Madhya Pradesh High Court
Smt. Mohini Baiga vs Bhupesh Sharma on 13 November, 2017
1 M.Cr.C. No.8595/2017
(Smt. Mohini Baiga and another Vs. Bhupesh Sharma and
another)
Jabalpur : 13/11/2017
Shri Umakant Sharma, Senior Counsel with Shri Suyash
Tripathi, Counsel for the applicant.
Heard on the question of admission.
This application under Section 482 of Cr.P.C. has been
filed for quashing the proceedings in Sessions Trial
No.245/2014 pending in the Court of A.S.J. Burhar, Distt.
Shahdol for offence under Sections 409, 120B, 420, 467, 468
and 471 of I.P.C.
The facts necessary for the disposal of the present
application in short are that the respondent no.1 had filed a
criminal complaint under Sections 419, 420, 467, 471, 34 of I.P.C. against the applicants on the allegations that the complainant is a social worker, whereas the applicant no.1 is the Sarpanch and the applicant no.2 is Secretary, Gram Panchayat Rampur, Janpad Panchayat Burhar, Distt. Shahdol. The bank account of the Gram Panchayat can be operated with joint signatures of the Sarpanch and the Secretary. It was alleged that on different dates, a total amount of Rs.5,88,000/- was withdrawn and was utilized for their personal use. The complainant had made complaint, but no heed was paid, therefore, the complaint was filed.
The Magistrate took cognizance of offence and ultimately committed the case to the Court of Sessions as some of the offences were triable by Court of Sessions.
It is submitted by the Counsel for the applicants that the 2 M.Cr.C. No.8595/2017 (Smt. Mohini Baiga and another Vs. Bhupesh Sharma and another) applicant no.2 has deposited the entire amount of Rs.5,88,000/- and thus, it is clear that no financial loss has been caused to the State. The applicant no.2 was placed under suspension and the said order was challenged by him before the Court of Additional Commissioner, Shahdol, Division Shahdol. The Additional Commissioner, while taking note of the fact that the entire amount has already been deposited, allowed the appeal by order dated 30-1-2014 and had given a warning to the applicant no.2 to remain more vigilant in future, which clearly means that the revenue authorities had decided not to prosecute the applicants. The respondent no.1 has no locus standi to file the complaint.
Heard the learned Counsel for the applicants. So far as the question of locus standi of the respondent no.1 to file the criminal case is concerned, suffice it to say that since the public money was embezzled, therefore, any member of the society has a locus standi to set the criminal process in motion. The Supreme Court in the case of A.R. Antulay Vs. Ramdas Sriniwas Nayak reported in (1984) 2 SCC 500 has held as under :
6. It is a well recognised principle of criminal jurisprudence that anyone can set or put the criminal law into motion except where the statute enacting or creating an offence indicates to the contrary. The scheme of the Code of Criminal Procedure envisages two parallel and independent agencies for taking criminal offences to court. Even for the most serious offence of murder, it was not 3 M.Cr.C. No.8595/2017 (Smt. Mohini Baiga and another Vs. Bhupesh Sharma and another) disputed that a private complaint can, not only be filed but can be entertained and proceeded with according to law. Locus standi of the complainant is a concept foreign to criminal jurisprudence save and except that where the statute creating an offence provides for the eligibility of the complainant, by necessary implication the general principle gets excluded by such statutory provision. Numerous statutory provisions, can be referred to in support of this legal position such as (i) Section 187-A of Sea Customs Act, 1878 (ii) Section 97 of Gold Control Act, 1968 (iii) Section 6 of Import and Export Control Act, 1947 (iv) Section 271 and Section 279 of the Income Tax Act, 1961 (v) Section 61 of the Foreign Exchange Regulation Act, 1973, (vi) Section 621 of the Companies Act, 1956 and (vii) Section 77 of the Electricity Supply Act. This list is only illustrative and not exhaustive. While Section 190 of the Code of Criminal Procedure permits anyone to approach the Magistrate with a complaint, it does not prescribe any qualification the complainant is required to fulfil to be eligible to file a complaint. But where an eligibility criterion for a complainant is contemplated specific provisions have been made such as to be found in Sections 195 to 199 of the CrPC. These specific provisions clearly indicate that in the absence of any such statutory provision, a locus standi of a complainant is a concept foreign to criminal jurisprudence. In other words, the principle that anyone can set or put the criminal law in motion remains intact unless contra-indicated by a statutory provision. This general principle of nearly universal application is founded on a policy 4 M.Cr.C. No.8595/2017 (Smt. Mohini Baiga and another Vs. Bhupesh Sharma and another) that an offence i.e. an act or omission made punishable by any law for the time being in force [See Section 2(n) CrPC] is not merely an offence committed in relation to the person who suffers harm but is also an offence against society. The society for its orderly and peaceful development is interested in the punishment of the offender.
