TaxTMI 
TaxTMI 
1955 (2) TMI 29
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....ith intent to himself draw the amount, and that by this expedient he has received ₹ 51 and misappropriated the same. 2. The First-Class Magistrate of Patiala, before whom the appellant was put up for trial, framed charges against him under section 465 of the Indian Penal Code for forging the thumb-impression of Parma, and under section 409 of the Indian Penal Code for criminal misappropriation of ₹ 51, and after a full trial, acquitted him. He held on the evidence that "there was a khalasi Parma by name in the service of the accused at Kehrauli", and that though the thumb-impression in the acquittance roll was that of the appellant, the prosecution had not established that the amount drawn by him did not reach the hands of Parma. Against this judgment, there was an appeal by the State to the High Court of Pepsu, which held that proof that the thumb-impression in the acquittance roll was that of the appellant was sufficient, when taken along with other circumstances, to establish his guilt, and accordingly convicted him both under section 465 and section 409 of the Indian Penal Code. This appeal by special leave is directed against this judgment. 3. In suppo....
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....Hori Ram Singh v. Emperor [1939] F.C.R. 159 is a decision of the Federal Court on the necessity for sanction under section 270 of the Government of India Act, 1935, which is similar in terms to section 197(1) of the Code of Criminal Procedure. The facts in that case were that a Sub-Assistant Surgeon was charged under section 409 with having dishonestly removed certain medicines from a hospital which was under his charge, to his own residence, and under section 477-A, with having failed to enter them in the stock book. The sanction of the Government had not been obtained for the prosecution under section 270 of the Government of India Act, and the point for decision was whether it was necessary. It was held that the charge under section 477-A required sanction, as "the official capacity is involved in the very act complained of as amounting to a crime"; but that no sanction was required for a charge under section 409, because "the official capacity is material only in connection with the 'entrustment' and does not necessarily enter into the later act of misappropriation or conversion, which is the act complained of". 6. In the course of his judgment, ....
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.... actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary; and that would be so, irrespective of whether it was, in fact, a proper discharge of his duties, because that would really be a matter of defence on the merits, which would have to be investigated at the trial, and could not arise at the stage of the grant of sanction, which must precede the institution of the prosecution. 10. It is conceded for the respondent that on the principle above enunciated, sanction would be required for prosecuting the appellant under section 465, as the charge was in respect of his duty of obtaining signatures or thumb-impressions of the employees before wages were paid to them. But he contends that misappropriation of funds could, under no circumstances, be said to be within the scope of the duties of a public servant, that he could not, when charged with it, claim justification for it by virtue of his office, that therefore no sanction under section 197(1) was necessary, and that the question was ....
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....re official acts, and that the prosecution was bad for want of sanction. 15. The decisions in Hori Ram Singh v. Emperor [1939] F.C.R. 159, and Albert West Meads v. The King [1948] L.R. 75 IndAp 185, when properly examined, do not support the extreme contention urged on behalf of the respondent. In Hori Ram Singh v. Emperor [1939] S.C.R. 159, the medicines had not been entered in the stock book, and were removed by the accused to his residence, and the charge against him was that in so removing them he had committed misappropriation. It was not part of the duty of the accused to remove medicines to his house, and he could not claim that he did so by virtue of his office. He could have made such a claim if he had, let us suppose, entered the medicines in the stock books and shown them as expended in the hospital. But, on the facts, no official act was involved, and that was why Varadachariar, J. observed that, "........ so far as the charge under section 409 was concerned, the acts in respect of which he was intended to be prosecuted could not be regarded as acts done or purported to be done in execution of his duty". 16. Reference may also be made to the following obs....