Patna High Court - Orders
Ganesh Prasad Yadav vs State Of Bihar Thru.Vig. & Anr on 24 February, 2012
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.23734 of 2010
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Ganesh Prasad Yadav, S/o Late Paltan Prasad Yadav, Resident of Mohalla-C-16,
A.G. Colony, Raja Bazar, P.S.-Shastri Nagar, Town & District-Patna.
.... .... Petitioner.
Versus
1. The State of Bihar through Vigilance.
2. Shri Hari Mohan Shukla, Dy. Superintendent of Police [Vigilance], 6,
Circular Road, Patna. .... .... Opposite parties.
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Appearance :
For the Petitioner : Mr. Pramod Kumar Singh, Advocate.
Mr. S.D.Sanjay, Advocate.
Mr. Gopal Prasad Gupta, Advocate
For the Opposite parties : Mr. Arvind Kumar, Spl. P.P./Vigilance.
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
C.A.V. ORDER
8. 24-02-2012Sole petitioner, Ganesh Prasad Yadav has challenged the order dated 05.10.2009 whereby and whereunder petitioner including others has been summoned to face trial for an offence punishable under Section 419, 420, 467, 468, 471, 109, 120B of the I.P.C. and Section 7, 8, 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act in connection with Special Case No.58 of 2009 arising out of Vigilance P.S. Case No.82 of 2009 passed by Special Vigilance, I, Patna.
Shorn of unnecessary details, Smt. Manju Devi made complaint before "Janta Darbar of Chief Minister" alleging inter alia that Ganesh Prasad Yadav claiming himself to be Dy.S.P. with the aid and assistance of Nagendra Thakur had deceived and cheated Rs.1,68,000/- on the pretext of providing job to her son Sudhir Kumar. During aforesaid event, a letter (subsequently found forged) was also handed over with regard to employment in the Railway department purported to be issued by Ministry of Railway, Rail Bhawan, New Delhi to inspire confidence relating to their -2- fraudulent action as genuine one.
The matter was accordingly directed to be taken up for preliminary enquiry by the Vigilance on the basis of which Vigilance Case No.82 of 2009 was registered and followed with institution of Special Case No.58 of 2009 and then thereafter investigation was taken up and after completing the same, charge sheet was submitted on the basis of which vide order dated 05-10-2009 cognizance of an offence punishable under Section 419, 420, 467, 468, 471, 109, 120B of the I.P.C. as well as Section 7, 8, 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act has been taken up as well as petitioner including others has also been summoned to face trial.
Simple submission whatever been raised on behalf of petitioner is that during course of investigation it has conclusively been found that petitioner is not a Dy.S.P., that means to say he is not a Public Servant and so, there is non-application of Prevention of Corruption Act, much less relating to the petitioner.
Elaborating further, it has been contended with the aid of Section 7 of the Prevention of Corruption Act that as per Explanation No.1, if an accused receives gratification not being in office, then in that event he will be found to be guilty of cheating and not under Prevention of Corruption Act. So submitted that summoning of petitioner to face trial under Prevention of Corruption Act is not at all tenable.
So far remaining sections of penal law is concerned, it has been contented that nowhere the complainant, Manju Devi nor her son had contended that they had or either of them had paid amount to the petitioner. So prima facie there is no material to suggest that a single farthing was paid to the petitioner. Whatever basis has been formed, that happens to be a -3- statement of co-accused Nagendra Thakur which statement is inadmissible in the eye of law. Therefore, by putting reliance upon the statement of Nagendra Thakur, co-accused, no adverse inference can be drawn up against the petitioner and consequent thereupon, summoning of petitioner appears to be non-justifiable in the eye of law. So, it has been submitted that cognizance as well as summoning of petitioner by the order impugned is bad to the extent of interest of the petitioner. So submitted that instant petition is fit to be allowed.
At the other hand, the learned special P.P. for the Vigilance fairly submitted by way of counter affidavit, regarding status of the petitioner who was not at all a Public Servant but on that very pretext he cannot be exonerated because of the fact that the process of deception was finalized whereunder complainant was duped and been forced to part with Rs.1,68,000/- illegally after having assurance on the part of the petitioner to provide her son an employment posing himself to be Dy.S.P. The whole event was materialized under active involvement of Nagendra Thakur who happens to be an employee of Bihar State Electricity Board and for the present he himself to be P.A. of Joint Secretary coming within definition of Public Servant. Hence, it has been submitted that there is no force in the plea of the petitioner, consequent thereupon petition is fit to be dismissed.
From the rival contention it is evident that petitioner does not happens to be a Public Servant. However, his associate Nagendra Thakur being an employee of Bihar State Electricity Board comes under such category. The offence so alleged was jointly executed. Section 10 as well as Section 12 of the Prevention of Corruption Act make abetment punishable in the eye of law. Section 10 requires abetment at the hands of Public Servant while Section 12 attracts where the abetment has been made by an individual -4- other than the public servant. Therefore, the abetment as it stands happens to be punishable at both fronts so committed either by a Public Servant or by an individual.
