Every Dereliction Of Duty Not A Case Of Trial: Allahabad HC Sets Aside Barabanki CJM’s Order Taking Cognizance Of 'Criminal Conspiracy' Against CDO, SP In Alleged Public Toilets Scam

The pertinent matter evolved around allegations of embezzlement of public money related to the construction of toilets in a village. The complainant, a former Village Pradhan, filed a complaint alleging substandard construction work and subsequent mistreatment by certain officials.

A Bench of Justice Subhash Vidyarthi, Lucknow Bench while taking note of the material placed before it, observed, “In the present case, no such material was available before the C.J.M. as would warrant taking cognizance of any offence. In case the C.J.M. was not satisfied with the police report, he could only have passed an order for further investigation regarding the allegations… It appears that the Magistrate has passed the impugned order having been swayed by the impression created by the complainant that some illegalities had been committed in construction of toilets. However, every dereliction of duty would not make out a case of trial, unless the essential conditions for initiating the trial are fulfilled and the C.J.M. has not taken care to examine whether the essential ingredients of the offence and other prerequisites for taking cognizance are fulfilled or not”.

The bench noted that the all the persons acted in discharge of their official duty while committing the alleged offending acts and the cognizance of the act committed by them, even if it amounted to an offence, could not have be taken without previous sanction of the Government.

Additional Advocate General Vinod Kumar Shahi assisted by AGA-I Anurag Verma appeared for the State-revisionist and Advocates Dinesh Kumar, Dharmendra Singh, Krishna Gopal appeared for the opposite party.

In the present matter, the State in revision filed under Section 397/401 CrPC had challenged the validity of an order passed by the Chief Judicial Magistrate, Barabanki whereby while deciding a protest application filed by the opposite party no.2 against a final report submitted by the Investigating Officer, the trial court while accepting the protest application, rejected the final report and taken cognizance of offences under Sections 323, 504, 500 and 166 I.P.C. allegedly committed by the persons named in the FIR.

The Court at the same time had taken cognizance of offence under Section 120-B I.P.C. against the then Chief Development Officer, the then Superintendent of Police and the Investigating Officer/SubInspector of Police. Cognizance of offence under Section 166-A I.P.C. was also taken against the then Station House Officer.

The CJM accepted a protest application against a final report filed by the opposite party in a case involving allegations of assault and defamation. The CJM criticized an administrative enquiry conducted by the Chief Development Officer (C.D.O.) after the filing of the First Information Report (F.I.R.), deeming it as improper interference in the criminal case.

The complainant in the matter had given a complaint to the District Magistrate alleging that the work of construction of toilets was being carried out in the village against the prescribed standards.

Pursuant to which, the CJM, Barabanki in an application under Section 156 (3) Cr.P.C passed an order stating that from the facts, circumstances and documents available, the matter appears to be of embezzlement of public money, which prima facie appears to be a cognizable offence.

However, the Investigating Officer submitted a final report stating that from the statement of the complainant, statements of some independent witnesses and from the report submitted by the C.D.O., Barabanki as well as the statement of one of the accused persons no offence was made out.

Thereafter, the complainant had then filed a protest application against the final report. Whereupon, the CJM had found that from the statement of the complainant recorded under Section 161 CrPC and other documentary evidence, it was apparent that illegalities were committed in construction of toilets and when the complainant made enquiry regarding it, he was beaten up, abused and disrespected. Therefore, there was sufficient reason for taking cognizance of the offence under Sections 409, 323, 504, 500 I.P.C. against the named accused persons.

However, taking note of the factual aspects, the Single Judge Bench of the High Court was of the opinion that “For taking cognizance of the offence under Section 409 I.P.C. or for any other offences there should be a specific allegation of commission of some act which prima facie make out commission of the alleged offence. There appears to be absolutely no factual allegation made in the complaint or in the protest petition and no material to prima facie establish ‘entrustment’ of any property to any of the accused persons or to the effect that any of them have dishonestly misappropriated or converted to his own use that property, or has dishonestly used or disposed of that property in violation of any direction of law. Merely because the accused persons were holding some office, they cannot be tried for commission of any offence without any specific allegation of commission of any act on their part make out the ingredients of the offence”.

Accordingly, while holding that the continuance of prosecution on the basis of such an order would clearly be an abuse of the process of law, warranting interference by the Court, the bench allowed the revision and set aside the impugned order.

Appearances:

Revisionist: Additional Advocate General Vinod Kumar Shahi assisted by AGA-I Anurag Verma, the learned A.G.A.-I appearing on behalf of the State – Revisionist

Opposite Party: Advocates Dinesh Kumar, Dharmendra Singh, Krishna Gopal

Cause Title: State of U.P. v. Chief Judicial Magistrate Barabanki And Anr.

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