VISHWANATH ROY Vs. STATE OF BIHAR

JUDGEMENT

(1.) Petitioner has filed instant petition with a prayer to quash order of cognizance dated 03.03.2005 passed by learned Chief Judicial Magistrate, Muzaffarpur in connection with Aurai P.S. Case No.59 of 2001 whereby and whereunder petitioner has been summoned to face trial for an offence punishable under Section 468,471,420,409 of the I.P.C.

(2.) Dr. Nageshwar Prasad Sinha filed a written report (Annexure-1) disclosing therein that the Civil Surgeon, Muzaffarpur has directed to institute a case vide Letter No. 1140 dated 27.07.2001 against the petitioner Vishwanath Roy, Pharmacist annexing therewith relevant documents. Contention on behalf of the petitioner is that he was appointed as compounder at Primary Health Centre Gomiya Hazaribagh and was accordingly communicated vide memo no.1872/Hazaribagh dated 05.09.1988 in pursuance of which he gave his joining. Thereafter he was transferred to Muzaffarpur district vide letter no.1218 dated 30.12.1989 and accordingly gave his joining. All of a sudden, his service was terminated vide Annexure-5 so communicated vide memo no.1140 Muzaffarpur dated 27.07.2001 against which petitioner along with others whose service was terminated in likewise manner, filed vide Cr. Misc. No.11611 of 2002, 4702 of 2003 and others by which the aforesaid termination letter was quashed. The State had preferred series of LPA bearing 259 of 2004, 946 of 2003 and so on which was decided in the back ground of principle laid down by the Hon ble Apex Court in connection with State of Karnataka Versus Uma Devi, 2006 2 PLJR(SC) 363. As the government remained ideal therefore MJC No.1739 of 2007 & others was filed wherein two kinds of appointment has been identified (a) irregular (b) illegal and for aforesaid purpose, one man committee was constituted.

(3.) The State during said course had submitted that the matter relating to petitioner is being verified and will be communicated with its result. Though the appointment of petitioner has been identified as irregular appointment and further has been directed to join but the said order was not at all communicated upon petitioner therefore petitioner on its own gave his joining on 28.4.2009. After his joining the Medical Officer, Incharge Primary Health Centre, Aurai had asked for specific direction from the Civil Surgeon vide letter no.262 dated 28.4.2009 whereupon the Civil Surgeon has communicated vide letter no.1297 dated 05-05-2009 directing the Incharge Medical Officer, Aurai PHC to act according to his own conscience, so that there should not be disregard to the order of the Hon ble Court passed in MJC No.1739 of 2007. Though the aforesaid joining letter has not been produced, but the petitioner is still continuing vide letter no.1 dated 2906.2009 Civil Surgeon has ordered for payment of salary. In the aforesaid background it has been submitted that continuity of criminal prosecution is not at all justified and accordingly, the order of cognizance is fit to be set aside.