V.P. Gupta, J.
1. This appeal is directed against the order, dated 6th June, 1976, of Judicial Magistrate 1st Class Sundernagar by which respondent was acquitted.
2. The brief facts are that the re-pondent was the Pradhan of Gram Pan chayat Haraboi in the year 1965-66 and was entrusted with funds for being utilized for the benefit of the Panchayat or the residents of its area. Shri Dharam Singh (P. W. 1) audited the accounts of the panchayat and found that there was misappropriation of Rs. 1013-97. The respondent did not deposit this amount in spite of repeated requests. The respondent was suspended, vide order of Director of Panchayats Himachal Pradesh dated 16th June, 1970, and an enquiry was ordered. Shri D. N. Vaidya (P. W. 2) enquired into the matter and found that the respondent had embezzled (a) Rs. 846/- by keeping a bill as payee's receipt and (b) Rs. 34.86 by giving wrong total on the T. A. bill. The respondent was given opportunity to deposit the amount but he failed to do so with the result that the District Panchayat Officer vide letter dated 18th Nov. 1971. requested the Superintendent of Police Mandi to register a case of misappropriation against the respondent. On this information a case under Section 406 I. P.C. was registered against the respondent on 4th Dec, 1971 vide report No. 53/71 with the Police Station Karsog. After investigations, the challan was put in the court of Magistrate, Sundernagar and the following charge was framed against the respondent on 24th April 1973:
That in the year 1965-66 at village Harabohi you being a Pradhan of Graim Panchayat Harabohi, and in such capacity were entrusted with Rs. 880-87 paise which you misappropriated to with Rs. 846.00 paise by keeping a bill as payee's receipt and Rs. 34.87 paise by giving wrong total of the bill and thereby committed criminal breach of trust in respect of the said amount as punishable under Section 409 I. P.C. and within my cognizance.
3. The respondent did not plead to the charge.
4. On behalf of the prosecution five witnesses, Dharam Singh (P. W. 1), D. N. Vaidya (P. W. 2), Kirpa Ram (P. W. 3) Rama (P. W. 4) and Shiv Ram (P. W. 5) were examined. Then the respondent filed an application under Section 197 of the Criminal P.C. praying that he be acquitted because the prosecution had not obtained sanction from the State Government to launch prosecution against him and that he was a public servant not removable from his office except by the sanction of Himachal Pradesh Government. The learned Magistrate vide order, dated 6th June, 1976, allowed this application and acquitted the respondent.
5. Shri Malkiat Singh Assistant Advocate-General contended that the order of the Magistrate is liable to be set aside and that in this case no sanction under Section 197 of the Criminal P.C. is required.
6. With the help of Shri Malkiat Singh, we also perused the records of the case.
7. At the outset we may remark that the respondent has been acquitted by the learned Magistrate and after perusal of the record of the case we are of the opinion that even on facts the respondent is entitled to an acquittal. In the challan a list of seven witnesses has been given, out of which five have already been examined. Tara Chand a dealer in Arms and Ammunitions and Bhan Singh District Development and Panchayat Officer remained to be examined. The main witness in the case is Shri D. N. Vaidya who has conducted the enquiry. From the evidence of Shri D. N. Vaidya (P. W. 2) we find that the witness has not even stated that his report, exhibit P. W. 2/A, is correct. From the evidence which has been recorded no case is made out against the respondent for misappropriation of any Panchayat funds. The charge is with respect to (a) misappropriation of amount of Rs. 846/- by keeping bill as payee's receipt and (b) Rupees 31.87 by giving a wrong total of the bill.
The amount of Rs. 846/- was to be spent by the respondent for purchasing detonators dynamites to, be used on the RaundyKumarwin Road. Kirpa Ram Secretary Panchayat (p. W. 3) admitted that detonators were used in that road and that during the course of enquiry by Sri D. N. Vaidya from the labourers it was disclosed that detonators had been used in the road. Similarly Rama (P. W. 4) and Shiy Ram (P. W. 5) have also admitted that dynamites were used on that very road. The only allegation of the prosecution against the respondent is that the respondent had secured the bill but the supporting vouchers were not there, We find that this is not a sufficient ground for proving criminal misappropriation of amounts because payments could be made without vouchers or the vouchers could be misplaced.
