GIRIJA PRASAD @ GIRISH PRASAD Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) THE petitioners have filed the instant application invoking powers of this Court under Sec. 482 of the Code of Criminal Procedure for quashing the entire proceeding as also the order dated 9.3.2006 passed by Sri Vijay Kumar, Judicial Magistrate, 1st Class, Koderma in complainant Case No. 68 of 2006 whereby summons were ordered to be issued against the petitioners directing them to appear and face trial for the offence under Sections 323, 420, 408 and 504.

(2.) FACT of the case in brief is that the opposite party No. 2 - complainant Subhash Yadav filed a petition of complaint before the Court of Chief Judicial Magistrate, Koderma against the petitioners and another accused namely, the Block Development Officer, Chandwara Block (accused No. 3). Allegations in the complaint are that the complainant being an agriculturist and social worker, on being informed that a scheme was floated by the Government through the Department of R.E.O., Road, for laying a morum road connecting the village Jamkatti to village Pokdanda at a cost of Rs. 6.00 lakh, the complainant approached the local Block Development Officer with a request to allot him the. He was directed by the B.D.O. on 16.1.2006 to contact the present petitioners who were employed at Chandwara block as Head Clerk and Head Assistant respectively. The petitioners on being so approached by the complainant, are alleged to have demanded commission of 6% of the total estimated amount from the complainant and had even threatened to cancel the work. The accused persons had allegedly demanded advance payment of the commission amount and accordingly, the complainant met both the accused persons at their office on 18.1.2006 and in presence of witnesses, paid a sum of Rs. 30,000.00 to both of them. After having received the amount, both the petitioners advised the complainant to call for a meeting of Gram Sabha for selection of agent to execute the job. Meeting of Gram Sabha was held on 18.1.2006, but for some reason, the nomination of an agent could not be made and further meeting for the said purposes were postponed sine die. Realizing thereafter that the allotment of the construction work was not likely to be made to him in the near future, the complainant approached the petitioners on 6.2.2006 with a request to refund his amount. The petitioners called him on the next date, but he was again sent back and asked to come later and meet them at Ranchi -Patna Road. When the complainant met them at about 5.00 p.m. in the evening on the following day, both the accused persons not only refused to return his money but had also indulged in abuses and manhandling. The complainant has claimed that the accused persons by making dishonest misrepresentation had induced him to part away with his money and had caused wrongful loss to the complainant.

(3.) PETITIONERS have assailed the aforesaid order of the learned inquiring Magistrate basically on the ground that the order is thoroughly bad on account of the fact that it was passed without application of judicial mind and without considering the fact that even considering the allegations in its entirety, no offence whatsoever is made out against the petitioners. Learned Counsel for the petitioners submits that the impugned order of the learned Court below amounts to abuse of the process of the Court and perpetrates gross injustice to the petitioners, since the learned Court below has failed to appreciate that admittedly the petitioners happen to be the Head Assistant and Assistant of the Block Development Officer, Chandwara and in their respective capacities; they are not competent to allot the road construction work under the scheme to any particular individual since as per guidelines of the scheme, the work was to be allotted only to the beneficiary committee constituted at the meeting of the Gram Sabha of the village and in fact, it is the beneficiary committee which is supposed to execute the road construction work within its village. Learned Counsel explains further that the learned Court below has failed to consider that even as admitted by the complainant, meeting of the beneficiary committee of the village was held on 18.1.2006, but the complainant had failed in his attempt to get the work allotted in his favour. Furthermore, the learned Court below ought to have taken into consideration the fact that the complainant was bearing ill motive against the petitioners, since he wanted to take revenge against them and against the Block Development Officer (accused No. 3) for their having forwarded a report to the Deputy Commissioner, Koderma against the two witnesses of the complainant named in the complaint petition for misappropriation of Government money. Learned Counsel adds further that the instant complaint case, as filed by the complainant, is nothing but a malicious prosecution launched with revengeful motive against the accused persons. Another ground advanced by the learned Counsel is that admittedly, petitioners are Government servants and the allegation levelled against them being connected with discharge of their official duty, sanction for prosecution ought to have been obtained from the State Government under Sec. 197, Cr PC, but no such sanction was obtained and therefore, cognizance as taken by the Court below against the petitioners for the aforesaid offences, is bad in law and, the entire proceeding is liable to be quashed. Learned Counsel refers in this context to a judgment of the Apex Court Ramesh Kumar Mishra V/s. State of Bihar, 2006 2 JLJR 96.