CRIMINAL WRIT NO.1124 OF 2007
For quashing the entire criminal proceeding including the First
Information Report of Naugachhia P.S. Case No. 351/07.
----------------
Dr.Jagat Kishore Sharan son of late Maithili Sharan, R/O 104 Second
Apartment, Baily Road near J.D. Women’s College, P.S. Shashtri
Nagar, Town and District-Patna….. …. Petitioner/s
Versus
1. The State Of Bihar
2. Dr. Santosh Kumar Jha son of late Narayan Jha, Incharge, Medical
Officer, Primary Health Centre, Naugachhia, at present residing at
Naugachhia, P.S. Naugachhia, District-Bhagalpur.
3. The Civil Surgeon, Bhagalpur.
4. The Superintendent of Police, Naugachhia, District-Bhagalpur
5. The Officer-in-charge, Naugachhia P.S. District-Bhagalpur
…. …. Respondent/s
—————-
P R E S E N T
HON’BLE MR. JUSTICE ADITYA KUMAR TRIVEDI
Aditya Kumar Trivedi, J. Petitioner, Dr. Jagat Kishore Sharan by
way of institution of instant petition prayed for quashing of entire
criminal proceeding including the FIR leading to Naugachhia
P.S.Case No. 351 of 2007, G.R. No.888/2007 registered under
Sections 409,420 of the IPC.
2. From Annexure-1, the written report submitted by
Dr. Santosh Kumar Jha, Medical Officer Incharge, Naugachhia in
terms of direction vide letter no. 588(8) dated 15.10.2007 puts an
allegation that Dr. Jagat Kumar Sharma, Medical Officer, who was
2
to retire on 31.01.1999 did not relinquish himself and continued in
the service uptil 31.08.1999 and during intervening period he had
withdrawn sum of Rs.1,02,848/- in lieu of salary and other
emoluments. When the matter came to knowledge of Civil Surgeon,
Bhagalpur, he issued order to this effect and communicated vide
Wireless message No. 3683 dated 13.10.1999. The aforesaid written
report was submitted on 31.10.2007.
3. It has been submitted on behalf of the petitioner that
non of the Sections, whereunder, the case has been registered nor
any of the provisions of penal law is attracted against the petitioner
because of the fact that it was obligatory on the part of the State
Government/Appointing Authority to communicate him with regard
to his date of retirement and further directing him to hand over
charge of his office to particular individual. Because of the fact that
there have been lapses on the part of the Controlling Officers,
therefore, to escape themselves from the lapses as indicated above,
made the petitioner an scapegoat by launching a prosecution that too
after such a long interval. This long intervening period is suggestive
of the fact that petitioner has been victimized at the hands of his
superior authority. Then submitted that just after retirement, a
departmental proceeding ensued which concluded and as per finding
of the departmental proceeding, the amount whatever been realized
3
by the petitioner as salary along with permissive emoluments have
already been realized with penalty clause. Then submitted that the
amount has not been digested nor allegation of misappropriation
rather it was permissive monthly salary along with other benefits
permissive to a Government servant which was credited in his
account after having the pay bill passed by the Treasury for the
relevant period during course of which petitioner had discharged his
duty which he continued in good faith on account of non-
correspondence at his controlling side. Nothing sort of criminal
activity has been reported/alleged against the petitioner. Apart from
this, the conduct of the prosecution appears to be hit by Section-43
Explanation (b) of the Bihar Pension Rules which prescribes the
maximum period of four years for launching of prosecution after
retirement, which period, as is evident, had already expired before
commencement of the criminal prosecution. So submitted that it is a
fit case wherein the reliefs so claimed by the petitioner are to be
allowed.
4. On the other hand, the State by filing counter
affidavit submitted that petitioner could not exonerate himself from
his liability because of the fact that he was well aware with regard to
his date of birth, date of appointment and date of retirement. It was
expected at his end that he should have asked for necessary
4
instruction from his administrative controller on this score as well as
seeking guideline to whom the charge has to be handed over.
