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2005 DIGILAW 197 (PAT)

Inder Lal Bhagat v. State of Bihar

2005-02-22

body2005
ORDER 1. This application by petitioner has been filed for quashing the order dated 5.12.2003 passed by the learned Judicial Magistrate, 1st class, Jehanabad in G.R. case No.1108 of 2000/Trial No. 1509 of 2003 arising out of Jehanabad Police Station Case No. 298 of 2000 rejecting the prayer of petitioner to discharge him from the case. 2. This case of petitioner, in short, is that petitioner was posted as Executive Engineer, Road Construction Division No.1, Jehanabad from 25.12.1996 to 22.5.1998 and he retired from service on 31.1.2000. The further case of petitioner is that in compliance to the letter bearing No. 453 Legal dated 19.6.2000 issued under the signature of District Magistrate, Jehanabad which was written pursuant to a decision taken in the meeting of District 20 Programmed Execution Committee and in the light of the direction given in the letter, the work, executed in the year, 1997-98 under the head “small repair" by Road Construction Department, Road Division No.1, was verified and examined by Executive Engineer, Road Division No.2, Jehanabad who submitted his report after verification vide his letters bearing No.106, 118, 124, 143, 166 dated 3.6.1998, 13.6.1998, 20.6.1998, 10.7.1998 and 3.8.1998 respectively and copies of these letters are annexed with the written report of informant. In the light of report submitted by the Executive Engineer, Road Construction Department Jehanabad, the informant requested for instituting first information report against twenty one persons including the petitioner for their alleged act of irregularity, defalcation and interpolation made in the Government records and Jehanabad Police Station Case No. 298 dated 23.6.2000 was instituted for the offences under Sections 420, 406, 409, 467, 471 and 120B of Indian Penal Code (in short "IPC") and investigation was taken up and police, after investigation, submitted charge-sheet against the petitioner and one Hamid Raja Ansari and they were sent up for trial whereas other co-accused persons were found innocent and investigation against some of the co-accused persons was kept pending. The further case of petitioner is that charge-sheet against the petitioner was submitted anticipating sanction for prosecution but no sanction has so far been obtained. It is further submitted that enquiry was ordered by District Magistrate. The further case of petitioner is that charge-sheet against the petitioner was submitted anticipating sanction for prosecution but no sanction has so far been obtained. It is further submitted that enquiry was ordered by District Magistrate. Jehanabad on the basis of a complaint made by one Shri Jagdish Sharma, an MLA and whole enquiry was politically motivated because petitioner failed to oblige the henchment of aforesaid MLA who wanted to grab the contract work in the locality. The further case of petitioner is that, admittedly, petitioner was posted as Executive Engineer and enquiry against him was conducted by another Executive Engineer which is against the normal rule of law and principles of natural justice because petitioner was not the subordinate to the officer who conducted enquiry. It is also the case of petitioner that prior to institution of first information report, no explanation was sought from him and during investigation no evidence has been collected against him and there is no material except the enquiry report and cognizance of offence was taken without any supporting material and cognizance is bad in law in absence of sanction. Petitioner has prayed for quashing the impugned order dated 5.12.2003 by which his prayer for discharge has been rejected. 3. From the perusal of impugned order, I find that the Court below has observed that police submitted charge-sheet after thorough investigation of the case and there are sufficient materials available on record for proceeding against the accused persons for the offence under Sections 420, 406, 409, 467, 468, 471 and 120B of IPC. The Court below has further observed that the acts alleged to have been committed by accused persons are acts done beyond their official duty and in the facts and circumstances of the case, no sanction is necessary. A Bench of Single Judge of this Court in the case of State of Bihar Vs. Kishore Kumar Rai, 2005(1) PLJR 18 , by relying upon decision of Supreme Court in the case of K. Satwant Singh Vs. State of Punjab reported in AIR 1960 Supreme Court 266, has held as follows: "So far the offence of cheating and criminal breach of trust are concerned in no way it can be said that it is the duty of the public servant to commit cheating and criminal breach of trust. Such acts having been done by the public servant while taking benefit of official status. Such acts having been done by the public servant while taking benefit of official status. In K. Satwant Singh's case (supra), it was held that the offence of cheating by its very nature cannot be regarded as having been committed by public servant while acting or purporting to act in discharge of his official duties." 4. In the present case, the chargesheet (Annexure-2) shows that it has been submitted under Sections 420, 406, 409, 467, 468, 471 and 120B of IPC and it is the own case of petitioner that cognizance of the case has already been taken. 5. In the result. I find no merit in this application which is, accordingly dismissed. 6. However, the petitioner may raise the plea of sanction for offences, other than under Sections 420, 406 and 409 of IPC for which sanction is not required at the final stage of trial and if he does so, it will be considered by Court below on the basis of materials on record available by them.