IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.16520 of 2010 ========================================================== Vishwanath Roy S/O Autar Roy R/O Vill. Shiv Nagar ( New Tola ), P.S. Katra., Distt. Muzaffarpur, Present Vishwanath Roy ( Compounder ), Posted At Primary Health Centre, Aurai, P.S. Aurai, Distt. Muzaffarpur. .... .... PETITIONER. Versus 1. State Of Bihar 2. The In - Charge Medical Officer R/O P.H.C. Aurari, P.S. Aurai, Distt. Muzaffarpur. .... .... OPPOSITE PARTIES. ========================================================== For the Petitioner : Mr. Ajay Kumar, Advocate. For the State : Mr. Mr. Satyendra Prasad, A.P.P. ========================================================== PRESENT HON’BLE MR. JUSTICE ADITYA KUMAR TRIVEDI A.K. Trivedi, J. Petitioner has filed instant petition with a prayer to quash order of cognizance dated 03.03.2005 passed by learned Chief Judicial Magistrate, Muzaffarpur in connection with Aurai P.S. Case No.59 of 2001 whereby and whereunder petitioner has been summoned to face trial for an offence punishable under Section 468,471,420,409 of the I.P.C. Dr. Nageshwar Prasad Sinha filed a written report (Annexure-1) disclosing therein that the Civil Surgeon, Muzaffarpur has directed to institute a case vide Letter No. 1140 dated 27.07.2001 against the petitioner Vishwanath Roy, Pharmacist annexing therewith relevant documents. Contention on behalf of the petitioner is that he was appointed as compounder at Primary Health Centre Gomiya Hazaribagh and was accordingly communicated vide memo no.1872/Hazaribagh dated 05.09.1988 in pursuance of which 2 he gave his joining. Thereafter he was transferred to Muzaffarpur district vide letter no.1218 dated 30.12.1989 and accordingly gave his joining. All of a sudden, his service was terminated vide Annexure-5 so communicated vide memo no.1140 Muzaffarpur dated 27.07.2001 against which petitioner along with others whose service was terminated in likewise manner, filed vide Cr. Misc. No.11611 of 2002, 4702 of 2003 and others by which the aforesaid termination letter was quashed. The State had preferred series of LPA bearing 259 of 2004, 946 of 2003 and so on which was decided in the back ground of principle laid down by the Hon’ble Apex Court in connection with State of Karnataka Versus Uma Devi reported in 2006(2) PLJR (SC) 363. As the government remained ideal therefore MJC No.1739 of 2007 & others was filed wherein two kinds of appointment has been identified (a) irregular (b) illegal and for aforesaid purpose, one man committee was constituted. The State during said course had submitted that the matter relating to petitioner is being verified and will be communicated with its result. Though the appointment of petitioner has been identified as irregular appointment and further has been directed to join but the said order was not at all communicated upon petitioner therefore petitioner on its own gave his joining on 28.4.2009. After his joining the Medical Officer, Incharge Primary Health Centre, Aurai had asked for specific direction from the Civil Surgeon vide letter no.262 dated 28.4.2009 3 whereupon the Civil Surgeon has communicated vide letter no.1297 dated 05-05-2009 directing the Incharge Medical Officer, Aurai PHC to act according to his own conscience, so that there should not be disregard to the order of the Hon’ble Court passed in MJC No.1739 of 2007. Though the aforesaid joining letter has not been produced, but the petitioner is still continuing vide letter no.1 dated 2906.2009 Civil Surgeon has ordered for payment of salary. In the aforesaid background it has been submitted that continuity of criminal prosecution is not at all justified and accordingly, the order of cognizance is fit to be set aside. At the other hand, the learned Additional P.P. opposed and referred relevant paras of the counter affidavit. It has been submitted on behalf of State that from the Annexures of the written report it is evident that after giving joining by the petitioner at Muzaffarpur, the Civil Surgeon had inquired from Hazaribagh over genuineness of his appointment at Gomiya, and the Civil Surgeon, Hazaribagh has communicated vide letter no.52 dated 13-01-2001 that petitioner was not at all appointed vide memo no.1872 dated 05-09-1988. In likewise manner the PHC Gomiya has reported that the petitioner was never appointed as Pharmacist at Primary Health Centre Gomiya, so there was no question of his transfer from Gomiya to Muzaffarpur as is evident from letter no.206 dated 02-06-2001. On the basis of the aforesaid two letters, petitioner’s appointed, 4 so claimed by the petitioner happens to be based upon forged document as a result of which he was dismissed from service side by side criminal prosecution was also launched against him. It has further been submitted that though the petitioner gave his own joining in pursuance of MJC No.1739 of 2007 and is getting salary but the said event is not going to exonerate the petitioner from criminal liability. However in spite of specific direction vide order dated 09.02.2011, failed to aver with regard to Letter No.1 dated 29.6.2009. Petitioner had filed Annexure-2, the appointment letter posing to be issued by Civil Surgeon of Hazaribagh and which was communicated to the petitioner vide memo no.1872 Hazaribagh dated 05.9.1988. Petitioner had not explained the situation whether he was really appointed under the aforesaid memo number and further whether he had ever gave his joining at Primary Health Centre, Gomiya, Bokaro. Petitioner further pleaded that by Annexure-3, it is evident that the Deputy Director, Health Service had communicated vide memo no.1895 dated 31-12-1989 disclosing therein that the appointment of Bishwanth Rai, Pharmacist was not made in accordance with law and so letter no.1872 dated 05-09-1998 issued by Civil Surgeon, Hazaribagh and letter no.1218 dated 30-12-1989 issued by Primary Health Centre Gomiya Hazaribagh are cancelled and further his service has been directed to be adjusted at newly constituted district. As such, it is evident that 5 when the above referred letters which happens to be basis of launching of criminal prosecution have already been scraped by a competent authority then under such situation prosecution of petitioner would not be justified. The State has not opposed validity, genuineness of Annexure-3. Save and except simply submitting that the letter so furnished by petitioner, i.e. appointment letter and transfer letter from Gomiya to Muzaffarpur has been found fake one. Annexure-3 discloses that the department had taken note of and admitted that the appointment was not in accordance with law and further got it cancelled and then directed the service of petitioner to be adjusted at newly constituted district. Not only this there happens to be subsequent failure on the part of State as not putting any remark over letter no.1 dated 29.6.2009 (Annexure- 7) then in that event the prosecution of petitioner appears to be nothing but sheer abuse of process of the court. Consequent thereupon the order of cognizance dated 03- 03-2005 is set aside. Thus the petition is allowed. PATNA HIGH COURT DATED, THE 23rd DECEMBER, 2011 A.F.R. / PRAKASH NARAYAN (Aditya Kumar Trivedi,J.)