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Ranchhodlal Khumaji Joshi Vs. State - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1970)11GLR499
AppellantRanchhodlal Khumaji Joshi
RespondentState
Excerpt:
- - after considering the relevant rules and other provisions we held that the sanction to prosecute given by the district panchayat concerned was bad in law and that the panchayat had no authority to appoint the accused......given by the district development officer or any other officer of the panchayat concerned or the district panchayat concerned. in criminal appeal no. 690 of 1966, decided by a.d. desai j. and my learned brother, on 21st september, 1968, all these judgments have been referred to and it has been held that the district development officer had no power to remove the accused from his service. since the allocation at the relevant time, viz. prior to april 1, 1967, was under the terms of section 206a, provisional, it is obvious that the accused will continue to be a government servant though he had been allocated to the panchayat service. in criminal appeal no. 198 of 1965, decided by myself and a.d. desai j. on september 22/23, 1966, the provisions of section 206a were also considered and.....
Judgment:

B.J. Divan, J.

1. The appellant in these four appeals is the same individual. He was at the relevant time, Talati-cum-Secretary of Mota Jampura in Kankrej Taluka of Banaskantha District. He was tried by the learned Special Judge, Banaskantha, at Palanpur, in four different cases in connection with different amounts alleged to have been misappropriated by him when he was working as the Talati-cum-Secretary of this group of villages. In Mota Jampura Saja there were three different villages under the accused, viz. Mota-Jampura, Kasara and Amblun and the amounts alleged to have been misappropriated by the accused were said to have been paid to him by different residents of these three villages.

2. In the case out of which Criminal Appeal No. 763 of 1966 arises, it was alleged against the accused that on July 18, 1963, one Jeha Devaji of Mota Jampura had paid a sum of Rs. 197/-, being the amount of the instalment payable by Jeha towards the dues of the Land Mortgage Bank. The accused is alleged to have issued the receipt to Jeha but thereafter he is said to have destroyed the counter foil of the receipt and the amount was not credited in the appropriate account as should have been done and ultimately when certain Departmental proceedings were initiated against him, on June 5, 1965, the amount of Rs. 197/- was got credited in the Government Treasury.

3. In the case out of which Criminal Appeal No. 764 of 1966 arises, it was alleged against the accused that on July 18, 1963, an amount of Rs. 128. 43 was paid by one Bachukhan Haiderkhan of Kasara village to the accused. This amount was paid on behalf of one Ayubkhan Chakarkhan, a minor, and this amount was also towards the dues of the Land Mortgage Bank due from Ayubkhan Chakarkhan. In this case also, the accused issued a receipt at the time when the amount was paid to him but according to the prosecution, the counterfoil of the receipt was destroyed and the amount was not got credited as it should have been but ultimately on June 5, 1965, the amount was got credited by the accused in the Government Treasury during the pendency of the Departmental proceedings.

4. In the case out of which Criminal appeal No. 765 of 1966 arises, it was alleged against the accused that on November 27, 1963, the accused received an aggregate amount of Rs. 65. 25 from three khatedars of Amblun village. The amount was alleged to have been paid to the accused by way of survey Department charges for boundary-stones which the khatedars wanted to get fixed. Receipts were issued to the relevant khatedars but the counter foils were alleged to have been destroyed by the accused and ultimately on February 16, 1965, this amount of Rs. 65. 25 was got credited by the accused in the Government Treasury during the pendency of certain Departmental proceedings against him.

5. In the case out of which Criminal appeal No. 766 of 1965 arises, the allegation was that the accused received an aggregate sum of Rs. 906 on November 28, 1963 and a further sum of Rs. 4. 50 on November 30, 1963; thus making up the total of Rs. 910. 50. This amount was also received from different khatedars of Amblun village and this aggregate amount was also by way of survey Department charges for fixing the boundary stones in the fields of the different Khatedars. It was alleged in this case also that this aggregate amount which the accused received was not credited in the Government Treasury as it should have been, the relevant books of account were alleged to have been destroyed or concealed by the accused and ultimately on February 18, 1965, this amount of Rs. 910. 50 was got credited by the accused in the Government Treasury during the pendency of the Departmental proceedings.

6. As a matter of fact, common investigation was carried on against the accused in all the four cases and sanction to prosecute in all the four cases was the same and also only one chargesheet was submitted against the accused in all the four cases. At the stage when the proceedings were going on before the learned Special Judge, at the time of the commence ment of the proceedings, an application was submitted by the learned Assistant Public Prosecutor, Banaskantha District, to the effect that the trial of the accused should be separated into four different cases lest there might be misjoinder of charges. That application was allowed by the learned Special Judge and thereafter the four cases were separated and the accused was charged and tried separately in respect of these four different amounts, as stated above.

