Public Toilets 'Scam' | Allahabad HC Sets Aside Barabanki CJM's Order Taking Cognizance Of 'Criminal Conspiracy' Offence Against CDO & SP

The order was passed by a bench of Justice Subhash Vidyarthi in a revision plea filed by the State Government challenging the order of the CJM, Barabanki.

The Court noted that the CDO, SP and SHO had acted in discharge of their official duty while committing the alleged offending acts and the cognizance of the act committed by them, even if it amounts to an offence, cannot be taken without the previous sanction of the Government.

“It appears that the Magistrate has passed the impugned order having been swayed by the impression created by the complainant that some illegalities had been committed in construction of toilets. However, every dereliction of duty would not make out a case of trial, unless the essential conditions for initiating the trial are fulfilled and the C.J.M. has not taken care to examine whether the essential ingredients of the offence and other prerequisites for taking cognizance are fulfilled or not,” the Court observed in its order.

The case in brief

Essentially, a former village pradhan moved an application under Section 156 (3) CrPC against the Block Development Officer and Village Panchayat Officer, alleging their involvement in the construction of substandard toilets in the village and false claims made by both officers.

On August 4, 2020, the CJM, Barabanki passed an order stating that from the facts, circumstances and documents available, the matter appeared to be of embezzlement of public money, which prima facie appears to be a cognizable offence.

The CJM directed the SHO, Dewa, Barabanki to register a case against concerned persons under appropriate sections and to submit a compliance report within seven days.

After the investigation, the Investigating Officer submitted a final report stating that from the statement of the complainant, statements of some independent witnesses and the report submitted by the CDO, Barabanki as well as the statement of one of the accused persons no offence was made out.

Thereafter, the opposite party no. 2/Former village pradhan filed a protest application against the final report.

Accepting the said protest application, the CJM observed that the matter involved embezzlement of public money but the FIR was registered only for the offence of causing hurt, abusing and defaming the complainant.

Rejecting the final report, the CJM took cognizance of offences under Sections 323, 504, 500 and 166 IPC allegedly committed by the persons named in the FIR.

At the same time, the Court also took cognizance of offence under Section 120-B I.P.C. against Megha Roopam - the then Chief Development Officer, Arvind Chaturvedi – the then Superintendent of Police and Zaid Ahmad - the Investigating Officer/SubInspector of Police.

Cognizance of offence under Section 166-A I.P.C. has also been taken against Prakash Chandra Sharma - the then Station House Officer.

The Court further directed that the copies of the order be sent to the Principal Secretary of Government of U. P. (without specifying the department) and to the District Magistrate for initiating departmental action against the then Chief Development officer, the then S.P. and the then SHO, Dewa, Barabanki for submitting a final report in the matter for giving wrongful benefit to the accused persons under a conspiracy.

A copy of the order was directed to be sent to the S.P. for taking action against the SHO for his omission to register a case regarding embezzlement of government money. Challenging the said order, the State Government moved the High Court.

High Court's observations

At the outset, the Court noted that the initial allegations were made against Anup Kumar Singh, Block Development Officer, Beena, Village Panchayat Officer and that there was no allegation against the CDO, the Superintendent of Police, the SHO or the Investigating Officer.

Despite this, the Court added, the CJM concerned, while allowing the protest petition filed against the final report submitted after investigation, took cognizance of offences regarding which there was no factual averment and has summoned the CDO, the Superintendent of Police, the S.H.O. and the Investigating Officer for being tried without the sanction of the State Government.

“The aforesaid persons summoned by the C.J.M. are public servants and, therefore, the State has an interest in protecting its officers from any frivolous prosecution launched without its sanction” the Court observed.

“…there was absolutely no material before the C.J.M. justifying cognizance of any offence under Section 190 (1) (b) Cr.P.C. Criminal prosecution cannot be initiated merely on an assumption that an offence has been committed, but the Magistrate has to arrive at a prima facie satisfaction from a complaint of facts which constitute such offence or from a police report of such facts or by an information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed,” the Court furher noted.

Against this backdrop, the Court found that there was no such material was available before the CJM as would warrant taking cognizance of any offence.

The Court added that the Magistrate appeared to have passed the impugned order having been swayed by the impression created by the complainant that some illegalities had been committed in the construction of toilets.

“However, every dereliction of duty would not make out a case of trial, unless the essential conditions for initiating the trial are fulfilled and the C.J.M. has not taken care to examine whether the essential ingredients of the offence and other prerequisites for taking cognizance are fulfilled or not,” the Court remarked.

In view of the aforesaid discussions, finding the impugned order of the CJM to be suffering from patent illegalities, the Court set it aside.

Appearances

Counsel for Revisionist: Additional Advocate General Vinod Kumar Shahi assisted by AGA-I Anurag Verma

Counsel for Opposite Party: Dinesh Kumar, Dharmendra Singh, Krishna Gopal