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Madhya Pradesh High Court · body

2015 DIGILAW 578 (MP)

Charan Singh Shakya v. State of M. P.

2015-05-12

S.K.GUPTA

body2015
JUDGMENT : S.K. Gupta, J. 1. Being aggrieved with the order dated 24.9.2013 passed by the Special Judge (Dacoity), Bhind, in Sessions Trial No. 184/2012 framing charge under Section 409 of IPC, the petitioner has preferred this Criminal Revision under Section 397/401 of Cr.P.C. 2. The brief facts of the case in short are that a report was lodged by complainant Harvilas Visariya that Sub-Divisional Officer, Mehgaon, vide order No.Q/Aa.Ka. 011 dated 8.11.11 suspended the petitioner who was Halka Patwari of village Gaheli, and directed the complainant vide order No.Q/Aa.Ka./12/236/2.3.12 to take charge of aforesaid village. Thereafter, several times suspended Patwari Charan Singh was asked to handover the charge of village Gaheli in compliance of the aforesaid order, but he did not handover the charge. Hence, he has willfully disobeyed the order. On the basis of this report, Crime No. 21/12 was registered under Section 188 of IPC at police Station, Amayan, Distt. Bhind, and investigation was conducted. During investigation, it was found that petitioner is possessing some government documents illegally which were seized from his possession, hence, Section 409 of IPC was also added. After investigation, charge-sheet was filed under Sections 188 and 409 of IPC and vide impugned order, learned Special Judge, framed charge under Section 409 of IPC against the petitioner. Hence, this revision. 3. Learned counsel for the petitioner submitted that impugned order passed by the learned trial Court is contrary to law, therefore, it is liable to be set aside. He further submitted that ingredients for the offence under Section 409 of IPC are not made out. In continuation, he further submitted that learned trial Court before framing the charge did not consider the documents available on record. In addition, it is also submitted that prima-facie, from the available record, it is clearly established that if the evidence and available record is considered in toto, then also charge under Section 409 of IPC could not be framed and the same is liable to be quashed. It is also submitted that admittedly petitioner was suspended on 08.11.2011 and charge-sheet was not issued at that time. Therefore, in view of Section 9(5) of the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966, suspension was automatically revoked. Word "automatic" has been defined and mentioned in the rules itself. Because revocation is automatic, therefore, for that purpose no separate order from the competent authority is required. Therefore, in view of Section 9(5) of the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966, suspension was automatically revoked. Word "automatic" has been defined and mentioned in the rules itself. Because revocation is automatic, therefore, for that purpose no separate order from the competent authority is required. Once revocation is automatic, it would be deemed that service of the petitioner was continued w.e.f. 23.12.2011 and prior to it, there was no FIR at all. In the entire FIR and statement, there was no averment that petitioner has used or manipulated the record. It is also submitted that on the basis of record, it is clearly established that initially there was a simple complaint under Section 188 of IPC. It is alleged that the petitioner has not handed over the charge of the post of Patwari. As far as giving charge is concerned, there was no action at all and at the most if we accept the contention of the complainant, it was a case of section 188 and that is why complaint was filed. The complaint was also based on malafide because the order of revocation of suspension was passed by this Court on 02.05.2012, therefore, intentionally FIR was filed thereafter. When the order was passed and petitioner created pressure for joining, at that time only section 409 of IPC was added that too without any documentary or oral evidence. Hence, he prayed that charges framed against the petitioner be set aside and petitioner be discharged from the charges under Section 409 of IPC. 4. On the other hand, learned Panel Lawyer has fully supported the impugned order of lower Court and submitted that there is prima-facie evidence available on record for framing the charge under Section409 of IPC against the petitioner. He further submitted that there is prima- facie evidence available on the record against the petitioner. Despite the transfer order and suspension, petitioner did not hand over the charge to his successor and he intentionally disobeyed the order of S.D.O. Hence he prayed for dismissal of the petition. 