IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application No324.Of 2004 Munish Chandra Verma and another…………..Petitioner Versus State of Uttarakhand & Another ………….Respondents Mr. B.D.Upadhyay, learned counsel for the Petitioner. Mr. Nandan Arya, learned A.G.A. for respondentnos. 1 and 2. Dated: December 10th , 2009 Hon’ble Alok Singh, J. Heard Sri B.D.Upadhyay, learned counsel for the petitioner and Sri Nandan Arya, learned A.G.A. for the respondent nos.1 and 2. None for respondent no.3 despite of sufficient service on him. By way of present petition petitioner is assailing order dated 1.6.2004 passed by Special Judicial Magistrate, Pithoragarh in criminal case no. 563/2003 State Vs. Munish Chandra,whereby learned Judicial Magistrate rejected the application of the petitioners/accused on the ground that since cognizance was taken by Chief Judicial Magistrate,who is senior to Special Judicial Magistrate in judicial hierarchy. Mr. B.D.Upadhyay, stated that cognizance against the accused is in violation of Section 197 of the Criminal Procedure Code. Mr. Upadhyay further argued that without prior approval from Government, no cognizance can be taken against the accused/petitioners, since offence alleged was pursuant to their official duty. Mr. Nandan Arya, learned A.G.A. for the State stated that no Sanction/approval under 197 of the Code is required when offence is of embezzlement and forgery. As per Mr. Nandan Arya offence of forgery and embezzlement can never be said in performance of the official duty. Without considering arguments advance by learned counsels appearing before me, I am going to set aside the impugned order on the ground that learned Magistrate instead of deciding the rival contentions raised by the parties rejected the application only on the ground that cognizance was taken by the Chief Judicial Magistrate, who happens to be senior to Special Judicial Magistrate. Ground to reject the application by learned trial court is neither legal nor justified. In view of the above order impugned dated 1.6.2004 passed by Special Judicial Magistrate is hereby set aside. Learned trial court is directed to decide the issue of applicability of Section 197 Cr.P.C. afresh after hearing both the parties by speaking order. (Alok Singh, J.) 10.12.2009 Nishant