Reserved IN THE HIGH COURT OF UTTARKHAND AT NAINITAL C-482 No. 374 of 2004 Sri J.S. Kushwaha and others. ……..Applicants. Versus State of Uttarakand and another. …..Respondents. Present: Mr.Rakesh Thapliyal, Advocate for the applicants. Mr. M.A. Khan, Brief Holder for the State of Uttarakhand/respondent nos. 1 and 2. Mr. U.P.S. Negi, Advocate for respondent no. 3. Date of Decision : 7 .9.2010 Hon’ble Sudhanshu Dhulia, J (Oral) 1. Heard Mr.Rakesh Thapliyal, Advocate for the applicants, Mr. M.A. Khan, Brief Holder for the State of Uttarakhand/respondent nos. 1 and 2 and Mr. U.P.S. Negi, Advocate for respondent no. 3. 2. This application under Section 482 of Cr.P.C. has been filed by the applicants challenging the entire proceeding in Criminal Case No. 333 of 2004 Uttam Singh Vs. J.S. Kushwaha and others pending in the Court of learned Chief Judicial Magistrate, Pauri Garhwal. 3. Brief facts of the case are that the complainant, who is a practicing advocate in district Pauri Garhwal filed a complaint against the present revisionist, inter alia, under Sections 430, 420, 120B, 471, 403, 406, 409, 191, 192 and 193 I.P.C read with Section 18 of Kumaon Garhwal Water (Collection Retention and Distribution) Act, 1975, stating that the officials, such as General Manager, Chief General Manager, Executive Engineer and Junior Engineer of the Uttaranchal Jal Sansthan, District Pauri Garhwal have stated on oath before the Apex Court that they supply water for two hours in the Pauri Garhwal town, there is no such supply and therefore, they have committed such an offence. 4. The learned Chief Judicial Magistrate after examining the complainant and the witnesses under Sections 200 and 202 of Cr.P.C. prima facie, came to the conclusion that Sri J.D. Kushwaha, General Manager, Sri H.P. Uniyal, Chief Engineer, Sri S.N. Shukla Executive 2 Engineer of Garhwal Jal Sansthan, Pauri Garhwal have committed offence under Sections 430 and 406 of the Indian Penal Code and Sri O.P. Bahuguna, who was a Junior Engineer in Garhwal Jal Sansthan, Pauri Garhwal has committed an offence under Section 430/406/504/506 of I.P.C. and all of them have been summoned. 5. In the considered view of this Court, the non supply of water by these officials and employees of Garhwal Jal Sansthan may be an offence under any other provisions of law and if found guilty they may also be charged and prosecuted in a departmental proceeding, but definitely no offence is made out against the revisionists under the aforesaid sections as taken cognizance by the Court below and summons have been issued to them by the learned Chief Judicial Magistrate. The officials and workers of Garhwal Jal Sansthan (which is a statutory organization) inter alia, are also protected under Section 20 of the Kumaon and Garhwal Water (Collection, Retention and Distribution) Act, 1975. Section 20 of the Kumaon and Garhwal Water (Collection, Retention and Distribution) Act, 1975 reads as under: “20. Protection of action—No proceedings or order purporting to be taken or made under this act shall be called in question in any court and no civil or criminal proceeding shall be instituted against any person for anything done or intended to be done in good faith under this Act.” 6. Moreover, Section 95 of the U.P. Water Supply and Sewerage Act, 1975, which also protects these officials, reads as under:- “95. Protection for acts done in good faith.—No suit, prosecution or other legal proceedings shall lie against the State Government, the Nigam or a Jal Sansthan or a Chairman or other member of the Nigam or a Jal Sansthan or any officer or servant of the State Government or of the Nigam or a Jal Sansthan for anything which is in good faith done or purported or intended to be done in pursuance of this Act or any rule, regulation or bye- laws made there under.” 7. Interestingly, the complainant is a lawyer before the Court and so are most of the witnesses who have given their statement under Sections 200 and 202 of Cr.P.C. they may be public spirited persons, but yet the manner in which the case has proceeded clearly shows that the learned 3 Chief Judicial Magistrate has not applied his mind to the matter. Section 406 of Cr.P.C. speaks about the punishment for criminal breach of trust, which reads as under:- “406. Punishment for criminal breach of trust.—Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with find, or with both.” 8. The criminal breach of trust has actually been defined under Section 405, which reads as under:- “405. Criminal breach of trust.—Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his won use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the ode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits “criminal breach of trust”. 9. This Court is of the view that a criminal breach of trust can only be there, if a person who is entrusted with a property dishonestly misappropriates or converts to his own use that property. There is no such allegation against these officials. Moreover, Section 430 is basically mischief by injury to works of irrigation or by wrongfully diverting water. Section 430 reads as under:- “430. Mischief by injury to works of irrigation or by wrongfully diverting water.—Whoever commits mischief by doing any act which causes, or which he knows to be likely to cause, a diminution of the supply of water for agricultural purposes, or for food or drink for human beings or for animals which are property, or for cleanliness or for carrying on any manufacture, shall be punished with imprisonment of either description for a term which may extend to five years, or with find, or with both.” 10. The word “mischief” has been defined under Section 425 of IPC, which reads as follows:- “425. Mischief.—Whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits “mischief”. 4 11. There is no such allegation against the public authorities of causing damage or wrongful loss to the public. Moreover, it has also been referred above that these public servants are protected under the provisions of law, which have already been stated above. The learned Chief Judicial Magistrate, Pauri Garhwal has not applied his mind to all these aspects before issuing summons to the present applicants. The entire exercise is a patent abuse of process of Court. It has been laid down by the Apex Court in State of Haryana Vs. Bhajan Lal 1992 SCC (Cri) 426 that in matters such as the present where the Chief Judicial Magistrate has not applied his mind while passing the summoning order, the Court must interfere under Section 482 of Cr.P.C. in order to prevent the abuse of process of law. 12. Therefore, in order to secure the ends of justice, it is necessary to set aside the entire proceedings in Criminal Case No. 333 of 2004 Uttam Singh Vs. J.S. Kushwaha and others. The same are accordingly hereby set aside. 13. The instant C-482 petition is allowed. No order as to costs. 14. The Registry is directed to send a copy of this order to the Court concerned for necessary compliance. (Sudhanshu Dhulia, J) 7.9.2010 Rathour