CRIMINAL MISCELLANEOUS No.11622 OF 1999 -------- In the matter of an application under section 482 of the Code of Criminal Procedure. -------- Parmeshwar Singh son of Late Raja Singh, resident of M.I.G. 277, Lohiya Nagar, P.S.- Kankerbagh, District- Patna ……. …….Petitioner Versus THE STATE OF BIHAR …… ……Opp.Party. -------- For the petitioner: Mr.Ashwani Kumar Singh, Sr.Advocate Mr.Dhananjay Kumar and Mr.Pankaj Kumar Singh For the State : Mr. A.M.P.Mehta, Addl. P.P. -------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR ----- Rakesh Kumar,J. The sole petitioner, while invoking inherent jurisdiction of this court under section 482 of the Code of Criminal Procedure, has prayed for quashing of an order dated 22.4.1999 passed by Sri Arvind Kumar Srivastava, Judicial Magistrate, 1st Class, Patna in Kotwali (S.K.Puri) P.S. Case No.1108 of 1984, whereby the learned Magistrate has rejected the petition for discharge filed on behalf of the petitioner. 2. Short fact of the case is that on the basis of written application submitted by one Jamuna Singh, the District Agriculture Officer, Patna to the Officer Incharge of Pataliputra Police Station, a first information report vide Kotwali (S.K.Puri) P.S. Case No.1108 of 1984 was registered for the offences under sections 409, 420, 468 and 471 of the Indian Penal Code against four accused persons. It was disclosed by the informant that on the order of Agriculture Production Commissioner, Joint Director of Plant Protection, Bihar, Patna, Shri C.S.Rai, the informant did 2 physical verification of Insecticides of Plant Protection Centre, Mainpura. During physical verification, besides the informant Shri C.S.Rai, D.P.Choudhary, Assistant Director, Plant Protection, Patna, Shri Ram Charitra Prasad, Assistant Director, Agriculture, Planning, Patna Division, Patna and Shri Sakaldeo Thakur, Junior Plant Protection Officer, Patna were also present. The verification report was sent to the Government on 28.7.1984. It was further alleged that during physical verification of the stock, value of pesticides were found short for an amount of Rs.11,39,435.86. The said amount was embezzled by the then Plant Protection Officer, Mainpura, namely, Muneshwar Prasad. It was further disclosed that accused- Muneshwar Prasad had also sold pesticides during the year 1983-84 and 1984-85 on 50% subsidy to the tune of Rs.18,84,173.47. This amount had been defalcated by him. This was sold because Mainpura Centre had got no sanction to sell insecticides on 50% subsidy or on special discount. The list of pesticides sold on 50% subsidy or on special discount without permission was enclosure -2 to the first information report. The allegation was that accused- Muneshwar Prasad sold the pesticides on full payment and falsely showed to be sold on 50% subsidy and on special discount and he grabbed the whole money. It was further disclosed that accused Muneshwar Prasad, had also received pesticides of Rs. 3,90,364.67 during 1983-84 and sold the same while he was posted at Mokamah Tal Plant Protection Centre. Out of this amount he deposited only Rs. 14,480.00 to the BISCOMAUN Depot, Mokamah. The rest of the money Rs. 3,75,904.67 was alleged to have been grabbed by 3 accused Muneshwar Prasad. It was said that he had been helped by Depot Manager in supply of pesticides without the order of the competent authority. The FIR also disclosed that the cash book was found written till 25.3.1984 but the total of the same had not been mentioned. A sum of Rs. 5,36,997.29 had been shown as balance in entries of 22.3.1984 only a sum of Rs. 2,01,000/- had been deposited with BISCOMAUN Depot, Maharajganj on 23.3.84. It was alleged that accused Muneshwar Prasad had grabbed Rs. 3,35,397.29. As per first information report accused Muneshwar Prasad, on the basis of letter no. 2493 dated 28.2.1984 issued to Depot Manager, Maharajganj and Danapur by Special Officer, Ajay Pratap Singh, sold damaged and sub standard Dithane M-45 on 25% subsidy to farmers but sale of damaged Dithane M-45 was contrary to the Insecticides Act. The BISCOMAUN did not inform the licencing authority and Joint Director, Plant Protection and hence violating the provisions of the Act, farmers were supplied with sub standards medicine. It was further alleged that records of accused Muneshwar Prasad had not been seized. It was also apparent from letter no. 869 dated 1.8.1984 issued from the office of Director, Agriculture and letter no. 78(c) dated 28.7.1984 and letter no. 102 (c) dated 13.8.1984 issued from the office of Joint Director, Agriculture Office, Plant Protection that the records were being updated. As per the first information report, accused Muneshwar Prasad, the then Plant Protection Supervisor, had misappropriated amount worth Rs. 31,99,918.80 by playing foul in pesticides deal besides he had not furnished account of cash book balance of Rs. 3,55,977/- and had 4 violated the provisions of Insecticides Act by selling damaged insecticides. 