Jharkhand High Court
Ramanath Jha vs The State Of Jharkhand ...... Opposite ... on 25 November, 2021
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
1
IN THE HIGH COURT OF JHARKHAND, RANCHI
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Cr.M.P. No. 1292 of 2016
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Ramanath Jha, son of late Yogendra Jha, resident of Plot No.51A, Post office Ashiana Nagar, Police Station Rajiv Nagar, District-Patna (Bihar) ..... Petitioner
-- Versus --
The State of Jharkhand ...... Opposite Party
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Cr.M.P. No. 1324 of 2016
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Lalu Oraon, son of late Etwa Oraon, resident of Village-Tero Chatakpur, P.S.Bero, PO-Khatri Khatanga, District-Ranchi ..... Petitioner
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The State of Jharkhand ...... Opposite Party
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner :- Mr. A.K. Kashyap, Advocate Mr. P.K. Sahai, Advocate Mr. Pandey Neeraj Rai, Advocate For the State :- Mr. Shekhar Sinha, P.P.
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6/25.11.2021 It has been submitted that Cr.M.P.No.1286/2016 is separate matter wherein separate F.I.R has been lodged and since the petitioners are same in Cr.M.P.No.1286/2016 and Cr.M.P. No.1324/2016, which has been tagged with these petitions, let Cr.M.P.No.1286/2016 be detached from the batch of these petitions.
2. Cr.M.P.No.1292/2016 and Cr.M.P.No.1324/2016 have been filed for quashing the entire criminal proceeding including the order dated 16.05.2016 passed by Chief Judicial Magistrate, Lohardaga in connection with Lohardaga P.S. Case No.83/2009, corresponding to G.R.No.256/2009(S) whereby cognizance of the offence under sections 420, 409, 467, 468/34 of the Indian Penal Code has been taken against the petitioners in both the cases. In Cr.M.P.No.1292/2016 the petitioner was Executive Engineer posted in the Zila Parishad and in Cr.M.P.No.1324/2016 the petitioner was Assistant Engineer, MESO office, Lohardaga. The F.I.R has been lodged alleging therein that:
One Mahesh Prasad Sinha, the Deputy Commissioner, Lohardaga from his Memo No.815 dated 13.06.2009 he has to say that for renovation of Lalit Narain Stadium, Lohardaga, a sum of Rs.24,71,300/- was given on the basis of administrative scheme. For implementation of the scheme District Engineer, Zila Parishad, Lohardaga has been authorized whereas one Lalu Oraon, Assistant Engineer, Meso 2 Office, Lohardaga was appointed as Abhikarta. The work of stadium was done from the departmental level. The estimate was prepared by Shri Santosh Kumar Jha, Junior Engineer of Kisko Block on which technical sanction was given by the District Engineer, Zila Parishad, Lohardaga. It has further been alleged that durijng the course of renovation part of Eastern portion has fallen down on 08.08.2008. Thereafter, the technical officer was formed for enquiry into the matter. During the course of enquiry it has come into the light and said about the boundary wall which was prepared its quality of work was questionable and the newly constructed shed has not been inspected in a right prospective and no inspection was done by the District Engineer, Zila Parishad, Lohardaga. On 01.10.2008 again the wall of stadium was fallen down. It has further been alleged by the informant that in this matter gross negligence has been done by the aforementioned three Engineers and the government has been put in loss and after indulging in conspiracy they have misappropriated the government fund. The Deputy Commissioner, Lohardaga, has asked for explanation from all the three Engineers but the explanation which has been given is not found satisfactory. It has thereafter been alleged by the informant that legal action may be taken as against the then Executive Engineer, Ramanath Jha, Lalu Oraon, Assistant Engineer, Meso Area and Santosh Kumar Jha, the then Junior Engineer, Kisko Block
3. Mr. A.K. Kashyap, the learned Senior counsel appearing on behalf of the petitioners submits that there is no ingredient of the sections under which cognizance has been taken against the petitioners. He submits that the boundary wall was collapsed on 08.08.2008 and on collapsing of the boundary wall, F.I.R has been lodged. He submits that the said boundary wall has been built up 30 years back in the year 1976 and the boundary wall collapsed on 08.08.2008. He submits that the petitioner in Cr.M.P.No.1292/2016 has already been transferred and relieved from Lohardaga on 11.07.2008. He further submits that a team for enquiry was constituted by Deputy Commissioner, Lohardaga wherein enquiry has been conducted and it is submitted that in the enquiry constituted by the learned Deputy Commissioner nothing has been alleged against the petitioner and only finding is that material used in construction of the boundary wall was not in accordance with the guidelines of the Department. He further 3 submits that another enquiry was constituted and the report was submitted on 10.10.2008 in which nothing has been found against these petitioners. He further submits that on the basis of this F.I.R the departmental proceeding was initiated by the Deputy Commissioner and the petitioners participated and on the basis of the enquiry report the petitioners have been saddled with recovery of 25 % of the cost which has been deducted from the leave encashment of the petitioners and the petitioners have been exonerated and in the said enquiry report it has been found that no person is involved for the said laches. He submits that in the departmental proceeding the petitioners have been exonerated and the amount of Rs.6.1775 lakhs has already been recovered from the earned leave of the petitioners. To allow go on this proceeding will amount to harassment of the petitioners. He further submits that the petitioners have been discharging official duty and they are protected under section 197 Cr.P.C.
