Ajay Singh vs State of M.P.

R.C. Mishra, J.—This is a petition, u/s 482 of the Code of Criminal Procedure (for short ''the Code''). Petitioner is aggrieved by the order-dated 11.4.12 passed by Additional Sessions Judge, Bijawar, Distt. Chhatarpur in Cri. Revision No. 2/12, affirming the order-dated 29.11.11 passed by JMFC, Badamalehra in Cri. Case No. 466/11, whereby cognizance of the offences punishable under Sections 119 and 188 of the IPC was taken against him. In that case, -

(a) On 1.10.2011, learned Magistrate had taken cognizance of the offences punishable under Sections 420, 409, 467 & 468 of the IPC against Kamlesh Vanshkar and Prashant Bilthre, respectively the then Sarpanch and Secretary of Gram Panchayat, Mailwar upon the charge sheet submitted by SHO of P.S. Badamalehara after due investigation into the FIR lodged by the petitioner in his capacity as the Chief Executive Officer, Janpad Panchayat Badamalehara.

(b) On 10.10.2011, the date fixed for commitment of the case to the Court of Session, learned Magistrate directed Programme Co-ordinator of the Panchayat to produce the circular No. 1704/22/B-7/GRY/2007 dated 9.7.2007 observing that its placement on record was essential for trial.

(c) Ultimately, on 29.11.11, expressing the opinion that sufficient grounds existed to proceed against the petitioner as, being the Programme Coordinator and CEO, he had failed to discharge his duties as enumerated in the circular No. 8383/ 22/MNREGS/ MP/2007 dated 21.8.2007 and thereby, facilitated commission of the offences described in the charge sheet by the Sarpanch and Secretary, learned Magistrate issued notice requiring him to appear before the Court on 5.12.11.

Placing implicit reliance on decision of the Apex Court in Raj Kishore Prasad Vs. State of Bihar and another, , learned counsel for the petitioner has submitted that the order taking cognizance against the petitioner is without jurisdiction simply because in the State of Madhya Pradesh, the offences punishable under Sections 409, 467 and 468 of the IPC are exclusively triable by the Court of Session. According to him, even otherwise, the prosecution of the petitioner for the offences is an abuse of the process of the Court in view of the following facts -

(i) Under the scheme, a total sum of Rs. 42,36,058/- was allotted to the Gram Panchayat Mailwar for carrying out various development works.

(ii) The money was deposited directly in the Bank account of Panchayat and was withdrawn under joint signatures of the Sarpanch & Secretary whereas works done on behalf of Panchayat were valued by the Sub-Engineer at Rs. 12,46,224/-.

(iii) Letter dated 22.10.2009 (Annexure P/2) informing the SHO about information as to misappropriation of a total sum of Rs. 29,40,454/- was authored by him only.

Learned Panel Lawyer, however, pointed out that no interference under the inherent powers would be warranted as the case related to defalcation of a huge amount of public money.

Adverting to the legal aspects of the matter, it may be observed that in Raj Kishore''s case (supra), a two-Judge Bench categorically laid down that u/s 209 of the Code, the committing Magistrate has no power to take cognizance of an offence, triable by the Court of Session, against any person not named in the charge sheet but, as rightly held by learned ASJ, cognizance of the offences in question has been taken by the Magistrate in exercise of the power conferred u/s 190(1)(b) of the Code. To support the conclusion, he has made reference to a recent decision of the Apex Court in Dr. Mrs. Nupur Talwar Vs. C.B.I., Delhi and Another, , wherein following observations made by a three-Judge Bench of the Apex Court in India Carat Pvt. Ltd. Vs. State of Karnataka and Another, were relied upon -

The position is, therefore, now well settled that upon receipt of a police report u/s 173(2) a Magistrate is entitled to take cognizance of an offence u/s 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognisance of an offence only if the investigating officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, in exercise of his powers u/s 190(1)(b) and direct the issue of process to the accused..

