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2007 DIGILAW 1289 (PAT)

Abdul Moin Ansari v. State Of Bihar

2007-08-06

S.C.JHA

body2007
Judgment 1. The order under challenge is dated 12.7.2006 passed in G.R. No. 848/2006, Tr. No. 2667/2006 (State vs. Abdul Moin Ansari) by the learned Chief Judicial Magistrate, Sasaram, whereby and whereunder on submission of charge-sheet he has passed the order of cognizance against the petitioner for the offences punishable under Ss. 420, 171(G) of Indian Penal Code for his trial. 2. Heard learned counsel for the petitioner and learned Additional Public Prosecutor for the State. 3. Petitioner is the Junior Engineer, Sone High Level Division, Sasaram, in the district of Rohtas. Rabindra Singh is the informant of the case who on the relevant date i.e. 16.6.2006 was the Block Development Officer-Returning Officer at the time when the counting of Mukhia Gram Panchayat election was in the process. At the said time this petitioner was deputed as an Observer in respect of Table No. 6 where counting of votes cast for the Mukhia election was in the process. One Ram Raj Singh, husband of Smt. Shanti Singh, who was one of the candidates for the post of Mukhia of NAD Gram Panchayat, protested regarding irregularities in the process of counting and as such votes were recounted in presence of B.D.O., Junior Engineer, N.R.E.P. and the . Officer-in-charge of Sheo Sagar Police Station and it was found that in all forty-six votes cast in favour of Shanti Devi were lying in a bundle of votes cast for other side. The petitioner was arrested. 4. Contention has been advanced that it is the BDO, Officer-in-charge and the Ex. Engineer whose statements were only recorded at the relevant time and, accordingly, investigation was concluded. As a maker of fact, the petitioner was deployed as an Observer, who had nothing to do with the counting of votes. Further submission is that the persons who were only involved in the process of counting of votes and were instrumental in keeping the bundles of votes in a basket or box have not at all been examined. Not only that, even the counting agents of the respective candidates who fought for Mukhia election were not examined in course of investigation by the Police. Even, the candidate Shanti Devi herself has not been examined by the Police in course of investigation. Not only that, even the counting agents of the respective candidates who fought for Mukhia election were not examined in course of investigation by the Police. Even, the candidate Shanti Devi herself has not been examined by the Police in course of investigation. The petitioner, of course, in the aforesaid situation could be said to have incurred the wrath of Officials i.e. B.D.O. or Police Officer, with whom they had some grudge from before for some reasons. 5. In addition to that, it has been assailed on the technical ground for the reason that the petitioner was deputed there in his official capacity and so any laches on his part would not lead him to face any criminal prosecution unless sanction for his prosecution is obtained from the appropriate authority as stipulated under Section 197 Cr.P.C. 6. It will be relevant to point out from the materials in the case diary as also in the impugned order that no such sanction has been obtained. There is possibility that it may be the hand work of the counting agents or some persons employed at the relevant table for the purpose of counting and thereby not keeping such bundle of votes in the appropriate box or basket meant for each candidate and for that lapses on their part, the petitioner has been made the sole accused to face the trial. 7. Learned counsel for the petitioner also referred to an order dated 22.6.2006 passed in B.P. No. 977/2006 by the Sessions Judge, Rohtas, in Sheosagar P.S. Case No. 66/2006 wherein he has held that there is no allegation against this petitioner regarding counting of ballot papers. Rather, the petitioner was only an Observer in the counting room. 8. In nutshell, it has been submitted by the learned counsel for the petitioner that he had several counting agents in different tables under him for the purpose of counting of votes in respect of several Panchayat election. The order impugned is also not sustainable in the eye of law because of lack of necessary sanction order. In the circumstances as stated above, the learned counsel submitted that continuance of the proceeding against this petitioner will amount to abuse of process of law. 9. The order impugned is also not sustainable in the eye of law because of lack of necessary sanction order. In the circumstances as stated above, the learned counsel submitted that continuance of the proceeding against this petitioner will amount to abuse of process of law. 9. Learned Additional Public Prosecutor for the State in all fairness has submitted that neither counting agents nor persons employed for the purpose of counting of votes and keeping the bundles of ballot papers in the box has been examined in course of investigation nor there is any sanction order from the appropriate authority for prosecution of the petitioner who is a Government servant and was deployed for discharge of his official duty in the capacity of an Observer in the said election. 10. In the result, the order impugned, thus, stands quashed and this application is allowed.