- (1.) THE instant Cr. Revision is directed against the order impugned dated 10-12-2008 passed by Shri S. K. Upadhyay, Judicial Magistrate, 1st Class, Ranchi in Complaint Case No. 1043 of 2008 by which the Complaint Petition filed on behalf of the petitioner was dismissed.
(2.) THE prosecution story in short was that the petitioner Ramashankar Prasad Verma had filed a complaint against the Opposite Party No. 2 before the C.J.M., Ranchi alleging, inter alia, that he was posted as Deputy Secretary at the time of alleged occurrence and presently he was Joint Secretary in the Jharkhand Vidhan Sabha, Ranchi whereas the Opposite Party No. 2 was posted on a senior post as Joint Secretary on the alleged date of occurrence i.e. on 13-7-2006 in Jharkhand Vidhan Sabha. THE complainant further narrated that the O. P. No. 2 Madan Mohan Mishra retired from the Vidhan Sabha Assembly on 31-1-2007. THE complainant was proceeded departmentally for certain charges to which the Opposite Party No. 2 was appointed as Enquiry Officer to conduct the departmental proceeding and after completion of enquiry the latter submitted the enquiry report against the complainant on 13-7-2006. It was alleged that the opposite party being a public servant prepared the said enquiry report based upon incorrect facts and documents intending thereby to cause injury to the complainant-petitioner by giving reference to the Bill No. A-2 and A-3/2000-01 in relation to the pay of the complainant for the month of November, 2000 (15th November, 2006 to 30th November) as also for the month of December, 2000. THE said Bills were revised vide Pay Slip bearing memo No. 1514 dated 24-3-2003 issued by the Department of Finance by which the complainant- petitioner was allowed to draw his pay and allowances after deducting the amount, that was already drawn by him. However, the O. P. No. 2 alleged against the petitioner-complainant in the finding of his enquiry report that the complainant had withdrawn the allowances on the fabricated and twisted facts. THE petitioner however explained in his complaint petition that the Finance Department had authorized him to withdraw the secretariat allowance, transport allowance and family planning allowance as mentioned in the pay slips. It was requested in the Complaint Petition to summon the O. P. No. 2 as an accused so as to put him on trial for the alleged offence under Sections 167/418/463/ 464/467/468/469/471 and 477A, I.P.C. The learned counsel for the petitioner- complainant took the following grounds and assailed the impugned order by which the Complaint Petition was dismissed after enquiry;- (i) It would be evident from the perusal of the impugned order that the lower Court had recorded the statement of the petitioner to the effect that the secretariat allowances were stopped on the basis of the alleged letter which was never issued by the Finance De- Department. The statement of the petitioner itself accorded power and jurisdiction to the learned Court below to take cognizance of the matter under the different provisions of the penal code. (ii) The Court had recorded in course of enquiry that the accused O. P. No. 2 while residing in a Government quarter withdrew house rent allowance by furnishing wrong information and submitted L.T.C. bill. This allegation in itself constitutes an offence under the Indian Penal Code and hence the ? Court ought to have taken cognizance of the matter instead of dismissing the complaint. (iii) The Court had conducted mini trial in disguise of an enquiry under Section 202 of the Code of Criminal Procedure and then dismissed the complaint. It was settled principle of law that if the complaint petition discloses allegation which constituted an offence learned Magistrate ought to take cognizance of the matter finding no other option, by issuing summons to the accused and the Court ignored such procedural law roving enquiry to the allegation was not permissible during the enquiry under Section 202 ' during pre-cognizance stage. The learned counsel substantiated that the only question which needed consideration was as to whether the accused opposite party prepared a false document or not on the basis of which an increment of the petitioner- complainant was stopped on the false report furnished by the O. P. No. 2 in the departmental enquiry under the orders of the Speaker of the Vidhan Sabha, Ranchi.
(3.) HEARD Mr. Manoj Tandon, the learned counsel for the petitioner and Mr. S. Piprawall, learned Counsel appearing for the O. P. No. 2. Mr. Tandon submitted that a departmental proceeding against the petitioner was initiated at the instance of the Hon'ble Speaker of Vidhan Sabha for the alleged irregularity and misuse the public fund wherein the O.P.No. 2 was made an Enquiry Officer of the said proceeding under the orders of Hon'ble the Speaker. The Enquiry Officer submitted his report against the petitioner on erroneous consideration and also upon con- side ration of such documents which were never supplied by the Finance Department yet, relying upon such erroneous report the increment of the petitioner was stopped by the Hon'ble Speaker for one year and thereby causing irreparable loss to the reputation of the petitioner.;