5. He further submitted that there is prima- facie evidence available on the record against the petitioner. Despite the transfer order and suspension, petitioner did not hand over the charge to his successor and he intentionally disobeyed the order of S.D.O. Hence he prayed for dismissal of the petition. 5. Before coming to the factual aspect of the case, I would like to reproduce the provision of Section 409of IPC which reads as under: "Section 409 - Criminal Breach of Trust by Public Servant or by banker, merchant or agent- whoever, being in any manner entrusted with property, or with any dominion over of his business as a banker, merchant, factor, broker, attorney or agent, commit criminal breach of trust in respect of that property, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extent to ten years, and shall also be liable to fine." 6. From the bare perusal of the aforesaid Section 409 of IPC, it is clear that for constituting an offence of Criminal Breach of Trust by a public servant, the following ingredients must be satisfied: (i) Person should be a public servant; (ii) entrusted with the property or with any dominion over the property in his capacity of public servant; (iii) In respect of that property commits Criminal Breach of Trust. Criminal breach of trust as defined in Section 405 of IPC reads as under :- "405. Criminal breach of trust.-Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust" 7. It is undisputed that petitioner was holding the post of Patwari in Village Gaheli, Patwari Halka No. 94, Tehsil Mehgaon, District Bhind (M.P.). It is also undisputed that petitioner was suspended vide order dated 08.11.2011 and the charge-sheet was awaited which is required to be given within the period of 45 days from the date of suspension. It is also admitted that charge-sheet was not issued within 45 days of suspension. It is also undisputed that petitioner was suspended vide order dated 08.11.2011 and the charge-sheet was awaited which is required to be given within the period of 45 days from the date of suspension. It is also admitted that charge-sheet was not issued within 45 days of suspension. It is also admitted that petitioner filed a Writ Petition No. 2950/2012 in which by order dated 02.05.2012 this Court issued an order and granted interim relief holding that because the charge-sheet has not been issued within time, therefore, suspension of the petitioner stood revoked by operation of rule 9(5) of 1966 Rules and accordingly directed to reinstate the petitioner. It is also undisputed that initially FIR against the petitioner has been lodged on dated 5.5.2012 under Section 188 of IPC. But, thereafter charge-sheet has been filed under Sections 188 and 409 of the IPC. It is also undisputed that in compliance of Court order dated 2.5.2012, the petitioner was reinstated and posted by order dated 5.5.2012. It is also undisputed that interim order passed in W.P. No. 2950/2012 was confirmed in final order dated 23.7.2012. By order dated 21.9.2012 this Court again directed to reinstate the petitioner at the place from where he was placed under suspension. 8. In view of the aforesaid discussion, it is crystal clear that when the FIR was lodged on dated 5.5.12 against the petitioner, he was not under suspension and was reinstated vide order dated 5.5.12 passed by the SDO in compliance of the Court order dated 2.5.2012 and in such circumstances, the petitioner was not expected to handover his charge to his successor. For the sake of argument even if it is presumed that before passing the order dated 5.5.2012 the petitioner was under suspension and he was under obligation to handover the charge to his successor and he disobeyed the order of his superior, therefore, the petitioner committed the offence under Section 188 of IPC, but it is pertinent to mention here that FIR (Annexure A/7) has been registered against the petitioner on dated 5.5.2012 on the information given on the same day and as per order dated 2.5.12 of this Court, on the same day i.e. 5.5.2012 he was reinstated by SDO, and therefore, no FIR for the offence punishable under Section 188 of IPC ought to have been registered against the petitioner. 9. 9. So far as the charge under Section 409 of IPC is concerned, there is no evidence available on record that petitioner dishonestly misappropriated or converted to his own use that property which was entrusted to him. 10. In the facts and circumstances of the case for the foregoing reasons, I am of the considered opinion that the impugned order framing charge against the petitioner under Section 409 of IPC deserves to be set aside. Accordingly, the impugned order dated 24.9.13 framing charge under Section 409 of IPC against the petitioner is set aside. The petition is allowed as aforesaid. Copy of the order be sent to the Court concerned for necessary compliance.