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2017 DIGILAW 432 (RAJ)

Gurnaam Kaur v. State of Rajasthan

2017-02-07

VIJAY BISHNOI

body2017
JUDGMENT : Vijay Bishnoi, J. 1. This criminal misc. petition under Section 482 Cr.P.C. has been filed by the petitioner being aggrieved with the order dated 28.06.2012 passed by the Additional Sessions Judge No. 1, Sri Ganganagar (hereinafter referred to as 'the revisional court') in Criminal Revision Petition No. 90/2007, whereby the revision petition filed by the petitioner has been dismissed. The said revision petition was preferred by the petitioner being aggrieved with the order dated 19.07.2007 passed by the Judicial Magistrate, First Class, Sadulshahar, District Sri Ganganagar (hereinafter referred to as 'the trial court') in Criminal Misc. Case No. 509/2007 in FR No. 89/2002 arising out of FIR No. 149/2000 of Police Station Sadhulshahar, District Sri Ganganagar, whereby the trial court directed to take cognizance for the offences punishable under Sections 409, 420, 467, 468, 471 and 120-B IPC against the petitioner along with two other co-accused persons. 2. Brief facts of the case are that the petitioner was the Sarpanch of Gram Panchayat Khat Sajawar, Panchayat Samiti Sadulshahar, District Sri Ganganagar from February 2005 to January 2015. The respondent No. 2 filed a complaint before the trial court on 19.06.2000 against the petitioner and two other co-accused persons while alleging that the amount of subsidy of Rs. 650/- was embezzled by the petitioner and other co-accused persons in the name of a dead person. It is alleged that the petitioner submitted an application for grant of subsidy in the name of one Mewa Singh in February - March 2000 and also received subsidy amount of Rs. 650/- in his name, though, Mewa Singh was not alive in February - March 2000 as he died on 03.10.1999. It is alleged that the petitioner being a Sarpanch had verified a certificate of subsidy in the name of dead person Mewa Singh despite having knowledge of his death. It is also alleged that when the matter was raised in the meeting of Gram Sabha, the petitioner had declared, in the presence of villagers, that she had intention to embezzle the said amount in the name of dead person and she did it. It is also alleged in the complaint that when the villagers had raised their objections about the said action of the petitioner, she filed an application before the Vikas Adhikari and other Officers and deposited the amount of subsidy of Rs. It is also alleged in the complaint that when the villagers had raised their objections about the said action of the petitioner, she filed an application before the Vikas Adhikari and other Officers and deposited the amount of subsidy of Rs. 650/-, received in the name of dead person, on 25.03.2000. It is alleged that the petitioner as well as other co-accused persons had embezzled the government money and committed offence of cheating and also committed the offence of preparation of forged document. 3. The aforesaid complaint filed by the respondent No. 2 before the trial court was sent for investigation to the police and the Police Station Sadulshahar, District Sri Ganganagar registered the FIR No. 149/2007 for the offences punishable under Sections 409, 420, 467, 468, 471 and 120-B IPC against the petitioner and two other co-accused Officers and started investigation. 4. After investigation, initially the police filed negative final report while concluding that since the petitioner had already deposited the money, received by her in the name of a dead person, no offence is made out, however, later on, after receiving of the report from the Forensic Science Laboratory regarding thumb impression upon the certificate, the matter was reopened and the police had concluded that the petitioner was guilty for commission of offences punishable under Sections 409,420, 467, 468, 471 and 120-B IPC as the petitioner was the Sarpanch of Gram Panchayat at the relevant time. The police approached the State Government for granting prosecution sanction against the petitioner, however, the State Government refused to grant prosecution sanction for prosecuting the petitioner while observing that since the alleged embezzled money was already deposited by the petitioner in the Government Treasury and there appears no intention of the petitioner to embezzle the said amount, the prosecution sanction cannot be granted. 5. After refusal by the State Government to grant sanction for prosecuting the petitioner, the police submitted the negative final report in the court on 31.07.2002. 6. Being aggrieved with the negative final report submitted by the police, the petitioner filed a protest petition before the trial court. 