CRIMINAL WRIT NO.1124 OF 2007 For quashing the entire criminal proceeding including the First Information Report of Naugachhia P.S. Case No. 351/07. ---------------- Dr.Jagat Kishore Sharan son of late Maithili Sharan, R/O 104 Second Apartment, Baily Road near J.D. Women’s College, P.S. Shashtri Nagar, Town and District-Patna..... .... Petitioner/s Versus 1. The State Of Bihar 2. Dr. Santosh Kumar Jha son of late Narayan Jha, Incharge, Medical Officer, Primary Health Centre, Naugachhia, at present residing at Naugachhia, P.S. Naugachhia, District-Bhagalpur. 3. The Civil Surgeon, Bhagalpur. 4. The Superintendent of Police, Naugachhia, District-Bhagalpur 5. The Officer-in-charge, Naugachhia P.S. District-Bhagalpur .... .... Respondent/s ---------------- P R E S E N T HON’BLE MR. JUSTICE ADITYA KUMAR TRIVEDI Aditya Kumar Trivedi, J. Petitioner, Dr. Jagat Kishore Sharan by way of institution of instant petition prayed for quashing of entire criminal proceeding including the FIR leading to Naugachhia P.S.Case No. 351 of 2007, G.R. No.888/2007 registered under Sections 409,420 of the IPC. 2. From Annexure-1, the written report submitted by Dr. Santosh Kumar Jha, Medical Officer Incharge, Naugachhia in terms of direction vide letter no. 588(8) dated 15.10.2007 puts an allegation that Dr. Jagat Kumar Sharma, Medical Officer, who was 2 to retire on 31.01.1999 did not relinquish himself and continued in the service uptil 31.08.1999 and during intervening period he had withdrawn sum of Rs.1,02,848/- in lieu of salary and other emoluments. When the matter came to knowledge of Civil Surgeon, Bhagalpur, he issued order to this effect and communicated vide Wireless message No. 3683 dated 13.10.1999. The aforesaid written report was submitted on 31.10.2007. 3. It has been submitted on behalf of the petitioner that non of the Sections, whereunder, the case has been registered nor any of the provisions of penal law is attracted against the petitioner because of the fact that it was obligatory on the part of the State Government/Appointing Authority to communicate him with regard to his date of retirement and further directing him to hand over charge of his office to particular individual. Because of the fact that there have been lapses on the part of the Controlling Officers, therefore, to escape themselves from the lapses as indicated above, made the petitioner an scapegoat by launching a prosecution that too after such a long interval. This long intervening period is suggestive of the fact that petitioner has been victimized at the hands of his superior authority. Then submitted that just after retirement, a departmental proceeding ensued which concluded and as per finding of the departmental proceeding, the amount whatever been realized 3 by the petitioner as salary along with permissive emoluments have already been realized with penalty clause. Then submitted that the amount has not been digested nor allegation of misappropriation rather it was permissive monthly salary along with other benefits permissive to a Government servant which was credited in his account after having the pay bill passed by the Treasury for the relevant period during course of which petitioner had discharged his duty which he continued in good faith on account of non- correspondence at his controlling side. Nothing sort of criminal activity has been reported/alleged against the petitioner. Apart from this, the conduct of the prosecution appears to be hit by Section-43 Explanation (b) of the Bihar Pension Rules which prescribes the maximum period of four years for launching of prosecution after retirement, which period, as is evident, had already expired before commencement of the criminal prosecution. So submitted that it is a fit case wherein the reliefs so claimed by the petitioner are to be allowed. 4. On the other hand, the State by filing counter affidavit submitted that petitioner could not exonerate himself from his liability because of the fact that he was well aware with regard to his date of birth, date of appointment and date of retirement. It was expected at his end that he should have asked for necessary 4 instruction from his administrative controller on this score as well as seeking guideline to whom the charge has to be handed over. Intentional act of petitioner on this score withholding himself is indicative of the fact that he unsuccessfully, though succeeded for a few months in duping the Government by way of continuing in service and getting salary and other benefits withdrawn from the Treasury. So, petitioner had privilege of wrongful gain and by such action he put the State under wrongful loss. The aforesaid synonyms attract application of penal law. Also submitted that realization of amount by drawing a departmental proceeding will not exonerate the petitioner from criminal liability. Apart from this, it has also been submitted that from the conduct of the petitioner, there happens to be positive evidence with regard to embezzlement of Government money and so the penal provision whereunder case has been registered is equally applicable. Further submitted that the facts of the case did not attract application of Section 43 of the Bihar Pension Rules. So submitted that the instant petition is fit to be dismissed. 