Patna High Court
Mukund Prasad & Anr vs State Of Bihar & Anr on 23 March, 2012
Author: Rajendra Kumar Mishra
Bench: Rajendra Kumar Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.26541 of 2002
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Against the order dated 3.8.2002 passed by the Chief Judicial Magistrate,
Patna in Complaint Case No.1092(C) of 2001/T.R. No.1612 of 2002.
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A.K.Upadhyay, son of Late S.N. Upadhyay, at present residing at 5 Off Polo
Road, P.S. Gardanibagh, District-Patna.
.... .... Petitioner.
Versus
1. The State of Bihar.
2. Shri Ajay Kumar Verma, son of Late Krishna Kumar Verma, resident of
Shanti Villa, Road No.1, Rajendra Nagar, P.S. Kadamkua, District-Patna,
Bihar.
.... .... Opposite Parties.
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with
Criminal Miscellaneous No. 26542 of 2002
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Against the order dated 3.8.2002 passed by the Chief Judicial Magistrate,
Patna in Complaint Case No.1092(C) of 2001/T.R. No.1612 of 2002.
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Vijay Shankar Dubey, son of Shri Shaligram Dubey, at present residing at
127A, Pataliputra Colony, P.S. Pataliputra, District-Patna.
.... .... Petitioner.
Versus
1. The State of Bihar.
2. Ajay Kumar Verma, son of Late Krishna Kumar Verma, resident of Shanti
Villa, Road No.1, Rajendra Nagar, P.S. Kadamkua, District-Patna, Bihar.
.... .... Opposite Parties.
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With
Criminal Miscellaneous No. 25700 of 2002
Against the order dated 3.8.2002 passed by the Chief Judicial Magistrate,
Patna in Complaint Case No.1092(C) of 2001/T.R. No.1612 of 2002.
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Radhika Ranjan Prasad, son of Sri Gupteshwar Prasad Singh, resident of 13-
Daroga Rai Path, Patna, presently posted as Director General and Inspector
General of Police, Government of Bihar, Main Secretariat, Patna.
.... .... Petitioner.
Versus
1. The State of Bihar.
2. Shri Ajoy Kumar Verma, IPS, son of Late Krishna Kumar Verma,
resident of Shanti Nilay, Road No.1, Rajendra Nagar, P.S. Kadam Kuan,
Patna.
.... .... Opposite Parties.
2 Patna High Court Cr.Misc. No.26541 of 2002 dt.23-03-2012
2 / 15
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with
Criminal Miscellaneous No. 25214 of 2002
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Against the order dated 3.8.2002 passed by the Chief Judicial Magistrate,
Patna in Complaint Case No.1092(C) of 2001/T.R. No.1612 of 2002.
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1. Mukund Prasad, son of Late Janardan Prasad, resident of A-3/1, Bailey
Road, P.S. Shastri Nagar, town and District-Patna, presently working as
Principal Secretary to the Chief Minister, Bihar, Patna.
2. Umesh Narayan Panjiar, son of Late Badri Narayan Panjiar, resident of A-
3/2, Bailey Road, P.S. Shastri Nagar, town and District-Patna, presently
posted as Commissioner & Secretary, Home Department, Government of
Bihar, Old Secretariat, Patna.
.... .... Petitioners.
Versus
1. The State of Bihar.
2. Sri Ajoy Kumar Verma, IPS, son of Late Krishna Kumar Verma, resident
of Shanti Nilay, Road No.1, Rajendra Nagar, P.S. Kadamu Kuan, Patna.
.... .... Opposite Parties.
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Appearance :
(In Cr.Misc. No. 26541 of 2002)
For the Petitioner: M/s. S.N. Pathak,Girish Chandra Jha, and Vinay Kirti
Singh, Advocates.
For the State : Mr. Satyendra Narain Singh, A.P.P.
(In Cr.Misc. No. 26542 of 2002)
For the Petitioner : M/s. Y.V. Giri, Senior Advocate, S.N. Pathak, Vinay
Kirti Singh and Pranav Kumar, Advocates.
