LexBHOLU RAM versus STATE OF PUNJAB & ANR.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
[2008] 12 S.C.R. 959
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BHOLU RAM
A
v.
STATE OF PUNJAB & ANR.
(Criminal Appeal No. 1366 of 2008)
AUGUST 29, 2008
B
[C.K. THAKKER AND D.K. JAIN, JJ.]
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Code of Criminal Procedure, 1973:
ss. 319, 197 and 482 - Recalling order of issuance of
summons against person other than accused -·Permissibility c
of- Held: Order passed by competent court issuing summons
cannot be recalled - Aggrieli'ed party can challenge the order
by invoking in{lerent jurisdiction of High Court u/s. 482 - On
facts, Revisional Court and High Court not justified in recalling
summoning order passed by Magistrate against Head Master-
D
cum-Drawing and Disbursing Officer other than accused-clerk
in Government School - Accused in a complaint alleging
forgery and cheating, filed application to add respondent as
accused and summon him -
Magistrate had power and
;urisdiction to entertain the applications - It issued summons
E
on being satisfied that depositions of prosecution witnesses
prima facie made out offence against respondent - Revisional .
Court erred in entering into correctness of the evidence at the
stage of issuance of summons to respondent - Proceedings
could not have been quashed on the ground of want of F
sanction - Application to issue summons could be filed by
any person including accused and the court could entertain
such application filed belatedly - Thus, orders of Revisional
Court and High Court set aside and that of Magistrate restored.·
s. 319 -
Summoning of person other than accused -
G
Power of court - Nature and scope of - Discussed.
Penal Code, 1860 - ss. 409, 420, 467, 468, 471 -
Offences under- Requirement of sanction uls. 197 Cr.PC. -
959
H
960
SUPREME COURT REPORTS
[2008] 12 S.C.R.
A Held: Offences u/ss. 409, 420, 467, 468, 471 cannot be
regarded as having been committed by a public servant while
'acting or purporting to act in discharge of official duty,' thus,
sanction is not required - On facts, complaint alleging forgery
and cheating against accused-clerk in Government school -
g
Issuance of summons against Head Master other than
accused - Quashing of, by Revisional Court on the ground of
absence of sanction but holding that at the most there was
negligence on the part of Head master but no criminal intent
- Held: Not correct - Mens rea can only be decided at the
c time of trial and not at the stage of issuing summons - Need
or necessity of sanction can be taken during the conduct of
trial or at any stage of the proceedings - Code of Criminal
Procedure, 1973 - s. 197.
Administrative law - State authorities - Role of -
On
D facts, complaint alleging forgery and cheating against
accused-clerk in Government school - Issuance of summons
against Head Master other than accused - Challenge to, by
State before Sessions Court - Before Supreme Court also
State supporting the Head master - Propriety of - Held: Not
E proper.
First Information Report was lodged against the
appellant u/ss. 409, 420, 467, 468 and 471 IPC. It was
alleged that the appellant-Clerk in Government School
forged signature of respondent No. 2-Head Master-cum-
F Drawing and Disbursing Officer and embezzled
substantial amount. During investigation, signatures of
respondent No. 2 were also taken but prosecution never
filed the report. Witnesses deposed that respondent No.
2 had withdrawn the amount and ·signatures purported
G to have been forged by appellant tallied with the
specimen signatures of respondent No. 2. Thereafter,
appellant filed applications u/s. 319 Cr.P.C. to add
respondent No. 2 as accused and summon him. The.
Magistrate allowed the application. Respondent No. 2 was
H
BHOLU RAM v. STATE OF PUNJAB & ANR.
961
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issued summons. Aggrieved, respondent No. 1-State filed A
Revision Petition which was dismissed. Thereafter,
respondent No. 2 filed application to review/recall
summoning order on the ground that he could not be
prosecuted in absence of sanction required by s. 197 of
the Code. The Magistrate dismissed the c;ipplication in
B
~ view of dismissal of revision petition filed by State.
However, Additional Sessions Judge allowed the revision
petitions filed by the respondent No, 2 and set aside the
order adding respondent No. 2 as an accused and
summoning him. High Court upheld-the order. Hence the c
present appeal.
Allowing the appeal, the Court
HELD: 1.1 Section 319 Cr.P.C., 1973 empowers a
Court to proceed against any person not shown tc;> be aExcerpt shown. Read the full judgment & AI analysis in Lexace.