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2010 DIGILAW 575 (CAL)

Rekha Dey v. The State of West Bengal

2010-05-21

ASHIM KUMAR ROY

body2010
JUDGMENT: 1. Invoking Section 482 of the Code of Criminal Procedure, the petitioners have moved for quashing of a charge-sheet under Sections 406/409/420/34 of the Indian Penal Code relating to Haringhata Police Station Case No. 20 of 2005. 2. Mr. Joy Sengupta, the Learned Counsel appearing with Ms. Sreyashee Biswas raised the following points in support of the prayer for quashing; (a) On the face of the allegations made in the First Information Report, no offence can said to have been made out. (b) No property being claimed to have been entrusted to the petitioners there cannot be any question of criminal breach of trust by them. (c) The petitioners not being the public servant, no offence punishable under Section 409 of the Indian Penal Code can said to have been committed by them. In support of his submissions Mr. Sengupta relied on a decision of this Hon’ble High Court in the case of Thakurchak Shilpa Vidyalaya Vs. State of West Bengal & Ors., reported in 2005 (1) CHN 474 . On the other hand, Mr. Swapan Kumar Mullick, the Learned Counsel appearing on behalf of the State vehemently opposed the prayer for quashing and submitted that sufficient evidentiary materials have been collected by the police showing complicity of the petitioners in the commission of the alleged offences, as such question of quashing of the charge-sheet does not at all arise. 3. I have given my anxious and thoughtful consideration to the rival submissions of the parties. Perused the evidentiary materials containing in the Case Diary which are the foundation of the impugned charge-sheet. 4. At the very outset it may be noted that so far as the petitioner no. 1 is concerned, who happened to be the former Headmistress of Rajlakshmi Kanya Vidyapith, charge-sheet has been submitted against her under Sections 420/409/34 of the Indian Penal Code, whereas against Dilip Kumar Das and Rathindralal Dey, who are the former secretaries of the said school, charge-sheet has been submitted against them under Sections 406/420/34 of the Indian Penal Code. 5. It appears from the evidentiary materials collected by the police during investigation that the petitioner no. 1 was the former Headmistress of Rajlakshmi Kanya Vidyapith, since retired with effect from 31st of March, 2002. During her tenure in service she was regularly drawing house rent allowances although she was provided with rent free quarter. 5. It appears from the evidentiary materials collected by the police during investigation that the petitioner no. 1 was the former Headmistress of Rajlakshmi Kanya Vidyapith, since retired with effect from 31st of March, 2002. During her tenure in service she was regularly drawing house rent allowances although she was provided with rent free quarter. It further appears that the petitioner no. 1 in collusion with the other petitioners, who were the former Secretaries of the Managing Committee of the school collected more than Rs. 2 lakhs from the students on account of payment of part time teachers and for meeting the expenditure of extra-examination fees and misappropriated the same. During investigation many receipt books containing counter parts in the handwriting of the petitioner no. 1 and with her signatures were seized by the police, but the amounts so collected was never entered into the cash account book of the school and was misappropriated by them. The petitioner no. 1 did not also maintain any acquaintance roll of part time teachers as well as the payment Register. A few duplicate vouchers without the signature of the recipients were found in the school records. During her tenure many electrical items were purchased at a price which were more than that of the maximum retail price. Although there were huge number of fruit bearing trees within the school compound but there was no record what amount of money has been fetched against the sale of fruits. In the accounts book a sum of Rs. 12,700/-was shown to have been spent for purchasing laboratory items but no purchase was at all made. Similarly, from the Post Office Account of the school although a huge cash was withdrawn from time to time but such withdrawal of cash was never reflected in the cash book. The fund of the school according to the rules and regulations were handled jointly by the Headmistress and the Secretary of the school and the Secretary was in-charge of the funds and the petitioners being the Headmistress and the Secretaries of the school by misusing their power have dishonestly misappropriated huge amount of money of the school for their wrongful gain. Now, from the materials as aforesaid it cannot be said that there was no evidentiary material justifying submissions of the charge-sheet against the present petitioners. 5. Now, from the materials as aforesaid it cannot be said that there was no evidentiary material justifying submissions of the charge-sheet against the present petitioners. 