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2019 Supreme(P&H) 1424
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Arvind Singh Sangwan, J.
Phool Kanwar - Petitioner
Versus
State of Haryana - Respondent
CRM-M No.39250 of 2019 (O&M)
Decided On : 15-11-2019
For the Petitioner:Mr. Vishva Bahl, Advocate for Mr. Harkesh Manuja, Adv.
For the Respondent: Mr. Naveen Sheoran, DAG, Haryana.
The central legal point established in the judgment is the interpretation of the provisions of the Haryana Panchayati Raj Act, especially regarding the deposit of outstanding amounts and the distinction between 'loss' and 'embezzlement' as per the Act and relevant case law.
Headnote:
anticipatory bail - Indian Penal Code - 409, 420, 468, 471 - Haryana Panchayati Raj Act, Section 175(o), Section 53(5) - The court discussed the provisions of the Haryana Panchayati Raj Act, especially regarding the safeguards provided to Sarpanch/Ex-Sarpanch and the limitations for initiating proceedings. The court also highlighted the interpretation of the legal provisions related to recovery of financial loss and the deposit of the outstanding amount with interest, emphasizing the distinction between 'loss' and 'embezzlement' as per the Act and relevant case law.
Fact of the Case:
The petitioner sought anticipatory bail in a case involving allegations under Sections 409, 420, 468, 471 of the Indian Penal Code. The petitioner had deposited the outstanding amount and interest as per the Haryana Panchayati Raj Act, but a criminal case was recommended against him by the Registrar of Lokayukta. The court found discrepancies in the affidavits filed and allowed the petition, making the interim bail absolute.
Finding of the Court:
The court found that the petitioner had deposited the outstanding amount and interest as per the Haryana Panchayati Raj Act, and discrepancies in the affidavits filed by the authorities. The court made the interim bail absolute.
Issues: The issues involved the interpretation of the Haryana Panchayati Raj Act, the recommendation for a criminal case against the petitioner, and the discrepancies in the affidavits filed by the authorities.
Ratio Decidendi: The court's decision was based on the petitioner's compliance with the Haryana Panchayati Raj Act and the discrepancies in the affidavits filed by the authorities.
Final Decision: The court allowed the petition and made the interim bail granted to the petitioner absolute.
JUDGMENT :
Arvind Singh Sangwan, J.
The petitioner prays for grant of anticipatory bail in FIR No.90 dated 27.02.2019, registered under Sections 409, 420, 468, 471 of the Indian Penal Code, 1860 (in short 'IPC') at Police Station Sadar Sonepat, District Sonepat.
2. On 16.09.2019, the following order was passed by this Court:-
“....Learned counsel for the petitioner submits that with regard to allegations pertaining to petitioner’s tenure from 2010 to 2015, an inquiry was conducted by the Block Development and Panchayat Officer and in pursuance thereof, the petitioner has deposited the outstanding amount vide two receipts dated 21.03.2017 and 24.03.2017. Thereafter, the petitioner was directed to pay interest @ 21% as per Section 175 (o) of Haryana Panchayati Raj Act for the aforesaid amount and the said amount was also deposited by the petitioner on 11.09.2018. It is thus argued that once in pursuance of the proceedings under Section 53 of Haryana Panchayati Raj Act, the petitioner has paid the entire amount, there was no occasion for the Registrar of Lokayukta to recommend for registration of criminal case against him. It is further submitted that the Haryana Panchayati Raj Act is a complete Code, in which some certain safeguards have also been provided to Sarpanch/Ex-Sarpanch, especially regarding two years limitation for initiating proceedings under Section 53 (5) of the Act, after a person seizes to be Sarpanch/Panch of the village.
Learned counsel for the petitioner has further argued that the Registrar, office of the Lokayukta, Haryana, while passing the order dated 02.11.2018, had in fact assumed the powers of the Lokayukta himself, to recommend for registration of a criminal case against the petitioner, without looking into the aforesaid fact that the petitioner has already deposited the entire outstanding amount along with interest @ 21%. It is further argued that even subsequently, when the Lokayukta, Haryana passed the order dated 07.01.2019, directing that report of the Registrar be served upon the Deputy Commissioner for filing the response and fixed a date for 13.03.2019, the Deputy Commissioner hurriedly without affording an opportunity of hearing to the petitioner, issued a letter dated 01.02.2019 to the Block Development and Panchayat Officer to take further action and the Block Development and Panchayat Officer, vide letter dated 13.02.2019, directed the SHO, Police Station Sadar Sonepat to register an FIR against the petitioner. It is next argued that the FIR has been registered without filing a response before the Lokayukta, Haryana, which was fixed for 13.03.2019 and therefore, the protection given to the petitioner under the Haryana Panchayati Raj Act regarding limitation, has not been considered.
Notice of motion for 15.11.2019....”
3. Counsel for the petitioner has submitted that, in pursuance to the order dated 16.09.2019, the petitioner has appeared before the Investigating Officer and has joined the investigation.
4. This fact is not disputed by learned State counsel.
5. Counsel for the State has filed 03 separate affidavits in the Court today i.e. the affidavit of the Registrar, Lokayukta, Haryana, the affidavit of the Deputy Commissioner, Sonepat and the affidavit of the Block Development and Panchayat Officer, Murthal, Sonepat.
6. Before referring to the aforesaid affidavits, certain facts needs to be noticed.
7. On a complaint filed against the petitioner, the Executive Engineer, Panchayati Raj, Sonepat conducted an enquiry and given a report to the following effect:-
“In this way, the Ex-Sarpanch Shri Phool Kanwar during his tenure, has caused financial loss of Rs.305624/- in the aforesaid works of the Gram Panchayat, Kami.
Enquiry report is submitted to your goodself for further necessary action.
Encls:- Page 1 to 25 and original file 1 to 142.
Sd/-
Executive Engineer,
Panchayati Raj, Sonepat.”
8. In pursuance thereof, the recovery proceedings were initiated against the petitioner, who deposited the principal am
