Allowed¶59

Arun Safi v. The State of Bihar

Patna HC11 Feb 2025CR. MISC./22161/2024

Case brief

AI extract

What is this about?

Quashing petition allowed; discharge application under Section 239 Cr.P.C.; order dated 16.01.2024 of Judicial Magistrate 1st Class, Jhanjharpur quashed qua petitioner; Khutauna P.S. Case No. 44/2011; Sections 467, 419, 420, 406, 409/34 IPC; Indira Awas Yojana fund embezzlement; prosecution of BDO/public servant without sanction; acts in official capacity; Bhajan Lal guidelines 1, 3 & 5 applied; Patna High Court; Chandra Shekhar Jha.

What did the court decide?

Impugned order dated 16.01.2024 rejecting the discharge application quashed/set-aside qua the petitioner; copy of the judgment directed to be sent to the trial court/concerned court forthwith. ¶59

Arun Safi Vs The State of Bihar — Writ and Judicial Review | Patna HC (2025)

What the court decided

AI extract

Outcome

Impugned order dated 16.01.2024 rejecting the discharge application quashed/set-aside qua the petitioner; copy of the judgment directed to be sent to the trial court/concerned court forthwith.

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Issue for consideration

Whether the order dated 16.01.2024 passed by the Judicial Magistrate, 1st Class, Jhanjharpur rejecting the petitioner's discharge application under Section 239 Cr.P.C. should be quashed. +1 more

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Court's answer

Taking a guiding note of guideline nos. 1, 3 and 5 of Bhajan Lal's case, the impugned order dated 16.01.2024 passed by the learned Judicial Magistrate, 1st Class, Jhanjharpur in G.R. No. 868/2011, TR 1218/2023 is quashed/set-aside qua the petitioner.

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Ratio / Principle

The petitioner was the B.D.O. at the time of occurrence and issued cheques in that capacity, and there is nothing on record that the defalcated amount was received by him for his personal gain.

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Key takeaways

As per the allegation, the manipulation in the record took place either in the panchayat samiti or at bank level, and nothing on record suggests that any wrong qua the occurrence took place in the petitioner's office.ratio¶54
In such circumstances, it is unsafe to say that the act of the petitioner was beyond his official capacity so as not to require the sanction for prosecution.ratio¶54
Admittedly, in this case, the sanction for prosecution qua the petitioner was not obtained.ratio

Detailed headnote1 paragraphs

Patna High Court, Cr. Misc. No.22161 of 2024 (Chandra Shekhar Jha, J.), decided 11-02-2025: Application allowed. The order dated 16.01.2024 of the Judicial Magistrate, 1st Class, Jhanjharpur (G.R. No. 868/2011, TR 1218/2023) rejecting the petitioner's discharge application under Section 239 Cr.P.C. in Khutauna P.S. Case No. 44 of 2011 (Sections 467, 419, 420, 406, 409/34 IPC — alleged embezzlement of Indira Awas Yojana funds) is quashed/set-aside qua petitioner Arun Safi, former Block Development Officer, Khutauna. Held: the petitioner issued cheques in his capacity as B.D.O.; nothing on record shows the defalcated amount was received by him for personal gain; the alleged manipulation took place either in the panchayat samiti or at bank level, not in his office; it was therefore unsafe to say his acts were beyond his official capacity so as not to require sanction, and the sanction for prosecution qua him was admittedly not obtained. Guideline nos. 1, 3 and 5 of State of Haryana v. Bhajan Lal, (1992) Supp (1) SCC 335, applied.

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IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No.22161 of 2024

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Arising Out of PS. Case No.-44 Year-2011 Thana- KHUTAUNA District- Madhubani

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Arun Safi, Son Of Sri Jhameli Safi, R/O-Behta, P.S.-Manigachhi, Distt.Darbhanga.

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... ... Petitioner

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Versus

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The State of Bihar

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Shiv Chandra Kumar S/O Late Ganga Prasad Sah, R/V- Kahalganj, Kadirabad, Ward No.-5, P.S. - Mithila University, District- Darbhanga ( At Present B.D.O. Khutauna, District- Madhubani)

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... ... Opposite Party

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Appearance :

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For the Petitioner : Mr.Ajay Kumar Thakur, Advocate Ms.Vaishnavi Singh, Advocate For the Opposite Party : Mr.Uma Shankar Prasad Singh, APP

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CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA ORAL JUDGMENT

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Date : 11-02-2025

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Heard Mr. Ajay Kumar Thakur, learned counsel

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appearing for the petitioner and Mr. Uma Shankar Prasad Singh, learned A.P.P. for the State.

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This application has been filed for quashing the order dated 16.01.2024 passed by learned Judicial Magistrate

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1^st Class, Jhanjharpur in G.R. No. 868/2011, TR 1218/2023, whereby and whereunder learned Magistrate has

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been pleased to reject the application for discharge, filed under Section 239 Cr.P.C., filed on behalf of the petitioner.

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Patna High Court CR. MISC. No.22161 of 2024 dt.11-02-2025 2/8

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The brief facts of the case is that one Shiv Chandra Kumar, Block Development Officer, Khutauna lodged a written report to the officer Incharge of Khutauna Police Station stating therein that District Rural Development Agency, Madhubani has held an enquiry on the complaint made in the allotment of Indira Awas Scheme in Panchayat Chaturbhuj Piprahi, Parsahi East and Birpur, which comes under the Khutauna Block. In the light of the enquiry report, District Magistrate, Madhubani vide its letter dated 2557 dated 09.08.2011, directed to lodge the First Information Report against the petitioner along with other accused -persons, who were held responsible for the aforesaid allotment of Indira Awas Yojana.

