Dinesh vs The State Of Madhya Pradesh
2023 Latest Caselaw 1826 MP

                                                                    1
                                   IN     THE      HIGH COURT OF MADHYA PRADESH
                                                         AT INDORE
                                                            BEFORE
                                            HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
                                                      ON THE 1 st OF FEBRUARY, 2023
                                                  CRIMINAL REVISION No. 2806 of 2022

                                  BETWEEN:-
                                  DINESH S/O DWARKA PRASAD SHRIVAS, AGED ABOUT
                                  51  YEARS, OCCUPATION: SERVICE SHRIKANWAR
                                  COLONY BADWAH DISTRICT KHARGONE (MADHYA
                                  PRADESH)

                                                                                                 .....PETITIONER
                                  (BY MS. SUDHA SHRIVASTAVA, ADVOCATE)

                                  AND
                                  THE STATE OF MADHYA PRADESH THROUGH POLICE
                                  STATION BALWADA DISTRICT KHARGONE (MADHYA
                                  PRADESH)

                                                                                               .....RESPONDENT
                                  (BY SHRI R.S.BAIS-G.A.)

                                        This revision coming on for admission this day, th e court passed the
                                  following:
                                                                     ORDER

This Criminal Revision under section 397/401 of Cr.P.C. is preferred against the order dated 11.7.2022 passed by III ASJ, Barwah, district Mandleshwar in S.T.No. 13/2022 (crime no. 29/2019) whereby the charge under sections 406 and 409 IPC have been famed against the applicant.

Counsel for the applicant submits that applicant was appointed as Manager in Large Scale Primary Co-operative Credit Society Ltd. Balwada. As he is not a public servant, therefore the charge under section 409 IPC could not have been framed against the applicant. In support of her contention, she has Signature Not Verified Signed by: MUKTA CHANDRASHEKHAR KOUSHAL Signing time: 01-Feb-23 5:55:55 PM

placed reliance on an order dated 28.08.2015 passed by co-ordinate Bench at Gwalior in Criminal Revision No 595 of 2010 (Arvind chandil Vs. State of Madhya Pradesh). In the said case, the accused was working on the post of Assistant Manager of the Co-operative Society and after considering the provision of section 409 and section 21 IPC the definition of Public Servant, it was held that Assistant Manager of Society is not a public servant, and therefore, no charge under section 409 IPC could have been framed and the order of framing charge under section 409 PC was set aside. It is further argued that a specific argument was raised in this regard before the trial court but the same was not considered. She has drawn attention of this Court to para 13 of

the written submission. Certified copy of the same was produced for perusal before this Court.

Learned counsel for State opposes the prayer and submits that whether the applicant is 'public servant' or not, shall be decided after the evidence and not at this stage.

After hearing learned counsel for the parties and upon perusal of the impugned order and the judgment in the case of Arvind Chandel (supra), I find that trial court has not considered the arguments raised by the applicant that applicant is not a public servant in view of provisions of section 409 and section 21 of IPC.

In view of aforesaid, the impugned order dated 11.07.2022 framing the charge under section 409 IPC is set aside and the trial court is directed to pass a fresh order in respect of framing of charge after affording opportunity of hearing to the applicant without being influenced by the impugned order before proceeding further in the trial. The applicant shall file copy of the order dated 28.8.2015 passed in Cr.Rev.No 595/2010 (Arvind Chandil (supra) before the Signature Not Verified Signed by: MUKTA CHANDRASHEKHAR KOUSHAL Signing time: 01-Feb-23 5:55:55 PM

trial court.

With the aforesaid, revision petition is allowed and disposed of.

(VIJAY KUMAR SHUKLA) JUDGE MK

Signature Not Verified Signed by: MUKTA CHANDRASHEKHAR KOUSHAL Signing time: 01-Feb-23 5:55:55 PM