Indu Bhushan Kumar v. State of Bihar — 1983 DIGILAW 130 (PAT)

ABHIRAM SINGH, J. In this application, the sole petitioner has prayed for setting aside the order dated 16.11.1981 passed by the Sub-divisional Judicial Magistrate, Seraikela in C.R. Case No. 413 of 1977, by which cognizance has been taken against him (the petitioner) under sections 409 and 120B of the Indian Penal Code and summons has also been ordered to be issued against him. 2. The relevant facts giving rise to this revision case are that M.K. Choudhury, Sales Manager of Bihar Emporium, New Dak Bungalow Road, Patna, lodged first information report on 9.8.1977 against Ramashray Prasad Sinha and Rama Dwivedi for the offence under sections 409 and 1208 of the Indian Penal Code. The name of Bihar Emporium was changed and subsequently it was named as Bihar State Small Industries Corporation Limited (hereinafter to be referred to as 'the Corporation') and the same is a semi-Government concern. The Corporation set up raw material depots at several places, including one at Adityapur which is relevant in the instant case. It is said that the main function of the depot is to purchase raw materials and to supply the same on payment of price 10 Small Scale Industry-Unit on the basis of the permit issued by the State Government through Department of Industries. Industrial Raw Material Depot of Adityapur has been mainly purchasing iron and steel as raw material. One Store Keeper and a clerk-cum-cashier under the supervision of one Assistant Manager have been managing the affairs of the depot at Adityapur. Ramashray Prasad Sinha is said to have taken charge of the Adityapur depot as Store Keeper after physical verification of the store on 21.12.1973 and to have served the depot in the same capacity till 13.9.1974. He is also said to be responsible for the safe custody of the raw materials kept in the said depot and to deal with the same on behalf of the Corporation under the direction of the Assistant Manager. Rama Dwivedi is said to have been appointed as daily-rate worker on 17.7.1972 in the said depot, subsequently he was appointed as clerk-cum-cashier by order dated 27.4.1914 and he was helping the store Keeper, Ramashray Prasad Sinha in effecting the delivery of the raw material from the aforesaid depot. Rama Dwivedi is said to have been maintaining separate Store Book and Store Ledger for the goods received till 13.9.1974. Rama Dwivedi is said to have been maintaining separate Store Book and Store Ledger for the goods received till 13.9.1974. The Managing Director along with Development Officer and Secretary of the Corporation inspected the aforesaid depot in the month of August. 1974 and suspecting some irregularities in the stock of the said depot deputed a team of officers for checking and verification of the stock of the said depot. The said team of officers checked and verified the materials in the stores and relevant papers of the raw materials for the period between 21.12.1973 to 22.8.1974. The aforesaid team of officers found sufficient shortage in the materials of the said depot of the tune of Rs. 89, 829.66 paise. It was alleged that Ramashray Prasad Sinha and Rama Dwivedi had been entrusted with the materials in question kept in the Store of the said Depot and they had full control over the same in the capacity of public servants. It was further alleged that they committed criminal breach of trust in respect of the aforesaid materials in conspiracy with each other. 3. A charge-ªsheet was submitted by the police against Ramashray Prasad Sinha and Rama Dwivedi and the trial proceeded in the court of the Sub-divisional Judicial Magistrate, Seraikella. During the course of the trial, several witnesses were examined on behalf of the prosecution on 18.9.1981, the A.P.P. filed a petition in the court of the Sub-divisional Judicial Magistrate, Seraikella praying therein that the petitioner should also figure as an accused in the case and be summoned, on the ground that from the evidence of some of the prosecution witnesses, a prima facie case for criminal breach of trust and conspiracy was made out against the petitioner also. The learned Sub-divisional Judicial Magistrate, Seraikella, by his order dated 16.11.1981, allowed the prayer of the A. P. P. and took cognizance against the petitioner under sections 409 and 120B of the Indian Penal Code and also ordered to issue summons against him for his appearance in the court. 4. Mr. The learned Sub-divisional Judicial Magistrate, Seraikella, by his order dated 16.11.1981, allowed the prayer of the A. P. P. and took cognizance against the petitioner under sections 409 and 120B of the Indian Penal Code and also ordered to issue summons against him for his appearance in the court. 4. Mr. P.S. Dayal, learned counsel appearing on behalf of the petitioner, has submitted that there was no justification for the learned Magistrate to proceed against the petitioner under section 319 of the Code of Criminal Procedure, 1973 (hereinafter to be referred to as 'the Code'), According to him, the facts which have come before the trial court through evidence of the witnesses of that prosecution, did not constitute any offence alleged to have been committed by the petitioner. The criteria for proceeding against the accused under sections 204 and 319 of the Code can not be the same. It has been further urged by him that the evidence relied upon by the learned Magistrate for passing the impugned order is not such as is required in law for proceeding under section 319 of the Code. Sub-sections (1) and (2) of section 319 of the Code are new provisions and as such it is necessary to examine it in details. 