Criminal Miscellaneous No.5136 of 1999 --------- In the matter of an application under section 482 of the Code of Criminal Procedure ----------- ABDUS SATTAR son of Abdul Jabbar, Block Development Officer, Amdabad, Police Station Amdabad and district- Katihar and resident of Village Khagauta, police station Sadar, District Purnea .... ... ..... petitioner Versus 1. STATE OF BIHAR 2. Mangal Murmu, S/o Sarkar Murmu, resident of village Radhe Madhe, P.S. Amdabad District Katihar ... ... ... opposite parties -------------- For the petitioner: Mr. R. N. Poddar, Advocate For the State: Mrs. Veena Kumari Jaiswal, APP ---------- P R E S E N T THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH Shiva Kirti Singh, J. Heard learned counsel for the petitioner and learned counsel for the State. 2. Petitioner has prayed for quashing of order of cognizance dated 9-2-99 for offences under sections 406, 420, 120B of the Indian Penal Code and provisions of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act passed by learned Chief Judicial Magistrate, Katihar in Amdabad PS case no. 102/96, G.R. case No. 2128/96 which is now pending in the court of Special Judge (Harijan Cell), Katihar. 3. Learned counsel for the petitioner has submitted that at the relevant time petitioner was posted 2 as Block Development Officer within Manihari Sub- division of Katihar district and the present case was lodged by one Mangal Murmu against two persons including the petitioner with an allegation that on the pretext of supply of bricks for construction of houses under Indira Awas Yojna the accused persons had cheated some members of Scheduled Tribe by an amount of Rs. 54,900/- and they neither repaid the money nor get the bricks supplied to them. According to learned counsel for the petitioner the allegations are only partly correct and the subsequent development wherein money was refunded to the beneficiaries has not been mentioned in the F.I.R and without waiting for such development the investigating officer submitted charge sheet leading to impugned order of cognizance. 4. On behalf of the petitioner it has further been submitted that since the petitioner, at the relevant time was Block Development Officer, Amdabad cognizance should not have been taken by the learned Chief Judicial Magistrate in absence of any sanction for prosecution. 3 5. On behalf of the State, it has been submitted that there is no legal infirmity with the order of cognizance which is based upon the charge sheet submitted by the police after investigation. It has further been submitted that as Block Development Officer it was not official duty of the petitioner to cheat the tribals on the pretext of supply of bricks. Lastly it has been submitted on behalf of the State that both the defences raised by the petitioner may be considered at the appropriate stage but at the stage of cognizance, learned Magistrate was not expected to consider these defences. 6. The submission that subsequently the money was paid back to the informant and other members of Scheduled Tribe who were beneficiaries under the Indira Awas Yojna cannot have any adverse effect upon order of cognizance. So far as issue of sanction is concerned, a reading of the F.I.R discloses that petitioner was described as Block Development Officer but besides that there is no allegation or material to show that in taking the money or indulging in alleged act of cheating he was acting in his official capacity or in 4 the colour of his office. No doubt learned counsel for the petitioner has annexed certain circular letters issued by the Deputy Development Commissioner, Katihar, one of which is contained in annexure-2, to show that all Block Development Officers were required to be vigilant in ensuring that beneficiaries of Indira Awas Yojna are not cheated by intermediaries but such a submission requires to be considered by the court below on the basis of materials which may be brought before the court below in future in accordance with law. 7. In the facts of the case, this court finds no good ground to interfere in the matter in exercise of power under section 482 of the Code of Criminal Procedure. This application is, therefore, dismissed. 8. This order shall not prejudice the case of petitioner and he shall be at liberty to raise all his defences at appropriate stage which shall be considered in accordance with law. Patna High Court The 19th April, 2010 NAFR/BKS (Shiva Kirti Singh, J.)