BHAGWAN MAHARAJ Vs. STATE OF BIHAR

JUDGEMENT

(1.) -On the 31st of May, 1966, one Bhubneshwar Prasad Singh (opposite party No. 2 ) filed a petition of complaint before the Subdivisional Magistrate, Begusarai. It was alleged that one Borhan Singh entered into a contract with the Indian Oil Corporation Limited, Barauni, for the construction of a peripheral road. The complainant worked as a partner of Borhan Singh in some of the contracts and at places acted as his representative. The work was completed on the 16th of December, 1965. R. L. Saini (another accused in the case) was engineer assistant. He took measurement of the work done under the contract and entered it in a book called measurement book. The measurement book was submitted to the petitioner, who was Assistant Engineer, on 2nd February, 1966, along with a bill of Rs. 14,426 Borhan Singh accepted the bill for the above amount on the 8th February, 1966. The complainant had paid some money in cash to the petitioner which the letter required for paying the price of some land. He had also supplied him bricks etc., for the construction of a house. The complainant requested the petitioner to forward the bill to the Executive Engineer but the matter was put off for quite some time on one reason or the other. On the 16th of February, 1966, the complainant made his last request to the petitioner to farward the bill. The petitioner asked the complainant to issue him a receipt for Rs. 3,000, showing that the latter had received back his dues on account of the building materials and the cash advanced to the petitioner. The complainant refused. The petitioner thereupon became furious and threatened the complainant that he would detain the bill and reduce the amount. The complainant placed the matter before Shri N. L. Vishwakarma, the then Executive Engineer. Then the petitioner fixed up a date for rechecking at the site but did not turn up, although Borhan Singh waited there for the whole day, Borhan Singh then wrote a letter to the Chief Engineer in this connection. The Executive Engineer held an inquiry and during inquiry it transpired that the petitioner, in league with the engineer assistant R. L. Saini, had made cuttings and interpolations in the measurement book dishonestly reducing the amount of work done under the contract and the amount of the bill which the contractor was entitled to get for the work done by him. The complainant charged the petitioner and R. L. Saini with making forgery in the measurement book and thereby reducing the bill for the work done, causing wrongful loss to the contractor.

(2.) The learned Subdivisional Magistrate sent the petition of complaint to the police with a direction to institute a case on the basis of the complaint and submit final form after investigation. While the final form was still awaited, the complainant filed a petition of protest A final report was submitted by the Police with a note "case mistake of law under section 466/467". Again, a protest petition was filed by the complainant. This was treated as a complaint. The complainant was examined on solemn affirmation and the matter was referred to a Magistrate for inquiry. After recording evidence of the witnesses, the learned Magistrate submitted a report saying that no prima facie case had been established. The petition of complaint was thereupon dismissed. The complainant moved the learned Sessions Judge in revision who upheld the order of the Subdivisional Magistrate. The complainant then came up to this Court. The order of the Subdivisional Magistrate dismissing the complaint was set aside by this Court and tho case was sent back to the Chief Judicial Magistrate with a direction that he should go through the petition of complaint and the statement made on solemn affirmatian and try to find out whether a prima facie case for summoning the accused persons in respect of the offences alleged was made out or not. Tho High Court in its order stated that if the Chief Judicial Magistrate thought it necessary, he could hold an inquiry under section 202, Code of Criminal Procedure, himself on behalf of the petitioner, the question of sanction had also been raised and the High Court directed the Chief Judicial Magistrate to apply his mind to this question and pass orders in accordance with law. When the matter came to the Chief Judicial Magistrate, he examined the witnesses on behalf of tho complainant. A report said to have been submitted by the Executive Engineer after inquiry was also brought on the record by the complainant The Chief Judicial Magistrate perused the materials (the petition of complaint, the statement of the complainant on solemn affirmation and other materials brought on record by the complainant) placed before him. He also heard learned Counsel on behalf of the complainant and the petitioner on point of sanction, He came to the conclusion that the materials placed before him provided sufficient ground to proceed against the petitioner for the offences alleged against him. He held that the acts done by the petitioner could not be said to have been done in the discharge of his duty as it was no part of his duty to bring about changes in the measurement book "unwarrantedly and actuated by malice". On th point of sanction, therefore, he held that the Court Was not debarred from taking cognizance of the offence.

(3.) The point raised in support of the present application by Shri Balbhadra Prasad Singh is that in absence of sanction under section 197 of the Code of Criminal Procedure, the petitioner being a public servant could not be prosecuted. The admitted position in the case is that no sanction was obtained by the complainant under section 197 of the Code for prosecuting the petitioner. The point for consideration, therefore, is whether on the facts and in the circumstances of this case a previous sanction under section 197 of the Code is necessary before cognizance of the offence could be taken.