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2012 DIGILAW 1528 (PAT)

Krishna Mohan Prasad v. State of Bihar

2012-11-06

HEMANT KUMAR SRIVASTAVA

body2012
ORDER 1. This petition under section 482 of the Cr.P.C has been filed on behalf of the petitioner for quashing the order dated 29.10.2009 passed by Sri Hareram Mishra, Judicial Magistrate, Siwan in Complaint Case no. 2208/2009 by which and whereunder he, having found prima facie case under sections 406, 420, 504 and 467 of the Indian Penal Code, ordered to issue summons against the petitioner and co-accused Santosh Pd Gupta. 2. The brief fact, which lies to file this quashing petition, is that opposite party no.2, namely, Arbind Kr. Singh filed the above stated Complaint Case no. 2208/2009 in the court of learned Chief Judicial Magistrate, Siwan against the petitioner and co-accused Santosh Pd Gupta alleging therein inter-alia that according to rules and regulation of the Bihar Gram Katchary (Employment, Service Conditions and Duties) Rules, 2007, he was appointed on the post of Nyaya Mitra on 29.2.2008 in Gram Panchyat Goria Kothi district Siwan and after appointment, he submitted all the relevant documents relating to his appointment to the concerned block office and participated in training programme at district as well as sub divisional level which was continued for the period from 11.6.2009 to 13.6.2009. During the training period, he came to know that Panchyatwise honorarium list had been prepared by the block office but he surprised to see that there was cutting mark on the honorarium relating to opposite party no.2. On 14.6. 2009 he went to block office to get enquired from the petitioner who was working there as Block Development Officer. The petitioner took 15 days’ time to examine the complain of opposite party no.2 and again after 15 days when he went to the block office then the petitioner and co–accused disclosed that relevant certificates of opposite party no.2 were missing from the record of block office and after that opposite party no.2 immediately handed over photo stat copy of his certificates to the petitioner and co–accused and claimed his honorarium. The petitioner and co–accused again asked opposite party no.2 to come after one week. The petitioner and co–accused again asked opposite party no.2 to come after one week. Furthermore, it is alleged that again on 4.7.2009 when opposite party no.2 contacted the petitioner and other accused, the petitioner disclosed that certificates of opposite party no.2 were not available in the file and for reconstruction of file, the petitioner directed opposite party no.2 to contact with co–accused and when he contacted co–accused, he demanded Rs 15,000/- for reconstruction of his file. Opposite party no.2 made protest and again contacted the petitioner but the petitioner became furious and abused and made derogatory comments against him and after that opposite party no.2 filed the above stated complaint case. 3. The learned Chief Judicial Magistrate, Siwan transferred the complaint case for enquiry and trial to the court of Sri Hareram Mishra, Judicial Magistrate, Siwan and the transferee court having conducted an enquiry under section 202 of the Cr.P.C passed the impugned order dated 29.10.2009 which is under challenge before this court in this petition. 4. Notices were issued to opposite party no.2 by this court and in pursuance of the aforesaid notice, counter affidavit has been filed on behalf of opposite party no.2 denying almost all the contents of petition of the petitioner. 5. Supplementary affidavit is filed on behalf of the petitioner bringing certain documents on record. 6. Learned counsel for the petitioner submitted that two fold allegations have been levelled against petitioner and other accused. Firstly, it is stated that honorarium was not paid to opposite party no.2 and secondly, it is stated that relevant documents of opposite party no.2 got misplaced from the file. It is contended by him that, no doubt, the petitioner was working as Block Development Officer at the relevant time but according to the rule of the Bihar Gram Katchary (Employment, Service Conditions and Duties) Rules, 2007, the contractual amount of Nyaya Mitra is paid by the joint signatures of sarpanch and upsarpanch on the basis of absentee report and if honorarium of opposite party no.2 has not been paid, then Sarpanch and upsarpanch of the concerned Gram Panchayat are responsible for that because the aforesaid honorarium had not to be paid by the petitioner. It is further contended by him that annexure 3 to the petition shows that District Magistrate, Siwan vide his letter no. It is further contended by him that annexure 3 to the petition shows that District Magistrate, Siwan vide his letter no. l15 III dated 28.2.2009 gave guidelines to all Block Development Officers of the district Siwan in respect of making payment of honorarium to Nyaya Mitras and in the aforesaid letter, it has clearly been mentioned that contractual amount of Nyaya Mitra would be paid on the basis of actual work done by concerned Nyaya Mitra and Block Development Officer would withdraw the allotted amount from the treasury and would deposit the aforesaid amount in the accounts of Nyaya Mitras through bank draft. It is further contended by him that, as a matter of fact, Sarpanch of the concerned Gram Panchyat reported that no work was done by opposite party no.2 between 11.6.2009 to 13.6.2009 and, therefore, it was not possible for the petitioner to withdraw allotted amount and to make any payment to opposite party no.2. Learned counsel for the petitioner drew my attention towards annexure 5 to the petition. It is further contended by him that, as a matter of fact, appointment of opposite party no.2 was illegal ab initio and so, he was not entitled for any honorarium. To fortify his contention, he submitted that SDO, Maharaganj in Case no.11/2010 found that appointment of opposite party no.2 was not in accordance with rules of the Bihar Gram Katchary (Employment, Service Conditions and Duties) Rules, 2007 which is evident from perusal of annexure 1 to the supplementary affidavit. It is further contended by him that order of the SDO, Maharanganj passed in case no.11/2010 was challenged by opposite party no.2 before the District Magistrate, Siwan in Misc. Appeal no. 44/2011-2012 and the aforesaid appeal was dismissed by the District Magistrate, Siwan vide order dated 24.4.2012 and, therefore, when appointment of opposite party no.2 was illegal, the question of making payment of honorarium to him does not arise. 