Therefore, prosecution for serious offences is undertaken in the name of the State representing the people which would exclude any element of private vendetta or vengeance. If such is the public policy underlying penal statutes, who brings an act or omission made punishable by law to the notice of the authority competent to deal with it, is immaterial and irrelevant unless the statute indicates to the contrary. Punishment of the offender in the interest of the society being one of the objects behind penal statutes enacted for larger good of the society, right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting it into a strait-jacket formula of locus standi unknown to criminal jurisprudence, save and except specific statutory exception. To hold that such an exception exists that a private complaint for offences of corruption committed by public servant is not maintainable, the court would require an unambiguous statutory provision and a tangled web of argument for drawing a far fetched implication, cannot be a substitute for an express statutory provision. In the matter of initiation of proceeding before a Special Judge under Section 8(1), the Legislature while conferring power to take cognizance had three opportunities to unambiguously state its mind whether the 5 M.Cr.C. No.8595/2017 (Smt. Mohini Baiga and another Vs. Bhupesh Sharma and another) cognizance can be taken on a private complaint or not. The first one was an opportunity to provide in Section 8(1) itself by merely stating that the Special Judge may take cognizance of an offence on a police report submitted to it by an investigating officer conducting investigation as contemplated by Section 5-A. While providing for investigation by designated police officers of superior rank, the Legislature did not fetter the power of Special Judge to take cognizance in a manner otherwise than on police report. The second opportunity was when by Section 8(3) a status of a deemed public prosecutor was conferred on a private complainant if he chooses to conduct the prosecution. The Legislature being aware of a provision like the one contained in Section 225 of the CrPC, could have as well provided that in every trial before a Special Judge the prosecution shall be conducted by a Public Prosecutor, though that itself would not have been decisive of the matter. And the third opportunity was when the Legislature while prescribing the procedure prescribed for warrant cases to be followed by Special Judge did not exclude by a specific provision that the only procedure which the Special Judge can follow is the one prescribed for trial of warrant cases on a police report. The disinclination of the Legislature to so provide points to the contrary and no canon of construction permits the court to go in search of a hidden or implied limitation on the power of the Special Judge to take cognizance unfettered by such requirement of its being done on a police report alone. In our opinion, it is no answer to this fairly well-established 6 M.Cr.C. No.8595/2017 (Smt. Mohini Baiga and another Vs. Bhupesh Sharma and another) legal position that for the last 32 years no case has come to the notice of the court in which cognizance was taken by a Special Judge on a private complaint for offences punishable under the 1947 Act. If some thing that did not happen in the past is to be the sole reliable guide so as to deny any such thing happening in the future, law would be rendered static and slowly wither away.
The Supreme Court in the case of Amanullah Vs. State of Bihar reported in (2016) 6 SCC 699 has held as under :
19. The term "locus standi" is a Latin term, the general meaning of which is "place of standing". Concise Oxford English Dictionary, 10th Edn., at p. 834, defines the term "locus standi" as the right or capacity to bring an action or to appear in a court. The traditional view of "locus standi" has been that the person who is aggrieved or affected has the standing before the court that is to say he only has a right to move the court for seeking justice. Later, this Court, with justice-oriented approach, relaxed the strict rule with regard to "locus standi", allowing any person from the society not related to the cause of action to approach the court seeking justice for those who could not approach themselves.
Now turning our attention towards the criminal trial, which is conducted, largely, by following the procedure laid down in CrPC. Since, offence is considered to be a wrong committed against the society, the prosecution against the accused person is launched by the State. It is the duty of the State to get the culprit booked for the offence 7 M.Cr.C. No.8595/2017 (Smt. Mohini Baiga and another Vs. Bhupesh Sharma and another) committed by him. The focal point, here, is that if the State fails in this regard and the party having bona fide connection with the cause of action, who is aggrieved by the order of the court cannot be left at the mercy of the State and without any option to approach the appellate court for seeking justice.
The Supreme Court in the case of Sheonandan Paswan Vs. State of Bihar reported in (1987) 1 SCC 288 has held as under :
14. The learned counsel on behalf of Dr Jagannath Mishra also raised another contention of a preliminary nature with a view to displacing the locus standi of Sheonandan Paswan to prefer the present appeal. It was urged that when Shri Lallan Prasad Sinha applied for permission to withdraw the prosecution against Dr Jagannath Mishra and others, Sheonandan Paswan had no locus to oppose the withdrawal since it was a matter entirely between the Public Prosecutor and the Chief Judicial Magistrate and no other person had a right to intervene and oppose the withdrawal and since Sheonandan Paswan had no standing to oppose the withdrawal, he was not entitled to prefer an appeal against the order of the learned Chief Judicial Magistrate and the High Court granting permission for withdrawal. We do not think there is any force in this contention. It is now settled law that a criminal proceeding is not a proceeding for vindication of a private grievance but it is a proceeding initiated for the purpose of punishment to the offender in the interest of the society. It is for maintaining 8 M.Cr.C. No.8595/2017 (Smt. Mohini Baiga and another Vs. Bhupesh Sharma and another) stability and orderliness in the society that certain acts are constituted offences and the right is given to any citizen to set the machinery of the criminal law in motion for the purpose of bringing the offender to book.
