Allahabad High Court: In an application for revision filed under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (‘CrPC’), the State challenged the validity of the order of the Chief Judicial Magistrate(‘CJM’) issued in Ram Pratap v Anup Kumar Singh1 which has been rendered unsustainable in law, Subhash Vidyarthi, J. said that the accused persons have acted in discharge of their official duty while committing the alleged offending acts, cognizance of which cannot be taken without previous sanction of the Government.
Facts
An application under Section 156(3) of the CrPC was filed by the complainant against the block development officer (‘BDO’) and the Village Panchayat Officer (‘VPO’) (‘revisionists’) alleging that the work of the construction of toilets was being carried out against the prescribed standards. Thereupon, separate enquiries were conducted by the Chief Development Officer, (‘CDO’) and the Sub-Divisional Magistrate, (‘SDM’), reports of which contained different findings. The complainant also got his own enquiry conducted by the VPO who thereafter submitted his application to the SDM. The VPO in her report stated that 511 toilets had been constructed whereas the enquiry report by the SDM stated that 150 toilets were incomplete and 40 had not been constructed and that the amount has been misappropriated in the name of constructing 511 toilets.
A complaint was also filed by the complainant alleging physical abuse and name calling at a public office against the accused persons
The CJM upon perusal of all the documents and Reports directed the Station House Office (‘SHO’) to register a case against appropriate persons in appropriate sections and submit a compliance report within seven days. Thereafter, a First Information Report (‘FIR’) was registered against the two accused under Sections 323, 504, 500 and 166 of the Penal Code, 1860 (‘IPC’).
Thereafter, the investigating officer submitted the final report in which no offence was made out against the accused persons. Consequently, a protest application was filed by the complainant against the final report alleging discrepancies in the investigation and that an offence under Section 409 of the IPC was also made out. against the accused persons..
The CJM Court while deciding upon the protest application said that the matter involved was that of embezzlement of public money, but the FIR was registered only for the offence of causing hurt, abusing, and defaming the complainant. The CJM, found that it was apparent that illegalities were committed in construction of toilets and when the complainant made enquiry regarding it, was beaten up, abused and disrespected. Thus, there was sufficient reason for taking cognizance of the offence under Sections 409, 323, 504, 500 of the IPC against the accused persons.
Analysis
The Court while rejecting preliminary objection of the complainant that the State Government has no locus standi to assail the validity of the impugned order, said that the State has an interest in protecting its officers from any frivolous prosecution launched without its sanction. Thus, it held that the State has the right to assail validity of the impugned order.
The Court while interpreting Section 197 of the CrPC cited Amod Kumar Kanth v Assn. of Victim of Uphaar Tragedy, 2023 SCC OnLine SC 578; Gauri Shankar Prasad v State of Bihar, (2000) 5 SCC 15 and State of Orissa v. Ganesh Chandra Jew, (2004) 8 SCC 40. The Court said that the abovesaid judgments aver that the object behind the Section is to be adjudged on a case-to-case basis and object of the Section is to save the officials but it is not a part of the policy to set an official above the common law. Further, it added that the action constituting the offence must have a reasonable and rational nexus with the official duties required to be discharged by such public servant.
Thus, the Bench clarified that all the aforesaid persons have acted in discharge of their official duty while committing the alleged offending acts, cognizance of which cannot be taken without previous sanction of the Government.
The Bench clarified the applicability of Section 409 of the CrPC in this case by showcasing that there needs to be a specific allegation of commission of some act which prima facie makes out the commission of the offence. The Bench added that there seems to be absolutely no factual allegation made in the complaint or in the protest petition and no material to prima facie establish ‘entrustment’ of any property to any of the accused persons or to the effect that any of them have dishonestly misappropriated or converted to his own use that property or have dishonestly used or disposed of that property in violation of any direction of law.
The Bench mentioned Section 190 (1) (b) of the CrPC to conclude that cognizance of offence by a magistrate can be taken upon a police report be filed with such facts, but in this case no offence took place, and that no such fact has been stated in the police report as may make out cognizance of any offence. In absence of the police having reported such facts, as make out commission of any offence, the CJM could not have taken cognizance of any offence under Section 190 (1) (b) CrPC. Thus, the order taking cognizance of offence under Section 190 (1) (b) of the CrPC was bad in law.
Concerning the allegation regarding embezzlement of money, the Court mentioned that the Village Panchayat Secretary had produced the digital diary of each of the toilets along with its beneficiary, which established that all the toilets had been completed and there is no reason to dispute the same.
With respect to the incident of beating and abusing, the Court accepted the alibi of the BDO on the basis of the log book of his official vehicle and with regard to defamation, the Bench remarked that the report did not bear the signature of the BDO, and it was not issued under his authority.
The Bench noted that entire application under Section 156 (3) CrPC had no mention of any embezzlement of public money and the only allegation was that of discrepancy in the two reports submitted by two different officers. The Court highlighted that the findings of the report by the CDO showed no embezzlement and that the date of the report of the SDM is not available on record and there is a possibility that the two reports mention the situation existing on two different points on time. It further added that besides stating that the matter involves embezzlement of public money, there are no particulars in the order as to who has committed the embezzlement of public money and in what manner.
The Court made special mention of that fact that the application under Section 156(3) of the CrPC did not make a mention of any specific offence committed by the accused persons nor was any specific offence mentioned in the order of the CJM, therefore there was no material for the CJM to justify cognizance of the offence under Section 190 (1) (b) of the CrPC and that it was merely on assumption but the Magistrate ought to have arrived at a prima facie satisfaction from a complaint or a police report or any information received from any person that such offence has been committed. The Court also remarked that, in this scenario, the CJM could have only passed an order for further investigation regarding the allegation.
The Court said that the offences punishable under Sections 323, 504 and 500 of the IPC are non-cognizable offences, therefore, only a complaint can be registered in respect of those offences and that the CJM has acted illegally in directing trial of the accused persons for the aforesaid offences as a State’s case. Further, a failure to register an offence under Section 409 would not be an offence under Section 166-A IPC, therefore, it cannot be concluded that the SHO has not obeyed the orders of the CJM.
The Bench while stating that there were patent illegalities in the order of the CJM which warranted interference by this instant Court, allowed the revision of the impugned order.
[State of UP v. Chief Judicial Magistrate Barabanki, 2024 SCC OnLine All 644, Order dated 07-03-2024]
Advocates who appeared in this case :
For the Revisionist: Government Advocate
For the Opposite Party: Advocate Dinesh Kumar, Advocate Dharmendra Singh, Advocate Krishna Gopal
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1. Misc. Application No. 717 of 2021.
