1. The contention of the petitioner before me is that there is a policy decision taken by the Government to condone or connive at certain kind of offences involving criminal misappropriation. The petitioner's contention is not that he had committed any such offences; but he relies upon the above policy decision of the Government and contends that even assuming that he was guilty of some kind of criminal misappropriation of the monies belonging to the Government, having regard to the above mentioned Government policy, he is entitled to be let off without any action against him. The fact that the Government has laid down such a policy has been conceded before me by the learned Public Prosecutor by producing the relevant Government circular in that behalf. The result is that I have no other alternative but to accept the petitioner's contention and to allow this appeal (petition ?) filed by the Government servant who was convicted by the Courts below for deflection of Public money.
2. The relevant facts are very few :
The petitioner (who will be referred to hereafter as the 'accused') was working as an Agriculture Assistant, in charge of the recovery of Tagai loans, at village Sadavan in Amalner Taluka of Jalgaon District. He worked on that post at that place till November, 1974. Some time during the period between 18-11-73 and 23-4-1974, he is alleged to have misappropriated a sum of Rs. 1104.71 ps. which he had recovered from various agriculturists in the village, who had taken Tagai loans from the Government. The modus operandi allegedly followed by him was that he recovered the instalments of Tagai loans from those various persons and even gave them receipts for the said recovery, but did not credit the amount in the Government Treasury. It is not clear from records as to how it was that the misappropriation was not noticed earlier, but the fact remains that so long as he was on that post and even some time, thereafter, the so-called misappropriation was not noticed by the department. The accused was subsequently transferred from that village and his successor made demands from the agriculturists in question. Those agriculturists showed their receipts and the prosecution case is that it is only thereupon that the misappropriation committed by the accused came to the knowledge of the new incumbent of the office of the Agriculture Assistant. The exact nature of realisation is somewhat shrouded in mystery. The fact, however, remains that on 13-10-1975 a notice was given by the Block Department Officer, Amalner to the accused to remain present in his office on or before 20th November, 1975. The notice is styled a as 'show cause notice'. But the notice itself does not refer to the alleged misappropriation or defalcation at all. It only calls upon the accused to remain present in the office for the purpose of certain clarifications. The accused remained present in the office on that day when he was called upon to deposit the entire amount of Rs. 1104.71 Ps. which he had received from the various agriculturists by way of recovery of Tagai loans. On 8th December, 1975 an order was passed against him for his suspension. However, the petitioner deposited the entire amount of Rs. 1104.71 Ps. in the Government Treasury on 12-12-1975. He even deposited the amount of interest on that sum, namely, Rs. 743.71 Ps.
In spite of these deposits however, a criminal prosecution was instituted against him by the Government and a charge-sheet was ultimately file against him on 3rd August, 1979 for having committed the offence of criminal breach of trust by misappropriation of the said mount of Rs. 1104.71 Ps. and that was how the accused faced the Trial in the Trial Court of offence under S. 409 I.P.C. A charge was duly framed in that behalf by the Trial Court.
3. The accused denied having committed any offence. His contention was that though he had passed those receipts in favour of the agriculturists in question, he had in fact, no received the amount till 12/13 December, 1975. He contended that he had deposited the said amounts in the Government Treasury immediately when he had recovered the same from the agriculturists. His contention was that the agriculturists in question had explained to him that they required additional loans; that they implored the accused to pass the receipts for the repayment of the loans already received by them so that they could get further loans from the Government. They explained that they did not have the money to repay the Tagai loans at that time, but assured the petitioner-accused that the amounts would be paid to him a little later. It was the contention of the accused that he relied upon their words and gave them receipts even though he had not received the amounts from them. As stated above, he pleaded that he received the amounts from the agriculturists on 12/13 December 1975 and that he deposited them immediately in the Government Treasury.
4. It is unnecessary to refer to the evidence led by the prosecution. It is enough here to state that the Trial Court was satisfied by the evidence led by the prosecution and, hence, arrived at the conclusion that the accused had committed the act of criminal breach of trust of misappropriation of a sum of Rs. 1104.71 Ps. as alleged. The Trial Court also found that the facts that he repaid the amount subsequently with interest did not have the effect of effacing the crime committed by him. The Trial Court, therefore, convicted the accused under Section 409, I.P.C. and sentenced him to imprisonment till rising of the Court and to pay a fine of Rs. 500/- and in default to suffer rigorous imprisonment for three months.
