Bombay High Court
Asaram Kishanrao Bhaware vs State Of Maharashtra on 22 September, 2000
Equivalent citations: (2001)1BOMLR379, 2000(4)MHLJ695
Author: B. B. Vagyani
Bench: B.B. Vagyani
JUDGMENT
B. B. Vagyani. J.
1. Heard learned Advocate Shri Prashant Deshmukh for the petitioner and learned APP Shri M. S. Indani for respondent State.
2. The petitioner herein was prosecuted for having committed offence punishable under section 409 of Indian Penal Code. Petitioner, at the relevant time, i.e. between 19.8.1982 to 4.9.1984 was Headmaster of Central Primary School at Panranjangaon. The said primary school was under the management of Zilla Parishad, Aurangabad. At the material time the petitioner received consolidated salary cheque on 4th of December, 1982, from Panchayat Samiti, Paithan. The salary was for the month of November, 1982, to be paid in the month of December, 1982. It is prosecution case that accused misappropriated certain amount. Similarly, he did not pay the salary of Rs. 660.20 to prosecution witness Shaikh Tajoddin. In the monthly pay bill of November, 1982, Ex. 20, there was no signature of co-teacher Shaikh Tajoddin on the revenue stamp. Shaikh Tajoddin asked accused as to why his salary was not paid. Accused replied that he would pay his salary afterwards. It is prosecution case that accused misappropriated the amount of Rs. 660.20 and, after considerable lapse of time, paid Rs. 660.20 to Shaikh Tajoddin in instalments.
3. Chargesheet came to be filed after completion of the investigation. The prosecution led evidence. Learned Judicial Magistrate. First Class, accepted the prosecution evidence and convicted the petitioner accused under section 409 of Indian Penal Code and sentenced him to suffer rigorous imprisonment for two years and to pay fine of Rs. 3,000/-; in default of payment of fine, to suffer simple imprisonment for four months.
4. Feeling aggrieved by the order of conviction and sentence, the petitioner preferred Criminal Appeal No. 50/1991 in the Sessions Court at Aurangabad. The Additional Sessions Judge, Aurangabad, allowed the Criminal Appeal partly. The order of conviction is maintained, however, the sentence imposed by the Judicial Magistrate. First Class, is modified. The learned Additional Sessions Judge reduced the sentence till rising of the Court and to pay fine of Rs. 500/-; in default, to undergo simple imprisonment for one month. The correctness of this impugned order dated 20.1.1995 passed by the Additional Sessions Judge, Aurangabad, is challenged by the original accused in this Criminal Revision Application.
5. Learned Advocate Shri Prashant Deshmukh submitted that the present petitioner had paid the salary of Rs. 660.20 to co-teacher Shaikh Tajoddin within a period of one month from the date of misappropriation and therefore, the petitioner accused should not have been prosecuted for the offence punishable under section 409 of Indian Penal Code. This is the only submission advanced by Shri Prashant Deshmukh. He did not dispute factual position.
6. According to learned Advocate Shri Deshmukh, the State Government has taken a policy decision and, as per this policy, if the amount misappropriated is deposited within a period of one month from the date of misappropriation being noticed, no prosecution is to be initiated. According to him, the petitioner cannot be denied the benefit of this general policy of the State Government. He submits next that the Public Prosecutor, who was in Charge of the trial, ought to have filed application under section 321 of Criminal Procedure Code for withdrawal of the prosecution. Because of failure of Public Prosecutor in charge of the case to apply for withdrawal under section 321 of Criminal Procedure Code, the petitioner accused has been unnecessarily tried and convicted. When benefit of the policy of the Government is extended to other Government employees, there is no reason for denial of such benefit to the present petitioner. In order to support his submission, learned Advocate Shri Prashant Deshmukh heavily relied upon decision of this Court in the case of Dagada Shamrao v. State of Maharashtra.
7. On the other hand, learned A.P.P. Shri M. S. Indani strongly supported the order of conviction and sentence passed by the Additional Sessions Judge, Aurangabad. According to him, the petitioner did not at all raise this point before the Trial Magistrate. He did not produce the Government circular on which the petitioner wants to rely. He also makes a grievance that even at this stage also the so called Government circular is not placed on record for perusal of the Court. Pointing out this circumstance, learned A.P.P. Shri Indani submits that the impugned order passed by the learned Additional Sessions Judge. Aurangabad. is perfectly legal and correct.