For the State : Mr. Satyendra Narain Singh, A.P.P.
(In Cr.Misc. No. 25700 of 2002)
For the Petitioner : None.
For the State : Mr. Satyendra Narain Singh, A.P.P.
(In Cr.Misc. No. 25214 of 2002)
For the Petitioners : M/s. Pushkar Narain Shahi, Senior Advocate, Ashutosh
Singh and Patanjali Rishi, Advocates.
For the State : Mr. Satyendra Narain Singh, A.P.P.
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CORAM: HONOURABLE MR. JUSTICE RAJENDRA KUMAR MISHRA
CAV JUDGMENT
Date: 23 -03-2012
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Criminal Misc. No.26541 of 2002 filed on behalf of the
3 Patna High Court Cr.Misc. No.26541 of 2002 dt.23-03-2012
3 / 15
petitioner, A. K. Upadhyay, Criminal Misc. No.26542 of 2002 filed on
behalf of the petitioner, Vijay Shankar Dubey, Criminal Misc.
No.25700 of 2002 filed on behalf of the petitioner, Radhika Ranjan
Prasad and Criminal Misc. No.25214 of 2002 filed on behalf of the
petitioners, Mukund Prasad and Umesh Narayan Panjiar, under Section
482 of the Code of Criminal Procedure, are to quash the order dated
3.8.2002passed in Complaint Case No.1092(C) of 2001/T.R. No.1612 of 2002 by the Chief Judicial Magistrate, Patna, summoning the accused-petitioners abovenamed and the accused, Mr. Shivendu, named in the complaint petition, on inquiry under Section 202 of the Code of Criminal Procedure, finding prima facie case under Sections 166, 418 and 120-B of the Indian Penal Code and are also to quash the entire criminal proceedings, arising out of the aforesaid case, against them. Hence, all the aforesaid criminal miscellaneous applications have been heard together and are being disposed of by this common judgment.
2. The brief facts, leading to all these applications, are that the opposite party no.2, Ajoy Kumar Verma, filed the Complaint Case No.1092(C) of 2001 in the court of the Chief Judicial Magistrate, Patna, against the accused, named in the complaint petition, including the petitioners abovenamed, alleging therein that he is an IPS Officer of 1985 batch of the Bihar Cadre and was on deputation on the post of Director Security(DS) in Bihar State Electricity Board (herein after 4 Patna High Court Cr.Misc. No.26541 of 2002 dt.23-03-2012 4 / 15 referred to as "the BSEB"). The accused no.1, Mr. A.K. Upadhyay, the Secretary, Energy Department (petitioner of Criminal Misc. No.26541 of 2002) within fifteen days of assuming the additional charge of the Chairman of the BSEB withhold his salary with effect from 1.6.1998 in collusion with the accused no.2, Mr. Shivendu, I.A.S., Secretary, BSEB. On the aforesaid date, the opposite party no.2 was discharging his official duty in the Election Cell in the office of Director General of Police on the order of the Chairman of BSEB and had been getting his salary paid by the BSEB from 7.2.1998 till 31.5.1998 as he could not have returned back to the BSEB without relieving from there by the Director General of Police. The accused no.1, Mr. A.K. Upadhyay, did not bother to write to the Director General of Police requesting for returning back to the opposite party no.2 to the BSEB before passing the order of stopping his salary. The accused no.2, Mr. Shivendu, Secretary, BSEB, also by misutilizing his proximity with the Chairman, BSEB, got an order issued by the BSEB reducing the rank of the post of DS of BSEB holding by the opposite party no.2 to the post of Secretary, BSEB. Since the aforesaid order had been the effect of altering an All India Equation between the two officers of All India Services, hence, the said order was challenged by the opposite party no.2 before the Central Administrative Tribunal, Patna Bench, Patna, through O.A. No.679 of 1997. The financial adversity created by the accused no.1, 5 Patna High Court Cr.Misc. No.26541 of 2002 dt.23-03-2012 5 / 15 Mr. A.K. Upadhyay, Chairman, BSEB, in collusion with the accused no.2, Mr. Shivendu, Secretary, BSEB, withholding the payment of the salary of opposite party no.2, forced him to render beggar. The opposite party no.2 submitted his joining