5. It has been vehemently urged by the Learned Counsel of the petitioners that the petitioner no. 1 is not a public servant within the meaning of Section 21 of the Indian Penal Code, therefore, no offence punishable under Section 409 of the Indian Penal Code can said to have been made out against her. According to the Clause 12 subclause (a) of Section 21 of the Indian Penal Code, every person in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government is a public servant. The Rajlakshmi Kanya Vidyapith, the school in question is a Government recognized High and Higher Secondary Girls School recognized since 1st of March, 1961. It further appears from the Audit Report for 2001-2002, in the prescribed form for Audit of Secondary and Higher Secondary School of Education Directorate, Government of West Bengal, which is the part of the Case Diary that the school regularly received salary grant for its teaching and non-teaching staffs from the Government of West Bengal during the period 1998-1999, 1999-2000, 2000-2001, 2001-2002 during the tenure of the present petitioner no. 1. Thus, there is no doubt the petitioner was on the pay of the Government and of course is a public servant. 6. It has also been vehemently urged by the learned advocate of the petitioners that she was never entrusted with any properties, therefore, question of committing breach of trust by her does not at all arise. I do not find any force in such submissions. A public servant as defined under Section 21 I.P.C., when commits criminal breach of trust as defined in Section 405 I.P.C. answers an offence under Section 409 I.P.C. In such case it is not necessary that property must be entrusted to him, it is sufficient, if any property comes under his domain in his capacity as a public servant and the accused commits breach of trust in respect thereof. For the reasons stated above, I do not find any merit in this criminal revision and same stands dismissed. 7. For the reasons stated above, I do not find any merit in this criminal revision and same stands dismissed. 7. Before conclusion, it would be more apposite to note that the police has submitted charge-sheet under Section 406/420/34 of the Indian Penal Code against the petitioner nos. 2 and 3, who are the former Secretaries of the Managing Committee of the school, although, there are sufficient prima facie materials against them of conspiracy and abetment of commission of offence punishable under Section 409 of the Indian Penal Code by a public servant. No charge-sheet was submitted against them thereunder for the reason best known to the Investigating Officer. It is well settled no Court is bound by the conclusion arrived at by the Investigating Agency after conclusion of investigation as to what offence has been committed by any accused and the Court has ample power upon perusal of the evidentiary materials to conclude some other offences have been committed by the accused for which no charge-sheet has been submitted and to proceed against the accused thereunder. Therefore, the Court below is directed to take necessary steps in this regard in accordance with law. It also may not be out of place to note that during investigation the specimen signature of the petitioner no. 1 was taken before the Court. It appears from the Case Diary at page 169, when the first Investigating Officer was transferred he gave a specific note to the effect the investigation was pending amongst other for the reason that the specimen signature of the petitioner no. 1 taken in presence of the Learned Magistrate was to be sent to the handwriting expert question document Enforcement Branch, C.I.D., West Bengal, for examination and opinion. I further found that the Investigating Officer of the case, who finally submitted charge-sheet after taking over the charge of the case at page 170 of the Case Diary specifically noted the investigation was pending for sending the specimen signature to the handwriting expert, but it appears from the Case Diary that those specimen signatures are still lying there and were never sent along with the question documents to the handwriting expert for necessary opinion, for the reason best known to the concerned Investigating Officer. Although, even after taking of cognizance there is no bar for making further investigation and filing of supplementary charge-sheet so the Investigating Agency may do the needful. Although, even after taking of cognizance there is no bar for making further investigation and filing of supplementary charge-sheet so the Investigating Agency may do the needful. In terms of order of dismissal of the main criminal revisional application, the application for fresh interim order also stands disposed of accordingly. Criminal Section is directed to deliver urgent Photostat certified copy of this Judgment to the parties, if applied for, as early as possible. Criminal Section is further directed a Photostat certified copy of this Judgment also be made over to Mr. Swapan Kumar Mullick, the lawyer represented the State at once free of cost so as to enable him to take appropriate action in this regard.