Madhya Pradesh High Court
Syed Mazhar Ali vs The State Of Madhya Pradesh on 9 February, 2018
THE HIGH COURT OF MADHYA PRADESH
MCRC-5875-2018
(SYED MAZHAR ALI Vs THE STATE OF MADHYA PRADESH)
1
Jabalpur, Dated : 09-02-2018
Mr.Manoj Kushwaha, learned counsel for the petitioners.
Mr.Mohit Nayak, learned Government Advocate for the
respondent No.1/State.
The applicant No.1, Syed Mazhar Ali, the then Chief Executive sh Officer, applicant No.2-Sujit Kumar Verma, Panchayat Coordinator e Officer and applicant No.3-Rajendra Kumar Namdeo-Lower Division ad Cleark, have filed this petition under section 482 of the Code of Criminal Procedure.
Pr The respondent No.2 filed an application under section 156(3) of a hy the Code of Criminal Procedure before the Judicial Magistrate First Class, Nowgong alleging that the applicants and other co-accused ad persons, namely, Balram Ahirwar and Ram Raja and Sudhir Jain, CEO M and Bihari Lal, Panchayat Inspector, Roshan Yadav, Udai Bhan and Thakur Das Kushwaha misappropriated 30 Quintals 57 Kilo 300 of Grams of rise. After due inquiry the SDO, Nowgong had given the rt report and sent a letter to the accused-Sudhir, the then CEO, Bhopal. ou On 14.5.2007 a letter was sent to register the offence against the Sarpanch-Balram Ahirwar and Ramraja, but action was initiated. The C petitioner No.1 did not lodge the report, despite having received the h letter issued by the Collector dated 02.5.1017. ig The learned Judicial Magistrate First Class vide order dated H 29.1.2018 after examining the complaint has issued directions to the Police Station for registering the First Information Report and to make the investigation in this regard. Despite order dated 07.7.2017 issued by the Collector, the petitioners did not take any action regarding embezzlement of the amount.
On behalf of the petitioners it is contended that the petitioners are CEO, Panchayat Coordinator and the LDC of the Janpad Panchayat. They are protected under section 197 of Cr.P.C., therefore, the order impugned be stayed. In support of contentions learned counsel has placed reliance on the decisions in the cases of Dinesh Sharma vs. State of M.P., (2006) 3 MPLJ 291 and Suresh vs. Mahadevappa Shivappa Danannava and another, 2005 SCC (Cri.)
783. In the case of Dinesh Sharma (supra) the Medical Officer in course of his official duty has issued a disputed letter to the Non- applicant, therefore, it was held that he is protected under the umbrella of section 197 Cr.P.C. In the case of Suresh (supra) the dispute is of civil nature and, therefore, the ingredients of alleged offence of cheating is not made out.
In the present case it s criminal embezzlement of amount and is sh an economic offence. The accused, Balram and Ramraja were the then e Sarpanch and Secretary. The petitioners are the officers and staff of ad the Janpad Panchayat and the accused persons 8 to 13 are the persons Pr who purchased the grain, rice etc. which were not for sale in the open market.
a At this stage it would not be appropriate to stay the investigation hy keeping in view the decision of the Supreme Court in the case of State ad of Telangana vs. Habib Abdullah Jeelani and others, [Criminal M Appeal No.1144/2016 decided on 06.1.2017] wherein it has been held that the High Court is not conferred the arbitrary jurisdiction to act of according to the whims and caprice. The power under section 482 Cr.PC. should be exercised sparingly with circumspection and in the rt rarest of rare cases. The said power is to be exercised in sparing ou manner and is not to be used to choke or smother the prosecution that C is legitimate. It is also observed that it is not proper to stay when the h investigation is in progress. It should also not pass an order that the ig investigating agency shall arrest the accused persons. This direction H amounts to order under section 438 of the Code of Criminal Procedure albeit without satisfaction of the conditions of the said provision. That is legally unacceptable.
Let notice be issued to the respondent No.2 on payment of process fee by registered post as well as ordinary mode. Notices be made returnable within four weeks.
List the case after four weeks.
(SUSHIL KUMAR PALO) JUDGE RM Digitally signed by RAJESH T MAMTANI Date: 2018.02.12 19:03:39 +05'30' sh e ad Pr a hy ad M of rt ou C h ig H