It is for this reason that in A.R. Antulay v. R.S. Nayak [(1984) 2 SCC 500] this Court pointed out that (SCC p. 509, para 6) "punishment of the offender in the interest of the society being one of the objects behind penal statutes enacted for larger good of the society, right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting it into a strait jacket formula of locus standi ...." This Court observed that locus standi of the complainant is a concept foreign to criminal jurisprudence. Now if any citizen can lodge a first information report or file a complaint and set the machinery of the criminal law in motion and his locus standi to do so cannot be questioned, we do not see why a citizen who finds that a prosecution for an offence against the society is being wrongly withdrawn, cannot oppose such withdrawal. If he can be a complainant or initiator of criminal prosecution, he should equally be entitled to oppose withdrawal of the criminal prosecution which has already been initiated at his instance. If the offence for which a prosecution is being launched is an offence against the society and not merely an individual wrong, any member of the society must have locus to initiate a prosecution as also to resist withdrawal of such prosecution, if initiated. Here in the present case, the offences charged against Dr Jagannath Mishra and others are offences of corruption, criminal breach of trust etc. and therefore any person who is interested in 9 M.Cr.C. No.8595/2017 (Smt. Mohini Baiga and another Vs. Bhupesh Sharma and another) cleanliness of public administration and public morality would be entitled to file a complaint, as held by this Court in A.R. Antulay v. R.S. Nayak (1984) 2 SCC 500] and equally he would be entitled to oppose the withdrawal of such prosecution if it is already instituted. We must therefore reject the contention urged on behalf of Dr Jagannath Mishra that Sheonandan Paswan had no locus standi to oppose the withdrawal of the prosecution. If he was entitled to oppose the withdrawal of the prosecution, it must follow a fortiorari that on the turning down of his opposition by the learned Chief Judicial Magistrate he was entitled to prefer a revision application to the High Court and on the High Court rejecting his revision application he had standing to prefer an appeal to this Court. We must therefore reject this contention of the learned counsel appearing on behalf of Dr Jagannath Mishra. In the present case, the allegations that an amount of Rs.5,88,000/-, which is a public money, was misappropriated by the applicants. Even if the submission made by the Counsel for the applicants that the entire amount has been repaid is considered, then it is clear that still it would be a case of temporary misappropriation of public money. The Supreme Court in the case of R. Venkatkrishnan Vs. C.B.I. reported in (2009) 11 SCC 737 has held as under :
156. The element of "dishonest intention" is therefore an essential element to constitute the offence of criminal breach of trust. So far as the aspect of dishonest intention is concerned, the term "dishonestly" is defined by Section 24 IPC:10 M.Cr.C. No.8595/2017
(Smt. Mohini Baiga and another Vs. Bhupesh Sharma and another) "24. 'Dishonestly'.--Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing 'dishonestly'."
Thus, an act done with the intention to cause "wrongful gain" can be said to be dishonest. The term "wrongful gain" is defined in Section 23 IPC as follows:
"23. 'Wrongful gain'.--'Wrongful gain' is gain by unlawful means of property to which the person gaining is not legally entitled."
The most essential ingredient of proof of criminal breach of trust, therefore, is misappropriation with a dishonest intention.
157. Breach of trust simpliciter is not an offence as it is not associated with an intention which is dishonest. The term dishonestly defined in Section 24 IPC means doing anything with the intention of causing wrongful gain to one person or wrongful loss to another. So the offence is completed when misappropriation of the property has been made dishonestly. Accordingly, even a temporary misappropriation falls within the ambit of the said offence. (See the judgment of the Orissa High Court in Kartikeswar Nayak v. State.) It is next contended by the Counsel for the applicants that the Additional Commissioner by order dated 30-1-2014 had given a warning to the applicant no.2 to remain more vigilant in future, therefore, it is clear that the department or the State had decided not to prosecute the applicants. The suggestion given by the Counsel for the applicants cannot be accepted for the simple reason that there is nothing in order 11 M.Cr.C. No.8595/2017 (Smt. Mohini Baiga and another Vs. Bhupesh Sharma and another) dated 30-1-2014 passed by Add. Commissioner, Shahdol Division Shahdol which may indicate that the State had decided not to prosecute the applicants. Even otherwise, if the State has decided to protect the erring persons, then it cannot be said that no other person can put the criminal law in motion. Furthermore, the order dated 30-1-2014 passed by Additional Commissioner was in relation to appeal filed by the applicant no.2 against his suspension. The Additional Commissioner had come to a conclusion that the C.E.O., Zila Panchayat, was not competent to place the applicant no.2 under suspension.
Considering the submissions made by the Counsel for the applicants as well as the fact that an amount of Rs.5,88,000/- was misappropriated by the applicants, although may be temporarily, the criminal proceedings in Sessions Trial No.245/2014 pending in the Court of A.S.J. Burhar, Distt. Shahdol for offence under Sections 409, 120B, 420, 467, 468 and 471 of I.P.C. against the applicants cannot be quashed.
Hence, this application fails and is hereby dismissed.
(G.S. Ahluwalia) Judge Arun*