- (1.) Though these three appeals have been filed against the decisions of different courts and are not connected either as regards community of purpose or the identity of the accused, they have been heard together, because the points of law raised in thorn are identical and the arguments of counsel have proceeded on common lines. Hence a common judgment dealing with the legal aspect would be apt in the circumstances.
(2.) Criminal Appeal No. 42 of 1954 has been preferred by Om Prakash Gupta against the dismissal of his Revision Petition by the High Court of Allahabad, thereby affirming the appellate decision of the Sessions Judge of Kumaun who in his turn maintained the sentence of rigorous imprisonment for one year and a fine of Rs. 500 passed on the appellant by the Special 1st Class Magistrate of Nainital on 30- 4-1953, under s. 409, Penal Code. This appellant was a clerk in the Electric Department of Haldwani Municipal Board and the charge against him was that he received three sums of money: Rs. 242-5-9 (Ex.p. 14) on 28-7-1951, Rs. 70 (Ex.p. 17) on 19-10-1951, Rs. 135 (Ex.p. 13) on 23-10-1951 aggregating to Rs. 447-5-9 and misappropriated the whole amount, though his defence was that having received the money, he gave it to his official superior, Electrical Engineer Pandey; and did not have anything more to do with the money. The Police charge-sheet was under Ss. 409 and 467, Penal Code, but the conviction was only under the former section. The conviction and sentence imposed upon him by the trial court having been confirmed in appeal by the learned Sessions Judge and further having been affirmed by dismissal of his revision by the High Court of Allahabad, have now become the subject of appeal, as special leave has been granted on the question of law raised.
(3.) Om Prakash, the appellant in Criminal Appeal No. 3 of 1955, had obtained leave to appeal from the High Court of Allahabad against the opinion of a Full Bench of that Court in Criminal Revision No. 141 of 1961, by which it affirmed the order of the Civil and Sessions Judge of Sitapur in Criminal Revision No. 5 of 1951, holding that Om Prakash was improperly discharged by the learned Magistrate of an offence under S. 409, Penal Code, and directing the Magistrate to make a further inquiry into the matter of that offence. It may be mentioned that the learned 1st Class Magistrate held that sanction was essential for the prosecution of Om Prakash and as the same had not been granted, the prosecution was not maintainable. This view did not find acceptance at the hands of the learned Sessions Judge, whose decision was affirmed by the High Court of Allahabad. The charge against him was that as a canal Accountant in a Divisional Engineer's office he committed criminal breach of trust of a certain sum of money.;