^ THE HON'BLE HIGH COURT OF CHHATTISGARH AT ^CG^ . SIni CRMPNo.6t^5 /2011 V. PETITIONER ...^•w&. ^^^•••:i~ g^e*--"" (^J VERSUS Santosh Kumar Borkar, Aged about 30 years, S/o Shri Sukhram Borkar, Presently posted as Assistant Commandant, 15th Battalion, Bejapur (C.G.) RESPONDENTS ^:-"",, s-T"'^.. ^"^6^€^ 1. State of Chhattisgarh, Through the Secretary, Department of Home, DKS Bhawan, Mantralaya, Raipur (CG). 2. Vinod Kumar, Aged about 26 years, S/o Shri S. L, Sahu, R/o. Quarter No 2c, Street No. 14, Sector-8, Bhilai, PS- Kotvali, District Durg (CG) 3. Station House Officer Police Station Basantpur District- Rajnandgaon (C.G.) PETITION UNDER SECTION 48^2 OF THE CODE OF CRIMINAL PROCEDURE 1973 HIGH COURT OF CHHATTISGARH :BILASPUR Sinnle Bench: Hon'ble Shri Manindra MohanShrivastava. J. Petitioner Respondents Cr.M.P.No.635/2011 Santbsh Kumar Borkar Versus State of Chhattisgarh and others PetrUon undeLSection 482^pf the Code of Criminal Procedure Present- Shri Mateen Siddiqui, counsel for the petitioner. Shri Rakesh Jha, Deputy Government Advocate for the State. ORAL ORDER (Passedon 28-09-2011) Heard on admission. 2. This petition under Section 482 of the Code of Criminal Procedure, 1973, has been filed by the petitioner for quashing FIR dated 22-10-2008 registered at Police Station Basantpur, District Rajnandgaon and charge sheet submitted by the Police in the Court of Judicial Magistrate First Class, Rajnandgaon and all criminal proceedings bearing No.60 of 2011 dated 04-03-2011 . 3. Learned counsel for the petitioner argued that the allegations contained against him in the FIR and the police case are wholly frivolous, baseless and even if the entire allegation contained in the FIR, charge sheet and the material, which has been placed on record along with the charge sheet, is taken on its face value and accepted in its entirety, no ingredients of commission of offence under Section 420, 120-B ofthe IPC are made out. It is further submitted that all that the petitioner is alleged to have done is that he accompanied the complainant-Vinod Kumar, which does not by itself, in the absence of any active role played by the petitioner and money received by him, would not involve the petitioner in the alleged act of cheating by Keshav Vaishnav and his wife Saraswati Vaishnav. It is submitted that there is no allegation that either the ^••^a,;..:,' ^1.-..°^- ii A. .f'f^ ^ S Irf^l I ^.i -aLa^*' ^? ••'? '^x VWf' ^ vaS!asS»f' petitioner asked the complainant-Vinod Kumar to give money to Keshav Vaishnav or Saraswati Vaishnav nor it is the allegation that the petitioner received the amount paid by the complainant-Vinod Kumar or that any part of the said amount, allegedly paid to Keshav Vaishnav and his wife Saraswati Vaishnav, was shared by the petitioner. Learned counsel further submitted that the complainant has sworn an affidavit and has submitted a complaint before the Police of Police Station Basantpur, stating that the name of the petitioner has been wrongly included due to typographical mistake and that the petitioner has nothing to do with the alleged act of cheating committed by Keshav Vaishnav and his wife Saraswati Vaishnav. Lastly, it is submitted that as the petitioner is a government servant, no charge sheet could be filed against him nor he could be prosecuted, unless there is a valid sanction for prosecution by the State Government as required under Section 197 of the Cr.P.C. In support of his submission, learned counsel has relied upon the decision in a case of ./oseph SalvaraJ A. v. State of Gufarat, (201lf7SCC 59, M.A.A. Annanutlai v. State of Kamatcika and another, (2010) 8 SCC 524, Madan Mohan Singh v. State ojf Gujarat a.nd another, (2010) 8 SCC 628, Gorige Pentaiah v. State ofAndhra Pradesh and others, (2008) 12 SCC 531, Inder Mohan Goswcuni and Another vs. State of Uttaranchal and others, (2007)12 SCC 1. 4. The FIR has been registered on the basis of written complaint given by the complainant-Vinod Kumar stating that he had participated in the process of selection for appointment to the post of Sub Inspector and after having cleared in the preliminary examination and written examination and clearing physical test, was called for interview on 12-12-2007. In the meantime, the petitioner informed the complainant-Vinod Kumar that Keshav Vaishnav, known to him, is influential in getting selection and appointment made in the Police Department, due to his relations with the higher authoritiesand he can also manage his appointment as .^fiS&sy. -•..,\. K -...-,.'"' ,^ "^.-^' '"^.Sj^sSth"'" y Sub Inspector, for which, Keshav is to be paid Rs.4,25,000/-. When the complainant expresses his inability to pay such a huge amount of Rs.4,25,000/- ,to which, Keshav Vaishnav stated that he got the petitioner selected and appointed as Deputy Superintendent of Police, which was confirmed by the petitioner. Acting on the assurance, it is alleged that the complainant paid Rs.4,25,000/- at different point of time in three installments to Keshav Vaishnav and his wife Saraswati Vaishnav. Later on, when the select list was published, in which, name of the complainant was not included, the complainant sought explanation of Keshav Vaishnav, and thereafter, Keshav started avoiding him, initially, by stating that the amount paid by him, have already been transferred to the Police Authorities, but later on, disclosed that thesaid amount has been utilized for purchasing a car and the amount taken was never repaid and when the complainant demanded money, Keshav threatened and abused him. In the case diary statements also, Vinod has narrated the aforesaid story. Case diary statements of Lalita Sahu, Ashish Agrawal and Santosh Kumar Sahu have also supported the story of the prosecution. After making the investigation, the Police has filed charge sheet in the Court. 5. The allegations, which have been leveled against the petitioner and the role, which is alleged to have been played by the petitioner, cannot be said to be bereft of any material, so as fo warrant interference by this Court in exercise of power under Section 482 of the Cr.P.C. 6. Insofar as the submission that the complainant has subsequently made an application to the Police Station along with an affidavit to remove the name of the petitioner is subsequent to the filing of the charge sheet and that is a matter of enquiry before the conGerned Magistrate at the appropriate stage. Submission of learned counsel for the petitioner that without sanction as required under Section 197 ofthe Cr.P.C., the petitioner being a public servant, could not be prosecuted, is premature at this stage. •'^^; 4 7. All these submissions, which are now being made by the petitioner at this stage, would be available to the petitibner at the stage of framing charges. What would be the effect of there being no order of sanction for prosecution, is a matter for consideration at the stage of framing charge. 8. In view of above consideration, 1 am not inclined to interfere at this stage. However, the submissions, which are now being made before this Court, may be raised by the petitioner before the Court below at the appropriate stage/stage of framing charge, and the same shall be considered by the learned Court below. 9. With the aforesaid observation, the petition is dismissed. Sd/- Manindra Mohan Shrivastava Judge Tumane