5. From the annexure-1, it is admitted fact that criminal prosecution was launched after more than 7 (seven) years of retirement of petitioner. So, now one has to see whether the aforesaid prosecution is found to be legally maintainable in light of 5 presence of rule 43 of the Bihar Pension Rules ? 6. Rule 43 of Bihar Pension Rules has been brought in picture to command the conduct of the pensioners as well as it also brings inflexible situation by way of protecting the future interest of the pensioners so that they should not be victimized for his lapses, if any, committed during his service tenure having sword hanging over his neck for infinite period. For better appreciation, the Rule 43 is quoted below:- “ 43. (a) Future good conduct is an implied condition of every grant of a pension. The Provincial Government reserve to themselves the right of withholding or withdrawing a pension or any part of it, if the pensioner is convicted of serious crime or be guilty of grave misconduct. The decision of the Provincial Government on any question of withholding or withdrawing the whole or any part of a pension under this rule, shall be final and conclusive. [(b) The State Government further reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period, and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government if the pensioner is found in departmental or judicial proceeding to have been guilty of grave misconduct; or to have caused pecuniary loss to Government by misconduct or negligence, during his service including service rendered on re-employment after retirement: Provided that- (a) such departmental proceedings, if not instituted while the Government servant was on duty either before retirement or during re-employment; (i) shall not be instituted save with the sanction of the State Government ; (ii ) shall be in respect of an event which took place not more than four years before the institution of such proceedings ; and (iii) shall be conducted by such authority and at such 6 place or places as the State Government may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made ; (b) Judicial proceedings, if not instituted while the Government servant was on duty either before retirement or during re-employment, shall have been instituted in accordance with sub-clause (ii) of clause (a) ; and (c) the Bihar Public Service Commission, shall be consulted before final orders are passed. Explanation,- For the purpose of the rule- (a) departmental proceeding shall be deemed to have been instituted when the charges framed, against the pensioner are issued to him or, if the Government servant has been placed under suspension from an earlier date, on such date ; and (b) Judicial proceedings shall be deemed to have been instituted :- (i) in the case of criminal proceedings, on the date on which a complaint is made or a charge-sheet is submitted, to a criminal court ; and (ii) in the case of civil proceedings, on the date on which the complaint is presented, or as the case may be, an application is made to a civil Court ” 7. After close scrutiny of Rule 43 Explanation (b) (i) it is evident that the period of launching of criminal proceeding has been directed to commence from the date of filing of complaint or charge-sheet and the period thereof has to be counted in accordance with (a) as per sub Rule (ii) prescribing maximum period of four years from the date of retirement the period whereunder any kind of proceeding be it departmental, civil, criminal has to be launched. The State, during course of argument has admitted that prosecution 7 has been launched after stipulated period. Admittedly, vide order dated 17.03.2009 only coercive step against the petitioner has been stayed and not the investigation. Even during course of argument, it has been submitted that no charge-sheet has been submitted that means to say the investigation is lingering for the last four years even after institution of case. 8. From the written report itself (Annexure-1) it is now no more remains under controversy that the institution of present case was made beyond the period of four years and so the proceeding in its inception was contrary thereto. As such the FIR along with criminal prosecution is quashed. Consequent thereupon, the instant petition is allowed. Patna High Court Dated the 23rd day of September 2011 Md. Perwez Alam/AFR (Aditya Kumar Trivedi, J.)