Manoj Kumar vs State Of Uttarakhand

N.S. Dhanik, J

This Criminal Miscellaneous Application, under Section 482 CrPC, is preferred to quash the cognizance order dated 27.6.2012, passed by the Judicial Magistrate, Kashipur, Udham Singh Nagar, in Criminal Case No. 1040 of 2013 under Section 409 IPC, State v. Manoj Kumar.

Facts, in brief, are that on 29.11.2011, one Smt. Ramoti Devi lodged an FIR against the present applicant alleging that he had embezzled Rs. 27,600/-from the joint account of Gram Panchayat on 31.1.2009 while working as Village Development Officer. Investigation was conducted and after completion of the investigation, police filed chargsheet for the offence under Section 409 IPC against the accused applicant. Thereafter, impugned cognizance order was passed.

Learned Counsel for the accused applicant contended that on 1.4.2011, one Omkar Deep Singh sought information under Right to Information Act as to why FIR was not lodged against the applicant and it is on the orders of the Uttarakhand Information Commission, the FIR was lodged against the applicant. He contended that neither Omkar Deep Singh have any concern in the matter nor the Uttarakhand Information Commission has power to direct for lodgment of the FIR on the information sought by a third person. Learned Counsel for the applicant further submitted that the applicant has already repaid the alleged embezzled amount on 27.3.2010. Learned Counsel for the accused applicant also argued that no sanction under Section 197 of the Cr.P.C. was obtained by the prosecution.

Learned State Counsel argued that the FIR has not been lodged on the orders of the Uttarakhand Information Commission. It is the aggrieved person who has lodged the FIR. Complainant was trying to lodge the FIR since very beginning. When it was not lodged, she moved applications to the higher authorities, viz., Chief Development Officer and District Panchayat Officer and it is in compliance of the orders of these officers that the FIR was lodged, as is evident from the FIR itself. As regards obtaining the sanction to prosecute the accused applicant, the same needs to be agitated and examined before the Trial Court.

I find force in the submission of the learned State Counsel. From bare reading of the FIR, it is evident that the FIR was lodged in compliance of the orders of the higher officers of the department concerned. It is also not in dispute that the accused applicant has repaid the money, which he had allegedly embezzled. Learned State Counsel relied on the judgment in Inspector of Police v. Battenapatla Venkata Ratnam, (2015) 13 SCC 87, wherein the Hon'ble Apex Court has observed as under:

"The alleged indulgence of the officers in cheating, fabrication of records or misappropriation cannot be said to be in discharge of their official duty. Their official duty is not to fabricate records or permit evasion of payment of duty and cause loss to the Revenue. Unfortunately, the High Court missed these crucial aspects. The learned Magistrate has correctly taken the view that if at all the said view of sanction is to be considered, it could be done at the stage of trial only."

Learned State Counsel also relied on the judgment of the Hon'ble Apex Court rendered on 2.4.2019 in Criminal Appeal No. 579 of 2019, Devendra Prasad Singh v. State of Bihar. In this case, the High Court quashed the complaint essentially on two grounds, (a) no sanction under Section 197 Cr.P.C. was obtained by the prosecution for filing the complaint and (b) there were contradictions in the statement of the complainant and the witnesses. The Hon'ble Apex Court set aside the order of the High Court and observed that "Having regard to the nature of the allegations made by the complainant against respondent No. 2, who was the Police Officer (SHO) at the relevant time, we are of the view that no prior sanction to prosecute respondent No. 2 under Section 197 of the Cr.P.C. was required for filing such complaint." Hon'ble Apex Court further held that the High Court, while hearing the application under Section 482 Cr.P.C., has no jurisdiction to appreciate the statement of witnesses and the same is the function of the trial court while deciding the issues on the merits.

Considering overall facts and circumstances of the case in hand, as discussed hereinabove, I am of the opinion that a prima facie case is made out against the accused applicant. Hence, in view of the aforementioned legal proposition, this Court is not inclined to interfere in the matter.

Consequently, the present application under Section C482 of the Cr.P.C. is dismissed. Interim order, if any, stands vacated. However, it is directed that if the accused applicant surrenders before the Court below and moves the bail application, the same shall be decided as expeditiously as possible.

Inform the Court concerned accordingly.