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2010 DIGILAW 1120 (ALL)

ATTAR SINGH v. STATE OF U. P.

2010-04-06

NAHEED ARA MOONIS

body2010
JUDGMENT Hon’ble N.A. Moonis, J.—This revision has been preferred by the accused-revisionist Attar Singh, challenging the order dated 9.8.2000, passed by 12th Additional Session Judge, Ghaziabad in Criminal Revision No. 274 of 1999, whereby the order dated 5.6.1999, was quashed, which was passed by Additional Chief Judicial Magistrate, Hapur in Criminal Case No. 762 of 1999, arising out of case crime No. 762 of 1999, State v. Attar Singh, under Section 406, IPC, P.S. Hafizpur, District Ghaziabad whereby the revisionist was discharged. 2. Heard the learned counsel appearing on behalf of revisionist, the learned counsel appearing on behalf of opposite party No. 2, the learned AGA for the State and perused the record. The controversy was borne out in this revision whether the Additional Chief Judicial Magistrate can quash the charge-sheet and discharge the revisionist after only considering the defense evidence under Section 239, Cr.P.C. 3. The prosecution case in nutshell is that the FIR was registered against the revisionist on 8.3.1999, vide case crime No. 26 of 1999, under Section 406, IPC, P.S. Hafizpur, Sub District Hapur, District Ghaziabad, with the allegation that the revisionist who was the Manager of the Adarsh Vidya High School, Bhatiyana, Bhirpur, District Ghaziabad was entrusted to purchase scientific instruments on 28.5.1995 and the instruments were purchased but it were not handed over to the school. The first informant is the Principal of the school, and on his pursuation neither the money was returned nor the instruments were supplied to school and as such misappropriated the money to the tune of Rs. 10,494/-. Therefore, the FIR was registered against him. After collecting the material evidence the Investigating Officer has submitted charge-sheet against the revisionist. 4. After the submission of charge-sheet the accused-revisionist had moved an application for claiming discharged under Section 239. Cr.P.C. and in this regard adduced evidence before the trial Court. Considering the evidence adduced by the revisionist the trial Court held that it cannot be said that revisionist had committed any irregularity or misappropriated any money, the Principal has also no locus to lodge the impugned FIR. Cr.P.C. and in this regard adduced evidence before the trial Court. Considering the evidence adduced by the revisionist the trial Court held that it cannot be said that revisionist had committed any irregularity or misappropriated any money, the Principal has also no locus to lodge the impugned FIR. From the evidence it prima facie shows that the scientific instruments have been deposited by the revisionist and as such no prima facie case is made out under Section 406, IPC and the FIR has been lodged by the Principal of School due to some ulterior motive, therefore the revisionist was discharged under Section 239, Cr.P.C. 5. The revision was preferred by the opposite party No. 2 who had registered the FIR against the revisionist by challenging the order of the learned Additional Chief Judicial Magistrate before the 12th Additional Session Judge, Ghaziabad vide Criminal Revision No. 274 of 1999. The grounds taken therein that it is admitted fact that the revisionist was entrusted ten thousand rupees for the purpose of purchasing of scientific instruments and which was admittedly kept by him and was never deposited, despite of demanding the same on several occasions. It was to be proved by the accused that he has returned the instruments to the school which he has admitted on 22.12.1993 were in his custody. Neither the money was given nor the instruments were handed over. The FIR was lodged on 8.3.1999, the charge-sheet was also submitted against the revisionist, the Court below has committed manifest error in considering the evidence of defense at the stage of the framing of charge. At the stage of framing of charge considering the defense evidence is per-se illegal and the trial Court has wrongly exercised its power, therefore, discharging the revisionist at the very initial stage amounts to the acquittal of the accused and the right of the prosecution was shut for ever to adduce evidence against the revisionist. 6. After considering each and every aspect of the case, the learned Sessions Judge has allowed the revision and set aside the order dated 5.6.1999, passed by learned Additional Chief Judicial Magistrate, and the case was remanded to proceed in accordance with law. 7. 6. After considering each and every aspect of the case, the learned Sessions Judge has allowed the revision and set aside the order dated 5.6.1999, passed by learned Additional Chief Judicial Magistrate, and the case was remanded to proceed in accordance with law. 7. Against the order of remand the present revision has been filed by the accused revisionist, stating therein that, once the trial Court has given its opinion in favour of revisionist on the basis of material adduced by him, the revisional Court has erred in remanding the case by upsetting the order passed by the trial Court discharging the revisionist. 