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2012 DIGILAW 189 (UTT)

ASGAR v. STATE OF UTTARANCHAL

2012-04-30

SERVESH KUMAR GUPTA

body2012
JUDGMENT Hon’ble Servesh Kumar Gupta, J. At the outset, it is pertinent to mention that revisions no.38 and 40 of 2003 have been preferred by the same accused Rasheed Ahmad, challenging the common judgment and order dated 26.3.2003 rendered by learned Additional Sessions Judge/IVth FTC, Haridwar in criminal appeal no.50 of 2000. These revisions bear the different numbers, as the same were filed by different advocates. 2. Criminal revision no. 37 of 2003 has been preferred by co-accused Asgar against the judgment and order dated 28.3.2003 passed by the same court, whereby the judgment and order of trial court dated 7.12.2000 was affirmed. 3. It appears that accused Rashid Ahmad, Pradhan of village Mirjapur Mustafabad, within the territorial jurisdiction of P.S. Jwalapur, District Haridwar, along with a contractor Asgar, was tried by the court of Second Additional Chief Judicial Magistrate, Haridwar vide trial no.650 of 2000. The said trial pertained to crime no.228 of 1987 (chargesheet no.23 1 dated 29.12.1987 against the accused Rashid Ahmad and chargesheet no.231-A dated 2.2.1988 against the accused Asgar) relating to the offences punishable u/s 409/420 IPC along with Sections 4/10 of the Uttar Pradesh Protection of Trees in Rural and Hill Areas Act, 1976 (hereinafter to be referred as ‘the Act’). The trial concluded in conviction whereby the accused Rasheed Ahmad was found guilty for the offence of Section 409 IPC and was sentenced to undergo seven years’ R.I. with fine of Rs.5,000/, and in default of payment of fine, to undergo six months’ simple imprisonment. Further, for the offence of Section 4/10 of the Act, he was sentenced to undergo three months’ rigorous imprisonment. 4. However, the revisionist/accused Asgar was found guilty only for the offence of Sections 4/10 of the Act and was sentenced to undergo three months’ rigorous imprisonment. 5. Feeling disgruntled, both the accused/convicts preferred appeals which were titled as criminal appeal no.50 of 2000, Rasheed Ahmad Vs. State and criminal appeal no.55 of 2000, Asgar Vs. State. These appeals were adjudicated vide judgments dated 26.3.2003 and 28.3.2003 respectively passed by learned Additional Sessions Judge, which are under challenge in these revisions. 6. Having heard learned counsel for the parties, it appears that accused Rasheed Ahmad was the Pradhan of his village at the relevant time of the Gram Sabha, running from 4.6.1987 to 9.6.1987. State. These appeals were adjudicated vide judgments dated 26.3.2003 and 28.3.2003 respectively passed by learned Additional Sessions Judge, which are under challenge in these revisions. 6. Having heard learned counsel for the parties, it appears that accused Rasheed Ahmad was the Pradhan of his village at the relevant time of the Gram Sabha, running from 4.6.1987 to 9.6.1987. The allegations against him were made by one Saeed Ahmad, Up-Pradhan/Deputy Headman of the village, by moving an application u/s 156(3) Cr.P.C. that he, in the active association of woods contractor Asgar (accused) has cut several (hundreds) of important green trees standing on Khasra Nos. 112, 168 and 169, owned by Gram Sabha of village Mirzapur Mustafabad. Those trees were thereafter sold by the accused Rasheed Ahmad, however he did not deposit the sale proceed which was quite a handsome and considerable fund for the Gram Sabha. After the intervention of the Court, the case was registered and charge sheets were submitted on due investigation by the Police against the accused for the said offences. 7. The prosecution, in order to prove its case, produced PW1 Saeed Ahmad, who proved all the facts, as stated by him in his complaint, and all those allegations found support of an independent witness PW2 Ibnae Mohammad, who was a witness of the incident. This witness, by his own eyes, saw the cutting of trees by the said contractor Asgar under the instructions of accused Rasheed Ahmad. An enquiry in this regard was also conducted on administrative side and the revenue authorities, including the Lekhpal, Naib Tehsildar and Sub-Divisional Magistrate, found the allegations true, which resulted into the suspension of accused Rasheed Ahmad from his designation. 