RAM BARAN Vs. STATE OF BIHAR

JUDGEMENT

(1.) Petitioner Ram Baran Ram has filed instant petition of writ asking for a relief for quashing of FIR of Gaunaha P.S. Case No.23 of 2009 arising out of Special P.S. Case No.25 of 2009 as well as Gaunaha P.S. Case No.01 of 2010. The shorn of unnecessary details, the facts of the case which are interrelated begins with filing of written report by Block Development Officer- cum-C.O. Gaunaha P.S. Case No.23 of 2009 before Officer-in-charge, Gaunaha disclosing therein that on the same day i.e. 25.06.2009 at about 03.:10 P.M. after getting confidential information with regard to realization of money from the Aaganbari Sebika illegally at the hands of Incharge Child Development Project Officer Smt Kusum Kumari, Head Clerk Ram Baran Ram, Peon Shashi Bhushan Tiwary and having been kept in a Almirah, she along with police personnel reached at the concerned office, got open the Almirah and found Rs.43750/- as well as a list comprising of three pages written in pen of Ram Baran Ram detailing the amount realized from the Aaganbari Sebika as well as mode of distribution. The seizure was video graphed and during said course Child Development Project Officer, Smt. Kusum Kumari had accepted regarding illegal realization of money from Aaganbari Sebika. The aforesaid written report let institution of Gaunaha P.S. Case No.23 of 2009 under Section 7/13(2) read with 13(1)(d) of P.C. Act and accordingly it has been renumbered as Special Case No.25 of 2009. Then thereafter, after removal of Smt. Kusum Kumari, Sefali Narayan came as successor-in-office. The staffs concerned on account of being an accused were absconding and then with the permission of the District Magistrate lock of Safe were broken and then inventory was made and during said course, loss of Rs.41440.20 paisa was detected for which on the written report of Sefali Narayan, Gaunaha P.S. Case No.01 of 2010 has been registered. It has been submitted on behalf of the petitioner that both the FIRs have been filed with malafide intention only to harass the petitioner along with others. Then submitted that the amount so seized in connection with Gaunaha P.S. Case No.23 of 2009 (Special 25/2009) happens to be the amount belonging to the Government which was kept in Almirah and on account of seizure of that very amount, the same has been shown as embezzled amount. As such, if the recovered amount is connected with Gaunaha P.S. Case No.01 of 2010, there happens to be no case of embezzlement of under Prevention of Corruption Act. It has further been submitted that neither the Block Development Officer was superior officer nor it has got authority to conduct raid. At the other hand, the Department happens to be under direct control of District Magistrate. Because of the fact that no instruction has been given by the District Magistrate to the B.D.O. therefore neither the BDO was competent enough to conduct raid and seized the amount on false pretext which happens to be the Government Money nor the FIR, could have been launched on his behest. Further submitted that none of the Aaganbari Sebika has come forwarded to say that money has been squeezed from them illegally. Not only this, it has further been pleaded that during course of Departmental proceeding conducted against Kusum Kumari it has been held that so alleged list, as disclosed in the FIR, to be prepared in pen of petitioner, has not been found to be in his pen. As such, once there happens to be positive finding during conduction of departmental proceeding, he cannot be held liable for criminal prosecution. Also relied upon decisions P SIRAJUDDIN vs STATE OF MADRAS, 1971 AIR(SC) 520, STATE OF WEST BENGAL vs SWAPAN KUMAR GUHA, 1982 AIR(SC) 949

(2.) Lastly it has been submitted that when the prosecution is malicious, biased, malafide, there happens to be catena of judicial pronouncement as referred above that allowing the proceeding further more will be nothing but an abuse of process of court and so the same is liable to be quashed. It has further been submitted that the informant Indu Kumari herself possessed chequerred history and the act done at her behest, in the aforesaid background, is suggestive of the fact that she had intentionally filed the case for illegal gain, and to enable the same seized the government money. So the cumulative effect happens to be prosecution of petitioner in both the cases appears to be seer abuse of process of court and is accordingly liable to be quashed.

(3.) It has also been submitted that the government has forbidden its machinery to register a case against government official in routine manner rather the same should be registered only after taking prior permission from the head and for that relied upon Annexure-8.