8. It is further contended by the learned counsel for the revisionist, that the Court below has completely ignored that the complainant has no power to lodge the FIR against the revisionist and even no audit has been done, prima facie to reach the conclusion that any case under Section 406, IPC is made out. The trial Court has rightly discharged the revisionist. More than eleven years has been elapsed and the revisionist is also reaching to old age. In such circumstances the revisionist shall suffer great harassment. 9. The aforesaid contentions were refuted by the learned counsel for the opposite party No. 2 that the order passed by the trial Court, discharging the revisionist from the offence alleged to have been committed by him is not in accordance with law. The trial Court has made meticulous analysis of the defense evidence but the prosecution evidence was not considered at all which was collected against the accused revisionist. 10. I have gone through the entire record and after hearing the submission of the learned counsel for the parties, I find there is no illegality in the order dated 9.8.2000 passed by the trial Court as the trial Court has totally failed to consider whether there is sufficient ground to frame the charge and for this limited purpose he must weigh the material on record as well as the documents relied upon by the prosecution only and at that stage he would not required to marshal the evidence of the defense, therefore, the accused-revisionist has been discharged at a stage of anterior in point of framing of charge. The charge-sheet was submitted against the revisionist on the basis of material evidence collected by the Investigating Officer and there was sufficient ground against the revisionist for framing of the charge by the Court below. The first revisional Court has specifically observed that the revisionist was discharged by the trial Court only on the basis of evidence adduced by the defense which is absolutely against the mandatory requirement of Section 227, Cr.P.C., as such the order passed by the Court below is just and legal and the trial Court has committed manifest error in discharging the revisionist under Section 239, Cr.P.C. This aspect of the matter has been considered by the Apex Court in the case of State of Orissa v. Debendra Nath Padhi, 2005 (51) ACC 209(SC), wherein it was held as under : 23. ‘As a result of the aforesaid discussion, in our view, clearly the law is at time of framing charge or taking cognizance the accused has no right to produce any material evidence’.(Emphasis supplied). In the case of Satish Mehra, it is held that the trial Court has power to consider even the materials produced under Section 227, Cr.P.C. has not been correctly decided. 11. The Hon’ble Apex Court has held in the case of State of Delhi v. Gujjan Devi and others, 2001(42) ACC 399, that, ‘at the stage of framing charge the Court is not required to examine and assess in detail the material placed on record and the Court is required to examine the material with a view of prima facie cognizance of commission of offence’. (Emphasis supplied) 12. In view of the aforesaid legal provisions of law, the trial Court has erred in discharging the accused at a stage prior of framing of charge, therefore, the order dated 5.6.1999 in Criminal Case No. 762 of 1999 is absolutely illegal and is hereby set aside. The order dated 9.8.2000 passed by the revisional Court below in Criminal Revision No. 274 of 1999 is hereby affirmed. The present revision has no merit and it is accordingly dismissed. 13. However, considering the old age of the revisionist and the proceedings are pending on account of the stay order granted by this Court in the year of 2000, the revisionist is permitted to file appropriate application for dispensing his personal appearance. The present revision has no merit and it is accordingly dismissed. 13. However, considering the old age of the revisionist and the proceedings are pending on account of the stay order granted by this Court in the year of 2000, the revisionist is permitted to file appropriate application for dispensing his personal appearance. It is open for the trial Court to pass an order after taking into consideration all relevant aspect, in case the revisionist is not on bail he shall be taken into custody, or if any bail application is moved by the applicant, the same shall be heard and disposed of expeditiously, preferably on the same day, if possible. With these observations this revision is hereby dismissed. Office is directed to send a copy of this order to the concerned trial Court for complaince. ————