S.C. Jain, J.@mdashThis criminal revision has been filed against an order dated 1.5.1993 passed by Sri. P.K. Srivastava, the then Ist Addl. Chief Judicial Magistrate, Ballia dismissing complaint case No. 42 of 1993 Shambhu Nath Mishra v. R.D. Tripathi under Sections 409, 468 and 477A, I.P.C.
2. The facts giving rise to this revision petition are that Shambhu Nath Misra, the applicant herein, filed a criminal complaint under Sections 409, 420, 465, 468, 477A and 109, I.P.C. against Sri. R.D. Tripathi, the then Chief Medical Officer, Ballia before Chief Judicial Magistrate. Ballia alleging therein the acts of embezzlement, forgery and cheating against the accused, Sri. R.D. Tripathi. As per the averments made in the complaint the applicant was working as Class III employee, i.e. as a Vaccinator, in that area since 1963 where Sri. Tripathi Joined there in 1986 and remained there upto 1988. All the records regarding payment of arrears of salary etc. used to be in the custody of the accused, who used to be Drawing and Disbursing Officer. According to him his arrears of selection grade from July, 1985 to July, 1986 amounting to Rs. 443.90 p. were due and this payment was not made. Then on 8.11.1988 he moved an application in the office of the Chief Medical Officer. A reply was received that on perusal of the record it appeared that the said arrears amount has since been disbursed. After perusal of the record he found that against his name on the revenue stamp his signature has been forged showing payment of the said amount. The payment of the arrear was allegedly made by the accused and his name has also been shown as paying officer. No date of disbursement has been mentioned. As per the allegations, the accused has committed forgery, cheating and has mis-appropriated the amount which was due to the complainant.
3. An objection was raised regarding maintainability of the complaint in view of the provisions of Section 197, Code of Criminal Procedure. The learned Ist Addl. Chief Judicial Magistrate, Ballia by his detailed order dated 1.5.1993 allowed the application moved by the accused on 12.8.1992 for dismissal of the complaint for want of sanction u/s 197, Code of Criminal Procedure and on that account the complaint filed by the applicant was dismissed for want of sanction u/s 197, Code of Criminal Procedure.
4. Feeling aggrieved, this revision has been filed by the complainant, Shambhu Nath Misra.
5. As per the submission made by the learned Counsel for the applicant the amount which was due to the complainant as arrears of selection grade was embezzled by the accused. The act alleged to have been done by the accused cannot be said to have been done in discharge of his official duty. According to the learned Counsel for the applicant if an offence of embezzlement is committed the provisions of Section 197, Code of Criminal Procedure cannot be attracted as this act cannot be said to be committed in discharge of his official duty. The finding of the learned Magistrate on this account is illegal. His finding that no offence seems to have been committed by the accused is also illegal. This finding can only be given after appreciation of the evidence on record.
6. The law regarding the circumstances under which sanction u/s 197, Code of Criminal Procedure is necessary is by now well settled. While the law is well settled difficulties arise in applying the law to the fact of any particular case. The intention behind the section is to prevent public servant from being unnecessarily harassed. The section is not restricted only to cases of anything purported to be done in good faith, for a person who ostensibly acts in execution of his duty still purported so to act, although he may have a dishonest intention. In the case of Hari Ram v. Emperor, reported in 1939 FCR 159, it has been observed by the Federal Court that:
The section cannot be confined to only such acts as are done by a public servant directly in pursuance of his public office, though in excess of the duty or under a mistaken belief as to the existence of such duty. Nor is it necessary to go to the length of saying that the act constituting the offence should be so inseparably connected with the official duty as to form part and parcel of the same transaction.
The Judicial Committee of the Privy Council observed in Oill''s case reported in 1948 LR 75 1 A 41 as under:
A public servant can only be said to act or purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty.... The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office. There must be a reasonable connection between the act and the discharge of official duty, the act must bear such relation to the duty that he did it in the course of the performance of his duty.
While the question whether an offence was committed in the course of official duty or under colour of office, cannot be answered hypothetically and depends on the facts of each case.
7. Speaking for the Constitution Bench of the Supreme Court Hon''ble Chandrasekhar Aiyer. J. in the case of ''B. Saha v. M.S. Kochar'' reported in 1979 ACC (16) page 318 observed that:
In the matter of grant of sanction u/s 197, the offence alleged to have been committed by the accused must have something to do, or must be related in some manner, with the discharge of official duty.... there must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable claim, but not a pretended or fanciful claim that he did it in the course of the performance of his duty.
8. Applying such principles of law to the facts of the present case as set up in the complaint I find that the impugned order passed by the learned Chief Judicial Magistrate is legal and suffers from no infirmity. As per the averments made in the complaint this accused was drawing and disbursing officer, the record of payment used to be in his control and that he is alleged to have mis-appropriated this amount by forging the signature of the complainant on the revenue stamp on payment register. The offence alleged to have been committed by the accused is related in some manner with the discharge of his official duties. There is reasonable connection between the act and discharge of his official duty. Under these circumstances, sanction u/s 197, Code of Criminal Procedure is necessary before prosecution of this accused, who was working as Chief Medical Officer, Ballia at the relevant time.
9. I find no illegality or infirmity in the order passed by the learned Chief Judicial Magistrate, Ballia and as such I decline to interfere in this revision. The revision petition is accordingly dismissed.