7. Learned counsel for the petitioner further submitted that admittedly, petitioner was working as Block Development Officer and being gazetted officer he can only be removed from his service by prior sanction of the government and as per section 197 of the Cr.P.C, if any gazetted official committed offence in discharge of his official duty, cognizance can be taken against him only after taking prior sanction. It is further contended by him that in the present case, admittedly, at the time of passing impugned order, there was no sanction order to prosecute the petitioner and till date, sanction has not been obtained. 8. Learned counsel for the petitioner citied a decision reported in Supreme today 2006 volume 4 page 645 in which the Hon’ble Supreme Court quashed the prosecution of a police official in want of sanction. 9. It is further contended by him that as a matter of fact, opposite party no.2 brought the above stated complaint case as tactic with mala fide intention and it is well settled principle of law that if the prosecution is launched with mala fide intention, this court can exercise its power vested under section 482 of the Cr.P.C. In support of his above stated contention, he referred a decision reported in 2012 (3) PLJR 91 . 10. In the backdrop of the aforesaid submissions, he prayed for quashing the order dated 29.10.2009. 11. On the other hand, opposite party no.2 supported the impugned order arguing that the petitioner was legally appointed as Nyaya Mitra duly recommended by panel and accepted by sarpanch of Bhetti Panchyat which is evident from perusal of annexure C to the counter affidavit which is appointment letter dated 29.2.2008 issued by sarpanch of Grampanchyat, Bhetti and after appointment of opposite party no.2 as Nyaya Mitra the concerned sarpanch accepted his appointment. It is further contended by him that that opposite party no.2 also participated in training programme from 11.1.2009 to 12.1.2009 and furthermore, the concerned sarpanch had already written letter to the District Magistrate, Siwan that the petitioner had obtained his signature on a plain paper and he had never sent any absentee report of opposite party no.2 . In support to his contention, he referred several annexures to the counter affidavit. It is further contended by him that sanction can be obtained at any stage of the case and it is not mandatory to obtain sanction before taking cognizance. In support to his contention, he referred several annexures to the counter affidavit. It is further contended by him that sanction can be obtained at any stage of the case and it is not mandatory to obtain sanction before taking cognizance. In support of his contention , he referred a decision reported in 2001 SC 2547 in which Apex court of this country has held at para 15 as follows: “It is well settled that question of sanction under section 197 of the Code can be raised any time after cognizance; may be immediately after cognizance or framing of charge or even at the time of conclusion of trial and after conviction as well. But there may be certain cases where it may not be possible to decide the question effectively without giving opportunity to the defence to establish that what he did was in discharge of official duty. In order to come to the conclusion whether claim of accused, that the act that he did that in course of the performance of his duty was reasonable one and neither pretended nor fanciful, can be examined during course of trial by giving opportunity to the defence to establish it. In such eventuality, the question of sanction should be left open to be decided in the main judgment which may be delivered upon conclusion of the trial”. 12. On the strength of the aforesaid decision, learned counsel for the petitioner submitted that even if at the time of passing impugned order, there was no sanction order the court can obtain sanction order at any time even at the time of delivery of judgment and, therefore, it can not be said that impugned order is bad in law in want of sanction. 13. Having heard the contentions of both the parties I have gone through the record as well as decisions cited on behalf of the parties. 14. Admittedly, at the relevant time, the petitioner was working as Block Development Officer and he was a gazetted officer. Furthermore, it is an admitted position that Block Development Officer can be removed only with sanction of the government and being public servant, petitioner is protected under section 197 of the Cr.P.C. Here, I would like to refer section 197 (1) of the Cr. Furthermore, it is an admitted position that Block Development Officer can be removed only with sanction of the government and being public servant, petitioner is protected under section 197 of the Cr.P.C. Here, I would like to refer section 197 (1) of the Cr. P.C which says that when any person, who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such officer except with the previous sanction--- (a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central government; (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government. (2) No court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central government (3) The State government may, by notification, direct that the provisions of sub-section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein wherever they may be serving and thereupon the provisions of that sub-section will apply as if for the expression “Central Government” occurring therein, the expression “State Government” were substituted. (4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held. 15. (4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held. 15. Perusal of the aforesaid section shows that public servant is protected under section 197 of the Cr.P.C and if he commits an offence while acting or purporting the act in the discharge of his official duty, no court shall take cognizance of such offence except with the previous sanction of the government. 