IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.11623 of 2011 Rajendra Prasad son of Late Tuphani Ram Prasad, R/O Village- Sasamusa P.S. Kuchai Kote, Distt-Gopalganj…. Petitioner Versus 1. The State Of Bihar 2. Ashok Kumar Pandey S/O Janakdeo Pandey, R/O Vill- Nasira. Nasira, P.S. Daudpur, P.O.Kohra Bazar, Distt- Chapra, at presently posted, Block Education, Extension Officer, Vijayipur Block, Distt- Gopalganj. 3. The Collector, Gopalganj………………….Opposite Parties. ---------------------------------- For the petitioner:- Mr. Jitendra Kumar Srivastava, Adv For the State:- Mr. J. Upadhayaya. APP ---------------- 3/ 22ndDecember 2011 Heard learned counsel for the petitioner as well as learned APP for the State. Petitioner has prayed for quashing of order dated 16.3.2011 passed by Sri Bipin Kumar, Judicial Magistrate, 1st Class, Gopalaganj in connection with G.R. No.2045 of 2011 whereby and whereunder the prayer of the petitioner purported to be filed under Section 239 of the Cr.P.C. has been rejected. Petitioner has submitted that he happens to be Panchayat Sewak and as per prevailing rule he has to issue salary in favour of Panchayat Teachers on the basis of absent report furnished by the Headmaster. He has got no concern with the affairs of school nay is any way responsible to see as supervising authority regarding 2 presence/absence of particular teacher. Also submitted that from supplementary affidavit, whatever been pleaded and supported with relevant annexures, it is evident that petitioner had issued salary in favour of teachers in the background of attendance sheet furnished by the Headmaster. So, there happens to be no fault at his end. Consequent thereupon, the rejection of the prayer by the learned lower court is not at all permissible. Also submitted that the statement of the witnesses incorporated in the order impugned referred under different paragraphs of the case diary virtually supports the case of the petitioner. On the other hand, learned APP opposed the prayer and submitted that for the present purpose, the level of prima facie case at the stage of taking of cognizance has been extended subject to the basic root with complicity of petitioner during commission of alleged crime to the extent of grave suspicion should surface. It is not the mandate that only particular sections of the penal law should be applicable rather along with major sections so many ancillary sections are there 3 which could drag the accused along with main accused and for that simply submitted as an abator, conspirator, possessing criminal intention or objection whatever may be. So far present scenario is concerned, all the accused who happens to be right from petitioner to teacher have virtually relished the Government scheme and even without having their presence they got their salary at the behest of one another and by such way put the State Government under wrongful loss. So presently, appearance of petitioner as one of the accused while facilitating the aforesaid crime cannot be ruled out. As per written report submitted by Block Education Extension Officer, Vijaypur, the local Mukhiya, Panchayat Sewak, Headmaster along with teachers conspired and got the salary disbursed on the basis of preparation of wrong attendance sheet even though the teachers have got no presence at the school. A particular instance has been leveled against Smt. Puppy Rai who managed to get salary in spite of staying at foreign country. Petitioner has failed to submit the exact date from which she was staying at foreign country and when she returned back because of the fact that from 4 Annexure-3 it is evident that the said Puppy Rai had received salary from the month of January 2009 to September 2009. The other part of Annexure-3 which happens to be attendance sheet did not disclose whether the payment was made to her for the month of October 2009 to March 2010. Be that as it may, it all happens to be matters to be taken up during trial and so, for the present I do not see any merit in the petition. Consequent thereupon the same is rejected. perwez ( Aditya Kumar Trivedi, J.)