JUDGMENT Vinod Prasad, J.
1. Narendra Pratap Singh has filed this revision aggrieved by an order dated 3.8.2006 passed by Additional Judicial Magistrate, Saidpur, district Ghazipur in Criminal Case No. 4/XII/06 State through Narendra Pratap Singh v. Nisar Ahmad Under Section 156(3) Cr. P.C. By the aforesaid order dated 3.8.2006 the Additional Judicial Magistrate, Saidpur has rejected the application filed by the present revisionist on the ground that his application is not maintainable being barred by Section 197 Cr. P.C.
2. The facts of the case, in brief, are that the revisionist Narendra Pratap Singh had filed an application Under Section 156(3) Cr. P.C. in the Court of ACJM, Saidpur, district Ghazipur with the allegations that he is the Head Master of Primary School, Bahriabad, district Ghazipur and he had a joint Account No. 4112 in the Kashi Gomti Sanyukt Gramin Bank Bahriabad. The Government had sanctioned 1, 82, 000/- for construction of two rooms in the said schools. The aforesaid account was operated by the revisionist Narendra Pratap Singh with the joint signature of Nisar Ahmad the village Pradhan. Under the joint signature Rs. 1, 10, 000/- were withdrawn from the aforesaid amount of Rs. 1, 82,000/- and the revisionist had invested Rs. 83, 000/-in the construction of the rooms and Rs. 10, 000/-was disbursed for giving wages to the Shiksha Mitra. The village Pradhan Nisar Ahmad the named accused demanding Rs. 40, 000/-as commission, which was denied by the revisionist. The said refusal resulted in threatening the revisionist by the said Pradhan through his henchman. The aforesaid Pradhan Nisar Ahmad in connivance with Dr. Sunita Misra Assistant B.S.A. got Bhairo Nath Yadav an Assistant Teacher appointed for the construction of the rooms. The aforesaid two persons had with drawn Rs. 1,10,000/- on 13.3.2006, Rs. 72, 000/- on 20.3.2006 and they misappropriated the same. Hence the revisionist had filed the application Under Section 156(3) Cr.P.C. for embezzlement before the Magistrate. It transpires from the impugned order that the Magistrate rejected the said application of the revisionist on 3.8.2006 on the ground that sanction 197 Cr. PC. Is an impediment for directing registration of the FIR and investigation thereon, which order is under challenge in the present revision.
3. I have heard Sri Shamim Ahmad learned Counsel for the revisionist as well as learned AGA at great length.
4. Since at the stage of 156(3) Cr. P.C. the accused has got no right to be heard, therefore, I do not consider it proper to issue notice to respondent No. 2 and 3 Nisar Ahmad and Bhairo Nath Yadav who are proposed accused persons and opposite parties in this revision.
5. Learned Counsel for the revisionist contended that the Magistrate has passed an illegal order by taking into consideration Section 197 Cr. P.C. at the stage of Section 156(3) Cr. P.C. He further contended that the impugned order is absolutely bad in law and deserves to be set aside. He further contended that Section 197 Cr. P.C. has got no application at all at the stage of 156(3) Cr.P.C.
6. Learned AGA on the other hand contended that the impugned order is absolutely justified and deserves to be upheld.
7. I have considered the submissions raised by both the sides.
8. For deciding the submissions raised by both the sides a glimpse of Section 197 Cr. P.C. is necessary which section falls under Chapter XVI titled as " CONDITION REQUISITE FOR INITIATION OF PROCEEDINGS" It provides thus:
(1) When any person who is or was a Judge or Magistrate or a Public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction.
9. From the perusal of the aforesaid section, the following words of the statutes are very important:- "No court shall take cognizance of such offence except with the previous sanction." These words clearly indicate that Section 197 Cr. P.C. comes into operation only when the court is going to take cognizance of the offence after submission of the charge sheet by the police Under Section 190(1)(b) Cr. P.C. or when the court is going to take cognizance on the basis of a complaint Under Section 190(1)(a) Cr. P.C. Section 197 Cr. P.C. does not have any application at the stage when the Magistrate is not going to take cognizance of any offence. Let me make it clear that Section 156(3) Cr.P.C. is a pre cognizance stage as has been held by the apex court in Bhajan Lal's case 1992 SCC (Cr.) 426; Janta Dal's case 1993 SCC (Cr.) 36 and recently in Madhu Bala's case 1998 SCC(Cr.) 111.
10. Since the stage of Section 156(3) Cr. P.C. does not take into its purview the cognizance to be taken by the Magistrate therefore there does not arise any question for application of Section 197 Cr. P.C. It has been held by the apex court in the following judgments that at the stage of investigation 197 Cr. P.C. does not have any application see AIR 2004 SC 730 State of H.P. v. M.P. Gupta; N.Bhargavan Pillai v. State of Kerala.
11. With such a law as has been laid down by the apex court when we look in to the facts of the present case it is clear that impugned order which has been passed by the Magistrate refusing to direct for registration of the FIR and investigation thereon because of the bar Under Section 197 Cr. P.C. is wholly illegal and deserves to be quashed. The apex court in case of R.R. Chari v. State of U.P. , has laid down the law that when a Magistrate issues a warrant in connection with the offence under PFA Act he does not take cognizance of the offence and at that stage section Under Section 197 Cr. P.C. is not required.
12. Further the impugned order cannot be sustained also because Section 197 Cr. P.C. takes into its purview those offences, which have been committed by an accused "by acting or purporting of act in the discharge of his official duty." In the present case embezzlement or misappropriation of fund, which was allotted for construction of building, by any authority or person by no stretch of imagination can be considered to be an act or purporting to act in the discharge of their official duty. The said aspect of the matter is also no longer resentegra. It apex court has categorically laid down the law that committing of an offence is neither acting nor purporting to act in the discharge of official duty. It has been so held by the apex court in the following judgments.-
13. AIR 2004 SC 2317 N. Bhargavan Pillai v. State of Kerala AIR 2006 SC 336 Ramesh Lal Jain v. Naginder Singh Rana.
14. Thus from both the above point of views that neither stage of cognizance had reached nor the proposed accused were alleged to have acted or purported to have acted in the discharge of their official duty that I am of the opinion that Section 197 Cr. P.C. did not have any application at all in the facts of the present case.
15. In view of what has been said above the present revision deserves to be allowed and I order so.
16. Resultantly the impugned order dated 3.8.2006 passed by the ACJM, Saidpur, district Ghazipur in criminal case No. 4/XI1/06 State through Narendra Pratap Singh v. Nisar Ahmad and Anr. is hereby quashed. The matter is remanded back to the ACJM, Saidpur, district Ghazipur with a direction that he will take up the application file by the revisionists Under Section 156(3) Cr.P.C. afresh and will decide it in accordance with law within two weeks of the receipt of this order by him.
17. With the aforesaid direction this revision is allowed.