M.M. Punchhi, J.
1. This order will dispose at Criminal Misc. Nos. 4572-M and 4574-M of 1980. They arise out of the self-same matter. A trial is pending in the Court of Sh. H. R. Kaushik, Judicial Magistrate 1st Class, Patiala against the two respective petitioners under Sections 409, 467 and 120B, Indian Penal Code, Conceded-ly, the petitioners, i. e. Bachan Singh who is now a retired Block Development and Panchayat Officer and Hans Raj an Accountant yet working in the office of the Block Development & Panchayat Officer, Anandpur Sahib, District Ropar (then working at Samana) are State Government servants. The offence of criminal breach of trust being punishable under Section 409, Indian Penal Code, is attractable only against Government servants. The crime was reported on 21-5-1976 in a letter addressed to the concerned officials of the Police Station, Samana, by Shri Raghbir Singh, Inspector Vigilance Bureau, District Patiala. Later, after investigation, the chalan was presented in Court on 3-8-1979. The learned trial Magistrate framed charges against the petitioners on 17-11-1979. Some evidence of the prosecution has also been led as it seems.
2. Bachan Singh, one of the petitioners, made an application to the trial Court that, since he stood retired from service, no judicial proceedings could be instituted against him under proviso 3(b)(a) to Rule 2.2 of the Punjab Civil Service Rules. The petition was rejected. Both the petitioners filed a revision petition before the Court of Additional Sessions Judge at Patiala but the same was dismissed by him on 9-7-1980. Now they have approached this Court invoking its inherent jurisdiction under Section 482 of the Code of Criminal Procedure.
3. The learned Counsel for the petitioners has primarily raised two contentions, that is : (i) no sanction requisite under Section 197, Code of Criminal Procedure, is forthcoming, which is a condition precedent for the trial of the petitioners and (ii) the case as compiled by the prosecution and presented does not disclose an offence which is triable by a criminal Court.
4. On ground No. (ii) aforesaid, it ha:; to be noticed that the petitioners on that material were charged for the offence and the trial is in progress. The petitioners, if so advised, could have come up against the order of charge but they have chosen to sleep over it for all these months. The point raised cannot be permitted to be agitated in proceedings under Section 482, Criminal Procedure Code, as jurisdiction of this Court to prevent the abuse of the process of the Court or otherwise in the interest of justice is, by now, well known to flow in defined channels.. The first ground raised, however, is material but subject to clear establishment of primary facts. It is true that under Section 197, Criminal Procedure Code, sanction of the Government is necessary when the accused being tried was or is a public servant and the offence alleged against him is said to have been committed by him by acting or purporting to act in the discharge of his official duties. No doubt, Bachan Singh petitioner is no longer in Government service, but, concededly, at the time of commission of the offence he was a Government servant and is thus entitled to invoke the provisions of Section 197, Criminal Procedure Code. The mischief which actually came to be committed prior to the present Code has been taken care of. Under the old Code, such a protection was only available to existing Government servants. Now, whether the requisite sanction is available on the record or not is a question of fact. Whereas the petitioners contend that there is no such sanction and that the trial is being proceeded illegally, the learned Counsel for the State is not in a position to specifically refute such an assertion.
5. It is no doubt true that the objection has been taken at the earlier stages of the trial, as otherwise, after finalization of the case, perhaps, it could not be available anywhere unless it occasioned in failure of justice thereby. In the circumstances, a safe course is desirable to be adopted.
6. Subject to the assertion of the petitioners being true, if the requisite sanction is not available on the record, the learned Judicial Magistrate 1st Class should debar himself from proceeding with the trial in the spirit of Section 197, Criminal Procedure Code. But if it is otherwise, then he is well within his rights to proceed further. The petitioners may avail of this order before the learned trial Magistrate as early as possible and, in any case, before the next date of hearing.