Sudhanshu Kumar v. The State Of Bihar & Ors.

see, prima facie, case justifying issuance of summons in terms of Section 204 of the Cr.P.C. 2

3. Now, assailing the order impugned, it has been submitted that learned lower court, virtually, crossed the barrier and dealt with the evidence in such a manner which is only permissible at the stage of trial. Hence, the order impugned is fit to be set aside.

4. Learned APP opposed the prayer and submitted that at least the learned lower court during course of conduction of enquiry under Section 202 of the Cr.P.C. is empowered to see whether the complaint is malicious one as well as it has been filed by way of revenge and personal vendetta. After all, false and frivolous complaint should not be encouraged.

5. Petitioner, as is evident is posing himself to be a law abiding citizen, filed a complaint case bearing no. 232/2010 (Annexure-3) before the ACJM, Patna City against O.P. No.2 without specifying the date of occurrence. From perusal of the same, it is evident that place of occurrence has been shown as Government press, Gulzarbagh, Patna. Now coming to the averment of complaint petition, it is evident that petitioner himself is confused. For better appreciation the complaint petition is incorporated below:- Most Respectfully Sheweth: 1. That the complainant is a permanent resident of Gulzarbagh. Patna-7 and a responsible citizen of this country. 3

2. That the opposite party was posted as Deputy Superintendent, Press & Forms, Gaya from 2002 to October, 2007.

3. That the opposite party was transferred to Government Press, Gulzarbagh, Patna in the month of October, 2007.

4. That in the month of February, 2007 Deputy Secretary, Finance Department notified the Sub Divisional Officer, City-cum- Disbursement Officer (D.D.O) for Government Press, Gulzarbagh, Patna. Patna

5. That in the month of October, 2007 when the opposite party joined as Deputy Superintendent, Government Press, Gulzarbagh he was authorized vide letter no. 1527 dated 25.10.2007 to sign on all types of certificates of the press employees.

6. That in the year 2003 the opposite party was suspended and was directed to report at District Magistrate’s Office, Confidential Section, Gaya and after his suspension was recalled he took charge as Deputy Superintendent, Headquarters, Press & Forms, Gaya without being given relieving letter from DM’s office.

7. That the opposite party was transferred to Government Press, Gulzarbagh, Patna but despite his non-attendance during his suspension period, he withdrew Rs. 85001/- through Letter No. 212(04-05), Rs. 24331/- through Letter No. 90(05-06) and Rs. 37,980/- through Letter No. 163(05-06) of his suspension period without proper authorization by the higher authorities of his own department with malicious intention and thereby cheated and caused wrongful loss to his department and wrongful gain to himself.

8. That the opposite party was transferred in the month of October, 2007 but without being relieved from Press & Forms, Gaya he joined at Government Press, Gulzarbagh, Patna on 15.10.2007 and when he was informed by the higher authorities that he is still not relieved from Press & Forms, Gaya how he joined at Patna headquarter then he again joined on 17.10.2007.

9. That when the opposite party was posted at Press & Forms, Gaya he siphoned a sum of Rs. 4 160000/- which was detected by the Sub Divisional Officer-cum-Superintendent, Gaya and his salary was withheld by an order vide Letter No. 931, dated 07.03.2008 till recovery of entire amount.

10. That later on his salary was resumed but an order was passed by the Superintendent, Press & Forms, Gaya that a sum of Rs. 10000/- is recovered so remaining amount of Rs. 150000/- should be recovered by deducting Rs. 1000/- per month from his salary.

11. That opposite party by himself without taking permission or any authority by the department he made manipulations in his own Salary Slip which might have suited his interest best.

12. That earlier an FIR No. 83/03 dated 27.03.2003 was filed against the opposite party under Sections 420, 419, 467, 468 and 471 of the Indian Penal Code by the then Deputy Superintendent, Government Press, Gulzarbagh, Patna when the opposite party was posted in Press & Forms, Gaya which was found to be true by the investigating officer.

13. That not even that but the then Director Press-cum-Deputy Secretary also made a negative remark through Letter No. 776/2007 regarding the unauthorized non-attendance of the opposite party as well as for not vacating the quarter of Superintendent, Government Press, Gulzarbagh, Patna after several months of his transfer to Press & Forms, Gaya.

14. That the list of fraud practices of the opposite party did not stop here rather while he was posted as Deputy Superintendent, Press & Forms, Gaya he siphoned Rs. 40,000/- which was deposited as security money by Mr. Rajeshwar Prasad, Waste Paper Merchant, Birla Mandir Road, Patna through Receipt No. S-472890 dated: 28.03.2006.

15. That the opposite party was not authorized as Drawing Disbursement Officer (D.D.O) through Letter No. 1212 dated 27.10.2009 of Superintendent, Government Press, Gulzarbagh, Patna but still the opposite party approved loan applications of the employee by taking and making considerable monetary benefit amounting to an offence of bribery too. 5

16. That the above mentioned conducts of the opposite party completely come and punishable under Sections 420 and 406 of the IPC.

17. That none of the acts and actions of the opposite party was in discharge of any official duty hence no sanction for his prosecution is required under law. It is, therefore, prayed that your lordship may kindly be pleased to take cognizance for the said offences or be pleased to send this complaint petition to the Alamganj Police Station for instituting an F.I.R. against the opposite party and by putting him on trial be also pleased to punish him. And for this, the complainant shall ever pray.