5. After refusal by the State Government to grant sanction for prosecuting the petitioner, the police submitted the negative final report in the court on 31.07.2002. 6. Being aggrieved with the negative final report submitted by the police, the petitioner filed a protest petition before the trial court. The trial court, after taking into consideration the final report submitted by the police and the evidence of the petitioner produced in support of the protest petition, had proceeded to take cognizance for the offences punishable under Sections 409, 420, 467, 468, 471 and120-B IPC against the petitioner along with two other persons. 7. Being aggrieved with order of taking cognizance by the trial court, the petitioner preferred aforementioned revision petition, however, the same has been dismissed by the revisional court. 8. The trial court as well as the revisional court have observed that since the action of the petitioner of submitting forged certificate of a dead person for receiving subsidy and the action of receiving the said subsidy of Rs. 650/- cannot be said to be a function discharged by her in her official duty and, therefore, there is no need to take sanction from the competent authority for prosecuting the petitioner. Both the courts below are of the opinion that the protection under Section 197 Cr.P.C. is not available to the petitioner looking to the facts and circumstances of the case. 9. Being aggrieved with the order passed by both the courts below, the petitioner has preferred this criminal misc. petition. 10. Learned counsel for the petitioner has submitted that it is not in dispute that prior to filing of FIR, the petitioner had already deposited the amount of Rs. 650/- received in the name of a dead person as subsidy. It is also argued that as a matter of fact the petitioner is illiterate lady and when the subsidies were given to the eligible persons, somebody had submitted a form of subsidy in the name of dead person Mewa Singh and the petitioner had simply verified the said certificate. It is submitted that as soon as the petitioner came to know about the fact that the subsidy had been received in the name of dead person, she immediately moved an application before the Vikas Adhikari and deposited the said amount of subsidy. It is submitted that as soon as the petitioner came to know about the fact that the subsidy had been received in the name of dead person, she immediately moved an application before the Vikas Adhikari and deposited the said amount of subsidy. It is contended that from the above facts, it is clear that the petitioner had no intention to embezzle the amount of Rs. 650/-, which was given as subsidy in the name of dead person Mewa Singh. 11. Learned counsel for the petitioner has submitted that the trial court as well as the revisional court have not taken into consideration this aspect of the matter and the trial court took cognizance against the petitioner in the mechanical manner. 12. Learned counsel for the petitioner has further submitted that though the petitioner deposited the amount of subsidy on 25.03.2000, the respondent No. 2 filed complaint against the petitioner in the trial court for the first time on 19.06.2000, though, he was very much aware about the fact that the amount of subsidy, wrongly received, was already deposited by the petitioner on 25.03.2000. Learned counsel for the petitioner has submitted that from this fact it is clear that the respondent No. 2 has filed complaint against the petitioner with malafide intention. 13. Learned counsel for the petitioner has further argued that once the State Government has refused to grant sanction for prosecuting the petitioner, who was Sarpanch of Gram Panchayat at that time, the trial court has grossly erred in taking cognizance against the petitioner vide impugned order. It is contended that even if the petitioner was not the Sarpanch at the time when the trial court took cognizance against her, it cannot be said that the protection under Section 197 Cr.P.C. is not available to her. 14. In support of the above arguments, learned counsel for the petitioner has placed reliance on the decision of Hon'ble Supreme Court rendered in State of Punjab v. Labh Singh reported in, 2015(1) RLW 236 (SC). 15. On the strength of the above arguments, learned counsel for the petitioner prays that the impugned orders passed by both the courts below may kindly be quashed and set aside and the criminal proceedings lodged against the petitioner be terminated. 16. 