5. Sub-sections (3) and (4) of section 319 of the Code correspond to subsections (1) and (2) of section 351 of the Code of Criminal Procedure, 1898 (hereinafter to be referred to as 'the old Code'). Section 351 of the old Code reads as follows :- "351(1) Any person attending a Criminal Court although not under arrest or upon a summons, may be detained by such Court for the purpose of inquiry into or trial of any offence of which such Court can take cognizance and which, from the evidence, may appear to have been committed, and may be proceeded against as though he had been arrested or summoned. (2) When the detention takes place in the Course of an inquiry under Chapter XVIII or after a trial has been begun, the proceedings in respect of such person shall be commenced afresh, and the witnesses reheard." Section 319 of the Code reads as follows :- "319. Power to proceed against other persons appearing to be guilty of offence-(l) Where, in the course of any inquiry into, or trial of an offence. Power to proceed against other persons appearing to be guilty of offence-(l) Where, in the course of any inquiry into, or trial of an offence. it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which ho appears to have committed. (2) Where such person is not attending the Court he may be arrested or summoned, as the circumstances of the case may require, for the purpose of aforesaid. (3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed, (4) Where the Court proceeds against any person under sub-section (1) then- (a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re- heard; (b) subject to the provisions of cl. (1). the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced. 6. In section 351 of the old Code. there was provision for proceeding against the person who was no an accursed in the case but was attending the court although not under arrest or upon summons Before the introduction of section 319 of the Code, difficulty used to be felt by tae court as to how to proceed against a person against whom evidence used to come during the enquiry or trial period. Therefore, on the recommendation of the Law Commission, section 319 of the Code was introduced. Hence the words used in section 3t9 of the Code are to be read with great care for their correct interpretation. Section 204 of the Code provides for commencement of proceedings before Magistrate. It would be useful to quote section 204 of the Code which runs as follows ;- "204. Issue of process-(l) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be - (a) a summons-case, he shall issue his summons for the attendance of the accused. It would be useful to quote section 204 of the Code which runs as follows ;- "204. Issue of process-(l) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be - (a) a summons-case, he shall issue his summons for the attendance of the accused. Or (b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction. (2) No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed. (3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint. (4) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint, (5) Nothing in this section shall be deemed to affect the provisions of sec. 87." 7. According to section -204 as well as according to section 319 of the Code, the Court has been empowered to proceed against an accused. Under section 204 the court proceeds against the accused at the initial stage of the case whereas under section 319, the Court proceeds against the accused at a subsequent stage when some evidence is adduced before it. In section 204, the court has to proceed against all the accused who have been named and there is some allegation against them on the report of the police or otherwise, whereas in section 319, the court has to proceed against other persons appearing to be guilty of the offence who are not being tried before him. A plain reading of sections 204 and 319 will disclose that the criteria for proceeding against the accused under those sections are different. It appears that the intention of the Legislature is to put a greater rigour for proceeding against the accused by the court under section 319 than proceeding under section 204 of the Code. A plain reading of sections 204 and 319 will disclose that the criteria for proceeding against the accused under those sections are different. It appears that the intention of the Legislature is to put a greater rigour for proceeding against the accused by the court under section 319 than proceeding under section 204 of the Code. It has been generally found that in criminal cases, the disclosoure about the details of the offence at the earliest opportunity are of great significance. In any subsequent disclosure in criminal cases, the possibility of false implication and concoction can not be ruled out. It appears that keeping in view this aspect of the hard-reality of the criminal cases; a stricter test has been fixed by the Legislature to proceed under section 319 than to proceed under section 204 of the Code. The intention of the Legislature is also apparent from the words used in both the aforesaid sections. 8. The words used in section 204 are “If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding”. Thus, section 204 is dependent upon section 190 under which the Magistrate takers cognizance of any offence:- (a) Upon receiving a complaint of facts which constitute such offence; (b) Upon a police report of such facts; (c) Upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. The Magistrate, therefore, has no sufficient materials before him when he proceeds under section 204 and he has only to satisfy himself if any prima facie case is made out. But in section 319, the words used are "other persons appearing to be guilty of offence" and "it appears from the evidence that any person not being the accused has committed any offence". Those words indicate that there are sufficient materials before the court at the time it intends to proceed under section 319 and it is in a position to make up its mind about the guilt of the person to some extent although not conclusive, i.e., it is not in such a disadvantageous position as it is at the time proceeding under section 204 due to complete lack of legal evidence. When the court wants to proceed 'against any person under section 319, it must appear to it from the evidence that the person concerned has committed any offence. It is manifest that some hard-test has been applied for proceeding under section 319 in order to safeguard the rise of false implication, unlike proceeding under section 204 when there ii initial stage of the case and there is less chance of any concoction. 