3. After lodging the first information report, the case was investigated and finally chargesheet was submitted under section 409, 420, 468, 471, 418 and 120-B of the Indian Penal Code and section 18 of the Insecticides Act against nine accused persons including the petitioner, who was, at the relevant time, posted as Assistant Director of Agriculture, Plant Protection (Survellian), Govt. of Bihar. 4. After the order of cognizance and when the case reached to stage of charge, a petition was filed by the petitioner as well as all the nine accused persons for their discharge. However, the petition for discharge of all the accused persons were rejected by the learned Magistrate by its order dated 17.06.1995. The said order of rejection of discharge petition was assailed by the petitioner by moving this court vide Cr. Misc. No.14972 of 1995. By order dated 19.12.1995 the said petition was disposed of and the court below was directed to dispose of the petition filed by the petitioner by a speaking order since the learned Magistrate without discussing any of the pleas of the petitioner or other accused persons, had rejected the discharge petition by a common order. After the order dated 19.12.1995 passed in Cr. Misc. No.14972 of 1995, the petitioner again filed a petition for discharge and thereafter by the impugned order i.e. the order dated 22.4.1999, the learned Judicial Magistrate, 1st class, Patna, again rejected the petition filed by the petitioner by giving some reason 5 5. Aggrieved with the order of rejection of discharge petition, the petitioner again moved this court by filing the present petition. Since on similar points one another case i.e. Cr. Misc. No.17566 of 1999 was admitted for hearing, this Court by its order dated 09.02.2000 admitted the present petition and directed that this application shall be heard along with Cr. Misc. No. 17566 of 1999. It was further directed that during the pendency of this application further proceeding in Trial No. 456 of 1990 arising out of Kotwali, S. K. Puri P.S. case no.1108 of 1984 pending in the court of Sri A. K. Srivastava, Judicial Magistrate, 1st class, Patna, shall remain stayed. The said order is still continuing. 6. Since order of discharge in Cr. Misc. No. 17566 of 1999 was passed on a different date, in the present case, though was taken up together, judgment is being passed separately. 7. Sri Ashwani Kumar Singh, learned Sr. Advocate, for the petitioner, while assailing the impugned order had raised several grounds. It was further submitted that the petitioner was not named in the First Information Report. However, during investigation, only on the plea that the petitioner had subsequently conducted an enquiry and not submitted report regarding irregularity or illegality in the entire affairs, the petitioner was made accused. Second limb of argument of the learned counsel for the petitioner was that the petitioner was a Class-I Govt. employee and in the present case without any prosecution sanction issued by the authority, the learned Magistrate has taken cognizance of the offence which is not permissible in law. Learned counsel for the petitioner 6 has further argued that almost on similar circumstances two other co-accused persons who were chargesheeted along with the petitioner had approached this court for quashing of the prosecution on the ground of absence of prosecution sanction. Learned counsel for the petitioner has referred to Annexure-7 to the petition i.e. copy of the order dated 24.09.1998 passed in Cr. Misc. No. 11863, 11036 of 1995. He has categorically submitted that only on the ground of non-availability of the prosecution sanction under section 197 of the Code of Criminal Procedure order of rejection of discharge petitions in respect of co-accused Deep Narain Ram and Yamuna Singh was set aside and they were discharged by this court. It was argued that the case of the petitioner on both the points are better than the case of the accused persons mentioned in Annexure-7 to the petition. Neither there were any cogent material nor even circumstantial evidence to connect the petitioner in the present case and the petitioner was Class-I Govt. officer, and, as such, sanction was must. In support of his stand, learned counsel for the petitioner regarding prosecution sanction he has referred to 2009(8) SCC 617 (State of Madhya Pradesh Vs. Sheetla Sahay & Ors.). Accordingly, it was prayed to set aside the order of rejection of discharge petition. It was further