- (1.) IN the instant writ application, petitioner has prayed for quashing the FIR registered as Bhawanathpur P.S. Case No. 70 of 2005 corresponding to G.R. No. 549 of 2005 for the offences under sections 406 and 409 of the IPC, as well as the entire criminal prosecution pending in the court of Chief Judicial Magistrate, Garhwa.
(2.) QUESTIONS of law as raised by the petitioner in this writ application are, 1. Whether allegations made in the FIR even if taken at its face value, does constitute any offence? 2. Whether the present criminal prosecution is an abuse of the process of the court? 3. Whether the informant has any authority/jurisdiction to lodge the FIR against the petitioner? 4. Whether in absence of any sanction, present prosecution can be sustained in the eye of law? Facts of the case in brief is that on the basis of the FIR lodged by one Manmati Devi, a case vide Bhawanathpur P.S. Case No. 23 of 2005 dated 11.3.2005 was registered for the offences under Section 394 of the IPC against unknown accused. Allegation in the FIR was that some unknown persons had intruded into the house of the informant and forcibly looted away a sum of Rs.2.00 lakhs which was kept in the house on being entrusted to her by her known acquaintance. The case was investigated by the police officer and on concluding the investigation, he submitted final report stating that the case was not true. However, while submitting the final report, the Investigating Officer proceeded to record an FIR on the basis of his self statement against the present petitioner on the allegation that the present petitioner with the connivance of the lady, Manmati Devi, who was the informant of the former case, has misappropriated Government money belonging to the Road Construction Department which was entrusted to one of the accused persons. On the basis of the aforesaid self statement, FIR bearing Bhawanathpur P.S. Case No. 70 of 2005 was registered. It is this FIR which is under challenge.
(3.) SHRI Dilip Kumar Prasad, learned counsel appearing for the petitioner, submits that the FIR was lodged entirely on suspicion and even on going through the entire recitals in the FIR, there appears no definite and reasonable basis even for the suspicion entertained by the informant police officer. Learned counsel explains further that the FIR has been drawn by the police officer purportedly on the basis of some information which he had collected in course of investigation of the earlier case and is based more on presumption than on any definite material either to indicate that any Government money was in fact involved or that such money was in fact entrusted to any of the accused persons at all. Learned counsel argues that the essential ingredients of Sections 406 and 409 of the IPC are conspicuously lacking in the FIR. Learned counsel adds further that even otherwise, admittedly the petitioner herein is a public servant and no prosecution could be launched against him without prior sanction under Section 197 of the Cr. PC. Upon these grounds, learned counsel insists that the continuation of the criminal proceeding on the basis of the impugned FIR amounts to an abuse of the process of the court.;