Accordingly, when a charge sheet is submitted before the Magistrate, he may either accept the investigation report as it is and take cognizance of the offence mentioned and issue process against the person arraigned as accused, or may disagree with the report and take cognizance of any offence u/s 190(1)(b) of the Code, irrespective of whether it is triable by Court of Session or not, against any person not named therein and for this, he can take into account the statements of the witnesses examined and material collected by the police during the investigation. This view stands fortified by the under-mentioned observations made by the Supreme Court in Rajinder Prasad Vs. Bashir and Others, which, in turn, were based on the ratio of a three-Judge Bench decision in Raghubans Dubey Vs. State of Bihar,

Under this section, a Magistrate has jurisdiction to take cognizance of offences against such persons also who have not been arrested by the police as accused-persons, if it appears from the evidence collected by the police that they were prima facie guilty of offence alleged to have been committed. Section 209 of the Code prescribes that when in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session he shall commit, after compliance with the provisions of S. 207 or S. 209, as the case may be the case to the Court of Session and subject to the provisions of the Code, pass appropriate orders. This section refers back to S. 190, as is evident from the words "instituted on a police report" used in S. 190(1)(b) of the Code. While dealing with the scope of S. 190 this Court in Raghubans Dubey Vs. State of Bihar, held that the cognizance taken by the Magistrate was of the offence and not of the offenders. Having taken cognizance of the offence, a Magistrate can find out who the real offenders were and if he comes to the conclusion that apart from the persons sent by the police some other persons were also involved, it is his duty to proceed against those persons as well.

Further, there is no such bar under S. 190 that once the process is issued against some accused, on the next date, the Magistrate cannot issue process to some other person against whom there is some material on record, but his name is not included as accused in the charge-sheet ( M/s. SWIL Ltd. Vs. State of Delhi and Another, referred to).

Thus, viewed from any angle, it is not possible to say that the order taking cognizance of the offences against the petitioner was one without jurisdiction. However, it was apparently perverse and not based on any material on record. Reasons for this conclusion may be set out as under -

(i) By virtue of the provisions of Section 195(1)(a)(i) of the Code, cognizance of the offence u/s 188 of the IPC could be taken only on the complaint in writing of the Additional Chief Secretary to State Government in Department of Panchayat and Rural Development, who had issued the circular-dated 21.8.2007 (supra), whereunder the petitioner as CEO was made responsible for maintaining the records and receive utilization certificates - or of some other public servant to whom he is administratively subordinate (See. State of U.P. Vs. Mata Bhikh and Others, and ''complaint'' as defined u/s 2(d) of the Code does not include a police report.

(ii) Section 119 of the IPC contemplates concealment of a design by a public servant other than accused to commit the offence charged and such an concealment must be intentional or at least with the knowledge that it will facilitate the commission of an offence, which is his duty as such public servant to prevent. However, the facts constituting the offence u/s 119 were neither stated in the charge sheet nor there was any foundation for the charge. On the contrary, it was at the instance of the petitioner that the prosecution of Sarpanch and Secretary for the offences of cheating, forgery and criminal breach of trust was launched. Further, a mere omission or negligence would not constitute abetment.

(iii) As observed in Raj Kishore Prasad''s case (supra), it is the Court of Session only that can exercise jurisdiction, u/s 319 of the Code, to add a new accused on the basis of evidence recorded in a case exclusively triable by it.

For these reasons, the case against the petitioner falls within category (1) and (6) of the cases, as enumerated by the Apex Court in State of Haryana and others Vs. Ch. Bhajan Lal and others, attracting interference under inheres powers. The petition is, accordingly, allowed and the order-dated 29.11.12 (supra) and the consequent proceedings as against the petitioner are hereby quashed. However, on the basis of the evidence recorded in the course of trial, if it appears to the trial Judge that the case is made out for exercise of power u/s 319 of the Code against the petitioner in respect of any offence mentioned or not mentioned in the charge-sheet, it will be open to him to proceed accordingly.