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Synopsis

The Allahabad High Court, Lucknow Bench has overturned the Chief Judicial Magistrate (CJM) of Barabanki district's order for investigation against the former Chief Development Officer (CDO) and Superintendent of Police (SP) of the district. This inquiry was related to an alleged scam involving the construction of public toilets.

The bench of Justice Subhash Vidyarthi held that the CJM's order suffered from illegalities and was unsustainable in law.

Court noted that both the officers 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 amounted to an offence, could not be taken without the previous sanction of the Government.

Court further pointed out that the CJM had not recorded any prima facie satisfaction regarding the role of the Block Development Officer and the Village Panchayat Officer in the construction of toilets.

For taking cognizance of the offence under Section 409 I.P.C. or for any other offences there should be a specific allegation of commission of some act which prima facie make out commission of the alleged offence. There appears to be absolutely no factual allegation made in the complaint or in the protest petition and no material to prima facie establish ‘entrustment’ of any property to any of the accused persons or to the effect that any of them have dishonestly misappropriated or converted to his own use that property, or has dishonestly used or disposed of that property in violation of any direction of law, court said. 

It stressed that "merely because the accused persons were holding some office, they cannot be tried for commission of any offence without any specific allegation of commission of any act on their part make out the ingredients of the offence.

A former village pradhan filed an application under Section 156 (3) CrPC against his area's Block Development Officer and Village Panchayat Officer alleging that the work of construction of toilets in his village was being carried out against the prescribed standards and false claims had been made by both the officers.

The concerned District Magistrate ordered an inquiry that yielded no conclusive findings. Subsequently, the matter reached the CJM, Barabanki who directed for registration of a case. 

Thereafter, a protest application against the final report submitted by the Investigating Officer was filed. While dealing with the same, the CJM held that the administrative inquiry conducted by the CDO after registration of the FIR was interference in the criminal case which was not proper and ordered an investigation against the CDO and SP. 

The state government opposed the same before the high court. 

The high court opined that the administrative enquiry conducted by CDO was discharging of his official duty and the CDO had sent the report to the Superintendent of Police, who forwarded the same to the concerned SHO in discharge of his official duty.

Therefore, court held that the CJM's order was unsustainable in law.

"The continuance of prosecution on the basis of such an order would clearly be an abuse of the process of law, warranting interference by this Court in exercise of its revisional powers," court noted while setting aside the CJM's order. 

Case Title: State of UP v. Chief Judicial Magistrate Barabanki And Anr