1. This reference is from the Additional Deputy Commissioner of United Khasi-Jaintia Hills in connexion with the prosecution of accused Nagendra Nath Datta Choudhury in G. B. Case No. 49 of 1954 of the Magistrate's Court at Shillong. The case for the prosecution is that while the accused was serving as an Accountant in the Pasteur Institute at Shillong in the year 1949 had misappropriated a sum of Rs. 430/- which represented the fund of the Pasteur Institute.
The case was started on an information lodged with the police by the Director of the Pasteur Institute who investigated the matter and filed a charge-sheet. The misappropriation is alleged to be detected in the year 1954 when the accused was re-employed after superannuation and working in the Pasteur Institute.
The prosecution had already examined six witnesses and a charge has been framed against the accused Nagendra Nath Datta Choudhury under Section 409, Indian Penal Code as he is alleged to have defalcated this amount after being entrusted with the fund or having dominion over the same in his capacity as an Accountant in the Pasteur Institute, that is, as a public servant.
The defence raised an objection to the effect that no prosecution of a Government servant under Section 409, Indian Penal Code is competent without obtaining a sanction as provided under Section 197 of the Criminal Procedure Code, which objection the learned Magistrate refused to give effect to mainly on the ground that it was belated.
The learned Additional District Magistrate being moved against the said order has made the present reference to this Court for a decision as to whether the sanction is necessary for the purpose of prosecuting the accused under Section 409, Indian Penal Code. It appears that even some of the P. Ws. have been cross-examined.
2. In view of the several decisions of the Supreme Court, it now appears that the sanction is essential in the circumstances of the case for prosecution of a public servant for criminal breach of trust in his capacity as such. The learned senior Government Advocate appearing for the State does not oppose the reference.
After hearing both the parties I am satisfied that a sanction as contemplated under Section 197, Criminal Procedure Code is necessary and the prosecution of the accused Nagendra Nath Datta Choudhury under Section 409, I. P. Code or for allied offences will be competent only after obtaining such sanction from proper authorities. The reference is accepted. Records to go down Immediately.