Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Writ No.897 of 2011 ====================================================== Manoj Kumar Singh, S/o Late Shivji Singh, resident of villag-Sonbarsa, P.S.-Bairia, District-Balia, State U.P., at present Junior Engineer Tetabarmpur Block, District-Munger. .... .... Petitioner/s Versus 1. The State of Bihar. 2. The Secretary, Rural Development Department, Government of Bihar, Patna. 3. The District Magistrate, Siwan. 4. The Deputy Development Commissioner, Siwan. 5. The Sub-Divisional Officer, Siwan. 6. The B.D.O. Raghunathpur Block, P.O. & P.S.-Raghunathpur, District- Siwan. .... .... Respondent/s WITH Criminal Writ No.898 of 2011 ====================================================== 1. Gopalji Singh, aged about 45 years, Son of Late Ram Kripal Singh, Resident of Village-Panjwar, P.S.-Raghunathpur, District-Siwan. 2. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 3. Triloki Nath Ram, aged about 38 years, Son of Late Ganesh Ram, resident of village-Dighwalia Tola Katwar, P.O.-Dighwalia, P.S.- Raghunathpur, District-Siwan. 4. Sheonath Singh, aged about 55 years, Son of Late Raja Singh, resident of village-Gaphivar, P.S.-Raghunathpur, District-Siwan. 5. Manan Rajak, aged about 51 years, Son of Late Nagina Rajak, Resident of Village-Belwar, P.S.-Raghunathpur, District-Siwan. 6. Punaddeo Prasad, aged about 45 years, Son of Late Bhola Prasad, Resident of Village-Bishunpura, P.S.-Raghunathpur, District-Siwan. 7. Lal Bahadur Das, aged about 42 years, son of Late Rudal Prasad Das, Resident of Village-Harpur, P.S.-Raghunathpur, District-Siwan. 8. Yogendra Ram, aged about 42 years, Son of Sri Chandrika Ram, resident of Village-Nikhati Kalan, P.S.-Raghunathpur, District-Siwan. 9. Balmiki Singh, aged about 50 years, Son of Late Sri Bir Bahadur Singh, Resident of Village-Sanalki, P.S.-Raghunathpur, District-Siwan. 10. Rajendra Prasad, aged about 40 years, Son of Sri Ganesh Manjhi, Resident of Village & P.O./P.S.-Raghunathpur, District-Siwan. .... .... Petitioner/s Versus 1. The State of Bihar. 2. The Secretary, Rural Development Department, Government of Bihar, Patna. 3. The District Magistrate, Siwan. 4. The Deputy Development Commissioner, Siwan. 5. The Sub-Divisional Officer, Siwan. 6. The B.D.O. Raghunathpur Block, P.O./P.S.-Raghunathpur, District- Siwan. .... .... Respondent/s WITH 2
Legal Reasoning
Patna High Court CR. WJC No.897 of 2011 (10) 2 / 11 Criminal Writ No.908 of 2011 ====================================================== Ramadhar Yadav, S/o Briz Yadav, Resident of Village-Nadiyanva, P.S.- M.H. Nagar, Block-Raghunathpur, District-Siwan. .... .... Petitioner/s Versus 1. The State of Bihar. 2. The Secretary, Rural Development Department, Government of Bihar, Patna. 3. The District Magistrate, Siwan. 4. The Deputy Development Commissioner, Siwan. 5. The Sub-Divisional Officer, Siwan. 6. The B.D.O. Raghunathpur Block, P.O./ P.S.-Raghunathpur, District- Siwan. .... .... Respondent/s WITH Criminal Writ No.1114 of 2012 ====================================================== 1. Lallan Prasad Tiwari son of Late Ganesh Prasad Tiwari, Resident of village-Jarlati, Village Panchayat-Amkola, P.S.-Mohanpur, District- Gaya.
