- (1.) This petition has been filed under Section 482, Cr. P.C. to quash the order dated 7.2.2004, passed by VIth Additional Chief Judicial Magistrate, Room No. 22, Sultanpur in Criminal Case No. 155/2004 arising out of Crime Case No. 120/2002 for offences punishable under Section 406/ 201, I.P.C. P.S. Karaundi Kala, district Sultanpur, (State v. Keshav Pratap Singh and also entire criminal proceedings arising out of the aforesaid crime number including the charge-sheet No. 8 dated 16.1.2004. Heard learned counsel for the petitioner as well as learned Additional Government Advocate. No one appeared on behalf of the respondent No. 2. The case is quashing for charge-sheet and it was found likely to be infructuous because no interim stay order has been passed by this Court staying the proceedings of the case pending in the trial court. Counter-affidavit was filed on behalf of the respondent No. 2 which was taken on record, but no rejoinder-affidavit has been filed on behalf of the petitioner.
(2.) Undisputed facts of the case are that petitioner is Principal in 10th Class Standard School which is Government Aided School and he comes in the category of public servant. A complaint was made in 1995 against the petitioner in the Government with respect to misappropriation and embezzlement in distribution of scholarship amongst the students who were entitled of it. After inquiry in the same by the vigilance department, an F.I.R. was lodged by Sri Ramtej Verma, Inspector of U.P., Vigilance Department, Faizabad on 3.3.2002 against the petitioner for the offence under Section 409, I.P.C. and vide Crime No. 120/2002 at P.S. Karaundi Kala. district Sultanpur, case was registered against the petitioner. During the course of investigation of the case, Section 201, I.P.C. was also added as sufficient evidence was found against the petitioner that with the intention of screening himself from the legal punishment and not giving the correct information to the investigating agency, he had got disappeared the record of the school about distribution of the scholarship amongst the students who were entitled for the same. After completion of the investigation, charge-sheet No. 8 dated 16.1.2004 was submitted in the court of VIth Additional Chief Judicial Magistrate. Sultanpur against the petitioner for the offence under Section 409/ 201. I.P.C. and the Court had taken cognizance of the same vide order dated 7.2.2004.
(3.) This petition has been filed proceedings of above case and challenging the order of cognizance taken by the learned Additional Chief Judicial Magistrate mainly on the ground that petitioner is Principal of a Government Aided School and covered within the definition of public servant. As per Sections 16(g) and 16 (h) of Intermediate Education Act, 1921 sub-section 3 (ka) Principal/head Master or teacher would not be removed/ dismissed/terminated without prior written approval/sanction of the District Inspector of the Schools. Hence. sanction was required for prosecution of the petitioner under Section 197, Cr.P.C., but no such written sanction/approval has been taken by the respondents before filing the charge-sheet. It was argued that Section 197. Cr. P.C. provides that a public servant accused of any offence alleged to have been committed by him while acting or purporting to act in discharge of official duty no Court shall take cognizance of such offence except with the previous sanction of the Government, hence the charge-sheet submitted against him and cognizance taken by the learned A.C.J.M. deserves to be quashed. It was further stated in para No. 16 of the petition that two students namely Anuj and Ramesh have received the poor boys fund, but under the connivance of Shiv Shanker Singh who was annoyed with the petitioner, they have made false statement before the Investigating Officer denying the receipt of the scholarship' and about rest four students, in para Nos. 14 and 15. It is stated that they were not eligible for the scholarship. Learned Additional Government Advocate argued that some of the students received scholarship and they were wrongly denying receipt of the same under the pressure of someone, it is a matter of fact to be decided by evidence to be led during the course of the trial. Other four students were not entitled for the scholarship, again this matter is to be seen by evidence to be adduced why they did not fall in the category of the students who are entitled for the scholarship. Once they have been held entitled for the scholarship and the amount has been disbursed and deposited in the account of the school, now petitioner can challenge their entitlement, it is also to be seen. Further, from the contents of the F.I.R. it reveals that petitioner has withdrawn the amount from the account which was deposited for the purpose of disbursing the scholarship. How and where he utilized that amount, it is also to be explained by him during the course of trial. These matters relates to the defence of the accused which would have to be investigated at the trial stage. His prosecution without sanction can proceed or not without ascertainment of these facts, cannot be decided at the initial stage of taking cognizance in the matter after filing the charge-sheet. In L.K. Jain s case., 2005 CrLJ 5068, the Hon'ble Apex Court held that the question as to whether an order of sanction would be found essential would depend upon the facts and circumstances of each case. It was further held that sanction under Section 197. Cr. P.C. for prosecution in every case is not mandatory and condition precedent for maintainability of the prosecution against a public servant.;