Bombay High Court
Vinayak S/O Sadashiv Pande vs State Of Maharashtra on 4 September, 2002
Equivalent citations: 2003 BomCR Cri, 2003 (1) MhLj 224
Author: R Mohite
Bench: R Mohite
JUDGMENT
R.S. Mohite, J.
1. Rule. By consent rule is made returnable forthwith.
2. As the common point is involved in all these applications, all the applications are disposed of by way of common judgment.
3. In this criminal application, the applicant who is a police head constable, in-charge of Malkhana seeks to quash and set aside the order passed by the Chief Judicial Magistrate, Nagpur dated 3-4-2000 refusing discharge on the ground of non obtaining of sanction under Section 197, Criminal Procedure Code as well as the order of the Revisional Court dated 4-8-2000 rejecting the revision against the aforesaid order of the Chief Judicial Magistrate, Nagpur.
4. It is an admitted fact that the prosecution is under Section 409 of the Indian Penal Code.
5. On behalf of the applicant reliance is placed on two judgments of the Apex Court and . It is contended that from the ratio laid down in these judgments, the sanction is required to for the prosecution under Section 409, Indian Penal Code. In my opinion there is no substance in the contention raised on behalf of the applicant. These two judgments of the Apex Court cited, can no longer said to be a good law in view of the judgment of the Constitutional Bench of the Apex Court in the case of Omprakash v. State of Uttar Pradesh, which categorically holds that no sanction is required for an offence under Section 409, Indian Penal Code. Besides the judgment cited in was referred to in a subsequent judgment of the Apex Court in the case of Baijnath v. State of Madhya Pradesh, and the Apex Court has held that it was not necessary to examine how far the decision in Amriksingh's case can stand in view of earlier decision of the Judicial Committee with two subsequent decisions of Larger Bench of this Court in Omprakash v. State of U. P. Even, subsequently there are decisions of the Apex Court which laid down that no sanction for an offence under Section 409, Indian Penal Code is required. In this connection reference can be made to the decision of the Apex Court in the case of Harihar Prasad v. State Bihar, 1972 CrlL.J. 706 in which both as well as were considered. Again these very two judgments have been considered by the Apex Court more recently in the case of State of Kerala v. Padmanabhan Nayar reported in 7999 (4) CrlL.J. 3696. The Apex Court has laid down that no sanction is required for an offence under Section 406 and 409 read with Section 120-B of the Indian Penal Code.
6. This Court has also considered almost all the relevant judgments right from the Judgment of our Court in the case of State of Maharashtra v. Shankar Wagh, 2001 (4) Mh.L.J. 786 on the point and concluded that no sanction is required.
7. Reliance on behalf of the applicant has also made on the case of Rizwan Ahmed Javed Shaikh v. Jammal Patel . The facts in the aforesaid cases were completely different, there was no charge under Section 409, Indian Penal Code. The facts of that case were that the police officer had kept persons in police custody without producing them before the Magistrate within 24 hours of arrest. In such circumstances it was held that sanction was required. The act in the said case was clearly different from the Act alleged in this case.
8. The reasoning given by the Federal Court in the case of Hori Ram Singh v. Emperor while making a distinction between Section 409, Indian Penal Code and Section 477-A, Indian Penal Code is very relevant and lucid. In that case it was held that sanction was necessary for prosecution under Section 409 of the Penal Code. While making distinction, it was held that in the case of offence under Section 409, Indian Penal Code, the official capacity was material only in connection with "entrustment' and does not necessarily enter into later act of the misappropriation or conversion which is the act complained of. Whereas, in the charge under Section 477-A, official capacity is involved in the very act complained of is amounting to a crime. Insofar as the Act under Section 409 is concerned, the fact that the applicant was Police head constable, at the very highest can be said to have provided him with an opportunity of committing the offence. But, for these reasons, it cannot be said to be an official act or an act purporting to be so.
9. Thus, there being no substance in these applications, the rule is discharged in all the aforesaid matters.
10. I am informed that the cases are of the year 1991 of the alleged misappropriation for the period 1988 to 1990. In the circumstances, the trial of the applicant will be expedited in all cases.
11. The copy of this judgment and order be kept in all the connected matters.
