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 :