8. I thoroughly considered the rival submissions. It is admitted position that the petitioner herein did not at all raise the point now canvassed before this Court, before the Trial Court, It is also admitted fact that the petitioner did not bring on record the Government circular on which heavy reliance is placed by the petitioner accused. Under the circumstance, it is rather difficult for this Court to appreciate the argument of learned Advocate Shri Prashant Deshmukh in this behalf.
9. Even otherwise, benefit of the so-called Government policy cannot be extended to the petitioner if regard is had to the requirement for pressing the Government policy into service. According to Shri Prashant Deshmukh, Advocate, the repayment of the amount misappropriated is required to be made within a period of one month from the dale of misappropriation being noticed. It is clearly seen from the material placed on record that, in the first week of December, 1982 itself, somewhere around 8.12.1982 Shaikh Tajoddin did not receive his monthly salary of Rs. 660.20. It is transpired in the evidence on record that Shaikh Tajoddin questioned petitioner as to why his monthly salary was not paid to him. If this circumstance is taken into consideration, it can be said with certainty that the fact of misappropriation was made known to co-teacher Shaikh Tajoddin on 8.12.1982. The petitioner accused did not at all disclose the date of repayment. On the contrary, he has stated in his statement under section 313 Criminal Procedure Code that he repaid the amount of salary to co-teacher Shaikh Tajoddin about one month after the due date. If this statement of the petitioner accused is taken into consideration, there is no manner of doubt that the petitioner accused cannot claim benefit of the so-called Government Policy.
10. In the case of Dagadu Shamrao, (cited supra), the Government circular dated 6th May, 1976 was placed on record and the benefit was specifically claimed. There is a reference in the judgment that the said circular is meant for general application. In the said case date of repayment was specifically disclosed. Therefore, learned Single Judge has specifically observed in para 7 of the judgment that the repayment was made within one month from the date of misappropriation being noticed by the Department. Therefore, the benefit of the said notification was given to the accused in the said case. But, in the instant case, it is clearly seen that the amount of Rs. 660.20 was repaid by the petitioner accused after one month from the due date, that too in fractions. In view of this position, the case of Dagadu Shamrao does not help the petitioner accused in any manner.
11. This takes me to consider the second limb of argument of Shri Prashant Deshmukh. Advocate with regard to application of section 321 of Criminal Procedure Code. The Single Judge of this Court has observed in paragraph 9 of the judgment that it was incumbent upon the Public Prosecutor to make an application to the Court under section 321 of Criminal Procedure Code, for withdrawal of the prosecution in response to the Government Circular of 1976. No doubt, section 321 of Code of Criminal Procedure empowers the Public Prosecutor or Assistant Public Prosecutor in charge of the case to withdraw the prosecution with the consent of the Court. The Public Prosecutor is required to apply his mind to the facts of the case independently without being subject to any outside influence. At this juncture, I would like to mention that Public Prosecutor is not absolutely independent officer. He is appointed by the Government for conducting a case in the Court on behalf of the Government. The position of the State Government is that of a client while position of the Public Prosecutor is that of Counsel. The Public Prosecutor, therefore, cannot act without instructions of the Government. A reference with profit can be made to a decision in the case of Sheonandan Paswan v. State of Bihar. The Supreme Court has observed.
"................... Unlike the Judge, the Public Prosecutor is not an absolutely independent officer. He is an appointee of the Government, Central or State appointed for conducting in Court any prosecution or other proceedings on behalf of the Government concerned. So there is the relationship of counsel and client between the Public Prosecutor and the Government. A Public Prosecutor cannot act without instructions of the Government; a Public Prosecutor cannot conduct a case absolutely on his own, or contrary to the instructions of his client, namely, the Government. Section 321 does not lay any bar on the Public Prosecutor to receive any instruction from the Government before he files an application under that section. If the Public Prosecutor receives such instructions, he cannot be said to act under extraneous influence. On the contrary, the Public Prosecutor cannot file an application for withdrawal of a case on his own without instruction from the Government."
If the legal position emerged out from the case of Sheonandan Paswan (cited supra), is considered, it cannot be said that the Public Prosecutor is empowered to file application under section 321 for withdrawal of the case on his own without instruction from the Government.
12. In the result, I hold that the impugned order passed by Additional Sessions Judge, Aurangabad, does not suffer from any illegality. Criminal Revision Application filed by the original accused is devoid of any merits. Hence, Criminal Revision Application stands rejected. Rule is discharged accordingly.