report in the month of September, 1998 but the same was not accepted by the BSEB which effected the opposite party no.2 completely workless and forced him to suffer the consequences as are available after dismissal from service. The O.A. No.679 of 1997 filed by the opposite party no.2 was decided on 13.7.1999 by the Central Administrative Tribunal, Patna Bench, Patna, upholding the contentions of the opposite party no.2 against the submission of the BSEB with a finding that withholding the payment of salary is bad in law. Thereafter, the opposite party no.2 sent the complaint petition to the Chairman, BSEB, for initiation of disciplinary proceedings against the accused no.1, Mr. A.K. Upadhyay. While the complaint was sent to the Home Department but the Home Department returned the same to the Chairman, BSEB, while the Chariman, BSEB, had no authority to take any action on the complaint petition of the opposite party no.2. The accused no.3, Mr. V.S. Dubey (petitioner of Criminal Misc.No.26542 of 2002), who would have been either the Chief Secretary or the Secretary of the Personnel Department, had been in occupation of the office of the Chairman of the BSEB at that point of time to whom the opposite party no.2 sent a request through a Demi 6 Patna High Court Cr.Misc. No.26541 of 2002 dt.23-03-2012 6 / 15 Official Letter to send the complaint to the appropriate authority but he did not inform the opposite party no.2 regarding the action taken by him. As such, concealing the decision on the complaint petition, as sent by the opposite party no.2, the accused no.3, Mr. V.S. Dubey, exposes his solidarity towards the accused no.1, Mr. A.K. Upadhyay as both belong to same service and same caste. The accused no.2, Mr. Shivendu, poisoned the mind of the accused no.3, Mr. V.S. Dubey, the Chairman, BSEB, to write to the State Government for being given an opportunity of making an adverse entry in the Annual Confidential Report of the opposite party no.2. The opposite party no.2 further alleged that in May, 1999, he was transferred back to the State Government but he was not able to draw his current as well as arrears of salary because the „Last Pay Certificate‟ was not issued by the BSEB. Thereafter, on the request of the then Director General of Police, the BSEB issued the „Last Pay Certificate‟ to the opposite party no.2 which was defective and against the verdict of the Court. Due to that reasons, the opposite party no.2 was forced to return the defective "Last Pay Certificate‟ to the Police Headquarter for being returned to the BSEB for correction. In O.A. No.679 of 1997 filed by the opposite party no.2, the Central Administrative Tribunal, Patna Bench, Patna, passed the judgment on 13.7.1999 holding that the BSEB is liable to pay the salary of opposite party no.2 for the period 1.6.1998 till his reversion to the 7 Patna High Court Cr.Misc. No.26541 of 2002 dt.23-03-2012 7 / 15 State Government but in spite of that the accused no.3, Mr. V.S. Dubey, with the collusion of accused nos.1 and 2, Mr. A.K. Upadhyay and Mr. Shivendu, who belong to same service and caste decided not to release his salary. The State Government vide its letter dated 5.8.2000 addressed to the Secretary to the BSEB made directive that the opposite party no.2 should be paid salary for the period 1.6.1998 to 5.5.1999 by the BSEB but the accused nos.2 and 3, Mr. Shivendu and Mr. V.S. Dubey, being the Secretary and Chairman of the BSEB did not pay any heed. As such, the order of the Central Administrative Tribunal, Patna Bench, Patna, was not complied with. After creation of the State of Jharkhand, the accused no.2, Mr. Shivendu and Mr. V.S. Dubey, were allotted to Jharkhand Cadre then accused no.4, Mr. K.M. Jha, occupied the office of the Chairman, BSEB, but he also did not release the salary of the opposite party no.2 as he also belongs to the same service and same caste of accused nos.1, 2 and 3, namely, Mr. A.K. Upadhyay, Mr. Shivendu and Mr. V.S. Dubey. The opposite party no.2 wrote the Demy Official Letter to