7. As stated above, at the relevant time i.e. between July 18, 1963 and November 30, 1963, the accused was working as Talati-cum-Panchayat Secretary of Mota-Jampura-Saja and the sanction to prosecute, which was a common sanction in all the four cases, had been given by the District Development Officer, Banaskantha District. That sanction was given on June 1, 1965 and the sanction to prosecute is Ex. 10 in Criminal Appeal No. 763 of 1966 and copies of that sanction were produced in the three other cases. In each of the four cases, the accused was tried on charges under Section 5(2) of the Prevention of Corruption Act and also under Section 477A of the 1. P.C. In each of the four cases, the accused was found guilty under the aforesaid sections and was accordingly convicted and sentenced to different terms of imprisonment; and the substantive sentences of imprisonment were ordered to run concurrently. These four appeals have been filed by the accused against the orders of conviction and sentence passed by the learned Special Judge against him.

8. Since a common question of law arises in each of the four eases and since we are going to dispose of all the four appeals on that common question of law relating to the sanction to prosecute we will dispose of all the four appeals by this common judgment. Under the scheme of the Gujarat Panchayats Act (No. VI of 1962), the services of several Government servants were transferred to the different Panchayats of Gujarat under the powers conferred by the relevant sections of that Act. The question as to what was the status of the Government servants whose services were thus transferred came to be considered in several Criminal appeals by this Court and the question whether the sanction to prosecute a Talati-cum-Secretary, whose services have been transferred by the Government to the relevant Panchayat should be given by the District Development Officer or should be given by the Government of Gujarat or by any person to whom the powers of the State Government have been duly delegated in that behalf, has been considered in a series of decisions by this Court.

9. The Legislature has inserted Section 206A to indicate that the alloca tion to Panchayat should be provisional for a certain period and that section provided for reallocation of officers and servants to State service after the allocation had been originally made. Section 206A provides that the allocation to the Panchayat service made under Section 206 of officers or servants allotted or transferred to a Panchayat under Section 107 or Section 158 was initially to be provisional and it would be lawful for the State Government to review their allocation within a period of four years from the 1st April, 1963, and if necessary to reallocate by an order made in that behalf any of such officers or servants to the State service for any of the reasons mentioned in Clauses (i).to (iii) to Sub-section (1) of Section 206A. The provisions of Section 206A have also been considered by different Division Benches of this High Court.

10. In Criminal Appeal No. 865 of 1963, the question before the Division Bench consisting of myself and Mehta J. was regarding the provisions of Section 206 and the provisions of Section 206A did not come up for consideration. In Criminal appeals Nos. 813 of 1964, decided by Mehta and M.U. Shah JJ. on 2nd February 1966, 94 of 1966, decided by myself and A.D. Desai J. on 22nd September 1966, 198 of 1966, decided by myself and A.D. Desai J. on 22nd September 1966, 369 of 1965, decided by Vakil and A.D. Desai JJ. on 22nd November 1966, 786 of 1965, decided by A.D. Desai and Thakor JJ., on 22nd January 1968, 179 of 1966, decided by Bakshi and Sompura JJ. on 29th March 1968 and 690 of 1966, decided by A.D. Desai and Sheth JJ. on 21st September 1968, the same view has been taken by this High Court consistently and the view is that in the case of a Government servant, who has been allocated to the Panchayat service under the provisions of Section 206 of the Gujarat Panchayats Act, 1962, the Government servant continues to be in the service of the Government and the sanction to prosecute such an allocated Government servant must be given by the Government or an officer of the Government as distinguished from the sanction to prosecute given by the District Development Officer or any other officer of the Panchayat concerned or the District Panchayat concerned. In Criminal appeal No. 690 of 1966, decided by A.D. Desai J. and my learned brother, on 21st September, 1968, all these judgments have been referred to and it has been held that the District Development Officer had no power to remove the accused from his service. Since the allocation at the relevant time, viz. prior to April 1, 1967, was under the terms of Section 206A, provisional, it is obvious that the accused will continue to be a Government servant though he had been allocated to the Panchayat service. In Criminal appeal No. 198 of 1965, decided by myself and A.D. Desai J. on September 22/23, 1966, the provisions of Section 206A were also considered and the same view was taken. After considering the relevant rules and other provisions we held that the sanction to prosecute given by the District Panchayat concerned was bad in law and that the Panchayat had no authority to appoint the accused.

11. Applying the test laid down in all the above decisions, it is clear that in the instant case, it must be held that the District Development Officer had no authority to remove the accused from service as Talati-cum-Secretary. Under these circumstances, it must be held that in each of these four cases, the sanction to prosecute given by the District Development Officer was not valid in law and hence the learned Special Judge, Banaskantha had no jurisdiction to take cognizance of the case and to proceed with the hearing of the case. Under these circumstances, following the observations of the Supreme Court in Nagraj's case : 1964CriLJ161 , we direct that the proceedings taken in pursuance of the invalid sanction to prosecute in each of the cases be dropped. The appeal in each case is allowed and the order of conviction and sentence passed by the learned Special Judge in each of the four cases is set aside. We wish to make it clear that the order of dropping these proceedings cannot prevent the Government from prosecuting the case after obtaining proper sanction.

12. The order of dropping these proceedings is not an order of acquittal as contemplated by Section 403 Cr. P.C. The bail-bonds of the accused are cancelled. Orders accordingly.


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