Public Servant has been defined under clause C of Section 2.
(c) " public servant" means, -
(i) any person in the service or pay of the Government or remunerated by the Government by fees or commission for the performance of any public duty;
(ii) any person in the service or pay of a local authority;
(iii) any person in the service or pay of a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956);
(iv) any Judge, including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions;
(v) any person authorized by a Court of justice to perform any duty, in connection with the administration of justice, including a liquidator, receiver or commissioner appointed by such Court;
(vi) any arbitrator or other person to whom any cause or matter has been referred for decision or report by a Court of justice or by a competent public authority;
(vii) any person who holds an office by virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of an election;
(viii) any person who holds an offence by virtue of which he is authorized or required to perform any public duty;
(ix) any person who is the president, secretary or other office- bearer of a registered co-operative society engaged in agriculture, industry, trade or banking, receiving or having received any financial aid from the Central Government or a State Government or from any corporation established by or under a Central, Provincial or State Act, -5- or any authority or body owned or controlled or aided by the Government or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956);
(x) any person who is a chairman, member or employee of any Service Commission or Board, by whatever name called, or a member of any selection committee appointed by such Commission or Board for the conduct of any examination or making any selection on behalf of such Commission or Board.
(xi) any person who is a Vice-Chancellor or member of any governing body, professor, reader, lecturer or any other teacher or employee, by whatever designation called, of any University and any person whose services have been availed of by a University or any other public authority in connection with holding or conducting examinations;
(xii) any person who is an office-bearer or an employee of an educational, scientific, social cultural or other institution, in whatever manner established, receiving or having received any financial assistance from the Central Government or any State Government, or local or other public authority.
Explanation 1. - Persons falling under any of the above sub- clauses are public servants, whether appointed by the Government or not.
Explanation 2. - Wherever the words "public servant" occur, they shall be understood of every person who is in actual possession of the situation of a public servant, whatever legal defect there may be in his right to hold that situation.
and as per sub-section C(x), the status of Nagendra Thakur is properly identified So far status of the petitioner, after investigation, not being a public servant nay expecting to be in office as a public servant has visualized. Therefore, the identification of petitioner as an individual is to be accepted and on account thereof application of Section 7 Explanation „A‟ of the P.C. -6- Act is not found to be attracted against the petitioner. Rather, his status appears to be identifiable as an abettor in accordance with Section 12 of the P.C. Act.
This aspect should also be seen through another angle. As per Section 22 of the P.C. Act, the procedure prescribed under Criminal Procedure Code has been made applicable so far conduction of trial is concerned. Chapter XVII of the Cr.P.C. deals with the charges. As per Section 223 of the Cr.P.C. the following persons are required to be charged jointly. For better appreciation, Section 223 of the Cr.P.C. is incorporated herewith.
223. What persons may be charged jointly - The following persons may be charged and tried together, namely: -
(a) persons accused of the same offence committed in the course of the same transaction;
(b) persons accused of an offence and persons accused of abetment of, or attempt to commit, such offence;
(c) persons accused of more than one offence of the same kind, within the meaning of section 219 committed by them jointly within the period of twelve months;
(d) persons accused of different offences committed in the course of the same transaction;
(e) persons accused of an offence which includes theft, extortion, cheating, or criminal misappropriation, and persons accused of receiving or retaining, or assisting in the disposal or concealment of, property possession of which is alleged to have been transferred by any such offence committed by the first-named persons, or of abetment of or attempting to commit any such last-named offence;
(f) persons accused of offences under sections 411 and 414 of the Indian Penal Code (45 of 1860) or either of those sections in respect of stolen property the possession of which has been transferred by one offence;
(g) persons accused of any offence under Chapter XII of the Indian Penal Code (45 of 1860) relating to counterfeit coin and persons accused of any other attempting to commit any such offence; and the provisions contained in the former part of this Chapter shall, so far as may be, apply to all such charges:
Provided that where a number of persons are charged with separate offences and such persons do not fall within any of the categories specified in this section, the 5[Magistrate or Court of Session] may, if such persons by an application in writing, so desire, and 6[if he or it is satisfied] that such persons would not -7- be prejudicially affected thereby, and it is expedient so to do, try all such persons together.
At the present juncture one should not loss site of sub-section 1 of Section 220 of Cr.P.C. which permits single trial for more than one offence. After conjoint reading of Section 223 as well as sub-section 1, 3 of Section 220 of the Cr.P.C., it is crystal clear that joint trial of more than one accused is permissible, if the act or omission committed at their hand constitute completion of single transaction. Hence, the trial of the petitioner along with Nagendra Thakur is valid, legal. In the aforesaid background, the plea raised on behalf of petitioner appears to be misconceived. Consequent thereupon, petition is found to be devoid of merit and is accordingly dismissed.
(Aditya Kumar Trivedi, J) PN