accused nos.5, 6 and 7, namely, Mr. R.R. Prasad, (petitioner of Criminal Misc. No.25700 of 2002), Mr. U.N. Panjiar and Mr. Mukund Prasad (petitioners of Criminal Misc. No.25214 of 2002), but no response has been forthcoming from them. In the month of September, 2000, the opposite party no.2 was informed by the Police Headquarter to the effect that the State Government is 8 Patna High Court Cr.Misc. No.26541 of 2002 dt.23-03-2012 8 / 15 making an attempt to be getting his salary. Thereafter, the opposite party no.2 filed the Cr.W.J.C. No.132 of 2001 before the Hon‟ble High Court, Patna and after receiving of the copy of the aforesaid case in the office of the accused no.5, the work allotted to the opposite party no.2 was taken through Memo dated 15.3.2001 of the OPS Section just before 15 days of the closure of the financial year, which was reflective of departmental assessment to the effect that the Officer is indulging in the wrongful financial practice. The opposite party no.2 having no way submitted the representation before his Execllency, the Governnor of Bihar, for ordering an ministerial level inquiry to ascertain the officer thawertening the effort of the State Government but his representation was not forwarded for which the opposite party nos.5, 6 and 7, namely, Mr. R.R. Prasad, Mr. U.N. Panjiar and Mr. Mukund Prasad, are responsible because they are making attempt to save the other accused.
3. After filing of the complaint petition by the opposite party no.2 in the court of the Chief Judicial Magistrate, Patna, the Chief Judicial Magistrate, Patna, on inquiry under Section 202 of the Code of Criminal Procedure, summoned the accused-petitioners abovenamed and Mr. Shivendu, named as accused no.2, in the complaint petition, finding prima facie case under Sections 166, 418 and 120-B of the Indian Penal Code through the impugned order dated 3.8.2002.
4. Learned counsel appearing on behalf of the petitioner, 9 Patna High Court Cr.Misc. No.26541 of 2002 dt.23-03-2012 9 / 15 A.K. Upadhyay, of Criminal Misc. No.26541 of 2002) submitted that he being the Secretary of the Energey Department assumed the additional charge of the office of the Chairman of the BSEB on 18.5.1998. The complainant-opposite party no.2 had been posted as Director (Security) in the BSEB on deputation and his services was requisitioned by the Police Headquarter vide DIG (Headquarters), Bihar Memo No.351 dated 7.2.1998 and in the light of that letter he was relieved from the BSEB vide Order No.510 dated 7.2.1998. When this petitioner took charge of the Chairman of the Office of the BSEB the said facts placed before him by the office in the normal course of business alongwith a suggestion to write a letter to the Home Secretary. Accordingly, Board‟s Letter No.480 dated 27.5.1998 was sent under the signature of the Secretary of the BSEB to the Home Secretary stating that the opposite party no.2 was relieved from the BSEB on 7.2.1998 to join in the Police Headquarters and that he has not joined even after the conclusion of the election, so it will not be possible to pay him salary from 1.6.1998 as he was not performing the duty in the BSEB. The Home Secretary was also requested to place the services of another officer as Director (Security). Though the Government did not place the services of any officer for holding the post of Director (Security), the I.G. Police (Administration), vide his letter dated 11.7.1998 addressed to the Home Secretary of the State Government, informed 10 Patna High Court Cr.Misc. No.26541 of 2002 dt.23-03-2012 10 / 15 that the services of the opposite party no.2 were being returned to the BSEB. Despite of that letter, the opposite party no.2 did not join the post of Director (Security) of the BSEB. Thereafter, this matter was brought to the notice of this petitioner in the capacity of the Chairman of the BSEB, whereafter he wrote a letter dated 24.8.1998 to the Home Secretary informing him that the opposite party no.2 has not joined in the BSEB despite the order of the I.G. Police