Legal Reasoning
2. Satyendra Narayan Singh son of Shri Ram Lakhan Singh, Resident of Village-Baliyari, Panchayat-Siriyawan, P.s.-Mohanpur, District-Gaya. 3. Ramjeet Prasad Yadav son of Late Bhuna Yadav, Resident of Village- Sinduar, Panchayat-Sinduar, P.S.-Mohanpur, District-Gaya. .... .... Petitioner/s Versus 1. The State of Bihar through the Secretary, Department of Food and Civil Supply, Government of Bihar, Patna. 2. The Secretary, Department of Rural Development, Government of Bihar, Patna. 3. The District Magistrate, Gaya. 4. Deputy Development Commissioner-cum-Chief Executive Officer, District Rural Development Authority, Gaya. 5. Deputy Development Commissioner, Gaya-cum-Chief Executive Officer, District Board Gaya. 6. Sub-Divisional Officer, Sherghati, District-Gaya. 7. Block Development Officer, Mohanpur, District-Gaya. 8. The Officer-in-Charge Police Station Barachati, District-Gaya. .... .... Respondent/s ====================================================== Appearance : (In CR. WJC No.897 of 2011, CR. WJC No.898 of 2011 & CR. WJC No.908 of 2011) For the Petitioner/s : Mr. Rajendra Prasad Singh, Senior Counsel For the Respondent/s : Mr. Ray Shivaji Nath, A.A.G.-III Mr. Ravi Shekhar Singh, Advocate Mr. Amarendera Kumar, Advocate (In CR. WJC No.1114 of 2012) 3 Patna High Court CR. WJC No.897 of 2011 (10) 3 / 11 For the Petitioner/s : Mr. Binay Kumar, Advocate. For the Respondent/s : Mr. S.P. Singh, G.A.-7. ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH C.A.V. ORDER 10 25-02-2013 These writ petitions have been heard together and are
Decision
being disposed of by a common order. 2. In Cr. W.J.C. No. 897 of 2011 and Cr. W.J.C. No. 898 of 2011, the petitioners are seeking quashing of Raghunathpur P.S. Case No. 96 of 2011 dated 12.8.2011 registered under Sections 406 & 409 of the Indian Penal Code, in Cr. W.J.C. No. 908 of 2011, the petitioner is seeking quashing of Raghunathpur P.S. Case No. 113 of 2011 registered for the offence punishable under Sections 406 of the Indian Penal Code and in Cr. W.J.C. No. 1114 of 2011, the petitioners are seeking quashing of Barachatti (Mohanpur) P.S. Case No. 437 of 2012 dated 19.10.2012 registered under Sections 420 and 409 of the Indian Penal Code. 3. The petitioners are P.D.S. Dealers. There is a common allegation in the FIRs in question that under Sampoorna Grameen Rozgar Yojna (for short „SGRY‟) and Food For Work scheme (for short „FFW‟), the P.D.S. Dealers were allotted rice. They lifted rice from the godown of the State Food Corporation as per the allotment issued by the District Rural Development Authority (For short “the DRDA”) and the P.D.S. Dealers had to 4 Patna High Court CR. WJC No.897 of 2011 (10) 4 / 11 distribute the rice amongst the beneficiaries/labourer of the scheme according to the advises issued by the Gram Panchayat / Panchayat Samiti / Zila Parishad. The undistributed and left over rice under the scheme remained with the dealers. They neither returned the rice nor returned the amount equivalent to the price of rice. The respondents proceeded under the Public Demand Recovery Act against the defaulting P.D.S. dealers and subsequently, as per the order issued by the concerned Deputy Development Commissioner, the concerned Block Development Officer instituted FIRs against the P.D.S. dealers. 4. A common argument has been advanced on behalf of the petitioners that the allegations made in the FIRs do not constitute a cognizable offence. 5. It has been contended on behalf of the petitioners that the schemes, such as, S.G.R.Y. and F.F.W. were started by the Central Government and were made over to the DRDA of the State for its implementation. The schemes were fully sponsored by the Central Government under which employment was provided to the rural unemployed and the wages were to be paid partly in kind of rice for the implementation of the scheme. The petitioners had no control over the rice and for the purposes of keeping those grains (rice), the shops of the petitioners were used. The rice was to be distributed by the respective Block Development Officers to 5 Patna High Court CR. WJC No.897 of 2011 (10) 5 / 11 the persons engaged in doing work under the scheme. 6. It has further been contended that the petitioners who are the licensees under the Public Distribution System Scheme (Control) Act, 2001, were entrusted with the work of storage, carriage and distribution of rice to the labourers on the permits which were to be issued by the implementing authorities. 7. It has also been contended that the petitioners had no motive to defalcate or misappropriate the rice in question. The dispute, if any, is of accounting and thus, it would be a dispute of civil nature for which no criminal prosecution would lie. 8. It has further been contended that the petitioners distributed the grains (rice) to the beneficiaries on the basis of permits issued by the authorities and if some quantities of rice remained undistributed due to non-issuance of permits and got wasted due to passage of over five years of time, the dealers who are acting on behalf of the State machinery only by way of charity, cannot be saddled with cost of the food grains wasted due to flux of time. 9. Learned counsels for the petitioners submit that the FIRs in question are vexatious, mala fide and oppressive in nature and, as such, they are fit to be quashed. 10. On the other hand, learned counsel appearing on behalf of the State submitted that it is not a simple case of civil 6 Patna High Court CR. WJC No.897 of 2011 (10) 6 / 11 dispute as argued on behalf of the petitioners. The purpose of the schemes was to create Job through Gram Panchayat / Panchayat Samiti / Zila Parishad in which, besides the cash, rice was also to be given as wages to the beneficiaries. The lifting of rice was to be done by the P.D.S. Dealers. The dealers were directed to bring the rice in their stock after lifting it from the godown of State Food Corporation and the dealers had distributed the rice. 11. Learned counsel has further submitted that pursuant to letter issued by the Rural Development Department, Bihar vide Letter No. 3391 dated 29.3.2011 and the Audit report, the concerned Deputy Development Commissioners directed the concerned Block Development Officers to recover the amount of undistributed rice under the schemes from the defaulting dealers. The concerned Block Development Officers issued notices to all the concerned P.D.S. Dealers including the petitioners, directing them to deposit the amount of undistributed rice in the Block Nazarat. The notices were properly served to the petitioners. However, the petitioners neither complied with the direction given to them nor produced any evidence of distributing the rice entrusted to them under the schemes. The petitioners were given sufficient opportunity to deposit the value of undistributed rice in the Block Nazarat but, they failed to do so. They neither returned undistributed rice nor deposited the amount in lieu thereof. 