8. Regarding amount of Rs. 34.87, we have perused the statement dated 21st Jan., 1966 and we find that the total is rightly calculated. We further find that the respondent deposited an amount of Rs. 880-87 on 22nd Dec. 1971. In these circumstances there is hardly any scope for sending back this case for a re-trial after such a long period when the alleged misappropriation is of the year 1965.
9. Regarding applicability of Section 197 of the Criminal P.C. we are of the view that in the facts and circumstances of the present case it was necessary for prosecution to have obtained sanction under Section 197 of the Criminal P.C.
10. Section 197 of the Criminal P.C. reads as follows:
Prosecution of Judges and public servants:- (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused by any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction -
(a) xxx xxx(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government.(2) to (4) xxx xxxx.
11. The learned Counsel for the appellant contended that in view of the later pronouncement of the Supreme Court in Baijnath v. State of Madhya Pradesh : 1966CriLJ179 the law as laid down in Amrik Singh v. State of Pepsu : 1955CriLJ865 and Nek Ram v. The State ILR 1973 Him Pra 762 cannot be relied upon.
12. Both Amrik Singh and Shri Nek Ram's cases (supra) are based upon the views in Hori Ram Singh v. Emperor AIR 1939 FC 43 : 1939-40 Cri LJ 468 and H. H. B. Gill v. The King AIR 1948 PC 128 : 1948-49 Cri LJ 503. In Nek Ram's case ILR 1973 Him Pra 762 supra a single Judge of this Court distinguished Om Parkash Gupta v. State of U. P. : 1957CriLJ575 After going through the judgments we find that the correct position of law as laid down in all these judgments is that if the act complained of against the public servant was committed by him while discharging his official duty and such an act has connection with his official duties, then sanction under Section 197 of the Criminal P.C. is essential. In Darshan Kumar v. Sushil Kumar Malhotra 1980 Cri LJ 154 Him Pra the case law has also been reviewed by one of us Justice Handa and after a review of the case law it was held (at p. 160):
Thus the crux of the matter is that in order to determine whether in a particular case a public servant is entitled to the protection of Section 197, Cr. P.C. all that has to be considered is whether the act complained of against the public servant which is alleged to constitute the offence, was committed by him while discharging his official duty and that such act had a reasonable connection with his official duty. It is not material whether in discharging such official duty, the public servant acted somewhat in excess of his limits.
The pertinent question that next arises is as to what considerations should prevail and what tests need be applied for determining as to whether there was a reasonable connection between the act complained of and the official duty of the concerned public servant. Whereas it is not possible to lay down any hard and fast rules of universal application for the determination of this question, one safe and sure test in this regard would in my view be, to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duties. A negative answer to this question may not clinch the issue but if the answer to this question is in the affirmative, it may be said without the least hesitation and without any further probe that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant.
A perusal of the judgment in Amrik Singh's case 1955 Cri LJ 865 (SC) supra as well as Baijnath's case 1966 Cri LJ 179 (SC) supra also leads us to the conclusion that the true test is as has been narrated in Darshan Kumar's case 1980 Cri LJ 154 Him Pra supra.
13. In the light of these facts, the question that arises in this case is as to whether the respondent was duty bound to discharge the acts complained of against him. Regarding first charge. the respondent had funds for utilization and he utilized the same for the purchase of detonators. The respondent got the bills regarding the purchase of detonators. It is admitted that- detonators were used on the road and the cash receipts are missing. This act of the respondent was definitely within the ambit of his official duty as a Pradhan and therefore there is a connection between the act and the official duty. The second charge is with respect to wrong calculation of the T. A. amounts. The respondent in his capacity as Pradhan was entitled to T. A. and if there is a wrong calculation in adding up the amounts then it is also one of the unctions which has to be performed by him in discharge of his official duties. Thus both the charges levelled against the respondent have a close connection with his official duties and in these circumstances, we are of the view that in the present case it was necessary for the prosecution to have obtained sanction under Section 197 Criminal P.C.
14. In view of the aforesaid discussion the present appeal fails which is hereby dismissed.