dated 11.7.1998 and, therefore, some arrangement should be made for the post of Director (Security) in the BSEB. Thereafter, the opposite party no.2 on 10.9.1998 submitted a conditional joining report imposing as many as eight conditions for the acceptance of his joining in the BSEB. As such, the decision of stopping the payment of the salary of the opposite party no.2 by this petitioner was an administrative decision. It has jointly been submitted on behalf of the petitioners that, in fact, the decision of the Central Administrative Tribunal, Patna Bench, Patna, came in O.A. No.679 of 1997 filed by the opposite party no.2 on 13.7.1999, wherein no direction was given to the BSEB for the payment of his salary. Moreover, the BSEB against the some observations made in the judgment dated 13.7.1999 passed by the Central Administrative Tribunal, Patna Bench, Patna, filed C.W.J.C. No.8394 of 2001 before the Hon‟ble High Court, Patna and the opposite party no.2 being aggrieved with the said order of the Central Administrative Tribunal, 11 Patna High Court Cr.Misc. No.26541 of 2002 dt.23-03-2012 11 / 15 Patna Bench, Patna, also filed C.W.J.C. No.12498 of 1999. In C.W.J.C. No.8394 of 2001 filed by the BSEB, the Hon‟ble High Court, Patna, was pleased to pass an order on 6.7.2001 making observation that essentially the matter is remedial in nature and desired both, the BSEB and the State Government, to sort out the matter of payment of salary to the opposite party no.2. In the light of said observations, the BSEB decided vide its resolution no.659 dated 31.7.2001 and 849 dated 27.9.2001 to pay the salary to the opposite party no.2 subject to the final verdict in C.W.J.C. No.8394 of 2001 and 12498 of 1999 and in anticipation of reimbursement of the salary for the period 7.2.1998 to 9.9.1998 by the State Government, which would appear from Annexures-„8‟ and „8/1‟ to Criminal Misc. No.26542 of 2002. In the light of the observation dated 6.7.2001 passed in C.W.J.C. No.8394 of 2001 by the Hon‟ble High Court, Patna, the grievance of the opposite party no.2 stands redressed in full by the State Government and the BSEB. It has also been jointly submitted on behalf of the petitioners that from perusal of the whole complaint petition, it would appear that the allegation, as made by the opposite party no.2 against the petitioners, is about non payment of the salary by the BSEB to the opposite party no.2 during the period of his deputation in the BSEB under conspiracy for the period when he was on duty in the Election Cell of the office of the Director General of Police and if the same is 12 Patna High Court Cr.Misc. No.26541 of 2002 dt.23-03-2012 12 / 15 taken to be true, no offence under Sections 166 and 418 of the Indian Penal Code is made out against the petitioners as there is no knowingly disobedience of the direction of any law intending to cause injury to any person nor there is deceiving to opposite party no.2 fraudulently or dishonestly by the petitioners. It is also submitted on behalf of all the petitioners that it would appear from the complaint petition of the opposite party no.2 that all the accused, named in the complaint petition, are either I.A.S. or I.P.S. of Bihar Cadre posted in the Government Department and allegations, as made in the complaint petition, relate to discharge of official duty but the impugned order taking the cognizance has been passed without previous sanction of the State Government, as required under Section 197 of the Code of Criminal Procedure.
5. It appears from the impugned order dated 3.8.2002 passed in Complaint Case No.1092(C) of 2001/T.R. No.1612 of 2002 by the Chief Judicial Magistrate, Patna, that the learned Chief Judicial Magistrate, Patna, after filing the aforesaid complaint petition by the opposite party no.2, on enquiry under Section 202 of the Code of Criminal Procedure, summoned the accused-petitioners and one Mr. Shivendu, named as accused no.2 in the complaint petition, for the offence under Sections 166, 418 and 120-B of the Indian Penal Code.