7 Patna High Court CR. WJC No.897 of 2011 (10) 7 / 11 12. Learned counsel further submitted that from the conduct of the petitioners it is apparent that they not only indulged in criminal breach of trust but also caused huge loss to the government exchequer which amounted to embezzlement. He further submitted that the petitioners were custodian of food grains as licensee dealers and it was their duty to maintain and safeguard the quality and quantity of the stock of food grain. 13. In reply learned counsels for the petitioners submitted that for the purposes of quashing the F.I.R., the allegations made in the F.I.R. only are to be considered. The materials collected in course of investigation are of no consequence as what is to be seen is as to whether the allegations made in the F.I.R. do constitute a cognizable offence or not. If no cognizable offence is made out from the F.I.R. the entire investigation by the police would be without jurisdiction. 14. In order to appreciate the above contentions, it is useful to refer to the definition and punishment of “Criminal Breach of Trust” and related provisions provided under Sections 405, 406 and 409 of the Indian Penal Code which reads as under:- “405. Criminal breach of trust.-Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of 8 Patna High Court CR. WJC No.897 of 2011 (10) 8 / 11 any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits „criminal breach of trust‟. 406. Punishment for criminal breach of trust.- Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extended to three years, or with fine, or with both. 409. Criminal breach of trust by public servant, or by banker, merchant or agent.- Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, punished with be imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.” 15. In the present case, admittedly, there is no dispute shall that the petitioners were entrusted with food grains (rice). The essential ingredients of the offence under Section 405 of the Indian Penal Code are as follows:- (i) Entrustment of property; (ii) Dishonest intention and (iii) Misappropriation or conversion in detriment of the person who entrusted it. 16. The actual manner of misappropriation, it is well 9 Patna High Court CR. WJC No.897 of 2011 (10) 9 / 11 settled, is not required to be proved by the prosecution. Once entrustment is proved, it is for the petitioners to prove as to how the food grains entrusted to them were dealt with in view of Section 405 of the Indian Penal Code. If the petitioners fail to account for the food grains supplied to them, the same would certainly attract the ingredients of the offence defined as criminal breach of trust and would be punishable under Section 406 of the Indian Penal Code. 17. In order to attract the ingredients of the offence of criminal breach of trust which attracts the provision of Section 409 IPC, the essential ingredients are as follows:- (i) the accused, a public servant or a banker or agent was entrusted with the property of which he is duty bound to account for; (ii) the accused has committed criminal breach of trust as defined under Section 405 of the Indian Penal Code. 18. In the present case, prima facie, it appears that the petitioners, being the P.D.S. Dealers under the P.D.S. (Control) Act, 2001, were entrusted with the food grains supplied by the Government. Thus, they acted as an agent to the Government for the purposes of distribution of food grains amongst the beneficiaries of the schemes. If they failed to account 10 Patna High Court CR. WJC No.897 of 2011 (10) 10 / 11 for the property entrusted with them, the ingredients of offence under Section 409 of the Indian Penal Code would also be attracted. 19. At this stage, it would be proper to deal with the argument advanced on behalf of the petitioners that for the purposes of quashing the FIRs any material collected in course of investigation are not to be considered. In my view, the contention is misconceived. 20. It is well-settled that a first information report is not an encyclopedia, which must disclose all facts and details relating to the offence. The question as to whether the report is true, whether it discloses full details regarding manner of occurrence whether there is sufficient evidence to support the report are all matters which can be collected in course of investigation. Even if, the information does not give full details regarding these matters, the investigating officer is not absolved of his duty to investigate the case and discover the true facts, if he can. Of course, the FIR should not be too sketchy or vague, yet not mentioning of the details and material particulars, is no ground to quash the FIR. The investigations, in these cases, are at advance stage. The materials collected in course of investigation shall be considered by the Magistrate concerned before whom the investigation agency would submit their report/reports. 11 Patna High Court CR. WJC No.897 of 2011 (10) 11 / 11 21. Having regard to the facts and circumstances of the case, I am of the view that the prosecution of the petitioners cannot be axed at the threshold. The matters need to be investigated. 22. Accordingly, these writ petitions are dismissed. 23. However, it is made clear that after the police/investigation agency submit their report/reports after conclusion of the investigation/investigations, the Magistrate concerned shall proceed to deal with the matter/matters further in accordance with law without being prejudiced in any manner by this order. (Ashwani Kumar Singh, J.) Sanjeet/-