Bombay High Court
R.L. Sangle, Administrator, Manmad ... vs Vasantrao Sampatrao Ahire And Another on 30 October, 1984
Equivalent citations: 1985(1)BOMCR355
ORDER
1. The only point involved in this petition is whether sanction under section 197 Cr.P.C. is necessary for prosecuting a public servant for the offence punishable under section 166 I.P.C.
2. The above point arises on the following facts. The petitioner-accused at the relevant time was the Administrator of Manmad Municipal Council, Manmad, District Nasik. In his capacity as the Administrator of the Municipal Council he had received a sum of Rs. 10,60,500/- from the Government by way of grant for the School Board. As per rule 157(2) of the Bombay Primary Education Rules, 1949, such grants are to be made over to the School Board within one week of their receipt from the Government. It is alleged that the Administrator, instead of making over the amount of the grant to the School Board, utilised the amount for other municipal purposes, and in spite of reminders from the School Board and the superior authorities he did not make over the whole of the amount of the grant to the School Board. Therefore, the Vice-Chairman of the School Board filed a complaint on 14th September 1983 in the Court of the Judicial Magistrate, First Class, Manmad, for the offence punishable under section 166 I.P.C. against the petitioner and the learned Judicial Magistrate after verification of the complaint issued process against the petitioner for the offence under section 166 I.P.C. The reasons given by the learned Magistrate for issuing process read as follows :-
"Heard Shri Sanklecha Advocate. Perused the authority cited by him, decided by their Lordships in the Criminal Law Journal of July 1981 and August 83. The case of July 1981 of Punjab and Haryana High Court clearly flowed light on this point. It is clearly held by their Lordships that if the act of public servant is unlawful hence no sanction for the said prosecution is necessary.
After going through these two authorities, I am satisfied that the above two cases are clearly applicable to our present case. Hence I pass the following order :
ORDER Issue process against the accused under section 166 of I.P. Code after payment of process fee, returnable on 1-10-1983."
The above order of the learned Judicial Magistrate, First Class, Manmad, Shri S. S. Salve, is assailed by the petitioner accused in this petition.
3. The learned Counsel for the petitioner-accused contends that without obtaining sanction under section 197 Cr.P.C. no prosecution for the offence under section 166 I.P.C. could be launched against the petitioner. In support of his contention he relies on the decision in Shankarrao Mohite Captain v. Burjor D. Engineer, . It was a case arising out of the bursting of Panshet and Khadakwasla Dams. A complaint was filed for the offences under sections 166 and 290 I.P.C. against the Commissioner, Poona Division, Collector and District Magistrate, Poona, District Superintendent of Police, Poona, and the Commissioner, Poona City Municipal Corporation, that in law certain duties were cast on all these officers for the safety of populace but in wanton disregard of those rules of duty they did not perform those functions which they were expected to perform at the time of floods in the City of Poona due to the bursting of Panshet and Khadakwasla Dams. In that case it was contended that the complaint was not tenable without sanction under section 197, Cr.P.C. Accepting the contention it was held that inasmuch as the illegal omissions of the public servants must necessarily arise out of the official duty which they were performing, section 197, Cr.P.C. must apply, and the prosecution was incompetent in the absence of a sanction from an appropriate authority under section 197 Cr.P.C. The above decision of this Court fully applies to the facts of the present case. The alleged diversion of the funds received as a grant to be made over to the School Board by the petitioner-accused for other purposes of the Municipal Council was clearly an act of the petitioner in the discharge of his duties, and as such for prosecuting the petitioner for the offence under section 166 I.P.C. sanction under section 197 Cr.P.C. was necessary. The learned Judicial Magistrate in his cryptic order has not cared to give the proper citations of the authorities he relied upon. The decision referred to by the learned Magistrate, reported in the Criminal Law Journal of August 1983, appears to be the case of State of Himachal Pradesh v. Nand Lal, 1983 Cri LJ 1896 (Him Pra). In that case the offence alleged was not under section 166 I.P.C. but was under section 406 I.P.C. It was alleged that the public servant had misappropriated some funds entrusted to him for purchase of certain articles. On the facts of that case it was held that the sanction under section 197 Cr.P.C. was essential. The case of the Punjab and Haryana High Court, referred to by the learned Judicial Magistrate, is the case of Budhi Parkash Yadav v. K. C. Sharma, 1981 Cri LJ 993. In that case the allegations against the accused Deputy Commissioner and District Superintendent of Police were that they beat, abused and assaulted some advocates and kept them in confinement as those officers were caught red-handed while taking bribe. On the facts in that case it was held that the alleged acts had no nexus with performance of official duties and hence no sanction was necessary. It was not a case for the offence punishable under section 166 I.P.C. ands it was not at all relevant for deciding whether on the facts of the present case sanction under section 197, Cr.P.C. was necessary. It appears that the learned Judicial Magistrate did not carefully go through the authorities cited before him, and without applying his mind to the facts of the present case and the law regarding scansion under section 197, Cr.P.C. for the offence under section 166, I.P.C. issued process against the petitioner and caused him unnecessary harassment.
4. Consequently, the order of the learned Judicial Magistrate issuing process against the petitioner-accused under section 166 I.P.C. cannot be sustained. The criminal proceedings started by the respondent No. 1 complainant against the petitioner without obtaining the necessary sanction under section 197 Cr.P.C. will have to be quashed.
5. In the result, the petition is allowed. The rule is made absolute. The Criminal Proceedings against the petitioner-accused in Criminal Case No. 1195 of 1983, pending in the Court of the Judicial Magistrate, First Class. Manmad, District Nasik, are hereby quashed. The respondent No. 1 complainant shall pay the costs of the petitioner. The costs are quantified at Rs. 250/-.
6. Petition allowed.