4. Mr. Pandey Neeraj Rai, the learned counsel appearing on behalf of the petitioner in Cr.M.P.No.1324/2016 further added in the argument of Mr. A.K. Kashyap, the learned Senior counsel submits that at the time of taking cognizance the sanction order is required to be produced before the Court which has not been done in the case and to buttress his argument Mr. Rai, the learned counsel relied in the case of "Abdul Wahab Ansari v. State of Bihar", (2000) 8 SCC 500, paragraph nos.6 and 7 of said judgment are quoted as under :
"6. So far as the first question is concerned, a plain reading of the provisions of Section 197 makes it crystal clear that the court is prohibited from taking cognizance of the offence except with the previous sanction of the competent authority. For a better appreciation of the point in issue, Section 197 (1) is quoted hereinbelow in extenso:
"197. (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no court shall take cognizance of such offence except with the previous sanction--
(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government:"
7. Previous sanction of the competent authority being a precondition for the court in taking cognizance of the offence if the offence alleged to have been committed by the accused can be said to be an act in discharge of his official duty, the question touches the jurisdiction of the Magistrate in the matter of taking 4 cognizance and, therefore, there is no requirement that an accused should wait for taking such plea till the charges are framed. In Suresh Kumar Bhikamchand Jain v. Pandey Ajay Bhushan a similar contention had been advanced by Mr Sibal, the learned Senior Counsel appearing for the appellants in that case. In that case, the High Court had held on the application of the accused that the provisions of Section 197 get attracted. Rejecting the contention, this Court had observed: (SCC pp. 217-18, para 23) "The legislative mandate engrafted in sub-section (1) of Section 197 debarring a court from taking cognizance of an offence except with a previous sanction of the Government concerned in a case where the acts complained of are alleged to have been committed by a public servant in discharge of his official duty or purporting to be in the discharge of his official duty and such public servant is not removable from his office save by or with the sanction of the Government touches the jurisdiction of the court itself. It is a prohibition imposed by the statute from taking cognizance, the accused after appearing before the court on process being issued, by an application indicating that Section 197(1) is attracted merely assists the court to rectify its error where jurisdiction has been exercised which it does not possess. In such a case there should not be any bar for the accused producing the relevant documents and materials which will be ipso facto admissible, for adjudication of the question as to whether in fact Section 197 has any application in the case in hand. It is no longer in dispute and has been indicated by this Court in several cases that the question of sanction can be considered at any stage of the proceedings." The Court had further observed: (SCC pp. 218-19, para 24) "The question of applicability of Section 197 of the Code and the consequential ouster of jurisdiction of the court to take cognizance without a valid sanction is genetically different from the plea of the accused that the averments in the complaint do not make out an offence and as such the order of cognizance and/or the criminal proceedings be quashed. In the aforesaid premises we are of the considered opinion that an accused is not debarred from producing the relevant documentary materials which can be legally looked into without any formal proof, in support of the stand that the acts complained of were committed in exercise of his jurisdiction or purported jurisdiction as a public servant in discharge of his official duty thereby requiring sanction of the appropriate authority."
5. Mr. Shekhar Sinha, the learned counsel appearing on behalf of the respondent State submits that there is no illegality in the impugned order and sanction has been obtained which has been brought on record which has been filed by way of filing supplementary counter affidavit.
