IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.15000 of 2007 REKHA DEVI @ REKHA KUMARI Versus STATE OF BIHAR & ANR ----------- For the petitioner : M/s. Md. Wasi Akhtar, Senior Advocate, Md. Anis Akhtar and Arif Siddiqui, Advocates. For the State : Jharkhandi Upadhayay, A.P.P. For O.P. No.2. : B.J. Ojha, Advocate. ---------- O R D E R The petitioner who alongwith another has been made to figure as accused in Complaint Case No.C-439 of 2005, has prayed for the quashing of the order dated 14.12.2005 passed therein by Sri S.N. Mishra, Judicial Magistrate, Sikrahana at Motihari, East Champaran, whereby he has taken cognizance under Section 420 I.P.C. against the petitioner and one other and has directed for issuance of summons. One Gita Devi, the complainant, impleaded herein as O.P. No.2 filed the aforesaid complaint, inter alia, alleging that she being a member of the Scheduled Castes has passed I.A. Examination and had applied for the post of Anganwadi Sevika in the village Panchayat Raj Madhubani where in Counter No.4 , one Anganwadi Sevika was to be appointed. From amongst the several applicants, the complainant was the most eligible person to be appointed on the said post. It is further alleged that in a general meeting held on 18.9.2004 in the Girls High School, Village-Madhubani Kala, Chiraiya, District-East Champaran, - 2 - the complainant was selected unanimously for appointment on Centre No.4 of Anganwadi Sevika. However, both the accused persons in connivance with each other with intention to destroy the papers did not issue the appointment letter of the complainant and instead letter for general female, namely, Anita Devi, had been issued although the complainant had better marks and qualification than the person appointed. All efforts to complain about the incident to the superior officers went in vain because no action was taken. After due inquiry under Section 202 Cr.P.C. where apart from the statement on S.A. of the complainant, five others, namely, Mahendra Bhagat, Lal Babu Singh, Kameshwar Singh, Lallan Singh and Chandradeo Singh, were examined and they have not fully supported the prosecution case. It has further been submitted that notwithstanding the same, the learned Magistrate took cognizance under Section 420 I.P.C. against the accused persons including the petitioner. It has been submitted on behalf of the petitioner that she is innocent, has committed no offence and has been falsely implicated in the present case on concocted and baseless grounds due to enmity and village politics. In this connection, it has been submitted that on 18.9.2004, a general meeting was held in the campus of the Girls High School in presence of officials including the petitioner who happens to be the Child Development Project Officer, Chiraiya in the District of East Champaran and several decisions were taken therein. So far as appointment of Anganwadi Sevika in Centre No.4 is concerned, the - 3 - unanimous decision of the general body was to appoint Anita Devi and in compliance thereof letter of appointment was issued to her and she joined on that post. The accusation of forgery has been denied which would find support from the proceeding book. It has further been submitted that by virtue of being the Child Development Project Officer the petitioner is a public servant and for her prosecution previous sanction of the competent authority was a prerequisite and that not having been taken such prosecution was not sustainable in the eye of law. It was also sought to be submitted that the complainant, Gita Devi, has already filed a writ application in the Patna High Court where she has challenged the validity of the appointment of Anita Devi as Anganwadi Sevika and the said application is pending. On this premise, it has been submitted that the petitioner could not pursue two remedies at the same time. The further submission on behalf of the petitioner was that from a plain reading of the complaint petition, no case under Section 420 I.P.C. can be said to have been made out as none of the ingredients of the offence of cheating was present. I have perused the complaint petition as also the deposition of the witnesses examined at the inquiry under Section 202 Cr.P.C. and from a perusal thereof, no offence under Section 420 I.P.C. can be said to have been made out against the petitioner. It is admitted principle of law that in case of cheating dishonest intention starts with the very inception of the transaction. - 4 - Therefore, a guilty intention is an essential ingredient of the offence of cheating. None of the witnesses have stated about the dishonest intention of the petitioner herein and in absence of such accusation an offence under Section 420 I.P.C. cannot be fastened on her. So far as obtaining of previous sanction for prosecution of the petitioner is concerned, there is no allegation against her of dereliction of her official duty. There is also no allegation against her of having violated the law in force in any manner whatsoever. In that view of the matter, so far as the petitioner is concerned, a previous sanction was indeed necessary before prosecution could be lodged against her. For the reasons stated above, there appears sufficient force in the submissions advanced by the learned counsel for the petitioner which the learned counsel for O.P. No.2 or the State has not been able to dispel or rebut. In the aforesaid circumstances, to my mind, the prosecution of the petitioner is an absolute abuse of the process of the court. Accordingly, the application is allowed and the impugned order taking cognizance, so far as the petitioner is concerned, is hereby quashed. (Abhijit Sinha,J) Patna High Court, Patna. Dated:The 17th of September, 2008. Pradeep Srivastava/A.F.R.