submitted that a detailed discharge petition was filed by the petitioner describing therein that neither in the case diary nor on record there were any evidence direct or indirect or circumstantial to connect the petitioner in the crime. Save and expect comment of the Superintendent of Police in the supervision note that the petitioner was entrusted with the enquiry prior to the institution of this case 7 and the petitioner in his ad interim report had said that till then there was no defalcation. In his defence, it was submitted that the petitioner was appointed to conduct an enquiry about the irregularities in the Mainpura Plant Protection Centre in respect of supply of insecticides and pesticides. He was also entrusted to enquire about the activities of the other centre working in the plant protection department. The said period was varied from 1976-77 till the date of order dated 08.08.1984. It was pleaded that documents were voluminous and covering several years he started enquiry. In the meanwhile, on 23.08.1984 the petitioner was asked to submit ad interim report within 24 hours so that the high officials may be informed. Till date he had collected materials only in respect of cash deposit regarding insecticides and pesticides and, as such, he submitted report that Muneshwar Prasad (FIR named and charge sheeted accused) paid Rs.114893.02 to Biscomaun and till the date of submission the materials which were sent by him there were no defalcation. He further mentioned in the interim report that without examining the stock register, supply register and other relevant documents it will be difficult to come to the conclusion regarding defalcation. It was submitted by learned counsel for the petitioner that in such a situation the report submitted by the petitioner may not be considered as material even to create suspicion regarding commission of offence by the petitioner. He further submitted that the petitioner while filing the discharge petition had also taken specific plea of prosecution sanction but the learned Magistrate while rejecting his petition for discharge has not at all whispered 8 regarding non-availability of prosecution sanction. On the aforesaid ground the prayer has been made to set aside the impugned order. 8. Mr. A.M.P.Mehta, learned Additional Public Prosecutor appearing on behalf of the State has vehemently opposed the prayer of the petitioner. It was submitted that the case was thoroughly investigated and thereafter charge-sheet was submitted. It was argued that it was a case of misappropriation of several lakh of the government fund and, as such, keeping in view the seriousness of the offence, this court may not interfere with the impugned order. 9. Besides hearing learned counsel for the parties, I have also perused the materials available on the record. So far as defence taken by learned counsel for the petitioner that there is no material against the petitioner in the case diary is concerned, the court is of the opinion that, while hearing a petition under section 482 of the Code of Criminal Procedure, this court may not conduct a roving enquiry, which is strictly prohibited and, as such, on the merit of this case, this court is not inclined to interfere. So far as second ground which has been taken that in absence of prosecution sanction the learned Magistrate was not required to proceed with the case of the petitioner particularly in view of the order passed in similarly situated co-accused is concerned, the court feels that there is some substance in the argument. From the annexure-3 to the petition which is a petition for discharge filed on behalf of the petitioner as well as from the pleadings before this court it is evident that the petitioner right from the very beginning had taken the plea 9 that without prosecution sanction under section 197 of the Code of Criminal Procedure, the learned Magistrate was not required to take cognizance of the offence so far as the petitioner is concerned. The petitioner was a Class-I government servant and in similar circumstance rejection of discharge petition of two co-accused namely, Deep Narain Ram and Jumuna Singh was quashed vide Cr.Misc. No.11863 of 1995 and Cr.Misc. No.10036 of 1995 respectively. Without going into detail the court is of the opinion that the petitioner may not be denied the relief which has been granted to similarly situated accused persons in absence of prosecution sanction. 10. Accordingly, the order dated 22.4.1999 passed by learned Judicial Magistrate, Ist Class, Patna in Kotwali (S.K.Puri) P.S.Case No. 1108 of 1984 so far as petitioner is concerned, is hereby set aside and the petition stands allowed. Patna High Court The 31st January,2011. Md.S./NAFR ( Rakesh Kumar, J.)