Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.27583 of 2010 ====================================================== Kuber Prasad .... .... Petitioner/s Versus The State of Bihar .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Md. Khurshid Alam, Advocate. For the Opposite Party/s : Mr. Satyendra Narayan Singh, A.P.P. ====================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI ORAL ORDER 2 27-03-2012 Heard learned counsel for the petitioner as well as learned Additional P.P. for the State. Petitioner has challenged the order dated 15.4.2010 passed by the C.J.M. at Chapra in C.G.S. No.63/2010 (State Vrs Kuber Prasad) whereby and whereunder he has been summoned to face trial for an offence punishable under [STATUTE] . Shorn of unnecessary detail, the prosecution case as comes out on the basis of complaint filed by S.D.O. against petitioner, who happens to be P.D.S. dealer, was entrusted with 23.04 quintal of rice and 15.36 quintal of wheat, which on account of negligence on his part became rotten causing loss to the State exchequer to Rs. 48,038/- which he was directed to deposit which be disobeyed. Hence the complaint. After hearing rival contentions of the parties, the scenario gives a pitiable condition as well as wilful negligence on the part of the Government much less relating to disbursement of the grain amongst beneficiaries. Admittedly, the petitioner happens to be a P.D.S. Dealer who was entrusted with the aforesaid items, but as no list of beneficiaries was furnished to the petitioner, on account thereof petitioner had made so many Patna High Court Cr.Misc. No.27583 of 2010 (2) dt.27-03-2012 2 / 6 2 representations before the competent authority and lastly, filed CWJC No. 9369/2009, which was disposed on 7.9.2009. The aforesaid petition was disposed of under the following terms:- “We are not entering into the disputes raised in the writ petition as well as in the counter affidavit. However, we feel that the Divisional Commissioner, Saran (Respondent no.2) should look into the matter, fix the responsibility and take appropriate action against the erring persons as contemplated in law and also ensure the distribution of the articles in accordance with the scheme.” Even then the department did not respond attracting initiation of contempt proceeding as is evident from the order dated 29.11.2010 passed in CWJC No.5440/2010, the aforesaid petition was filed against the order of the Commissioner, where-under the petitioner was held responsible and the Hon’ble Court after setting aside the order of the Divisional Commissioner remanded the matter back for fresh hearing. Contention on behalf of the petitioner is that there was no independent order of the Sub Divisional Magistrate/Complainant, rather it was administrative order passed by the Commissioner, in the back ground of order dated 07.9.2010 passed in CWJC No. 9369/09 and as the aforesaid order on account of being set-aside in CWJC No.5440/2010 became nonest in the eye of law so, his prosecution happens to be nothing but sheer abuse of the process of the Court. Therefore, it is submitted that the entire prosecution along with the order of cognizance is fit to be quashed. On the other hand, the learned Additional P.P. has fairly submitted that prosecution on its face after order dated 12.11.2010 passed in CWJC No. 5440/2010 appears to be a futile attempt to drag the petitioner. However, it is submitted that in accordance with Section 195 Sub-Clause (2) of the Cr.P.C. the petitioner instead of rushing to this Court under the provisions of Section 482 of the Cr. P.C., should have filed an appeal before the competent authority to whom the Complainant was administratively subordinate. Therefore, the instant petition in the aforesaid background appears to be not maintainable. Before coming to factual aspect, the relevant law has to be searched out. On this score Section 195 of the Cr. P.C. prescribes some sort Patna High Court Cr.Misc. No.27583 of 2010 (2) dt.27-03-2012 3 / 6 3 of legal competency of Complainant for filing Complaint petition on account of contravention of their order which they passed in a capacity of being Public Officer. As per Section 195 a(i), the Public Servant or any other Officer to whom such public servant happens to be administratively subordinate has been identified as Public Officer, who could file a Complaint for violation of his subordinate’s order falling under [STATUTE] . along with its abetment or conspiracy. Under Sub Section (2) of Section 195 prescribes the mode whereunder the Officer to whom the Public servant happens to be administrative subordinate, who has made Complaint was identified as competent authority who could withdraw the complaint but having an exception that is withdrawal can not be made if the trial in the Court of first instance has been concluded. That means to say the paraphernalia of the cognizance taking Court is already exhausted that means to say when the cognizance has already been taken then no order for withdrawal of the Complaint could be made. As such the argument raised on behalf of the learned Additional P.P., to that extent is not found in consonance with Sub Section (2) of Section 195 of the Cr. P.C. Hence, the petition in this present form appears to be maintainable. Now coming to the scope /legality of the entire complaint first of definition Public Officer has to be looked into and for that [STATUTE] . could be referred below:- "Public servant". 21. "Public servant".--The words "public servant" denote a person falling under any of the descriptions hereinafter following, namely:-- 1* * * * * Second.--Every Commissioned Officer in the Military, 2*[Naval or Air] Forces 3*[4**** of India]; 5*[Third.--Every Judge including any person empowered by law to discharge, whether by himself or as

Applicable IPC Section: 172

Statute Text:
Section 172 of the Indian Penal Code. Absconding to avoid service of summons or other proceeding from a public servant. Whoever absconds in order to avoid being served with a summons, notice or order proceeding from any public servant legally competent, as such public servant, to issue such summons, notice or order, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both; or, if the summons or notice or order is to attend in person or by agent, or to produce a document in a Court of Justice, with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.