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2009 DIGILAW 1703 (PNJ)

K. K. Jerath v. State Of U. T. , Chandigarh

2009-09-25

MAHESH GROVER

body2009
Judgment Mahesh Grover, J. 1. This revision petition is directed against order dated 4.12.2004 passed by the Special Judge, Chandigarh (hereinafter described as `the trial Court) vide which a charge has been directed to be framed against the petitioner under Section 13(1)(c) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short, `the Act). 2. It has been averred that having regard to the allegations which have been made against the petitioner, the charge under section 13 (1)(c) of the Act could not have been framed against him as the offence did not come within the parameters of these provisions of law. 3. The allegations against the petitioner, in brief, are that a complaint was received against him while he was posted as Chief Engineer, Union Territory, Chandigarh, that he had been misusing his official position as public servant by utilizing the services of government drivers and other employees working under him at his residence for his private work, although the salary was being paid by them from the government treasury. It was also alleged that he had been misusing the government vehicles for his personal work despite the fact that the same were meant for official use. 4. Learned counsel for the petitioner with reference to the aforementioned allegations contended that none of these allegations comes within the ambit of the provisions of Section 13 of the Act, which lay down that a person is said to have committed an offence of criminal misconduct if he dishonestly or fraudulently misappropriates or otherwise converts of his own use any property entrusted to him or under his control as a public servant or allows any other person to do so. It is his contention that at best, even if the allegations are taken to be correct, it can be termed to be mis-utilization of the resources available at his command and not misappropriation. He further contended that the petitioner has appropriately been punished on departmental side for having committed the aforesaid irregularities, but no criminality can be attributed to him for the same. In view of the above, learned counsel for the petitioner prayed that the impugned order be quashed. 5. He further contended that the petitioner has appropriately been punished on departmental side for having committed the aforesaid irregularities, but no criminality can be attributed to him for the same. In view of the above, learned counsel for the petitioner prayed that the impugned order be quashed. 5. On the other hand, learned counsel for the respondent has submitted that the petitioner is liable to be prosecuted for a criminal offence as the allegations which have been made against him clearly fall within the ambit of Section 13 of the Act. 6. I have thoughtfully considered the rival contentions and have perused the file. 7. The petitioner has been accused of causing loss of Rs. 26,84,824/- and Rs. 8,81,347/- to the government exchequer, primarily on two counts - (i) while he was at the helm of affairs, he utilized the services of fifteen officials who were meant for government job, at his residence for his private use and (ii) he utilized two government vehicles for his personal use despite the fact that they were not entrusted to him for that purpose. 8. First of all, the question that is to be determined is as to whether at the time of framing of charge, what material is to be considered by the Court. It is, by now, a settled principle of law that at the time of framing of charge, only prima facie material which is available before the Court is to be considered. 9. In Union of India Versus Prafulla Kumar Samal and another, AIR 1979 S.C. 366, their Lordships of the Supreme Court held as under:- "The Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial. The test to determine a prima facie case could naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. The test to determine a prima facie case could 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. In exercising his jurisdiction under Section 227 the Judge which under the present Code is a senior and experienced court cannot act merely as a Post-Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial." 10. In Kanti Bhadra Shah and another v. State of West Bengal, 2000(1) RCR (Crl.) 407 : 2000(1) S.C.C. 722, the Supreme Court observed as under : "If the trial Court decides to frame a charge there is no legal requirement that he should pass an order specifying the reasons as to why he opts to do so. Framing of charge itself is prima facie order that the trial judge has formed the opinion, upon considering the police report and other documents and after hearing both sides, that there is ground for presuming that the accused has committed the offence concerned......... If there is no legal requirement that the trial Court should write an order showing the reasons for framing a charge, there is no need to further burden the already burdened trial Courts with such extra work. The time has reached to adopt all possible measures to expedite the Court procedure and to chalk out measures to avert all roadblocks causing avoidable delays." 11. In State by Central Bureau of Investigation v. S. Bangarappa, 2000(4) RCR (Criminal) 818, their Lordships of the Apex Court observed as under :- "........ at the stage of framing charge the Court should not enter upon a process of evaluating the evidence by deciding its worth or credibility. In State by Central Bureau of Investigation v. S. Bangarappa, 2000(4) RCR (Criminal) 818, their Lordships of the Apex Court observed as under :- "........ at the stage of framing charge the Court should not enter upon a process of evaluating the evidence by deciding its worth or credibility. The limited exercise during that stage is to find out whether the materials offered by the prosecution to be adduced as evidence are sufficient for the Court to proceed further." 12. In Smt. Om Wati and another Versus State through Delhi Admn. and others, 2001(2) R.C.R.(Criminal) 255 : 2001 Cr.L.J. 1723 (S.C.) : (2001) 4 S.C.C. 333, the Apex Court observed as under :- "........ We would again remind the High Courts of their statutory obligation to not to interfere at the initial stage of framing the charges merely on hypothesis, imagination and far-fetched reasons which in law amount to interdicting the trial against the accused persons. Unscrupulous litigants should be discouraged from protracting the trial and preventing culmination of the criminal cases by having resort to uncalled for and unjustified litigation under the cloak of technicalities of law." 13. In State of Orissa and another v. Saroj Kumar Sahoo, 2006(1) Apex Criminal 63 : 2006(1) RCR (Criminal) 324, the Supreme Court observed in paragraph 15 of the judgment as under :- "........ Even when charge is framed at that stage, the Court has to only prima facie be satisfied about existence of sufficient ground for proceeding against the accused. For that limited purpose, the Court can evaluate material and documents on records but it cannot appreciate evidence. The Court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused." 14. In Lalu Prasad @ Lalu Prasad Yadav v. State of Bihar through C.B.I. (AHD), Patna, 2007(1) R.C.R.(Criminal) 305 : 2007(1) R.A.J. 345 : 2007(1) Law Herald (SC) 282, the Supreme Court laid down that at the time of framing of charge, the Court is required to form an opinion and reasons are not to be recorded. 15. In Lalu Prasad @ Lalu Prasad Yadav v. State of Bihar through C.B.I. (AHD), Patna, 2007(1) R.C.R.(Criminal) 305 : 2007(1) R.A.J. 345 : 2007(1) Law Herald (SC) 282, the Supreme Court laid down that at the time of framing of charge, the Court is required to form an opinion and reasons are not to be recorded. 15. A Co-ordinate Bench of this Court in Ved Parkash v. State of Punjab and another, 2004(2) RCR (Criminal) 747, while referring various judgments including those in Kanti Bhadra Shahs (supra) and Smt. Om Watis case (supra), held that the Court is not required to record reasons when charges are to be framed against an accused. 16. Now, the next question which is to be seen is as to whether the impugned order can be quashed because the case of the petitioner does not come within the ambit of Section 13 of the Act. The primary contention of the counsel for the petitioner is that no offence is made out even if the allegations levelled against him are taken to be correct. 17. If the provisions of Section 13 of the Act are to be perused, then each of the words has to be dissected carefully because it deals with the misconduct of a public servant. Section 13(1)(c) of the Act is extracted below :- "13. Criminal misconduct by a public servant. (1) A public servant is said to commit the offence of criminal misconduct. (a) xx xx xx xx xx xx (b) xx xx xx xx xx xx (c) If he dishonestly or fraudulently misappropriates or otherwise converts of his own use any property entrusted to him or under his control as a public servant or allows any other person to do so." 18. A reading of the afore-quoted provisions reveals that a public servant if he acts dishonestly or fraudulently misappropriates or otherwise converts to his own use any property entrusted to him or under his control as a public servant or allows any person to do so, commits a criminal misconduct. 19. Thus, the scope of the above provisions is to check the mischief of a public servant and is fairly wide and it is to be interpreted in that spirit. The emphasis is on `misconduct and therefore, the allegations have necessarily to be evaluated in the context of the conduct of an official. 20. 19. Thus, the scope of the above provisions is to check the mischief of a public servant and is fairly wide and it is to be interpreted in that spirit. The emphasis is on `misconduct and therefore, the allegations have necessarily to be evaluated in the context of the conduct of an official. 20. The petitioner is accused of using the services of fifteen government servants at his residence, which was not his entitlement. The word `property as appearing in section 13(1)(c) of the Act in this eventuality, would acquire a larger meaning. The petitioner has made dishonest gains by drawing the pay of these employees from the exchequer and using the services of such employees for his own personal use, i.e., the petitioner. He has thus, converted to his own use some asset of the government, which is in the shape of services of the employees because the government servants are to be considered as assets of the State for which it pays liberally to extract productive work and the conduct of a public servant, who exploits their (the employees) skill, talent or man-power to derive productivity for his own personal benefit if not entitled to such service under the law and not for the furtherance of the interest of the State, will come within the definition of `misconduct as termed in section 13(1) (c) of the Act. 21. The word `property in the Chambers Dictionary has been assigned a meaning, - "that which is ones own". The employees who are necessarily essential for the functioning of the State are "its own" and though not property in the literal sense of the term, are to be used to enhance the working of the State machinery in a legal and a proper manner. Diverting of such States resources/assets elsewhere to take work from such employees to enhance a personal gain at the cost of the State exchequer would certainly amount to using the property of the State for ones use and hence, be termed a `misconduct which, because of the loss to the exchequer, also invites culpability. Besides an official who flouts the norms, invites the allegation of misconduct and ultimately it is for the Court to conclude on the basis of evidence, whether such misconduct is proved and whether such misconduct, if proved, comes within the parameters of Section 13(l)(c) of the Act or not. Besides an official who flouts the norms, invites the allegation of misconduct and ultimately it is for the Court to conclude on the basis of evidence, whether such misconduct is proved and whether such misconduct, if proved, comes within the parameters of Section 13(l)(c) of the Act or not. At the time of framing of charge, the Court can not conclude a matter in a manner that results in preponing a result which has to flow at the end of the proceedings. 22. The second allegation against the petitioner is that he had used the government vehicles for his personal work to which he was again not entitled to. This allegation is straight away covered under the provisions of Section 13(l)(c) of the Act. The vehicles were under the control of the officials who were subordinate to the petitioner and as per the statements of such officials, he is said to have commanded them to use the vehicles for his personal benefit. For this reason and also for the reasons stated above, such an act would be covered under the aforesaid provisions of law. 23. Having regard to the law laid down in the above mentioned cases and also for the reasons stated above, I hold that the trial Court was not in error while considering prima facie material available on record while ordering the framing of charge against the petitioner. Accordingly, the instant petition is dismissed being without any merit.