PARMESHWAR SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) 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 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 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 violated the provisions of Insecticides Act by selling damaged insecticides.

(3.) 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 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 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 regarding non-availability of prosecution sanction. On the aforesaid ground the prayer has been made to set aside the impugned order.