Intentional act of petitioner on this score withholding himself is
indicative of the fact that he unsuccessfully, though succeeded for a
few months in duping the Government by way of continuing in
service and getting salary and other benefits withdrawn from the
Treasury. So, petitioner had privilege of wrongful gain and by such
action he put the State under wrongful loss. The aforesaid synonyms
attract application of penal law. Also submitted that realization of
amount by drawing a departmental proceeding will not exonerate the
petitioner from criminal liability. Apart from this, it has also been
submitted that from the conduct of the petitioner, there happens to
be positive evidence with regard to embezzlement of Government
money and so the penal provision whereunder case has been
registered is equally applicable. Further submitted that the facts of
the case did not attract application of Section 43 of the Bihar
Pension Rules. So submitted that the instant petition is fit to be
dismissed.
5. From the annexure-1, it is admitted fact that criminal
prosecution was launched after more than 7 (seven) years of
retirement of petitioner. So, now one has to see whether the
aforesaid prosecution is found to be legally maintainable in light of
5
presence of rule 43 of the Bihar Pension Rules ?
6. Rule 43 of Bihar Pension Rules has been brought in
picture to command the conduct of the pensioners as well as it also
brings inflexible situation by way of protecting the future interest of
the pensioners so that they should not be victimized for his lapses, if
any, committed during his service tenure having sword hanging over
his neck for infinite period. For better appreciation, the Rule 43 is
quoted below:-
” 43. (a) Future good conduct is an implied condition
of every grant of a pension. The Provincial Government reserve to
themselves the right of withholding or withdrawing a pension or any
part of it, if the pensioner is convicted of serious crime or be guilty
of grave misconduct. The decision of the Provincial Government on
any question of withholding or withdrawing the whole or any part of
a pension under this rule, shall be final and conclusive.
[(b) The State Government further reserve to themselves
the right of withholding or withdrawing a pension or any part of it,
whether permanently or for a specified period, and the right of
ordering the recovery from a pension of the whole or part of any
pecuniary loss caused to Government if the pensioner is found in
departmental or judicial proceeding to have been guilty of grave
misconduct; or to have caused pecuniary loss to Government by
misconduct or negligence, during his service including service
rendered on re-employment after retirement:
Provided that-
(a) such departmental proceedings, if not
instituted while the Government servant
was on duty either before retirement or
during re-employment;
(i) shall not be instituted save with the sanction of the
State Government ;
(ii ) shall be in respect of an event which took place not
more than four years before the institution of such
proceedings ; and
(iii) shall be conducted by such authority and at such
6place or places as the State Government may direct
and in accordance with the procedure applicable to
proceedings on which an order of dismissal from
service may be made ;
(b) Judicial proceedings, if not instituted while the
Government servant was on duty either before
retirement or during re-employment, shall have
been instituted in accordance with sub-clause (ii) of
clause (a) ; and
(c) the Bihar Public Service Commission, shall be
consulted before final orders are passed.
Explanation,- For the purpose of the rule-
(a) departmental proceeding shall be deemed to have been
instituted when the charges framed, against the
pensioner are issued to him or, if the Government
servant has been placed under suspension from an
earlier date, on such date ; and
(b) Judicial proceedings shall be deemed to have been
instituted :-
(i) in the case of criminal proceedings, on the date on
which a complaint is made or a charge-sheet is
submitted, to a criminal court ; and
(ii) in the case of civil proceedings, on the date on which
the complaint is presented, or as the case may be, an
application is made to a civil Court “
7. After close scrutiny of Rule 43 Explanation (b) (i) it
is evident that the period of launching of criminal proceeding has
been directed to commence from the date of filing of complaint or
charge-sheet and the period thereof has to be counted in accordance
with (a) as per sub Rule (ii) prescribing maximum period of four
years from the date of retirement the period whereunder any kind of
proceeding be it departmental, civil, criminal has to be launched.
The State, during course of argument has admitted that prosecution
7
has been launched after stipulated period. Admittedly, vide order
dated 17.03.2009 only coercive step against the petitioner has been
stayed and not the investigation. Even during course of argument, it
has been submitted that no charge-sheet has been submitted that
means to say the investigation is lingering for the last four years
even after institution of case.
8. From the written report itself (Annexure-1) it is now
no more remains under controversy that the institution of present
case was made beyond the period of four years and so the
proceeding in its inception was contrary thereto. As such the FIR
along with criminal prosecution is quashed. Consequent thereupon,
the instant petition is allowed.
(Aditya Kumar Trivedi, J.)
Patna High Court
Dated the 23rd day of September 2011
Md. Perwez Alam/AFR