9. Now the question arises as to what kind of evidence is required for proceeding under section 319 of the Code. A division Bench of this Court has discussed elaborately in the case of Satya Narain Yadav Vs. State of Bihar, as to what is meant by the expression "evidence" in section 319 and has come to the conclusion that it means only legal evidence. i.e., the oral or documentary evidence adduced before the court. Section 319 further says that the requirement for proceeding under the same is not only the legal evidence but it should also be not of a flimsy nature, rather it should be such that from it, it should appear that the person against whom the Court is to proceed, has committed any offence. Section 319 requires that there should be some positive evidence which should point out the specific guilt of the person to be proceeded against. 10. In the instant case, the learned Magistrate while passing the impugned order has observed :- “Perused the case record and evidence recorded on behalf of the prosecution. The evidence of witness, T. K. Mishra, in para nos. 18 and 38, evidence of P.W. 2, M. K. Choudhury in para 26 and evidence of P W. 3, B. K. Sinha in para 12, confirms the gravity of offence against the Manager also. As such this is a clear case of misappropriation against Manager also. Under this circumstance, the Manager is also made an accused of this case. Cognizance taken under sections 409 and 120B I.P.C. Issue summons upon the Manager, I.B. Kumar for his appearance. " It is clear from the above, that the learned Magistrate has not discussed the evidence from which it would appear that the petitioner has committed the alleged offence. He has simply quoted the paragraph numbers of the depositions of the witnesses examined on behalf of the prosecution. " It is clear from the above, that the learned Magistrate has not discussed the evidence from which it would appear that the petitioner has committed the alleged offence. He has simply quoted the paragraph numbers of the depositions of the witnesses examined on behalf of the prosecution. In this view of the matter, it is necessary to consider the evidence referred to by the learned Magistrate as to whether from that evidence it would appear that the petitioner is guilty of the alleged offence. 11. P.W. 1 (T.K. Mishra) does not say anything regarding the offence in paragraph 18 of his deposition. In paragraph number 38 of his deposition, which is by way of cross-examination, he has said that on checking, he learnt that the petitioner and one Somaiya had also hand ill the matter of the shortage of the materials in the stock. P.W. 2 (M.K. Choudhury) has said in paragraph number 26 of his deposition which is also by way of cross-examination, that the Manager used to keep challan book in his Almirah and he found page numbers 501 to 600 missing. He has further said that page numbers 601 and onwards of the Challan Book had been used. According to him, it may be that materials might have gone out of the store through the aforesaid missing challans. P. W 3 (B. K Sinha) in paragraph 12 of his deposition which is also by way of Cross-examination has said that materials used to go out under the supervision of the petitioner. He had found during Checking that the petitioner had not signed in the fixed column meant for his signature in the challan and ledger He had written in his report that due to the negligence in the supervision work by the petitioner, the offence was committed. 12. On the basis of the aforesaid evidence, the learned Magistrate proceeded against the petitioner. According to the requirement of section 319, the above-mentioned evidence should indicate some specific guilt of the petitioner. For coming to this conclusion, it would be necessary to refer to the background of the case. The date and hour of the Occurrence of the case is from 21.12.1973 to 22.8.1974. According to the requirement of section 319, the above-mentioned evidence should indicate some specific guilt of the petitioner. For coming to this conclusion, it would be necessary to refer to the background of the case. The date and hour of the Occurrence of the case is from 21.12.1973 to 22.8.1974. The Managing Director and the Development Officer and Secretary of the Corporation visited the raw material depot at Adityapur in the month of August, 1974 and deputed a team of officers to check and verify the stock of materials in the said depot and. those very officers who• checked and verified the stock as early as in the year 1974 have figured as prosecution witnesses numbers 1 to 3 as mentioned above. The F.I.R. was lodged by M.K. Choudhury (P. W. 2) on 9.8.1977 after thorough examination of the matter by the officials of the Corporation. In the F.I.R. it has been clearly mentioned that Ramashray Prasad Sinha and Rama Dwivedi were entrusted with the materials kept in the store of the industrial raw material depot at Adityapur and they had domain and full control over the said property of the Corporation in the capacity of Public servants. It has been further mentioned in the F.I.R. that they committed criminal breach of trust in respect of the property entrusted to them in conspiracy with each other and thereby they made themselves liable for prosecution for committing offence punishable under sections 120B and 409 I. P. C. With these allegations in the F.I.R., only Ramashray Prasad Sinha and Rama Dwivedi were made accused and there was no allegation at all against the petitioner. P.W. Nos. 1 to 3, whose evidence has been referred to above, have not disclosed any new evidence against the petitioner nor they have said anything against the petitioner in their examination-in-chief They have given evidence only about the facts which were