In a bizarre incident, the Madras High Court Bench here has ordered discharge of a former panchayat president from a criminal case registered against him on the charge of embezzling public money, but directed the police to continue the prosecution with respect to the second accused who served as a part-time clerk in the local body at the relevant point of time.

Justice P.R. Shivakumar discharged Mariappan of Virudhunagar on the ground that the District Crime Branch police had failed to obtain sanction from the government, as required under Section 230 of the Tamil Nadu Panchayat Act, before prosecuting a panchayat president.

However, no such sanction was required with respect to the part-time clerk, Nagarajan.

According to the accused, the police had registered the case against them on charges of embezzling public money by preparing bogus bills. They were booked under Sections 409 (criminal breach of trust by public servant) and 420 (cheating) of the Indian Penal Code.

The case was registered in February, 2006, on the basis of orders passed by the then Collector.

After investigation, the DCB police filed a final report against both the accused before the trial court. But the report was not filed along with government sanction for prosecution.

Hence, the accused filed a petition before the lower court itself seeking to discharge them from the case under Section 239 (power conferred on Magistrates to discharge accused) of the Code of Criminal Procedure.

The Judicial Magistrate II in Virudhunagar dismissed the discharge petition on July 29 last year on the ground that the absence of government sanction could be considered only at the end of the trial.

Challenging the dismissal, the petitioners contended that prosecuting them without sanction amounted to an unethical and illogical move as they were deprived of their crucial right.

Finding some force and substance in the argument, Mr. Justice Shivakumar said that the first accused alone could be given the benefit of discharge by invoking Section 230 of the Tamil Nadu Panchayats Act without affecting the prosecution of the second accused.