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On the basis of aforesaid written report, Khutauna P.S. Case No. 44 of 2011 was registered for the offences under Section 467, 419, 420, 406, 409/34 of the Indian Penal Code. After investigation, police submitted chargesheet vide charge-sheet No. 70 of 2012 dated 15.09.2012 and, thereafter, after taking cognizance, the case is pending in the court of learned Judicial Magistrate - 1^st Class,

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Patna High Court CR. MISC. No.22161 of 2024 dt.11-02-2025 3/8

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Jhanjharpur vide G.R. No. 868/2012 and T.R. No. 1218/2023.

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Mr. Ajay Kumar Thakur, learned counsel appearing

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for the petitioner submitted that petitioner has been falsely implicated in the present case. It is submitted that petitioner was posted as Block Development Officer, Khutauna since 04.04.2010 to 15.07.2011 and the present case was lodged after his transfer from Khutauna, although, till date no sanction was obtained in the present case.

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Learned counsel submitted that as per prevailing procedure at the relevant time and on the basis of names of beneficiaries which was mentioned in the B.P.L. list published by the D.R.D.A., petitioner complied his official duties and send the cheques of the respective beneficiaries, which was deposited in their bank account.

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Mr. Thakur, further submitted that as per the enquiry report, which is part of the F.I.R., it is absolutely clear that petitioner has no role to play either in opening of bank account or in the identification of beneficiaries for withdrawal of amount. Learned counsel submits that after verifying the

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Patna High Court CR. MISC. No.22161 of 2024 dt.11-02-2025 4/8

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name of account holder, an advice was used to be sent to the concerned bank with cheque which reads as “संबंधधतलाभूकोके खातामेराधशसथानानतरणकरतेहुएइसकीजानकारीप्र०कारार०कोउपलबध कराईजाए।"

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It is submitted that there were total 88 beneficiaries before the transfer of the petitioner in whose favour advice were sent to the Bank with single cheque to transmit the amount in their account, but Bank had not transferred any amount to any beneficiaries as the new incumbent had asked the concerned Branch Manager, Central Bank not to release the amount vide its letter no. 903 dated 16.07.2011.

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Learned counsel further submitted that the work done by the petitioner was in discharge of his official duty, where petitioner was holding the post of B.D.O. and as such, without there being any sanction of the competent authority, he cannot be prosecuted in the present case. Lastly, learned counsel submitted that it is a fit case for quashing the order dated 16.01.2024 passed by learned Judicial Magistrate - 1^st Class, Jhanjharpur in aforementioned case.

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In support of his submission, learned counsel

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Patna High Court CR. MISC. No.22161 of 2024 dt.11-02-2025 5/8

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relied upon the legal report of Hon’ble Supreme Court as available through State of Haryana and Ors. Vs. Bhajan Lal and Ors [(1992) Supp (1) SCC 335].

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Mr. Uma Shankar Prasad Singh, learned A.P.P. for the State, while opposing the quashing petition, submitted that there is embezzlement of government money by the petitioner/accused. The I.O. has filed charge-sheet under Section 467, 419, 420, 406, 409/34 of the I.P.C. against the petitioner along with other co-accused persons, where cognizance has been taken against them as well. Learned A.P.P. further submitted that from perusal of the F.I.R. and other documents available on record, it is crystal clear that petitioner along with other co-accused persons had embezzled the government fund/money. Learned A.P.P. submitted that learned Magistrate has rightly rejected the discharge petition, as filed by the petitioner and, accordingly, he opposed the present quashing prayer of the order dated 16.0.1.2024 as passed by learned Judicial Magistrate in the aforesaid case.

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It would be apposite to reproduce paragraph

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‘102’ of the legal report of Hon’ble Apex Court as available

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Patna High Court CR. MISC. No.22161 of 2024 dt.11-02-2025 6/8

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through Bhajan Lal’s case (supra) which is being reproduced

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hereunder for a ready reference:

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‘‘ 102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

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(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.

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(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.

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(3) Where the uncontroverted 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.

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(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

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(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 there is sufficient ground for proceeding against the accused.

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(6) Where there is an express legal bar engrafted in any of

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Patna High Court CR. MISC. No.22161 of 2024 dt.11-02-2025 7/8

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the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.

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(7) Where a criminal proceeding is manifestly attended with mala fide 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.’’

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From perusal of the record and impugned order, it

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transpires that the petitioner was the B.D.O. at the time of occurrence and he issued cheques in capacity of B.D.O. There is nothing on record that defalcated amount was received by him for his personal gain. As per allegation, the manipulation in record took place either in panchayat samiti or at bank level. There is nothing on record which may suggest that any wrong qua occurrence took place in the office of the petitioner. In such circumstance, it is unsafe to say that the act of the petitioner was beyond his official capacity so as not to require the sanction for prosecution. Admittedly, in this case, the sanction for prosecution qua petitioner was not obtained.

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Considering the aforesaid facts and circumstances and by taking a guiding note of the guideline

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Patna High Court CR. MISC. No.22161 of 2024 dt.11-02-2025 8/8

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no. 1, 3 & 5 of Bhajan Lal’s case (supra), the impugned order dated 16.01.2024 passed by learned Judicial Magistrate - 1^st Class, Jhanjharpur in G.R. No. 868/2011, TR

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1218/2023 is hereby quashed/set-aside qua petitioner.

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