5. The accused filed an appeal to the Session Court and before the learned Sessions Judge an additional point relation to the above mentioned policy decision of the Government was urged on behalf of the accused. The contention was that the Government had taken a policy decision not to file prosecution against its employees if the delinquent employee had paid the entire amount to the govt. within one month form the date when notice in that behalf was received by the employee form the Government. A circular dated 30th November, 1978, issued by the General Administration Department of the Government was produced and relied upon by the accused before the Court in this behalf. It was also argued that even the evidence, as it stood, did not justify the appellants conviction. Both these contentions were however negatived by the learned Sessions Judge and hence the learned Sessions Judge dismissed the appeal and confirmed the order of convictions and sentence passed by the learned Magistrate. It is against the above order passed by the learned Sessions Judge that the present revision application is filed but he original accused in this Court.
6. After the rule was issued in the above petition and when the petition came up for final hearing before my brother Judge Padhye, J., he passed an interim order giving three weaks' time for the learned Public Prosecutor to obtain necessary information and to place the same before the Court relating to the question as to why an application for withdrawal of the prosecution was not filed by the Public Prosecutor in the Lower Court under Section 321 of the Criminal P.C., if the issuance of the circular by the Government, exhibit 9, in the Lower Court, was an admitted fact. This order was passed by my brother Judge on 29th June, 1981. In pursuance of this order, time was given to the learned Public Prosecutor again and against for the purpose of getting necessary instructions in that behalf. Ultimately, Mr. Kachare, the learned Public Prosecutor produced before me a Government Circular dated 6th May, 1976. It is not disputed that the said circular is meant for general application and it is conceded before me that the said circular reflects the general government policy and further that the circular governs all those who are intended to be governed by the same, uniformly. I may state here that the only question that was argued before same was the one relating to the effect of the circular. The contention of the learned Advocate for the accused Mr. Jahagirdar was that if the said circular was for uniform application then there is no reason why the Public Prosecutor should not have made an application to the Court under Section 321 of the Cri.P.C. for withdrawal of the prosecution against the accused.
6A. The only portion of the circular which is relevant for the purpose of this petition is clause 'A' of para 2 of the same. Said Clause (a) of Para 2 runs a follows :
'Where the amounts misappropriated have been fully recovered or paid by the delinquents within one month from the date of misappropriation being noticed, no prosecution should be launched and cases of this category already in the Court should be withdrawn. However, this will not preclude the action against the Sarpanch/Upa Sarpanch or a member under Section 30 of the Bombay Village Panchayats Act, 1958.'
It is unnecessary to paraphrase the above clause. It is enough to state that at reflects an unequivocal policy decision of the Government not to lodge prosecution against the delinquent employees if he has fully repaid the amount misappropriated within one month from the date when the misappropriation is noticed. Evidently, the word 'noticed' in the above Clause (a) means nothing else but the position that the accuse would not be proceeded against in a criminal Court if he repays the amount within one month from the date when the department gets knowledge of the said misappropriation. The word 'noticed' does not and cannot mean that the responsibility of the delinquent employee starts only from the date when he receives notice from the department to pay the amount. There is no reason whatsoever why such duty should be cast upon the Government to give a notice to the delinquent employee to pay the amount which he should not have, in the first place, misappropriated at all. It is further clear that if the delinquent employee repays the amount to the government within one month from the date when he gets knowledge that the entire game was over and that the factum of the misappropriation made by him had come to the knowledge of the Department, he gets a locus Poenitentiae by virtue of the clear policy decision contained in said Clause (a).