6. In view of the above, the report has been gone through and in the light of the above submission made by the learned counsels appearing on behalf of the parties, it transpires that boundary wall in question was constructed 30 years back in the year 1976 which collapsed on 08.08.2018. The petitioners at the time of construction of the boundary wall were not posted there and subsequently they have 5 been posted in the Zila Parishad and Meso Office, respectively and subsequently they have been transferred as submitted by the learned counsel appearing on behalf of the petitioners. The enquiry team constituted by the Deputy Commissioner nothing has been found against these petitioners and in another enquiry also nothing has been found against these petitioners in terms of the departmental enquiry 25% each has been recovered from the leave encashment of the petitioners and in the departmental enquiry nothing concrete has come against the petitioners. In the departmental proceeding and criminal proceeding on the same facts charges have been submitted. It is well settled that for the same set of charge criminal proceeding and departmental proceeding have been initiated and in the departmental proceeding there was exoneration and the entire criminal proceeding is required to be quashed. A reference may be made to the case of "Ashoo Surendranath Tewari v. CBI", (2020) 9 SCC 636, paragraph nos.12 to 15 of the same judgment are quoted hereinbelow:
"12. After referring to various judgments, this Court then culled out the ratio of those decisions in para 38 as follows: (Radheshyam Kejriwal case, SCC p. 598) "38. The ratio which can be culled out from these decisions can broadly be stated as follows:
(i) Adjudication proceedings and criminal prosecution can be launched simultaneously;
(ii) Decision in adjudication proceedings is not necessary before initiating criminal prosecution;
(iii) Adjudication proceedings and criminal proceedings are independent in nature to each other;
(iv) The finding against the person facing prosecution in the adjudication proceedings is not binding on the proceeding for criminal prosecution;
(v) Adjudication proceedings by the Enforcement Directorate is not prosecution by a competent court of law to attract the provisions of Article 20(2) of the Constitution or Section 300 of the Code of Criminal Procedure;
(vi) The finding in the adjudication proceedings in favour of the person facing trial for identical violation will depend upon the nature of finding. If the exoneration in adjudication proceedings is on technical ground and not on merit, prosecution may continue; and
(vii) In case of exoneration, however, on merits where the allegation is found to be not sustainable at all and the person held innocent, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue, the underlying principle being the higher standard of proof in criminal cases."
13. It finally concluded: (Radheshyam Kejriwal case, SCC p. 598, para 39) "39. In our opinion, therefore, the yardstick would be to judge as to whether the allegation in the adjudication proceedings as well as the proceeding for prosecution is 6 identical and the exoneration of the person concerned in the adjudication proceedings is on merits. In case it is found on merit that there is no contravention of the provisions of the Act in the adjudication proceedings, the trial of the person concerned shall be an abuse of the process of the court."
14. From our point of view, para 38(vii) is important and if the High Court had bothered to apply this parameter, then on a reading of the CVC report on the same facts, the appellant should have been exonerated.
15. Applying the aforesaid judgments to the facts of this case, it is clear that in view of the detailed CVC order dated 22- 12-2011, the chances of conviction in a criminal trial involving the same facts appear to be bleak. We, therefore, set aside the judgment of the High Court and that of the Special Judge and discharge the appellant from the offences under the Penal Code."
7. The petitioners were charged while in the capacity of discharging of the official duty and in terms of section 197 of the Cr.P.C the officers are protected and it is condition precedent of taking sanction before taking cognizance. There is no doubt that subsequent sanction has been obtained by the prosecution but it was later on after the cognizance was taken. In the case of Abdul Wahab Ansari v. State of Bihar and Another, (2000) 8 SCC 500(supra) , it has been held that sanction is required to be taken at the earliest and before the cognizance. In the said case, the Hon'ble Supreme Court overruled the judgment in the case of "Birendra K.Singh v. State of Bihar" and held that the sanction is required at the time of taking cognizance which has not been done in the case in hand.
8. The boundary wall was constructed 30 years back. The petitioners were not posted at that time and the amount has been deducted from their leave encashment. In the enquiry nothing came against them.
9. In view of the above facts and considering the judgment of the Hon'ble Supreme Court in the case of "Ashoo Surendranath Tiwary (Supra) and Abdul Wahab Ansari (Supra), these Cr.M.Ps succeed.
10. Accordingly, the entire criminal proceeding in connection with Lohardaga P.S. Case No.83/2009, corresponding to G.R.No.256/2009(S) including the order taking cognizance dated 16.05.2016, pending in the court of Chief Judicial Magistrate, Lohardaga are hereby quashed.
11. Cr.M.P.No.1292 of 2016 and Cr.M.P. No.1324 of 2016 stand allowed and disposed.
( Sanjay Kumar Dwivedi, J) SI/,