Molayasa Khatun vs State Of Bihar Through The Chief ...
2023 Latest Caselaw 2245 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Criminal Writ Jurisdiction Case No.193 of 2020
          Arising Out of PS. Case No.-268 Year-2019 Thana- SANGRAMPUR District- East
                                            Champaran
     ======================================================

1. MOLAYASA KHATUN W/O Jainuddin Resident of Ward No. 5, Paschmi Madhubani, Dariyapur Police Station - Sangrampur, District East Champaran

2. Jainuddin @ Jainuddin Ansari Son of Karmuddin Miya Resident of Village -

Pachbhirwa, Police Station - Sangrampur, District East Champaran

3. Subeh Tara W/O Sagir Ahmad Khan Resident of Ward No. 9, Paschmi Madhubani, Dariyapur Police Station - Sangrampur, District East Champaran

4. Bulet Ansari Son of Islam Miya Resident of Village - Indragachhi, Police Station - Sangrampur, District East Champaran ... Petitioners Versus

1. STATE OF BIHAR THROUGH THE CHIEF SECR., GOVT. OF BIHAR, PATNA

2. The Principal Secretary, Panhayati Raj Department, Govt. of Bihar, Patna

3. The District Magistrate, East Champaran (Motihari)

4. The Superintendent of Police, East Champaran (Motihari)

5. The Deputy Superintendent of Police, Areraj, East Champaran (Motihari)

6. The District Panchayati Raj Officer, East Champaran (Motihari) Bihar

7. The Block Development Officer, Sangrampur, East Champaran (Motihari)

8. The Panchayat Sachiv, Gram Panchayat Raj Paschmi Madhubani, East Champaran (Motihari)

9. The Officer - In- Charge, Police Station Sangrampur, East Champaran (Motihari) ... Respondents ====================================================== Appearance :

For the Petitioners : Mr. Rajendra Narayan, Sr. Adv. with Mr.Asit Kumar Jha, Adv.

For the Respondents : Mr. Md. Nadim Seraj, GP V ====================================================== CORAM: HONOURABLE MR. JUSTICE DR. ANSHUMAN ORAL JUDGMENT Date : 10-05-2023

Heard learned counsel for the petitioners and the

State.

2. The present writ petition has been filed for quashing

of first information report bearing Sangrampur P.S. Case No. 268

of 2019, dated 06.12.2019, lodged under Sections 420, 409 and Patna High Court CR. WJC No.193 of 2020 dt.10-05-2023

120B of the Indian Penal Code, 1860, pending in the Court of the

Sub Judge XIV-cum-Additional Chief Judicial Magistrate, East

Champaran at Motihari.

3. Mr. Rajendra Narayan, learned Senior Counsel,

assisted by Mr. Asit Kumar Jha, counsel for the petitioners submits

that the petitioners are duly elected members of Ward Nos. 5, 9, 10

and 11 of the Gram Panchayat Raj Pashchmi Madubani, Dariyapur,

district East Champaran at Motihari. Counsel for petitioners

submits that the said first information report has been lodged in

gross violation of Rule 4(2) and Rule 9 of the Bihar Panchayat

(Inspection of Offices and Inquiry into Affairs Supervision and

Guidelines) Rules, 2014, (hereinafter referred to as, "the Rules")

framed by Panchayati Raj Department vide Notification No.

8Ps/IV-04-103/2010/9817, dated 15th December, 2014, published in

Bihar Gazette Extra Ordinary No. 185, dated 16th January, 2015, in

exercise of the power conferred by virtue of Section 146 of the

Bihar Panchayati Raj Act, 2006 (Bihar Act 6, 2006).

4. The counsel for the petitioners without entering into

the merit and demerit of the allegations made submissions that

Rule 4(2) of the Rules state that the enquiry of any affair of the

Gram Panchayat shall be done with the written order of the District

Magistrate. He further submits that Rules 4(3) and 4(4) of the

Rules empowers the District Magistrate to enquire into such affairs Patna High Court CR. WJC No.193 of 2020 dt.10-05-2023

in which complaints have been received against the Mukhiya, Up-

Mukhiya, Members and the Executive Officer of the Panchayat or

Panchayat Samiti with regard to not discharging functions

according to the provisions of the Act, ignoring or willfully

omitting the direction of the Government or competent authority

or committing financial irregularity by the officer of the district

whom think fit, but, not below the rank of Subdivisional

Magistrate.

5. Counsel submits that here in the present case from

the contents of the first information report it transpires that the said

enquiry was conducted by the Block Development Officer, who is

the officer below the rank of Subdivisional Magistrate. Similarly,

there is gross violation of Rule 9 of the Rules, according to which,

if a clear case of financial irregularity or misconduct made on the

basis of the enquiry into any Panchayat, the District Magistrate, in

case of Gram Panchayat and Panchayat Samiti, whereas the

Divisional Commissioner in case of Zila Parishad, may order to file

the first information report against the public

representative/Government Official responsible for such

irregularity or misconduct, but, it shall be compulsory to intimate

the Panchayat Raj Department regarding such action as soon as

possible.

Patna High Court CR. WJC No.193 of 2020 dt.10-05-2023

6. Counsel for the petitioners submits that here in the

present case there is gross violation of Rule 9 of the Rules as there

is no instruction done by the District Magistrate to file first

information report.

7. On these two grounds, the counsel for the petitioners

submits that the institution of the first information report is bad in

law and in gross violation of Panchayati Raj Act, 2006, and its

Rules, i.e., the Bihar Panchayat (Inspection of Offices and Inquiry

into Affairs Supervision and Guidelines) Rules, 2014, framed under

Section 146 of the said Act.

8. The counter affidavit has been filed in this case in

which the stand of the State is very clear that the due enquiry was

conducted by the Block Development Officer and it has been found

that the petitioners are involved in the financial irregularities and

misconduct relating to work of Gram Panchayat and it is due to this

reason the said first information report has been lodged. He

submits that the point raised by the petitioners is mere an

irregularity and it may be ignored or permitted to be ratified.

9. Upon going through the submissions made by the

petitioners and the points raised in their pleadings, this Court is of

the view that the Legislative intent of the Law Maker under the

Bihar Raj Panchayati Raj Act and its Rule, i.e., the Bihar Panchayat

(Inspection of Offices and Inquiry into Affairs Supervision and Patna High Court CR. WJC No.193 of 2020 dt.10-05-2023

Guidelines) Rules, 2014, are very much clear and any executive is

bond to follow the Legislative instructions in the way it is being

drafted and if such instruction has not been followed in its true

spirit and sense then any action shall not be treated as irregular

rather it is illegal in the eye of law and not sustainable in view of

this Court. Hence, there is a gross violation of Rule 4 and Rule 9

of the Rules, therefore, any action done in violation of the Rules is

illegal and a non-jurisdictional action of the State.

10. In this view of the matter, the first information report

bearing Sangrampur P.S. Case No. 268 of 2019 is hereby set aside,

but, under the Statute, liberty is always with the officials to act and

take action against the illegalities, misconduct etc. of the wrong

doers, completely and fully, in accordance with law.

11. With these observations, this writ petition is allowed.

(Dr. Anshuman, J) Shamshad/-

AFR/NAFR                  AFR
CAV DATE                  NA
Uploading Date            12.05.2023
Transmission Date         12.05.2023