15. On the strength of the above arguments, learned counsel for the petitioner prays that the impugned orders passed by both the courts below may kindly be quashed and set aside and the criminal proceedings lodged against the petitioner be terminated. 16. Per contra, learned Public Prosecutor as well as the learned counsel for the respondent No. 2 have opposed the prayer of the petitioner and argued that prima facie evidence for taking cognizance against the petitioner is available on record for the offences punishable under Sections 409, 420, 467, 468,471 and 120-B IPC and, therefore, the trial court as well as the revisional court have not committed any illegality in passing the impugned orders. 17. Heard learned counsel for the parties and perused the impugned orders passed by both the courts below as well as the final report submitted by the police. 18. It is not in dispute that the amount of Rs. 650/- was received by the petitioner as subsidy in the name of a dead person, however, it is also not in dispute that the said amount was immediately deposited by the petitioner in the Government Treasury. The another fact which is not in dispute is this that the State Government has refused to grant sanction for prosecuting the petitioner while observing that the money wrongly received as subsidy was deposited by the petitioner prior to filing of FIR and from the material collected by the police, during the course of investigation, it appears that the petitioner had no intention to embezzle the said amount of subsidy. 19. It is to be noticed that during the course of investigation the police has also interrogated the petitioner and the petitioner has clearly stated that somebody has got verified the form of subsidy of Mewa Singh from her and she was not aware about the factum of death of Mewa Singh. She has also specifically stated that as soon as she came to know that the subsidy has been sanctioned in the name of a dead person, she immediately moved an application before the Vikas Adhikari concerned and deposited the said amount in the Government Treasury. 20. She has also specifically stated that as soon as she came to know that the subsidy has been sanctioned in the name of a dead person, she immediately moved an application before the Vikas Adhikari concerned and deposited the said amount in the Government Treasury. 20. The argument of learned counsel for the petitioner that once the State Government has refused to grant sanction to prosecute the petitioner, it is not open for the court to take cognizance against the petitioner in relation to the offences punishable under the Indian Penal Code are concerned, has merit acceptance as per the law laid down by the Hon'ble Supreme Court in the case of State of Punjab v. Labh Singh (supra), wherein it has been held as under :- "8. However as regards charges for the offences punishable under the IPC concerned the High Court was absolutely right in setting aside the order of the Special Judge. Unlike section 19 of the POC Act, the protection under section 197 of Cr.P.C. is available to the concerned public servant even after retirement. Therefore, if the matter was considered by the sanctioning authority and the sanction to prosecute was rejected first on 13.09.2000 and secondly on 24.09.2003, the court could not have taken cognizance insofar as the offences punishable under the Indian Penal Code are concerned. As laid down by this Court in State of Himachal Pradesh v. Nishant Sareen, (2010) 14 SCC 527 ), the recourse in such cases is either to challenge the order of the Sanctioning Authority or to approach it again if there is any fresh material." 21. Looking to the over all facts and circumstances of the case, this Court is of the opinion that the trial court has grossly erred in taking cognizance against the petitioner for the offences punishable under Sections 409, 420, 467, 468, 471 and 120-B IPC and the revisional court has also erred in affirming the order of the trial court for taking cognizance against the petitioner. 22. Resultantly, this criminal misc. petition is allowed. The order dated 19.07.2007 passed by the Judicial Magistrate, First Class, Sadulshahar, District Sri Ganganagar in Criminal Misc. 22. Resultantly, this criminal misc. petition is allowed. The order dated 19.07.2007 passed by the Judicial Magistrate, First Class, Sadulshahar, District Sri Ganganagar in Criminal Misc. Case No. 509/2007 in FR No. 89/2002 arising out of FIR No. 149/2000 of Police Station Sadhulshahar, District Sri Ganganagar and the order dated 28.06.2012 passed by the Additional Sessions Judge No. 1, Sri Ganganagar in Criminal Revision Petition No. 90/2007 are hereby quashed and set aside. The criminal proceedings against the petitioner are terminated. 23. Stay petition is disposed of.