16. The allegation against the petitioner is that being Block Development Officer, he did not make payment of honorarium to opposite party no.2 and under conspiracy file relating to honorarium of opposite party no.2 got misplaced from the office. The making of payment of honorarium is related with official work of the petitioner. So, even if it is assumed that the petitioner intentionally did not make payment of honorarium to opposite party no.2, then also, the aforesaid act of the petitioner would come under the ambit of his official duty and so far as allegation of misplacing the file of opposite party no.2 is concerned, the petitioner was not custodian of the aforesaid file and moreover, keeping government file by the petitioner also comes under the ambit of his official work. Therefore, even if the allegation levelled against the petitioner assumed to be true, then also offence, which is said to have been committed by the petitioner, would come under the ambit of his official duty. As I have already stated that the petitioner can not be removed from his office save and except with sanction of the State government and, therefore, the petitioner is entitled to get benefit of section 197(1) of the Cr.P.C. 17. Now, the question arises as to whether in the present case, learned court below had got jurisdiction to take cognizance of the offence without prior sanction of the State government or not. Now, the question arises as to whether in the present case, learned court below had got jurisdiction to take cognizance of the offence without prior sanction of the State government or not. In AIR 2001 SC 2547 , it has been held by the Apex court of this country that question of sanction under section 197(1) of the Cr.P.C can be raised any time after cognizance but there may be some cases where it may not be possible to decide question effectively without giving opportunity to the defence to establish that what he did was in discharge of official duty. Therefore, in the aforesaid circumstance, it was held by the Apex court of this country that if a court takes cognizance against a public servant in respect of offence which has been committed by him in discharge of his duty without prior sanction, the aforesaid public servant may raise the question of sanction just after taking cognizance and later stage of the case. In the said case, Apex Court also held that in certain cases, where it may not be possible to decide the question effectively without giving opportunity to the defence to establish that what he did was in discharge of his official duty. Therefore, it is apparent from the aforesaid observations of the Hon’ble Apex court that in some cases, it is not possible for defence to establish this fact without evidence that act complained of was discharge of his official duty. It is explicit clear from the aforesaid observations that there may be two types of cases. In some cases, the allegation itself discloses that act complained of has been committed in discharge of his official duty but in some cases, allegation does not disclose this fact as to whether the act complained of has been committed in discharge of his official duty. In first type of cases, question of sanction can be raised just after the cognizance order and the court can not take cognizance without prior sanction order but in second type of cases, the court can consider question of sanction at any stage of trial and can proceed with the case after taking cognizance even without any sanction order. 18. In first type of cases, question of sanction can be raised just after the cognizance order and the court can not take cognizance without prior sanction order but in second type of cases, the court can consider question of sanction at any stage of trial and can proceed with the case after taking cognizance even without any sanction order. 18. In the present case, according to the complaint petition itself, act complained of was done by the petitioner in course of official duty and, therefore, in my view, the court below had got no jurisdiction to proceed with the case in want of sanction order as stated in section 197(1) of the Cr.P.C. 19. It is evident from annexures 1 and 2 of supplementary affidavit that the very appointment of opposite party no.2 on the post of Nyaya Mitra was challenged before the SDM, Maharajganj district Siwan in Case no. 11/2010 and the SDM, Maharajganj found the appointment of opposite party no.2 illegal and the aforesaid findings of the SDM, Maharajganj were confirmed by the court of the District Magistrate, Siwan in Misc. Appeal no. 44/2011-2012 and therefore, when appointment of opposite party no.2 was illegal, he was not entitled to get any honorarium. Moreover, it would also appear from the record that concerned Sarpanch had sent absentee report of opposite party no.2 mentioning this fact that his work was zero and furthermore, as per letter no. 15 III dated 28.2.2009 of the District Magistrate, Siwan, payment of contractual amount to Nyaya Mitra had to be made on the basis of actual work done by the Nyaya Mitra, Therefore, even if it is assumed that the petitioner did not recommend honorarium payment of opposite party no.2 then also, no offence is made out against the petitioner. 20. On the basis of the aforesaid discussions, I am of the opinion that continuance of the prosecution of the petitioner is nothing but only an abuse of the process of the court and it must be quashed. 21. In the result, this quashing petition is allowed and the impugned order dated 29.10.2009 passed by Sri Hareram Mishra, Judicial Magistrate, Siwan in Complaint Case no. 2208/2009 is, hereby, quashed.