Section 166 of the Indian Penal Code relates to the 13 Patna High Court Cr.Misc. No.26541 of 2002 dt.23-03-2012 13 / 15 punishment with respect to the offence by the public servant disobeying law, with intent to cause injury to any person, Section 418 of the Indian Penal Code relates to the punishment with respect to cheating with knowledge that wrongful loss may ensue to person whose interest offender is bound to protect and the offence of cheating is defined under Section 415 of the Indian Penal Code. Sections 166, 418 and 415 of the Indian Penal Code are quoted as under:
"166. Public servant disobeying law, with intent to cause injury to any person.- Whoever, being a public servant, knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public servant, intending to cause, or knowing it to be likely that he will, by such disobedience, cause injury to any person, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.
418. Cheating with knowledge that wrongful loss may ensue to person whose interest offender is bound to protect.- Whoever cheats with the knowledge that he is likely thereby to cause wrongful loss to a person whose interest in the transaction to which the cheating relates, he was bound, either by law , or by a legal contract, to protect, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine or with both.
415. Cheating.- Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage
14 Patna High Court Cr.Misc. No.26541 of 2002 dt.23-03-2012 14 / 15 or harm to that person in body, mind, reputation or property, is said to "cheat"."
6. On perusal of the complaint petition, it appears that the allegation, as made by the opposite party no.2 in the complaint petition, is that while he was on deputation on the post of Director (Security) in BSEB and was sent to discharge his official duty in the Election Cell of the office of the Director General of Police, he was paid his salary since 7.2.1998 to 31.5.1998 but, thereafter, the payment of his salary was stopped by the BSEB on the order of the Chairman of the BSEB and in spite of the decision of the Central Administrative Tribunal, Patna Bench, Patna, dated 13.7.1999 passed in O.A. No.679 of 1997 filed by the opposite party no.2, the salary of the opposite party no.2 could not be released. The order dated 13.7.1999 passed in O.A. No.679 of 1997, filed by the complainant-opposite party no.2, by the Central Administrative Tribunal, Patna Bench, Patna, as available in the trial court record, shows that the State Government was directed to settle the matter regarding release of salary of the complainant-opposite party no.2. Against the order dated 13.7.1999 passed in O.A. No.679 of 1997, the BSEB and the complainant-opposite party no.2 respectively filed C.W.J.C. No.8394 of 2001 and 12498 of 1999 before this Hon‟ble High Court and in the light of the direction in C.W.J.C.8394 of 2001 passed on 6.7.2001, the decision was taken to pay the salary of the 15 Patna High Court Cr.Misc. No.26541 of 2002 dt.23-03-2012 15 / 15 opposite party no.2 by the BSEB and the payment has also been made to the opposite party no.2 and this fact has not been controverted by the opposite party no.2 in the counter affidavit filed on his behalf. As such, if the averments made in the complaint petition are taken at its face value and is accepted to be true, no offence under Sections 166, 418 and 120-B of the Indian Penal Code is made out against the petitioners. Moreover, the petitioners are the Public Servant and belong to either the I.A.S. or I.P.S. of Bihar Cadre and they acted in discharge of their official duties, which is apparent from the averment of the complaint petition but no sanction order for their prosecution, as required under Section 197 of the Code of the Criminal Procedure, is on the record. Therefore, the impugned order summoning the accused-petitioners for the offence under Sections 166, 418 and 120-B of the Indian Penal Code through the impugned order is bad in law in this score also.
7. Under the aforesaid facts and circumstances, the impugned order dated 3.8.2002 passed by the Chief Judicial Magistrate, Patna, in Complaint Case No.1092(C) of 2001/T.R. No.1612 of 2002 as well as the entire criminal proceeding, arising out of the aforesaid complaint case, with respect to the petitioners of the aforesaid applications, is hereby quashed and the applications are allowed.
(Rajendra Kumar Mishra, J) P.S./N.A.F.R.