Allahabad High Court
Pramod Kumar Maurya vs State Of U.P. & Another on 10 October, 2012
Author: Ramesh Sinha
Bench: Ramesh Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Judgment. Criminal Revision No. 1456 of 2010. Pramod Kumar Maurya ... Revisionist. Versus State of U.P. & another ... Opposite parties. Hon'ble Ramesh Sinha, J.
Two supplementary affidavits filed by the revisionist is taken on record.
Heard Sri Anil Srivastava, learned counsel for the revisionist and learned A.G.A. for the State.
This revision has been preferred against the judgment and order dated 29.3.2010 passed by Additional Sessions Judge/Fast Track Court No.3, Aligarh in Criminal Revision No. 425 of 2009 by which the lower revisional court has allowed the revision filed by the State and set aside the judgment and order dated 23.9.2009 passed by the Chief Judicial Magistrate, Aligarh in Criminal Case No. 299 of 2005 by which the trial court has discharged the revisionist from the offence under Section 409/420 I.P.C.
Brief facts of the case are that an F.I.R. was lodged on 30.10.2004 as Case Crime No. 516 of 2004 under Sections 409/420, police station Quarsi, District Aligarh by opposite party no.2-District Panchayat Raj Officer, Aligarh against the revisionist with respect to the incident which has taken place between 4.4.2003 to 7.4.2003 when he was posted as Gram Panchayat Vikas Adhikari alleging that there are certain irregularities in the muster roll of the labourers, who were employed for the work. There was an allegation that the revisionist has embezzled an amount of Rs. 6786/- by forging the muster roll and mis-appropriated the said amount with certain other irregularities regarding the work done during his period. After investigation, the Investigating Officer submitted a charge-sheet against the revisionist for the offence under Sections 409/420 I.P.C. The trial court took cognizance of the offence against the revisionist and summon him for trial.
The revisionist moved an application for discharge before the trial court on two grounds; firstly, that he being a government servant within the meaning of Section 21 (10) of the Indian Penal Code, no sanction has been obtained by the prosecution to prosecute him from the competent authority, hence no cognizance of the offence on the basis of the said charge-sheet, can be taken against him in the absence of sanction for prosecution under Section 197 (1) Cr.P.C. and lastly that no offence under Section 409/420 I.P.C. is made out against him.
To the said discharge application, the prosecution filed its objection and stated that the revisionist is not a public servant as defined under Section 21 (10) I.P.C. It was further argued that the revisionist is a Gram Panchayat Vikas Adhikari/Panchayat Secretary and for his removal no permission is required from the State Government. In support of the contention, the prosecution has relied upon a judgment of this Court in the case of R.S. Pushkar Vs. Yamuna Das reported in ACR (1992) 391 in which it was held that if there is a single piece of evidence available on record in a case then charges should be framed against a person. It was further observed in the said judgment that at the time of framing of charges, the evidence produced by the accused should not be taken into consideration nor the sufficiency of evidence can be looked into by the trial court at the stage of framing of charges.
The learned Magistrate after hearing the parties and examining the material on record and on the basis of certain judgments of the Apex Court came to the conclusion that the revisionist was a public servant and no sanction to prosecute him was obtained by the competent authority as required under Section 197 (1) Cr.P.C. and he further relied upon the judgment of the Apex Court in the case of R.R. Chari V. State of U.P. reported in A.I.R. 1962 (2) SC 573, Regional Inspector of Science v. K.K. Sen reported in 1973 (Cri.) Law General 1671, Kailash Sethi v. State 1978 ACC 192 by this Court. Following the principles laid down in the said judgments, the learned Magistrate found that against a public servant if no sanction has been granted by the competent authority as required under Section 197 (1) Cr.P.C. then the court cannot take cognizance of the offence. Thus the Magistrate came to the conclusion that the revisionist being a public servant as defined under Section 21 of the I.P.C. no sanction was obtained from the competent authority for his prosecution as required under Section 197 (1) Cr.P.C., hence the cognizance of the offence cannot be taken against the him. Hence discharged him of the said offence. The learned Magistrate has further examined the fact whether any cognizable offence under Section 409/420 Cr.P.C. is made out against the revisionist or not on the material collected during investigation on which charge-sheet was submitted against the revisionist, came to the conclusion that no prima facie offence was disclosed against the revisionist as he found that the whole amount in question which was disbursed to the labourers, namely, Misri Lal and Vijay Pal whose muster roll was found to be disputed, was made by the village Pradhan and the President of Development Committee of district Aligarh, who had also signed the said muster roll of the two larourers and the revisionist has only made an entry on the said muster roll being a Gram Panchayat Vikas Adhikari. Moreover from the documentary evidence collected during investigation, the Magistrate found that there was no fault on the part of the revisionist which may show his complicity in the crime. The learned Magistrate also took in consideration the principles laid down by the Apex Court and this Court in its various pronouncement such as Ram Narayan v. State of Maharashtra reported in A.I.R. 1964 SCC 949, Satish Mishra v. Delhi Administration and others reported in 1996 ACC SC 704, Niranjan Singh v. Jitendra A.I.R. 1990 SC 1962 wherein it has been held that it is the discretion of the Magistrate to try the accused where there material is available against him for framing of the charge otherwise he may be discharged from the offence. Thus the learned Magistrate has discharged the accused revisionist from the offence under Section 409/420 I.P.C. as no offence was disclosed against him vide order dated 23.9.2009.
