IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT THE HON’BLE SRI JUSTICE N.RAVI SHANKAR CRL.P.No.4353 OF 2011 Date:13.06.2011 Between:- S.A.Khadar Sahab .. Petitioner/A-3 And The State of A.P., Rep.by its Public Prosecutor, P.S.Eluru-I Town, West Godavari District, L & O Police Station. ..Respondent/Complainant ORDER:- The petitioner herein is accused No.3 in C.C.No.278 of 2010 on the file of the Court of II Additional Judicial Magistrate of First Class, Eluru (trial Court). The offences alleged are those punishable under Sections 406, 409 and 420 I.P.C. and they relate to misappropriation of some funds which belong to the Eluru Municipal Corporation. 2. This petitioner was, at the relevant time, the Commissioner of Eluru Municipal Corporation. The learned Counsel for the petitioner has raised two points. The first point is that the allegations in the charge sheet, even if believed, do not show any offence against this petitioner and this petitioner had been charge sheeted for not supervising the activities of the other accused and allowing the funds to be misappropriated. It may be noted that in this petition under Section 482 Cr.P.C., it is difficult to decide whether the petitioner is guilty or innocent as the allegations do show an offence against him also. The petitioner’s guilt or innocence in the circumstances of this case can be decided only on evidence. Hence, the first point is rejected. 3. Coming to the second point, the contention raised by the petitioner’s counsel is that the petitioner is a Government Servant and therefore, sanction under Section 197 Cr.P.C. is necessary and consequently, as there is no sanction, prosecution against him cannot be maintained. It may be noted that to consider this aspect, first of all, it has to be seen whether the petitioner can be removed from service or could have been removed from service from the Government in order to apply the sanction rule contained in Section 197 Cr.P.C. That material is not placed before this Court. Hence, that cannot be considered now. 4. The second aspect to be seen is that for offences relating to misappropriation charges sanction is prima facie not necessary and this preposition is well settled. The learned counsel for the petitioner pointed out that though the petitioner can raise an objection regarding sanction before the trial Court, it is open for him to raise that objection in this Court also. There is no doubt about this preposition and petitioner can certainly raise this objection in this Court also. However, the question whether sanction is necessary or not has to be decided by looking into the question whether the petitioner can be said to have committed the offences in question in discharge of his official duties or not. For that purpose the whole material upon which the case is based against the petitioner has to be looked into and in my opinion this exercise can be effectively done by the trial Court if necessary by holding an enquiry into the matter on that aspect having regard to the circumstances in this case. 5. For the aforesaid reasons this petition is dismissed. It is made clear that it shall be open for the petitioner to make an application for his discharge or dropping of proceedings against him in the trial Court by pleading that sanction is necessary for his prosecution under Section 197 Cr.P.C. and he may also take other objections which may invalidate the prosecution against him at the very threshold. On such application being made, the trial Court shall consider all those aspects and decide the same. The petitioner is at liberty to pursue his remedies if the order of the trial Court on such application goes against him. _____________________ N.RAVI SHANKAR, J 13th June, 2011 AMD/CVRK