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2001 DIGILAW 1229 (PNJ)

Dharam Singh v. Kaptan Singh

2001-11-02

ASHUTOSH MOHUNTA

body2001
Judgment Ashutosh Mohunta, J. 1. The present petition has been filed under Section 482, Cr.P.C., for quashing the complaint (Annexure P1) and the summoning order (Annexure P2). 2. Respondent-Kaptan Singh filed a complaint before the Judicial Magistrate Ist Class, Hansi, alleging therein that the Government had constructed a Ring Bundh in village Thurana for stopping the flow of the rainy water into village Thurana, which was situated in water-logged area. The allegations further are that Naveen Kumar, J.E., prepared a bogus muster-roll showing an expenditure of Rs. 12,539.10 incurred during the period July 20, 1994 to July 25, 1994, and also that 49 labourers were put on the job. According to the complainant, no one worked at the site. The petitioner had connived with Naveen Kumar, J.E., and Karan Singh, B.D. & P.O., and had given a certificate on the muster-roll to the effect that 49 persons, who were allegedly working as labourers, were actually paid. Thus, the allegations made in complaint were that the entries made in the muster-roll are bogus and that the petitioner along with Naveen Kumar, J.E., and Karan Singh, B.D. & P.O., had misappropriated the public funds. 3. In order to support the allegations, the complainant stepped into the witness-box in his preliminary evidence as C.W.2 and reiterated the stand taken by him in the complaint. He has also produced Ganpat Rai C.W.1, Kapoor Singh, C.W.3, Bhoop Singh C.W.4, Phool Chand C.W. 5, and Sham Lal C.W.6. All of them have supported the version of the complainant. The Judicial Magistrate Ist Class, Hansi, after perusal of the above complaint, and the preliminary evidence, issued summons to the petitioner, Naveen Kumar, J.E., and Karan Singh, B.D. & P.O., under Sections 465, 468, 409 and 120-B, I.P.C., vide order dated March 31, 1995. 4. Ms. Priya Khaitan, learned counsel for the petitioner, vehemently argued that the complainant did not have any locus standi to file the present complaint. She further argued that the petitioner took the muster-oil, which had been prepared by the other accused for getting it signed by the Panchayat and had, therefore, no role to play in the alleged misappropriation of the government funds. Lastly, it has been argued by her that prior sanction under Section 197, Cr.P.C., was required to be obtained before the petitioner could be summoned. But it has not been done. 5. Lastly, it has been argued by her that prior sanction under Section 197, Cr.P.C., was required to be obtained before the petitioner could be summoned. But it has not been done. 5. The above averments have been controverted by Shri B.R. Gupta, learned counsel for the respondent. Mr. Gupta has contended that 49 persons are alleged to have worked as labourers on the Ring Bundh, whereas actually no one had worked. Thus, the public funds had been misappropriated. He has placed reliance on the statements of the complainant and other witnesses, who were examined. All of them have stated that no payment had been made to any of the labourers. As regards the obtaining of prior sanction under Section 197, Cr.P.C., it has been contended that a complaint can be filed against any person, who has misappropriated the public funds. He has placed on record a copy of the order dated February 2, 1999, passed by the Additional Sessions Judge, Hisar, whereby the revision petition filed by Karan Singh B.D. & P.O., and Navin Kumar, J.E., Hansi, was dismissed. Thus, the counsel contended that a triable case is made out from the perusal of the complaint and the accused must face the trial. 6. I have considered the rival contentions of the parties. The first and the foremost question that arises for consideration is whether on a bare perusal of the complaint a triable case is made out against the accused or not. The statements of the complainants as well as the other witnesses, who have deposed against the petitioner, are consistent to the effect that 49 persons have been shown to have been engaged as labourers for the constructions of the Ring Bundh, but actually no one had been engaged and paid. The petitioner along with the other accused had misappropriated the public funds. This is a question for which evidence would have to be led and the complicity of the petitioner and the other accused would have to be decided only after recording of the evidence, and the same cannot be adjudicated upon in proceedings under Section 482, Cr.P.C. 7. The primary function of the Court is to examine whether the complaint discloses a prima facie case or not. A bare perusal of the complaint clearly shows that specific allegations have been made with regard to the bungling of the public funds. The primary function of the Court is to examine whether the complaint discloses a prima facie case or not. A bare perusal of the complaint clearly shows that specific allegations have been made with regard to the bungling of the public funds. Prima facie the version, as given in the complaint, makes out a case under sections for which the petitioner and the other are required to be tried. The Court at this stage cannot adopt a conjectural approach. Once a prima facie case is made out, it is not the function of the High Court under Section 482, Cr.P.C., to substitute its own opinion while invoking the inherent powers. The powers under Section 482, Cr.P.C., are meant to be exercised sparingly and with circumspection. Honble Supreme Court in the case reported as Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and others, AIR 1976 SC 1947, has observed as under :- "....Thus it may be safely held that in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside : (1) where the allegations made in the complaint or the statement of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused; (2) where the allegations made in complaint are potently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused. (3) Where the discretion exercised by the Magistrate in issuing process if capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like. The cases mentioned by us are purely illustrative and provide sufficient guidelines to indicate contingencies where the High Court can quash proceedings." The same principle would apply mutatis mutandis to a criminal complaint. The cases mentioned by us are purely illustrative and provide sufficient guidelines to indicate contingencies where the High Court can quash proceedings." The same principle would apply mutatis mutandis to a criminal complaint. 8 As far as the question of obtaining prior sanction under Section 197, Cr.P.C., is concerned, it has to be seen whether the offence is alleged to have been committed by the petitioner during the course of the discharge of his official duty or not and the same cannot be opined at this stage in proceedings under section 482, Cr.P.C. 9. The argument of the learned counsel that the respondent did not have the locus standi to file the complaint is also without any merit. Whenever the government funds are alleged to have been embezzled or misappropriated, then any person can bring to the notice of the authorities or the Court that the public funds are being embezzled or misappropriated and it is for the authorities or the Court to take appropriate action in the matter. Moreover, it is yet to be established whether the act of embezzlement on the part of the petitioner and the other accused was part of their official duty. 10. Apart from the above, the revision petition filed by the other co-accused has already been dismissed by the learned Additional Sessions Judge, Hisar, vide order dated February 2, 1999. 11. In view of the above and after perusing the complaint, it is held that a prima facie case is made out against the petitioner and his co-accused. 12. Consequently, the present petition is dismissed. The petitioner through his counsel is directed to appear before the Judicial Magistrate Ist Class, Hansi, on December 10, 2001. 13. As the complaint was filed on September 6, 1994, and the petitioner along with the other accused was summoned vide order dated March 31, 1995, therefore, a considerable time a has already elapsed. the Court of the Judicial Magistrate Ist Class, Hansi, is directed to expedite the proceedings in the case expeditiously. 14. Nothing stated herein shall be taken as expression of my opinion on the merits of the case.