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2008 DIGILAW 85 (JHR)

Chandreshwar Rai v. State of Jharkhand

2008-01-29

D.K.SINHA

body2008
Order Mr. B.M. Tripathy. learned Counsel appearing on behalf of the petitioner assailed the order impugned dated 14.9.2006 whereby and whereunder the learned S.D.J.M. Pakur dismissed the prayer for discharge preferred by the petitioner under Section 239 Cr. P.C. 2. Mr. Tripathy pointed out that the entire allegation was levelled against one Mustkim Hussain, contractor in the written report of the informant B.D.O., Maheshpur, which was presented to the Officer-in-charge, Maheshpur Police Station giving rise to instant case. 3. It was alleged therein that the Project of digging 13 wells at village Radhaballavpur was earmarked for the year 1990 but though the project was not completed, the bill was presented for final payment showing the work to be completed. On inspection it was found that all projects were incomplete and that water was not there in the wells. 4. Advancing his argument Mr. Tripathy submitted that in course of investigation, the Investigating Officer, according to the impugned order, collected certain materials against the petitioner and that at the relevant time the petitioner was the Assistant Engineer in Maheshpur Block assigned with the supervision work o digging of wells and that he had countersigned the running bills for payment. 5. Mr. Tripathy further submitted that the petitioner was not present on 29.9.1990 when the final bill of all the 13 wells were submitted under the scheme as he was transferred to another place a month prior to the alleged date. As a matter of fact, the petitioner was transferred to Maheshpur Block in the year 1988 and he was assigned simply to supervise the work of digging wells but in the meantime he was transferred. 6. Mr. Tripathy pointed out that it would be evident from the order impugned that. the learned S.D.J.M., Pakur did not apply his judicial mind while considering the petition of the petitioner under Section 239 Cr. P.C. as the bills in question were not examined in the light of the averment that the petitioner had not countersigned any of the bills. In that manner the criminal liability cannot be fastened upon the petitioner. 7. Mr. Hatim, learned A.P.P. opposed the contention advanced on behalf of the petitioner and submitted that the S.D.J.M., Pakur has taken pains to discuss, with reference to paragraph no. 2 of the restatement of the informant Mr. In that manner the criminal liability cannot be fastened upon the petitioner. 7. Mr. Hatim, learned A.P.P. opposed the contention advanced on behalf of the petitioner and submitted that the S.D.J.M., Pakur has taken pains to discuss, with reference to paragraph no. 2 of the restatement of the informant Mr. Om Prakash Choudhary that the petitioner had countersigned the bills without inspection of the scheme and accordingly payment was made to the benefit of the contractor as contained in paragraph no. 18 of the case diary which was the copy of the supervision note of the DY. S.P. 8. Mr. Tripathy, learned Counsel inter-ferred by objecting that the supervision note of the DY. S.P. cannot be taken into account for putting criminal liability and as such material has not found in the case diary. 9. Having regard to the facts and circumstances of the case, I find from the order impugned with reference to paragraph no. 114 of the case diary that the learned S.D.J.M., Pakur found .the statement of the witnesses that the petitioner had put his signature on the running bills and in the opinion of the learned Court there was sufficient material against the petitioner to proceed against him. 10. l find that the learned S.D.J.M., Pakur erred by not examining the documents or any bill while coming to the conclusion by dismissing the petition under Section 239 of Cr. P.C. in catena of decisions it was held that when a discharge petition is filed on behalf of the accused-petitioner, the duty is cast upon the court concerned to find out prima facie material and the relevant important documents for framing of charge and then to proceed in accordance with law but in the present case I find that the learned S.D.J.M., Pakur has erred by not applying his judicial mind as he could not peruse the bills in question in the backdrop that the petitioner has denied having countersigned any bill. 11. In the result, the impugned order cannot sustain and accordingly it is set aside with the direction to pass an appropriate order afresh after considering the materials available on the record. 12. This petition is allowed.