The main legal point established is that agreements for illegal gratification are void and against public policy, rendering them unenforceable and not constituting criminal offences under the Indian Penal Code.

Ashwani Kr. Singh, J.

1. Heard Mr. Sharda Nand Mishra, learned advocate for the petitioner and Dr. Mayanand Jha, learned Additional Public Prosecutor for the State.

2. This application under Section 482 of the Code of Criminal Procedure (for short Cr.P.C.) has been filed for quashing the order dated 13.06.2011 passed by the learned Sub-divisional Judicial Magistrate, Sikrahana at Motihari in Phenhara P.S. Case No. 15 of 2009 whereby the petitioner and two others have been summoned to face trial for the offences punishable under Sections 406 and 420 of the Indian Penal Code (for short "IPC").

3. Complaint petition vide Complaint Case No. 140 of 2009 was filed by one Umakant Tiwari in the court of Sub-divisional Judicial Magistrate, Sikrahana which was referred to the police under Section 156(3) of the Cr.P.C. pursuant to which Phenhara P.S. Case No. 15 of 2009 was registered under Sections 406, 409, 420, 504 and 506/34 of the IPC against the petitioner Manju Devi and two others, namely, Kailashi Devi and Kameshwar Hajara and investigation was taken up.

4. Allegation in the FIR is that the daughter of the informant, namely, Kumari Gunja, who was differently abled and was having qualification of B.A. (Hons.) in the subject of Psychology, had applied for appointment on the post of Shiksha Mitra. The accused persons demanded Rs. 1,50,000/- for her appointment. The informant agreed to negotiate with them and persuaded them to appoint her daughter on the payment of Rs. 1,20,000/-. At the request of the informant, they visited his house on 09.11.2008 and received Rs. 1,20,000/- from him but neither the informant's daughter was appointed nor the amount taken by them was returned to him.

5. The police investigated the case and found no incriminating material against the accused persons. Accordingly, the Investigating Officer submitted his report under Section 173(2) of the Cr.P.C. vide Final Report No. 18 of 2010 dated 24.04.2010 holding the accusation to be false. The Investigating Officer also recommended for initiation of a prosecution against the informant under Sections 182 and 211 of the IPC for launching a malicious prosecution.

6. However, on perusal of the police report and the other materials collected in course of investigation, the learned Magistrate differed with the police report and took cognizance of the offences under Sections 406 and 420 of the IPC against the petitioner and two others and summoned them to face trial.

7. Challenging the aforesaid order dated 13.06.2011, learned counsel for the petitioner submitted that the essential ingredients of the offence punishable under Sections 406 and 420 of the IPC are not attracted in the present case. He submitted that at the relevant time, the petitioner was a Ward Councillor whereas two others co-accused, namely, Kailashi Devi and Kameshwar Hajara were Mukhiya and Panchayat Sewak respectively. He submitted that the post of Shiksha Mitra was not in existence on or after 01.07.2006 and, hence, there was no scope for the informant's daughter to have applied on the post of Shiksha Mitra. He submitted that finding the entire allegation to be false and baseless, the police had submitted final report holding the accusation to be false but without assigning any reason mechanically the learned Sub-divisional Judicial Magistrate differed with the police report and wrongly summoned the petitioner to face the prosecution for the offences punishable under Sections 406 and 420 of the IPC.

8. On the other hand, learned Additional Public Prosecutor for the State submitted that to hold investigation is the statutory duty of the police, but once the police report is submitted, it is for the Magistrate to appreciate the materials collected during investigation and pass order in accordance with law. He submitted that since the learned Sub-divisional Judicial Magistrate has differed with the police report, the guilt or innocence of the petitioner can be seen only at the stage of trial. H