 2, the main contention is that no sanction is required for prosecuting for an offence under S. 409, IPC and the learned Magistrate passed the impugned order after thoroughly going through the record of the P. W. D. , the details of which have been given in the impugned or
