M.V. Dinesh Kumar vs Zilla Panchayat

Mr. Dr. Vineet Kothari, J. - The petitioner, M.V. Dinesh Kumar, who, at the relevant point of time in the year 2013 and before that, was working as Secretary of the Hosahundi Grama Panchayat is questioning the communication, Annexure-H, dated 12.12.2012/17.1.2013 issued by the respondent-Taluk Panchayat, Mysuru, and addressed to the Police Sub-Inspector, Rural Police, Mysuru, for initiating criminal case against the officers/representatives of Hosahundi Grama Panchayat and eight people who, according to the said officer, misused the Government money. A detailed factual report was filed by the Executive Officer of the Taluk Panchayat, Mysuru.

It appears that, later on, as First Information Report (FIR) in respect of Crime No. 26/2013 was registered in the CJ and JMFC, Mysuru District, Mysuru, on 17.01.2013, under Sections 406, 409, 468, 477A and 420 of IPC against six persons named in the FIR including the present petitioner M.V. Dinesh Kumar at serial No. 1. The brief contents of the FIR are quoted below for ready reference;

"Details of first information report: On 17.1.2013 evening 17.30 hours S. Prem Kumar complainant of this case came to the station and give complaint. The contents of the said complaint are as follows: Accused M. V. Dinesh Kumar, village Panchayat secretary, Hosahundi village and Chowde Gowda, Bill Collector, Hosahundi village Panchayat, Mysore, Manchaiah, Ex.President, Hosahundi village Panchayat, K. Shivanna, Ex.President, Hosahundi village Panchayat, Smt. G. Parvathi Devi earlier Panchayat Development Officer, Hosahundi Grama Panchayat, Basavaraj, President Hosahundi village Panchayat all these in collusion from 1.4.2009 to 31.3.2012 have misappropriated the funds of Hosahundi village Panchayat Mysore taluk. In 2009-10 in white papers they have withdrawn the Government funds for the purpose of purchase of street lights spare parts, to provide drinking water facility, hand pumps and the spare parts in this regard amounting to sum of Rs. 7,47,419/- similarly they have misappropriated and withdrawn sum of Rs. 10,09,695/-. On the same reason that for having purchased the street lights and to provide water facility for the year 2010-11 the accused persons have used the said amounts for their own use. Apart from that M.V. Dinesh Kumar the secretary and bill collector Chowdegowda in collusion have withdrawn Rs. 3,17,009/- from the savings account of Panchayat and used for their personal use. The above said accused persons have also misappropriated sum of Rs. 13,96,803/- which was sanctioned and approved under NREGA Scheme for the year 2009-10 and 2010-11 without producing any voucher. The accused persons have claimed that they have purchased the spare parts of Goutham Traders and they have not produced any bills. The accused persons have totally misused sum of Rs. 34,69,926/- for the year 2009-10 and 2010-11 from the funds of Hosahundi village Panchayat which is Government funds. Thereby caused loss to the State Exchequer without producing the cash bill from Goutam Traders towards the purchase of spare parts accused persons 1, 2, 5 in collusion with 3, 4, 6 have committed cheating to the village Panchayat, therefore all the accused persons committed offence with the common intention. Government servants have misused their power in violation of law spent the funds of Panchayat for their own use. The above said officials and public representatives of village Panchayat have misused the funds which was released by the Government to the general public. Thereby cheated, therefore a case is registered in accordance with law."

While issuing notices in the present writ petition under Article 226 of the Constitution of India, a co-ordinate Bench of this Court granted ad interim order on 03.04.2013, which has continued hitherto.

On the last date i.e. on 14.06.2016, the following points were formulated for the learned counsel for the petitioner to argue on those points.

"Learned counsel for the petitioner prays for and is granted a week''s time to clarify the following points:

(i) Whether the writ petition under Article 226 of the Constitution of India is maintainable as against Section 482, Cr.P.C. Miscellaneous petition for quashing of the impugned order for initiating criminal action against the petitioner who was working as Panchayat Development Officer at the relevant point of time and a subsequent first information report was filed by the competent authority of the said Panchayat Annexure-"J" dated 17.1.2013 filed in Mysore South Police Station?

