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2012 Supreme(All) 1133
UTTARAKHAND HIGH COURT
Servesh Kumar Gupta, J.
Asgar -Appellant
Versus
State of Uttaranchal -Respondent
Crl. Revision Nos. 37, 38 and 40 of 2003
Decided On : 30-4-2012
The legal point established is that a 'Gram Pradhan' is considered a public servant for the purpose of embezzlement of government funds.
Headnote:
Public Servant - Embezzlement of Government Funds - U.P. Protection of Trees in Rural and Hill Areas Act, 1976 - Section 409 IPC, Sections 4/10 of the U.P. Protection of Trees in Rural and Hill Areas Act, 1976 - Section 28 of U.P. Panchayat Raj Act, 1947
Fact of the Case:
The accused, a village Pradhan, and a contractor were tried for embezzlement of government funds and cutting of trees in violation of the U.P. Protection of Trees in Rural and Hill Areas Act, 1976.
Finding of the Court:
The court found the accused guilty based on witness testimony and administrative findings, and upheld the conviction under Section 409 IPC and Sections 4/10 of the Act.
Issues: The main issue was whether the accused, as a village Pradhan, could be considered a public servant and convicted under Section 409 IPC.
Ratio Decidendi: The court relied on Section 28 of U.P. Panchayat Raj Act, 1947, which deems the 'Gram Pradhan' to be a public servant within the meaning of Section 21 of IPC, and upheld the accused's conviction.
Final Decision: The revisions were dismissed, and the judgment and order passed by the trial court, as affirmed by the appellate court, were sustained. The accused's bail was cancelled, and they were to serve out the sentence as awarded by the trial court.
At the outset, it is pertinent to mention that revisions no.38 and 40 of 2003 have been preferred by the same accused Rasheed Ahmad, challenging the common judgment and order dated 26.3.2003 rendered by learned Additional Sessions Judge/IVth FTC, Haridwar in criminal appeal no.50 of 2000. These revisions bear the different numbers, as the same were filed by different advocates.
Criminal revision no.37 of 2003 has been preferred by co-accused Asgar against the judgment and order dated 28.3.2003 passed by the same court, whereby the judgment and order of trial court dated 7.12.2000 was affirmed.
2. It appears that accused Rashid Ahmad, Pradhan of village Mirjapur Mustafabad, within the territorial jurisdiction of P.S. Jwalapur, District Haridwar, along with a contractor Asgar, was tried by the court of Second Additional Chief Judicial Magistrate, Haridwar vide trial no.650 of 2000. The said trial pertained to crime no.228 of 1987 (chargesheet no.231 dated 29.12.1987 against the accused Rashid Ahmad and chargesheet no.231-A dated 2.2.1988 against the accused Asgar) relating to the offences punishable u/s 409/420 IPC along with Sections 4/10 of the U.P. Protection of Trees in Rural and Hill Areas Act, 1976 (hereinafter to be referred as ‘the Act’). The trial concluded in conviction whereby the accused Rasheed Ahmad was found guilty for the offence of Section 409 IPC and was sentenced to undergo seven years’ R.I. with fine of Rs.5,000/, and in default of payment of fine, to undergo six months’ simple imprisonment. Further, for the offence of Section 4/10 of the Act, he was sentenced to undergo three months’ rigorous imprisonment.
3. However, the revisionist/accused Asgar was found guilty only for the offence of Sections 4/10 of the Act and was sentenced to undergo three months’ rigorous imprisonment.
4. Feeling disgruntled, both the accused/convicts preferred appeals which were titled as criminal appeal no.50 of 2000, Rasheed Ahmad Vs. State and criminal appeal no.55 of 2000, Asgar Vs. State. These appeals were adjudicated vide judgments dated 26.3.2003 and 28.3.2003 respectively passed by learned Additional Sessions Judge, which are under challenge in these revisions.
5. Having heard learned counsel for the parties, it appears that accused Rasheed Ahmad was the Pradhan of his village at the relevant time of the Gram Sabha, running from 4.6.1987 to 9.6.1987. The allegations against him were made by one Saeed Ahmad, Up-Pradhan/Deputy Headman of the village, by moving an application u/s 156(3) Cr.P.C. that he, in the active association of woods contractor Asgar (accused) has cut several (hundreds) of important green trees standing on Khasra Nos.112, 168 and 169, owned by Gram Sabha of village Mirzapur Mustafabad. Those trees were thereafter sold by the accused Rasheed Ahmad, however he did not deposit the sale proceed which was quite a handsome and considerable fund for the Gram Sabha. After the intervention of the Court, the case was registered and charge sheets were submitted on due investigation by the Police against the accused for the said offences.
6. The prosecution, in order to prove its case, produced PW1 Saeed Ahmad, who proved all the facts, as stated by him in his complaint, and all those allegations found support of an independent witness PW2 Ibnae Mohammad, who was a witness of the incident. This witness, by his own eyes, saw the cutting of trees by the said contractor Asgar under the instructions of accused Rasheed Ahmad. An enquiry in this regard was also conducted on administrative side and the revenue authorities, including the Lekhpal, Naib Tehsildar and Sub-Divisional Magistrate, found the allegations true, which resulted into the suspension of accused Rasheed Ahmad from his designation.
7. It is a settled principle that while hearing a revision, this Court is not supposed to reappreciate the entire facts and evidence on the record. Learned counsel appearing for the accused have contended mainly t