6. From perusal of the complaint petition in consonance with S.A. (Annexure-14), it is evident that his uncle Kameshwar Singh is a 4th Grade employee at the Government press is the resource person. He had further stated that occurrence is in between 2002 to 2010. He had also gone to say whereupon, the accused threatened him that he will be sent to jail. He had further stated that accused got the work done of the persons who paid him the graft. He threatened his uncle saying that he will be ousted from the service. His uncle was suspended. He had gone to file a case before the police but the police said that go and file the case in court. In para-5 of Court question, he had disclosed that accused had misappropriated salary of his uncle but he is unable to detail the same.

7. PW-1 is Kameshwar Singh, uncle of the complainant 6 who had stated that irregularity had been committed by Arun Kumar Singh. He had embezzled Government money. In the year 2003, Arun Kumar Singh was suspended and during course thereof, he was directed to report to Confidential Section of District Magistrate, Gaya but he did not report there for a single time. In the year 2007, Arun Kumar Singh was transferred to Gulzarbagh. After joining there, Arun Kumar Singh began to torture him. He was entrusted with night duty. His attendance was cut. He was transferred to Gaya. He was not given T.A. He had gone to Arun Kumar Singh with these problems but Arun Kumar Singh did not pay heed to him. He had also gone to SDO who shown his helplessness. The accused is also teasing others so that he should earn money by illegal means. He was divested with the power of Drawing And Disbursing Officer. Even then, he had withdrawn money. He was demanding illegal money to facilitate loan from the bank. During cross-examination, he had admitted that he was departmentally prosecuted. He had further admitted that salary was paid to him by Superintendent. He further said that one month’s salary is still withheld.

8. PW-2 is Naresh Prasad who had stated that the accused misbehaved with Kameshwar, uncle of complainant. He had stopped salary of 2009 and demands money for the same. He 7 had also stopped his increment for July, 2009. In October, he had stopped salary. He had demanded money. He had also misbehaved with him. The occurrence is of the year 2003 till today.

9. From the complaint petition, it is evident that accused has joined in October, 2007 at Gulzarbagh Press and was vested with power of Drawing and Disbursing Officer. It is also evident that before joining at Gulzarbagh, he was posted at Gaya where some sort of Criminal Offence was committed by him and on account thereof, FIR No. 83/2003 was lodged against him. With regard to any sort of occurrence having been committed at the end of proposed accused attracting criminal offence is neither made out in the complaint petition nor is coming out from the statement of the witnesses including the complainant.

10. The Court should not be made tool at the hands of unscrupulous litigants for the satisfaction of personal grudge and vendetta or be a party during course of revengeful action. The aforesaid theme has been identified by the Hon’ble Apex Court in the case of Punjab National Bank & Ors. v. Surendra Prasad Sinha, AIR 1992 SC 1815 under paragraph-5 which is as follows:-

5. It is also salutary to note that judicial process should not be an instrument of oppression or needless harassment. The complaint was laid impleading the Chairman, the Managing Director of 8 the Bank by name and a host of officers. There lies responsibility and duty on the Magistracy to find whether the concerned accused should be legally responsible for the offence charged for. Only on satisfying that the law casts liability or creates offence against the juristic person or the persons impleaded then only process would be issued. At that stage the Court would be circumspect and judicious in exercising discretion and should take the relevant facts and circumstances consideration before issuing process lest it would be an instrument in the hands of the private the persons complaint as vendetta needlessly. Vindication of majesty of justice and maintenance of law and order in the society are the prime objects of criminal justice but it would not be the means to wreak personal vengeance. Considered from any angle we find that the respondent had abused complaint against all the appellants without any prima facie case to harass them for vendetta. the process and to harass

11. True it is, at the stage of conduction of enquiry under Section 202 of the Cr.P.C. the purpose is to trace out a prima facie case from the statement of witnesses whoever been examined during said course before issuance of summon in terms of Section 204 of the Cr.P.C. Presence of prima facie case denotes the quality of the evidence which on its face made out a case pin pointing the accused which could justify taking of cognizance of offence leading to summon of accused to face trial. That means to say, the Magistrate has to see firstly, the nature of offence which coming out from the material on record. Then and then only, the culprits are to be identified which is 9 conclusive judicial finding right from Raghuvansh Dubey’s case. When neither the complaint nor from the statement of witnesses, any case is made out, then in that event, the issuance of process will be nothing but miscarriage of justice which should not be given patronage as has been held in a decision AIR 1992 SC 604 State of Hariyana & Ors. v. Bhajan Lal & Ors. by identifying such classification:- “(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code. (3) Where the uncontroveretd allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, on investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that 10 there is sufficient grounds for proceedings against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceedings is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”

12. After going through the materials as referred above, it is evident that neither from the averments of the complaint nor from the statement of the witnesses any sort of criminal offence is made out.

13. Consequent thereupon, the instant petition lacks in merit and accordingly, is rejected. (Aditya Kumar Trivedi, J) Patna High Court September 24th 2013 Md.Perwez Alam/AFR