(ii) Whether the present writ petition connected with <&iuml;><&szlig;>W.P.No. 7933/13 (M. Shivanagu v. The Principal Secretary and others)</&szlig;</&iuml; which has already been dismissed by a co-ordinate Bench of this Court on 29.10.2014, still deserves to be heard on merit or not ?

(iii) The translated copies of relevant documents including the impugned order and the FIR may also be filed by next date.

List the case again on 21.06.2016."

Learned counsel for the petitioner, today, relying upon the judgments of the Hon''ble Supreme Court in the case of <&iuml;><&szlig;>State of Haryana and others v. Ch.Bhajan Lal and others (AIR 1992 SC 604)</&szlig;</&iuml; and <&iuml;><&szlig;>Ajay Mitra v. State of M.P. and others {(2003)3 SCC 11)} : (AIR 2003 SC 1069)</&szlig;</&iuml; has submitted that this Court under Article 226 of the Constitution of India as well as under Section 482 of Cr.P.C has inherent power to prevent abuse of the process of any Court or to secure the ends of justice. The relevant paragraph 19 of the judgment of the Supreme Court in the case of <&iuml;><&szlig;>Ajay Mitra (AIR 2003 SC 1069)</&szlig;</&iuml; (supra) is quoted below for ready reference;

"19 It is surely not within the province of the police to investigate into a report (FIR) which does not disclose the commission of a cognisable offence and the Code docs not impose upon them the duty of inquiry in such cases. It was further held that an investigation can be quashed if no cognisable offence is disclosed by the FIR. The same question has been considered in <&iuml;><&szlig;>State of Haryana v. Bhajan Lal (AIR 1992 SC 604)</&szlig;</&iuml; and after considering all the earlier decisions, the category of cases, in which the court can exercise its extraordinary power under Article 226 of the Constitution or the inherent power under Section 482 Cr.P.C. either to prevent abuse of the process of any court or to secure the ends of justice,..."

On the other hand, learned counsel appearing for the respondents have submitted that an appropriate remedy is available to the petitioner in the present case. If the petitioner is aggrieved by the initiation of the criminal action against him under the aforesaid provisions of IPC, then the appropriate remedy for him is to file Miscellaneous Petition under Section 482 of Cr.P.C and not a civil writ petition under Article 226 of the Constitution of India.

Having heard the learned counsel for the parties and upon perusal of the above quoted judgments, this Court is of the considered opinion that there is no restraint on the powers of this Court either under Article 226 of the Constitution of India or under Section 482 of Cr.P.C to prevent miscarriage of justice or to secure ends of justice by preventing abuse of process of law. But the question still remains as to whether against a threatened criminal action which, as of now, is in the form of a FIR registered against the petitioner and others of the said Grama Panchayat, a Miscellaneous Petition under Section 482 of Cr.P.C is the appropriate remedy or a civil writ petition under Article 226 of the Constitution of India.

This Court is of the opinion that the appropriate remedy in such cases is to invoke the jurisdiction of Section 482 of Cr.P.C, since the intended action against the petitioner is under Sections 406, 409, 468, 477A and 420 of IPC, and no such breach of fundamental rights or civil rights is alleged in the present case and it is the case of the petitioner that such criminal action under the aforesaid provisions of Cr.P.C could not have been initiated against him on the basis of the available material. Whether on the said facts, the jurisdiction under Section 482 of Cr.P.C can be or should be invoked or not is a question to be considered by the concerned court in terms of the guidelines laid down by the Hon''ble Supreme Court in the judgments cited at the Bar as aforesaid.

However, since this Court finds that the present civil writ petition under Article 226 of the Constitution of India is not maintainable for quashing of a letter like Annexure-H initiating criminal action and Annexure-J, FIR No. 26/2013, which is pending investigation and the proceedings are so far stalled because of the ad interim order passed in the present writ petition, the writ petition is liable to be dismissed with liberty to the petitioner to file a Miscellaneous Petition under Section 482 of Cr.P.C, if considered appropriate.

The writ petition is disposed of. No costs.

For a period of two weeks, the interim order granted by this Court shall continue.

I.A.No. 1/2016 for vacating the interim order is accordingly disposed of.