Full Judgment
G.K. Misra, C.J.
1. The petitioner is the District Veterinary Officer, Koraput from 10-9-1971. Opposite party No. 2 is the accounts clerk of the District Veterinary Office and the prosecution case is that he was in charge of the cash and maintenance of accounts. On 10-9-1971 the cash balance was verified and there was a cash balance of Rs, 12,612-34 paise. plus Rs. 15-10 paise towards permanent advance in the iron chest. In the meantime the pay, T. A., festival advance and contingencies of the staff were drawn. The cash was being kept in an iron chest with double locking system. The key of the padlocks used to remain with the petitioner and the inner key and the outer key of the iron chest were with opposite party No. 2. The cash was being kept in the inner drawer of the chest. On 21-9-1971 the petitioner checked the cash which was intact to the tune of Rs. 15,554-03 paise. On 6-10-1971 the office opened after the Puja holidays. The petitioner told opposite party No. 2 (that he would check the cash on the same day. Opposite party No, 2 collected the keys from the petitioner for disbursement and did not return the keys or the cash book to him and left the office without permission. On 6-10-71 and 7-10-71 opposite party No. 2 was un-traced. On 8-10-1971, he applied for leave for that day and for 9-10-1971. On 10-10-1971 he could not attend office. On 11-10-1971 opposite party No. 2 appeared in the office. The cash book and the entries were checked and on verification only a sum of Rs. 10-10 paise was found in the iron chest though a total amount of Rs. 20,851-80 paise should have been found out. Thus, there was a shortage of Rs. 20,841-70 paise. On 11-10-71 the petitioner reported the matter to the police. After due investigation charge-sheet was submitted against opposite party No. 2 under Section 409, I.P.C. On 23-12-1972 the learned Magistrate directed that the petitioner who was examined as P.W. 1 in the committing ' court should also be tried as an accused under Sections 409/109, I.P.C. Subsequently the petitioner filed an application that a sanction order for his prosecution under Section 197, Cr. P. C. should be obtained. This petition was rejected by order dated 27-3-1973. It is against this order that the Criminal Revision has been filed. No separate Criminal Revision has been filed against the order dated 23-12-1972 directing the petitioner to stand his trial under Sections 409/109, I.P.C. Prima facie, there appears to be no evidence against the petitioner. I directed the learned Advocates to argue on both the questions, namely (i) whether there was a prima facie case against the petitioner; and (ii) whether any sanction was necessary under Section 197, Cr. P. C.
2. On perusal of the order-sheet of the learned Magistrate and all the materials placed on record there does not seem to be any prima facie case against the petitioner. The learned Magistrate by his order dated 23-12-1972 gave the following reason for directing the petitioner to stand trial. His conclusions may be stated in his own language:
So from the entire act and conduct of P.W. 1 it is clearly established that he has facilitated the commission of the offence by the accused by acting contrary to the directions of his authorities in handing over the keys of iron chest to the accused and remaining absent for the whole day of 6-10-71 at the time of removal of the cash by the accused from the iron chest. Under these circumstances I am of the view that there are prima facie materials under Sections 409/109, I.P.C. against P.W. 1, S. C. Bebarta. Hence cognizance under Sections 409/109, I.P.C. is taken against him.
Section 109, I.P.C. runs thus:
Section 109. Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence.
Abetment is defined in Section 107, I.P.C.:
Section 107. A person abets the doing of a thing, who-
First- Instigates any person to do that thins; or
Secondly- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or
Thirdly- Intentionally aids, by any act or illegal omission, the doing of* that thing.
The ingredients involved in any of the clauses do not exist in this case. It is not the prosecution case that either the petitioner instigated opposite party No, 2 or engaged himself in any conspiracy with him or intentionally aided him to commit the offence under Section 409 I.P.C.
There is no doubt that the petitioner showed gross neglieence in handing over the keys of the padlock to opposite party No. 2 and in being absent while he opened the iron chest, but that does not make out an offence under Sections 409/109, I.P.C.
3. The learned Subdivisional Magistrate ought to have paid due regard to the views of this Court in : AIR1958 Ori194 (Surendra Nath v. The State) wherein it was observed that mere acts of negligence on the part of the Treasury Officer in complying with the relevant rules of the Treasury Code would not suffice to hold that he wilfully suffered the embezzlement of the money by the Treasurer.
4. I am satisfied that there is no prima facie case against the petitioner under Sections 409/109, I.P.C. Though no revision was filed against order dated 23-12-72, I suo motu quash this order as it has come to my notice in the revision against the subsequent order.
5. Mr. Misra also contended that sanction under Section 197, Cr. P. C. was a pre-requisite to taking cognizance against the petitioner. It is not necessary to examine this question in view of the fact that there is no prima facie case against the petitioner under Sections 409/109, I.P.C.
6. The order of the learned Subdivisional Magistrate . in taking cognizance against the petitioner is quashed and the Criminal Revision is allowed.