Feeling aggrieved by the order of the learned trial court, the State of U.P. preferred a revision before the court of Session Judge which came to the conclusion that the order passed by the learned Magistrate was not in accordance with law and set and the same and remanded the matter for reconsideration. The revisionist thus approached this Court by means of present revision challenging the impugned order dated 29.3.2010 passed by the Additional Session Judge/Fast Track Court Aligarh.
It is contended by the learned counsel for the revisionist that the order of the trial court discharging the revisionist from the offence was misread and misinterpreted by the lower revisional court and has also wrongly interpreted the judgment of the Apex Court and this Court which was rightly considered by the Magistrate in discharging the accused revisionist. The lower revisional court has erred in law in setting the said finding of the Magistrate hence the impugned order is liable to be set aside by this Court in the present case. Learned counsel for the revisionist further alleged that the revisionist being a public servant as defined under Section 21 (10) of the I.P.C. no sanction was obtained to prosecute him from the competent authority as required under Section 197 (1) Cr.P.C. hence the cognizance taken against him for the offence is bad in the eyes of law. Further no offence under Section 402/420 whatsoever is disclosed against the revisionist. It was further submitted that departmental action was also taken against the revisionist for the allegations contained in the F.I.R. by the competent authority and he was suspended on 2.11.2004 and a departmental enquiry was held and charge-sheet was also submitted. In the departmental enquiry he was exonerated from the allegations leveled against him.
The subject matter of F.I.R. in question by the Inquiry Officer/Khand Vikas Adhikari on 13.6.2012 and all the allegations leveled against him was found to be false and thereafter on the basis of said Inquiry report he was reinstated in service on 25.8.2010. A copy of the Inquiry Report dated 13.6.2010 and a copy of the order dated 25.8.2010 by which the revisionist was reinstated in service have been submitted along with a supplementary affidavit and placed before this Court to be kept on record.
On the other hand, learned A.G.A. tried to justify the order passed by the lower revisional court by which the revision of the State was allowed and the order of the Magistrate discharging the revisionist was set aside and has contended that the order passed by the lower revisional court does not suffer from any illegality and is in accordance with law.
Having considered the submissions advanced by learned counsel for the parties and perused the material on record.
A counter affidavit has been filed by the State of U.P. and from a perusal of the same it transpires that in paragraphs -19 and 20, it is evident that the State has not disputed the fact about the revisionist being a public servant as defined under Section 21 (10) of the I.P.C. nor has stated that any sanction was obtained from the competent authority to prosecute the revisionist as required under Section 197 (1) Cr.P.C. which is the bone contention of the revisionist and averments to this effect has also been made in paragraphs-16 and 17 of the affidavit filed in support of the present revision for which a reply has been submitted in paragraphs 19 and 20 referred above in the counter affidavit filed on behalf of the State. It is very surprising that the State, who has preferred the revision before the lower revisional court against the order of the Magistrate has chosen to file a counter affidavit before this Court in the present revision in which no specific denial has been made regarding the revisionist not being public servant as defined under Section 21 (10) I.P.C. In the absence of any averment to the contrary in the counter affidavit, the court has no option but to arrive at a conclusion that the revisionist is a public servant and for prosecuting him sanction by the competent authority was required under Section 197(1) Cr.P.C. and in the absence of any sanction no cognizance of the offence can be taken against the revisionist on the basis of the charge-sheet submitted against him before the trial court. The learned Magistrate was right in holding that the revisionist is a public servant in view of Section 21 (10) of the I.P.C. and no cognizance can be taken against him in the absence of sanction required under Section 197 (1) I.P.C. The lower revisional court has failed to appreciate the findings recorded by the learned Magistrate regarding the revisionist being a public servant sanction was required for his prosecution under Section 197 (1) and the lower revisional court without recording any cogent reason set aside the findings of the trial court. On this aspect of the case, the lower revisional court further misinterpreted the various decisions of the Apex Court as well as this Court on the issue has set aside the order of the Magistrate discharging the accused thus the order of the lower revisional court is not sustainable in the eyes of law. It is relevant to point out here that the departmental proceedings were initiated against the revisionist by the competent authority and a charge-sheet was also submitted against him by the Inquiry Officer with respect to the allegation made in the F.I.R. and in the departmental enquiry also the charges levelled against the revisionist were found to be false by the Inquiry Officer in its reported dated 13.6.2010 and thereafter the D.P.R.A. Aligarh on the basis of the enquiry report has reinstated the revisionist by order dated 25.8.2010. So far as the order of the lower revisional court regarding whether a cognizable offence under Section 409/420 was made out against the revisionist which was also considered by the learned Magistrate while discharging the revisionist from the offence is concerned, the same also was decided by the lower revisional court in a most vague manner and without assigning any cogent reason for setting aside the order of the Magistrate, who after taking into consideration oral as well as documentary evidence collected during investigation came to the conclusion that the amount in question with respect to the labourers who were made payments, the revisionist was only signatory on the muster roll which passed by the village Pradhan and the President of the Development Committee and under their joint signatures has passed the payment hence the trial court found that it cannot be said that the revisionist was solely responsible for the payment of the said amount to the labourers and has misappropriated and embezzled the same, hence the trial court was right in upholding that no offence under Section 409/420 was made out against the revisionist and has rightly discharged the revisionist for the offence. The order passed by the Additional Session Judge on 29.3.2010 in the revision cannot be sustain in the eye of law. The same is hereby set aside and the order passed by the learned Magistrate in discharging the revisionist vide order dated 23.9.2009 is restored and confirmed.
With the aforesaid observations, the revision stands allowed.
Dated/- 10.10.2012 Shiraz