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2004 DIGILAW 1062 (PAT)

Om Prakash Singh v. State of Bihar

2004-09-30

body2004
ORDER Heard learned Counsel for the petitioner and the learned Counsel for the State. 2. The petitioner seeks quashing of the order of cognizance dated 26.7.2002/ 30.7.2002 as also of the entire proceedings in T.R. Case No. 1390/2002 pending against him in the court of Judicial Magistrate Saran. 3. The petitioner is one of tie three accused in a prosecution under Sections 406, 409 and 120B. The petitioner is stated to be one of the members of a Selection Committee which recommended 22 persons for appointment in excess of the sanctioned strength of 68. The FIR came to be registered on 9.5.2001 in pursuance of an enquiry report dated 9.9.1993 (copy enclosed with FIR) indicting the two persons named in the FIR. The petitioner is not named as accused in the FIR. The enquiry report confirms the presence of the petitioner as a Scheduled Caste/Tribe member of the Selection Committee as per government instructions. 4. Learned Counsel for the petitioner submits that the petitioner was only a valid member of the Selection Committee which recommended the names of 90 persons. The appointments as per vacancies was to be made by the competent authority from the recommended names. The appointments were not to be made by the Selection Committee. The petitioner thus had no role in the alleged appointment in excess of the sanctioned strength. The appointment letters in excess of the sanctioned strength was issued by the named accused under his pen from his confidential file. The alleged irregularity in the constitution of the Selection Committee by the presence of the member, Dr. Mukhdeo Singh, contrary to the government instructions, could not ipso facto expose the petitioner to rigours of criminal prosecution on basis of allegation of conspiracy, unless there be materials on record during investigation to substantiate the same. 5. It is further submitted that even as per allegations no offence under Sections 406 and 409 could be made out against the petitioner by virtue of having recommended 22 persons in excess of the sanctioned strength for consideration. It was a normal practice to recommend/empanel persons 1/3rd in excess of the requirement. The investigation did not reveal any material whatsoever, let alone prima facie or suspicion for a foundation of conspiracy against the petitioner. The order of cognizance was thus vitiated and liable to be set aside. It was a normal practice to recommend/empanel persons 1/3rd in excess of the requirement. The investigation did not reveal any material whatsoever, let alone prima facie or suspicion for a foundation of conspiracy against the petitioner. The order of cognizance was thus vitiated and liable to be set aside. It was lastly also submitted that the allegations pertaining to the year 1993 and the FIR having been lodged in the year May 2001, the same was barred by unexplained delay. 6. Learned Counsel for the State submits that in the present case, as against 68 vacancies, 90 persons were recommended by the committee. The constitution of the committee was contrary to the procedure in so far as it included the named accused Mukhdeo Singh, District Animal Husbandry Officer. The inclusion of the present petitioner as a member of the Committee as per government direction is however not faulted with. It was submitted that para 45 of the case diary records the statement of the Head Clerk that there have been irregularities in the appointment by the selection committee. Para 31 of the case diary records an inference of conspiracy because the petitioner was one of the members of the selection committee. Learned Counsel for the State took pains to take this Court through the materials in the case diary. 7. Learned Counsel for the State also submitted that provisions of Section 120B having been invoked, this per se would be sufficient at this stage to subject the petitioner to criminal prosecution on allegations of conspiracy. The sufficiency of the materials in the diary could not be looked into at this stage. 8. This Court having considered the submissions made on behalf of the parties and having been taken through the materials available in the case diary recorded during investigation, with the assistance of the learned State Counsel, finds it difficult to uphold the contentions of the learned State Counsel. The entire investigation goes not contain any material whatsoever suggestive of conspiracy for the implication of the petitioner in the alleged illegal appointment of 22 persons. The petitioner is only alleged to have been a member of the Selection Committee which recommended names for appointment. This has led to his being made an accused on unfounded suspicion. There is no material whatsoever in the diary to substantiate even prima facie the suspicion of allegations of conspiracy. The petitioner is only alleged to have been a member of the Selection Committee which recommended names for appointment. This has led to his being made an accused on unfounded suspicion. There is no material whatsoever in the diary to substantiate even prima facie the suspicion of allegations of conspiracy. This would have to be considered in light of the fact that the petitioner was a valid member of the Selection Committee which recommended names 1/3 in excess of the vacancies and that the appointment letters in excess were issued by the appointing authority and not the Selection Committee. 9. This Court in exercise of powers under Section 482 Cr.P.C. would not go into the sufficiency of the materials in the case diary to support allegations of conspiracy. The Court would however take notice of and consider appropriately the complete absence of materials in the case diary to support an allegation of conspiracy. The law with regard to the charge of conspiracy would require the suggestion during the investigation that the act was a result of an understanding. It is no doubt true that direct evidence may be difficult in forthcoming and therefore an inference have to be drawn. But there must be some material from which it would be reasonable to infer a connection between the alleged conspiracy and the act done pursuant to the said conspiracy. In the present case, there presently does not appear to be any material for inference of a conspiracy. To compel the petitioner to face the rigours and ignominy of a criminal prosecution on the basis of unsubstantiated allegation of conspiracy would clearly be an abuse of the process of criminal law. The investigation having been concluded, an aspect relevant for consideration. 10. The Court has to be circumspect in the exercise of powers under Section 482 Cr.P.C. However, when materials are gravely wanting the interference by the Court as held in para 5 of the judgment reported in 1996(8) SCC 164 (State of Bihar Vs. Rajendra Agarwalla) would be the requirement of law. 10. The Court has to be circumspect in the exercise of powers under Section 482 Cr.P.C. However, when materials are gravely wanting the interference by the Court as held in para 5 of the judgment reported in 1996(8) SCC 164 (State of Bihar Vs. Rajendra Agarwalla) would be the requirement of law. "It has been held by this Court in several cases that the inherent power of the court under Section 482 of the Code of Criminal Procedure should be very sparingly and cautiously used .only when the court comes to the conclusion that there would be manifest injustice or there would be abuse of the process of the Court, if such power is not exercised. So far as the order of cognizance by a Magistrate is concerned, the inherent power can be exercised when the allegations in the first information report or the complaint together with the other materials collected during investigation taken at their face value, do not constitute the offence alleged. At that stage it is not open for the court either to sift the evidence or appreciate the evidence and come to the conclusion that no prima facie case is made out....." 11. This Court, on basis of the aforesaid discussion and the materials as presently available on record of the prosecution does not find justification to uphold the order of cognizance against the petitioner. 12. In the result, the order of cognizance against the present petitioner is quashed. This would not however preclude the trial court from taking recourse to the provisions of the Code of Criminal Procedure under Section 319 in accordance with law, if at any subsequent stage positive materials be forth coming with regard to this petitioner, the present order notwithstanding. This application accordingly stands allowed.