8. It is a settled principle that while hearing a revision, this Court is not supposed to reappreciate the entire facts and evidence on the record. Learned counsel appearing for the accused have contended mainly that the accused Rasheed Ahmad, being a village Pradhan, was not a public servant and as such, he could not have been convicted for the offence punishable u/s 409 IPC. In support, the following two precedents have been relied upon: - 1. “Ramesh Balkrishna Kulkarni Vs. State of Maharashtra (1985) 3 SCC 606 2. Sahntaram Balya Sankhe and others Vs. In support, the following two precedents have been relied upon: - 1. “Ramesh Balkrishna Kulkarni Vs. State of Maharashtra (1985) 3 SCC 606 2. Sahntaram Balya Sankhe and others Vs. Kaliram Gajanan Sankhe and others, (2001) 1 BOMLR 640.” Both these precedents, as relied upon, are not applicable in the present matter, inasmuch as, the first precedent in the case of ‘Rashid Balkrishna Kulkarni’ pertained to Prevention of Corruption Act wherein the accused was a Municipal Councillor. Therein, the Hon’ble Apex Court was of the view that since the Municipal Councillor was not a public servant, hence he could not have been prosecuted for the offence of Sections 5 and 6 of the Prevention of Corruption Act. But the case, in hand, is not a case of Municipal Councillor rather it is of a village Pradhan/Headman. 9. The second case, as relied upon, has been adjudicated by a Single Judge of Bombay High Court wherein it was held that to prosecute a Sarpancha, Up-Sarpanch and other members of the village Panchayat, since they are not the employees of State Government, nor are they removable exclusively by the State Government, thus, they were not the public servants within the meaning of Section 21 of IPC and therefore, no sanction was needed to launch prosecution against them. Now, in the instant case, the controversy is not about the need of sanction to prosecute. Moreover, this judgment of Hon’ble Bombay High Court, rendered by a Single Judge, has only persuasive value for this Court. 10. Besides, one more significant aspect is that Section 28 of Uttar Pradesh Panchayat Raj Act, 1947 envisages the ‘Gram Pradhan’ to be a public servant within the meaning of Section 21 of IPC. This Section envisages as under: “28. Members and servants to be public servants- Every member of servant of a Nyaya Panchayat, a Gram Panchayat, a joint committee or any other committee constituted under this Act shall be deemed to be a public servant within the meaning of Section 21 of the Indian Penal Code.” 11. Thus, it is crystal clear that for the purpose of deciding the embezzlement of the government funds, a ‘Gram Pradhan’ is a public servant. 12. Thus, it is crystal clear that for the purpose of deciding the embezzlement of the government funds, a ‘Gram Pradhan’ is a public servant. 12. That apart, the reports of Lekhpal, Naib Tehsildar and Sub Divisional Magistrate are in conformity with all the allegations which were found substantial by the Investigating Officer and which, in consequence, resulted into the submissions of chargesheets against the accused. 13. The contention that the investigating officer was not produced, also does not have bear any weight because the trial court itself has relied upon a judgment of Hon’ble Apex Court in the case of ‘Behari Prasad and others Vs. State of Bihar’ reported in 1996 SCC (Cri) Page 271, wherein it was held that in every case, it is not necessary to prove the chargesheet /Chik FIR or the copy of G.D. by the Investigating Officer. If the case is proved in facts and substance, then these are only the formal documents. In view of what has been stated above, all these revisions are bereft of any merit and liable to be dismissed. The revisions are, accordingly, dismissed. Judgment and order passed by trial court, as affirmed by the appellate court, are hereby sustained. The revisionists Rasheed Ahmad and Asgar are on bail. Their bail is cancelled and their personal bonds and sureties are hereby discharged. They will be taken into custody to serve out the sentence as awarded against each of them by the trial court. Remit the file to the court below.