already present at the time when the Corporation decided to institute a case against Ramashray Prasad Sinha and Rama Dwivedi only. It has already been mentioned above that the Corporation considered the report of its officers for about three years, i.e., from the year 1974 to 1977 and then decided to take steps only against Ramashray Prasad Sinha and Rama Dwivedi. It has already been mentioned above that the Corporation considered the report of its officers for about three years, i.e., from the year 1974 to 1977 and then decided to take steps only against Ramashray Prasad Sinha and Rama Dwivedi. It is significant to note here that the petitioner joined as Manager of the aforesaid depot on 3.5.1974 for the first time and took charge of the depot on 4.5.1974. It is also said on behalf of the petitioner that he reported about the suspected shortage of the materials in the aforesaid depot to the authority as early as on 11.5.1974, i.e., only a week after his taking over charge It has, therefore, been contended on behalf of the petitioner that the petitioner cannot be held liable for the shortage of stock for the period between 21.12.1974 to 4.5.1974. A show cause has also been filed on behalf of the Corporation in this Court, but this statement of the petitioner in the application that he had reported about the shortage of the materials on 11.5.1974 has not been controverted. In the background of these facts and circumstances, the evidence adduced before the learned Magistrate is to be considered. 13. In the evidence of the prosecution witnesses referred to above, it has not been disclosed as to how the petitioner was guilty for the shortage found in the stock of the depot in-question. It has not been said by the P. W. 2 as to how the missing of some pages of the challan book can be connected with the shortage of the materials found in the stock. He has simply said that it can be that materials might have gone out of the store through the missing challans. Similarly, P.W. 3 has said in his evidence that he had written in his report that due to the negligence in the supervision-work by the petitioner, the offence had been committed. P.W. 1 also does not say as to how the petitioner had any hand in the matter of the shortage of the materials in the stock. Similarly, P.W. 3 has said in his evidence that he had written in his report that due to the negligence in the supervision-work by the petitioner, the offence had been committed. P.W. 1 also does not say as to how the petitioner had any hand in the matter of the shortage of the materials in the stock. The evidence which has' been relied upon by the Magistrate concerned has not been adduced with a view to point out the guilt of the petitioner as the same has come in the deposition of those witnesses only at the time of the cross-examination in a casual way and not in the examination-in-chief in a systematic way. There is no doubt that the petitioner was supervising the work of the two employees who were made accused as there was direct allegations against them. But there appears nothing in the evidence to connect the petitioner with the alleged offence. There is nothing in the evidence to indicate as to by which action of the petitioner, he can be said to be guilty under sections 409 and 120B I.P.C. It has been clearly stated in the F.I.R. that Ramashray Prasad Sinha and Rama Dwivedi are the persons who had been entrusted with the materials which are said to be missing from the store of the aforesaid depot. If the petitioner had not been entrusted with the materials which had been found to be missing, how can it be said that he can be held to be guilty for the offence under section 409 of the Indian Penal Code ? For proving the offence under section 409 I.P.C. the entrustment of the material is an essential ingredient and as such from the evidence, as it is, it would not appear that the petitioner is also guilty of the alleged offence. There is nothing in the evidence to connect the petitioner with the offence of criminal conspiracy also. 14. Mr. V.P. Singh, learned counsel appearing for the Corporation, has said that the further details will be coming during the course of further evidence before the Magistrate concerned. Assuming the argument of Mr. Singh to be correct that the other details are likely to come in further evidence, there must be at least some evidence on the record to proceed against the petitioner under section 319 of the Code. Assuming the argument of Mr. Singh to be correct that the other details are likely to come in further evidence, there must be at least some evidence on the record to proceed against the petitioner under section 319 of the Code. It has already been mentioned above that it is not the flimsy nature of the evidence which can empower any court to proceed under section 319 against any person; rather it must be such that from the evidence on the record, it should appear that the person to be proceeded against has committed some offence. 15. On a careful analysis of the evidence on the record, it is clear that there is nothing in it to show that there is any specific and clear allegation against the petitioner to connect him with the alleged offence in the background in which the case was instituted at the initial stage. To my mind, it appears that the evidence adduced against the petitioner in the court of the Magistrate is not of that standard which is required for proceeding under section 319 of the Code. If it is found by the Corporation that there had been same omissions and commissions on the part of the petitioner so far as his duty of supervision was concerned, he may be departmentally proceeded with. But from the evidence which was adduced before the learned Magistrate, it does not appear that a criminal action can also lie against the petitioner. 16. In view of the above discussions, I am of the opinion that there is merit in this application and it is accordingly allowed. The impugned order dated 16.11.1981 is hereby set aside. Application allowed.