D.S.Tewatia, J. - (1.) SHRI Yogi Bharat Abrol, Manager, Punjab State Warehousing Corporation, at the relevant time, has sought quashing of the order dated 24th December, 1979 of the Judicial Magistrate, 1st Class, Batala, charging him of an offence under section 409, Indian Penal Code for the defalcation of 100 bags of fertilizer on three grounds, (i) that the Criminal Court could not take cognizance of the offence without prior sanction of the competent authority, (ii) that the police having put his name in column No. 2 while submitting challan under section 173, Criminal Procedure Code, the trial Court is debarred from summoning him and charge him with the offence, and (iii) that a reading of the allegations in the First Information Report No. 22/78, registered at Fatehgarh Churian Police Station, District Gurdaspur, does not disclose any offence under section 409, Indian Penal Code.
(2.) THERE is no merit in any of the grounds on which the order dated 24th December, (sic) is impugned. As regards the sanction of the competent authority as envisaged in Section 197 of the Criminal Procedure Code, it may be observed that defalcation or misappropriation of the property entrusted to a public servant is no part of his duties and in doing so he is not acting in the discharge of his duties and, therefore, the question of prior sanction for prosecution does not arise. Their Lordships of the Supreme Court in Harihari Prasad etc. v. State of Bihar : (1972) 3 S.C.C. 89, negatived a similar contention, by observing that it was no part of the duty of a public servant, while discharging his official duties, to enter into a Criminal conspiracy or to indulge in criminal misconduct, and want of sanction under section 197 of the Code of Criminal Procedure, is, therefore, no bar to a prosecution under section 120 -B read with Section (sic) of the Penal Code Mr. Jindal, appearing for the petitioner, sought to sustain his submission pertaining to ground No. 2 from a Single Bench decision in Sona Devi v. State etc., 1972 Cur. L.J. 955, and drew pointed attention to the following observations of Kaushal, J. (as he then was): - The learned counsel for the appellant has referred me to Harbir Singh v. State and another, A.I.R. Pepsu 29 wherein their lordships of Pepsu High Court have laid down as follows: - Section 173 deals with the final report of the Police and it can either amount to a charge or it may contain in the recommendation that since no offence having been made out the case should be cancelled. If the report is that an offence had been committed the Magistrate can take cognizance of it under section 190(1)(b). If on the other hand, the report is that the case is false, clause (1)(b) of section 190 does not apply and no cognizance of the offence can be taken by the Magistrate. The Magistrate has every right look into the Police Diaries, to carefully scrutinize the investigation and to make up his mind independently of what the Police has said, as to whether the recommendation made by them is well founded. In fact I would go further and say that it is the Magistrate's duty to do all this. This means that it is open to the Magistrate to accept the Police recommendation or not. If he accepts it he is to cancel the case, but if he does not, all that he can do is to make a note that he does not agree with the Police and does not accept their recommendation. I also agree with the learned Advocate General that before making an order the Magistrate, if he so desires, may hear the complainant but he cannot call upon him to produce any evidence or to record evidence that may be produced before him either by the complainant or the alleged offender. I may point out that Magistrate's order that the offence be cancelled or his refusal to accept the Police recommendation cannot prejudice either party for the simple reason that the order is not judicial and the aggrieved party can always agitate the matter further. If the aggrieved party be the complainant he can put in a complaint in Court and the Magistrate after having taken cognizance of it can record preliminary evidence under section 202, Criminal Procedure Code, but as pointed out in Sarba Mohaton's case 20 I.C. 21 (Cal.), Section 202 has applicability in the case of a Police report. 3. The learned counsel for the petitioner, Shri Matadeen Sharma has also referred to the decision of our own High Court in Criminal Revision No. 11 of 1965 wherein also the aforesaid decision of the Pepsu High Court was upheld by their Lordships of our own High Court.
(3.) IN view of the aforesaid view of our own High Court contained in Revision Petition No. 11 of 1965 decided on 26th August, 1965 and as per decision of their Lordships of the Pepsu High Court in 1952 Pepsu 29, I am of the opinion that the aforesaid order of the learned trial Magistrate dated (sic) August, 1969, by which he has ordered the accused to be summoned is not warranted by law and deserves to be set aside. 4. A perusal of the decision relied upon by Mr. Jindal would show that the earlier decision of the Supreme Court in Raghubans Dubey v. State of Bihar, A.I.R. 1957 S.C. 1167, has not been considered wherein it has been clearly ruled after reviewing the relevant provisions of Sections (sic), 173, 207 and 252, Cr. P.C., that once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offenders; once he takes cognizance of an offence it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons are involved, it is his duty to proceed against those persons, and the summoning of the additional accused is part of the proceedings initiated by his taking cognizance of an offence. It was further observed by their Lordships that as pointed out by this Court in Parvin Chandra Mody v. State of Andhra Pradesh, A.I.R. 1955 S.C. 1185, the term "complaint" would include allegations made against persons unknown and if a Magistrate takes cognizance under Section 190(sic)(a) on the basis of a complaint of facts he would take cognizance and a proceeding would be instituted even though persons who had committed the offence were not known at that time, and the same position prevailed in their view under section 190(1)(b).;