1968 PLP 1335 (PCRLJ)

The prosecution case, briefly stated, is that the appellant Abdul Gafur as President of Union Board realised Rs. 36 from the employees of the Union Board in 1364 B. S. towards their Provident Fund. The Board was also to contribute an equal sum towards the said Provident Fund. The appellant Abdul Gafur showed realisation of Rs. 36 from the Chowkidars and others and he showed an expenditure of Rs. 36 on 10-12-1364 B. S. Another expenditure of Rs. 36 was shown on 30-12-64 B. S. towards the deposit in the Postal Saving Bank Account on the Provident Fund head, but as a matter of fact, only Rs. 36 was deposited in the relevant Postal Savings Bank Account on .12-4-58 A. D. long after 10-12-64 B. S. It was thus alleged that the appellant being the President of the Union Board criminally misappropriated a sum of Rs. 36 which was entrusted to him as the Union Board Fund. The defence in the case was that the Circle Officer bore a grudge against the appellant did not allow him to deposit the sum of Rs. 36 after the alleged defalcation was detected and papers had been seized by the Circle Officer. The prosecution examined four witnesses while the defence examined three witnesses. P. W. 2 Nazab Ali Mia succeeded the appellant as Chairman of Shanmandi Union Board and his evidence is that the cash book of 1364 B. S. (Exh. No. 1) was written by the Union Board clerk Abul Mansur Khan and signed by the appellant. His further evidence is that the Chowkidars and Defaders used to contribute Rs. 3 each per month towards the Provident Fund and the Union Board used to contribute an equal amount and that both the amounts were to be deposited in the Postal Savings Bank Pass Book maintained, for the purpose. It was the duty of the President to deposit the entire amount in the Postal Savings. The next important witness is P. W. 3 Mr. M. M. Haq, Circle Officer. His evidence is that he audited account for the year 1364 and detected this defalcation of Rs. 36 and reported the matter to the authority concerned. He has further rated that from the cash hook and the pass book he found that Rs. 36 was shown as expenditure in the cash book on 10-12-64 B. S. and another sum of Rs. 36 was also shown as expenditure for Provident Fund Account on 30-12-64 B. S. but the Postal Pass Book shows that only Rs. 36 were deposited in the pass book on 12-4-58 A. D. P. W.

4. Md. Mosharef Hussain who was Officer incharge Baidya Bazar Police Station investigated the case and eventually submitted charge-sheet against the appellant and his clerk Abul Mansur Khan. This Abul Mansur Khan 'was also placed on trial along with the appellant but he was acquitted of the charge. The three D. Ws. merely proved that the appellant approach ed the Circle Officer -several times for payment of Rs. 36 towards the Provident Fund of Chowkidars and Dafaders but the Circle Officer did not allow him to pay the amount. The facts that the appellant was entrusted with a sum of Rs. 72, half of which was contributed by tile Chowkidars and Dafaders and the other half by the Union Board, and that the appellant deposited only Rs. 36 in the Postal Savings Account and not the other sum of Rs. 36 have gone unchallanged. This is borne but by the evidence of P. Ws. 2 and 3 as well as the Cashbook and the Postal Savings Account. In fact, it appears to have been the defence contention before the Special Judge that it was a case of temporary defalcation. Mr. Abu Hussain Sarkar, learned Advocate for the appellant has not challenged the facts of the case but his conten tion is that it having transpired in evidence chat the appellant a rich and respectable man the omission to deposit Rs. 36 which was to be contributed by the Union Board after having got realised Rs. 36 from Chowkidars and Dafaders was a bona ,fide mistake and there was no mens rea on the part of the appellant. I am unable to accept this contention in view of the circumstances of the case. The fact remains that the appellant was entrusted with the entire sum of Rs. 72 in his capacity of a public servant but instead of depositing the whole amount he made a deposit of Rs. 36 only and retained the remaining sum of Rs. 36 with him. There is no doubt that he made attempt to pay up the money after the defalcation was detected by the Circle Officer but there is no escape from the conclusion that he defalcated Rs. 36 in breach of trust. Even temporary defalcation constitutes an offence under section 409; P. P. C. if the other ingredients of the offence are made out as they have been made out in this case. The next important question is whether the appellant could be legally prosecuted without sanction from the appropriate authority. It is an admitted fact that no sanction was obtained from the appropriate Government or airy Officer empowered by such Government to accord sanction to the prosecution of a President of the Union Board. We have got it in evidence that the offence was committed in 1.364 B. S. equivalent to 1957 The appellant lost his office in 1958 when P. W. 2 Nazab Ali Mia became Chairman of the Union Council. The first information report was lodged in 1959. In 1960, the appellant was elected a member of the Basic Democracies. Charge-sheet in the case was submitted on 15-5-61 and the trial was held in the month of August t 1965. It is not challenged by either side that as President of the Union Board the appellant was a public servant at the time of commission of the offence and that he was also a public servant as a member of the Basic Democracies when charge-sheet was submitted in the month of May 1961. Mr. Sarkar contends that because he was a public servant when the offence was committed and he was also a public servant when the cognizance of the case was taken against him on 15-5-61 his prosecution without sanction of the appropriate Government is illegal. Mr. Nurul Haq Bhuiya, learned Advocate for the State refutes this position and submits that when the trial of the case took place in 1965, the appellant ceased to be a public servant. This fact is not disputed. The important question is whether sanction for the prosecution of the appellant was necessary in the facts and circumstances of the case. 1n the case of Nazir Hussain Shah v. The State P L D 1965 S C 139 it was held by their Lordships that no sanction would be necessary for the prosecution of a public servant who had ceased to be a public servant when the Court was taking cognizance of an offence which had been committed by him when he was a public servant. It will appear from the facts stated above that not only at the time of commission or the offence but also at the time when the Court took cognizance of the offence on the basis of the charge-sheet submitted in May 1961 the appellant was a public servant. Mr. Bhuiyan failed to lay his hands on any authority to support his contention that no sanction would be necessary if the trial is held at a time when the accused has ceased to be a public servant. The; date of trial is not relevant. Mr. Bhuiyan has further contended that the appellant committed the offence in his capacity as President of the Union Board in 1364 B. S., but when the cognizance of the case was taken by the Court he was not President of the Union Board or Chairman of the Union Council, but a member and for that reason, it cannot be said that there was need for sanction. I am not impressed by this argument. The change of status is immaterial but the relevant question is that of character. The appellant committed the offence in his character of a public servant and he held the character of a public servant at the time the cognizance of the offence was taken. If a Government servant commits an offence, for instance, as Circle Officer Revenue tinder the Provincial Government and then he is transferred as trying, magistrate under the Provincial Government or in some other capacity under the Central Government, for instance as a Section Officer, prosecution is not relieved of the responsibility of obtain in the sanction from the appropriate Government for the prosecu tion of such Officer. This is abundantly clear from a reading oft subsection (5) of section 6, Criminal Law Amendment Act. The provision of sanction has been made for the protection of public servant concerned and in whatever capacity he may be working. If he held his character as a public servant at the time of commis sion of the offence and also at the time of taking cognizance of the same by the Court, then sanction is essential. In this case, the absence of sanction has vitiated the whole trial and the order of conviction and sentence passed on the appellant is illegal and without jurisdiction. In the result, the appeal is allowed. The conviction and the sentence of appellant are set aside and it is directed that he be discharged from his bail bond and from liability of paying the lines. Appeal allowed.