7. In the instant case, there is no dispute that the entire amount was repaid by the delinquent on 12-12-1975. As a matter of fact, he even paid the further sum of Rs. 743.71 Ps. on 13-12-1975 by way of interest. The question therefore is as to whether he deposited the amount within one month from the date when the Department got knowledge of the defalcation. My attention has not been invited to anything in the evidence from which it could appear that the Department had noticed this defalcation at any time beyond one month before the date of repayment. It is true that on 13-11-1975, a notice was given by the Block Development officer to the delinquent to remain present in the office on 20-11-1975, but there is nothing to show that realisation of the defalcation or misappropriation itself by the Government was complete on that date. Even assuming that the realisation was complete on that date, there is nothing to show that said realisation has been complete before that date. It could, therefore, be stated that at the earliest the said realisation had dawned upon the Government on 13-11-1975 and that was the reason why notice was given the Department to the accused for remaining present in the office to explain certain circumstances. The said notice has been styled as 'show-cause notice,' but the contents of the notice do not in any way reveal that cause for any particular default as such was expected to be shown by the accused. The record shows that the accused was informed about the department's knowledge on 20-11-1974 when the accused attended the office pursuant to the said notice received by him. He, in fact, deposited the entire amount on 12-12-1975 itself. The said payment was made evidently within one month from 13-11-1975. It is, therefore, difficult to hold that the accused is not entitled to the protection of the policy decision taken by the Government as evidenced from said Clause (a) of Para 2 of the said circular dated 6th May, 1976.
I may state here that the correctness of this factual position was specifically conceded by Mr. Kachare, the learned Additional Public Prosecutor. He also conceded that in this context the policy decision of Government contained in the said circular could be commissioned into service by the Public Prosecutor appearing in the Trial Court for the purpose of making the application for withdrawal of the prosecution under S. 321 of the Criminal P.C. He was, unable to make any statement in the Court as to why no such application was made in the Trial Court in spite if the facts that the hearing of the present petition was adjourned from time to time, for several months in order to take the necessary instructions in that behalf.
8. At this stage, I may make it clear that at least prima facie it does appear to me that such policy decision is not warranted by our legal system. The duty owed by the government-officers to the Government in particular and to the Society in general is at least coextensive with that owed by private citizens, if not more. If a private individual had committed misappropriation of the above character, he would not have been allowed to go scot-free merely because the amount was repaid by him within one month from the date when the cat came out from the bag. It is difficult to see any justification for a government employee being immune from prosecution in identical circumstances. I have no own doubt as to whether the said Para 2 of the circular can be said to be based on any constitutional provision or can be said to be justified in spite of constitutional injunction contained in Art. 14 of the Constitution in particular and in spite of the scheme of the Constitution as a whole in general. But the difficulty is that neither the petitioner nor the respondent before same are calling in question the constitutional validity of the said Clause (a). Assuming that I can exercise my power suo motu. I do not think that this is a fit case for my exercise my power. In these circumstances, I have no other option but to leave the question relating to the validity of the said circular open for being decided in an appropriate case later on and to proceed with the judgment upon the assumption that the said circular is a valid circular. If it is a valid circular, the present petitioner is as much entitled to avail of the same as any other citizen of this country.
9. This being the position, I have no other option but to allow this petition. In view of the above legal position, the conclusion is inevitable that it is incumbent upon the public prosecutor to make an application to he Court under Section 321 of the Criminal P.C. for withdrawal of the prosecution. Mr. Kachare, the learned Public Prosecutor maintains that he still has no instruction to withdraw the original prosecution although he concedes that the circular in question makes it obligatory for the Government to give such instruction. To my mind, the action of the Government in this connection is totally unjustified and is violative of the mandate of Article 14 of the Constitution. If the Government has taken a policy decision not to lodge prosecution in given kind of cases and to, in fact, withdraw the prosecution if already lodged, in such cases it does not lie in the government's mouth to contend that in the cases chosen by themselves they would refuse to make any such application. It is already conceded before me that the circular dated 6th May, 1976, was intended to be of uniform application. In this view of the matter, the action of the Government to stick fast to its decision of not to withdraw the prosecution against the present petitioner is even less justified.
10. In these circumstances, I have no other option by to assume that the legal duty which was a matter of obligation for the government, namely, to withdraw the prosecution has been performed by the prosecution. I, therefore, order that the prosecution should not be allowed to proceed. The ultimate order of conviction and sentence is, therefore, quashed and set aside.
11. I make it clear that in view of this legal position, it is unnecessary to examine the question as to whether the charge of criminal breach of trust could be justifiably and legitimately brought home against the accused in the light of evidence led by prosecution. No arguments were required to be advanced by Mr. Jahagirdar in view of the above position stemming from the circular dt. 6th May, 1976.
12. The petition, therefore, succeeds. The Rule is made absolute. The order of conviction and sentence passed by the Trial Magistrate and confirmed by the learned Sessions Judge is hereby quashed and set aside. Fine, if already paid in order to be refunded to the accused.
13. Rule made absolute.