Research › Browse › Judgment

Allahabad High Court · body

1980 DIGILAW 53 (ALL)

Mahesh Chandra Misra v. State

1980-01-09

HARI SWARUP

body1980
JUDGMENT Hari Swarup, J. This is a revision against the order of the IInd Additional Sessions Judge rejecting the application made by the applicant for his discharge under Section 227 of the Code of Criminal Procedure. The applicant alongwith four others was put up for trial. The applicant moved an application that he was entitled to be discharged under Section 227, Cr.P.C. The learned Additional Sessions Judge has held that he is not so entitled and has framed the charges against all the accused. In the memorandum of revision it is mentioned that the revision is against the order dated November 5, 1979 refusing the application under Section 227 Cr.P.C. and framing charges under Sections 120B, 409, 468, 471 and 477A I.P. C. But only the order dated November 5, 1979 by which the application for discharge was rejected has been filed. The copy of the charges framed in the case has not been filed. Learned counsel for the applicant stated that he will, if necessary, challenge that part separately and that this revision may be kept confined to the order refusing to discharge the applicant. I accordingly proceed to consider whether the order under Section 227 Cr.P.C. refusing to discharge the applicant is valid or not. In short, the prosecution case is that certain quantities of Skimmed Milk Powder was allotted by the Government of India through the Indian Dairy Corporation, Baroda to the Lucknow Producers Cooperative Milk Union Ltd. (hereinafter referred to as the Cooperative Society). The Cooperative Society took delivery of the goods. Subsequently it was reported that the goods were deteriorating and needed immediate disposal and removal. Thereafter they were sold to a fake company Vijay Trading Corporation of Delhi. It was on this basis that the accused were sought to be tried for the offences under Sections 120B, 409, 465, 468, 471A I P.C. All the five accused are the employees of the Cooperative Society. B. S. Chauhan is the Secretary, K.M. Srivastava, the Store Purchase Officer, Satish Chandra, Head Clerk, M.C. Misra the present applicant, Store Keeper and Ranjit Singh since deceased, Power Stock Incharge. The case of the present applicant was that there was no evidence connecting him with the offence. The learned Additional Sessions Judge has observed that the applicant has kept mum and had made his report regarding the bad condition of the powder on February 28, 1973. The case of the present applicant was that there was no evidence connecting him with the offence. The learned Additional Sessions Judge has observed that the applicant has kept mum and had made his report regarding the bad condition of the powder on February 28, 1973. He has further observed: "The documents on record show that the delivery to the Vijay Trao ing Corporation, Delhi said to be a fake firm was not done in the manner as it ought to have been done. Therefore, there is grave suspicion against accused M.C. Misra being a coconspirator." For determining whether a charge be framed or an accused be discharged the test had been laid down by the Supreme Court in Union of India v. Prafulla Kumar Samal and another (A. I. R. 1979 S. C. 366.). It runs as under: "The test to determine a prima facie case naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused." What has, (therefore, to be seen is whether there is material on record to justify the grave suspicion about the applicants being involved in the matter. I am not proposing to express any opinion 011 merits at this stage as it might effect prejudicially the applicant's defence and I am, therefore, confining the consideration only to what the applicant had, himself alleged in the written arguments filed before the trial court arid a copy of which has been filed here. In Paragraph 8 he has alleged: "That so far the applicant is concerned, the only evidence which is being relied upon by the prosecution is one letter dated August 22, 1973 written by the applicant to the Secretary bringing to his notice that some of the bags had already set and some are in process of setting, some plastic bags started having moulds. In this letter the applicant has further expressed his apprehension that other bags which were in, good condition might also be spoiled due to these bags in bad condition. Therefore, it was requested that the bags in bad condition be removed from the store. In this letter the applicant has further expressed his apprehension that other bags which were in, good condition might also be spoiled due to these bags in bad condition. Therefore, it was requested that the bags in bad condition be removed from the store. A similar letter was again written on June 9, 1974." and again in Paragraph 14 he has alleged as follows: "That the letters dated August 22, 1973 and Jue 9, 1974 were written by the applicant in the honest discharge of his duties as Store Keeper." The gravamen of the charge against the accused is that they conspired together and sold away the goods showing them to have deteriorated to a firm which was fake meaning thereby that the goods were never sold but misappropriated. In cases of conspiracy all that is necessary to give rise to grave suspicion is the participation of the accused in the process of conspiracy. If the applicant had not played any part in the process, it could be held that there was no ground for suspicion against the applicant. Admittedly the applicant had played a pant in the whole drama. He had himself written letters stating that the goods were deteriorating and should be removed from the store house. The subject matter of the letters was thus corelated with the substance of the charge. If in case of a conspiracy a person, prima facie, appeals to have played a part which can be relevant for the furtherance of the conspiracy, it can be valid for a Judge to hold that his conduct raises grave suspicion about his complicity in the crime. It may be possible for the applicant ultimately to show that the letters were innocently written and were not sufficient to prove his participation in the conspiracy, but for the framing of a charge against an accused, not proof, but only grave suspicion is enough. As there is material on record to give rise to grave suspicion even against the present applicant the order of the IInd Additional Sessions Judge cannot be quashed and it cannot be held that the refusal to discharge him under Section 227 Cr.P.C. is erroneous. In the result, the revision fails and is dismissed. Revision dismissed.