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Madhya Pradesh High Court · body

2011 DIGILAW 1106 (MP)

Om Prakash Mishra v. State Of M. P.

2011-09-20

U.C.MAHESHWARI

body2011
Judgment ( 1. ) THIS revision is directed on behalf of applicant/accused being aggrieved by the order dated 28-3-2011 passed by IVth Additional Sessions Judge, Tikamgarh in Sessions Trial No. 26/10, framing the charges against him for the offence of sections 420 in alternative 420/34, 468 in alternative 468/34, 467 read with section 471 in alternative 467 read with 471/34 and 201 in alternative 201/34 of Indian Penal Code. ( 2. ) THE facts giving rise to this revision in short are that on receiving a report in writing dated 24-11-2008 from the Office of Chief Municipal Officer, Nagar Panchayat Khargapur at Police Station Khargapur, after making the preliminary enquiry a Crime No. 20/09 for the offence of sections 420, 467, 468 and 471 of Indian Penal Code was registered against the applicant and one Dharmadas Balmik. According to which, the present applicant being posted as Incharge Chief Municipal Officer Nagar Panchayat Khargapur, had issued the promotion order dated 6-8-2008 promoting to Safai Kamgar Dharamdas Balmik s/o Guile Balmik, on the post of "Safai Daroga" (Sanitary Inspector). Passing out the VIII Class was the requisite qualification for such promotion of Sanitary Inspector. In the service record of said Dharamadas, no such mark-sheet of VIIIth Class was available. THE concerning mark-sheet of Vth Class, on verification from the Headmaster of the concerning School, according to annexed letter of such School was shown to be forged. THE information passing out VIIIth Class by Dharamdas, was sent to the superior Office by the applicant, who was posted as Chief Municipal Officer. THE promotion case of Dharamadas was sent to the higher officials contrary to the proposal and Resolution No. 8 dated 5-8-2005, according to which, no any existing employee of such Nagar Panchayat, was found to have requisite qualification for such promotion and pursuant to that to fill up such post by direct recruitment was resolved. In promotion case after holding the selection proceedings the requisite approval was also not taken from the PIC in this regard. In spite giving intimation dated 12-1-2008, to Dharamdas to produce the original mark-sheets of Vth and VIIIth Class, the same were not submitted by him in the Office of Nagar Panchayat. Accordingly the mark-sheet of Vth Class was forged. In promotion case after holding the selection proceedings the requisite approval was also not taken from the PIC in this regard. In spite giving intimation dated 12-1-2008, to Dharamdas to produce the original mark-sheets of Vth and VIIIth Class, the same were not submitted by him in the Office of Nagar Panchayat. Accordingly the mark-sheet of Vth Class was forged. In such premises, the entire proceedings of the aforesaid promotion case being sent on the basis of forged and fabricated mark-sheet and the record, the prayer to make an enquiry for appropriate action was made. In investigation, various papers and articles were seized one Bhagwant Singh Thakur, who prepared the aforesaid forged and fabricated mark-sheets of Dharamadas for Vth and VIIIth Class. THE interrogatory statement of various witnesses including Satish Chandra Agrawal, the In-charge Chief Municipal Officer, Ram Kumar Mishra, Head Master of some Middle School, Brij Kishore Sarvaria, the Head Clerk and Gotiram Sutrakar, the Elected President of such Nagar Panchayat, were recorded. On completion of investigation, prima facie it was established that subsequent to resolution of 5-8-2005, contrary to such resolution and the existing service record of Dharamadas and norms, the applicant accompanied with the aforesaid co-accused in furtherance of their common intention to secure the promotion of Dharamdas by practicing the fraud, prepared the promotion case by forging, fabricating and tempering the record and sent the same to the higher authorities and thereby, the applicant has committed the offence of sections 420, 467, 468, 471 and 201 of Indian Penal Code on which along with the co-accused he was also charge-sheeted for the same. After committing the case to the Sessions Court on framing the abovementioned charges against the applicant along with the co-accused, they abjured the guilt and thereafter being dissatisfied with such orders the applicant has come forward with this revision. ( 3. ) SHRI Manish Datt, learned appearing counsel of the applicant after taking me through police report filed under section 173 of Criminal Procedure Code along with the papers annexed with it and also by referring the other papers placed on behalf of applicant on record, said that in the available circumstance, the ingredients of any of the alleged offence are not prima facie made out against the applicant hence, under the existing legal position the charges framed against him are not sustainable. In continuation, he said that on going through the charge-sheet the ingredients of any mens rea, motive or intention on the part of the applicant are also not made out. The appointment order of Dharamdas dated 6-8-2008, was issued in accordance with the direction of the higher authorities based on the record available in the Nagar Panchayat. The applicant has neither fabricated nor forged any record. He also argued that besides the applicant some other officials were also deputed by the authorities in selection Committee and the name of Dharamdas for promotion on the alleged post was recommended by such Committee and after approval of such recommendation by the superior authorities at their instructions the alleged promotion order dated 6-8-2008, was issued to said Dharamdas. In any case, it could not be deemed from the charge sheet that the applicant by acting the furtherance of common intention of co- accused by practicing the fraud, fabricated or tempered the official record of Dharamdas. With these submissions, by placing his reliance on a decision of the Apex Court in the matter of Niranjan Singh Karam Singh Punjabi vs. Jitendera Bhimran Bijja, reported in AIR 1990 SC 1962 , in the matter of Dilawar Babu Kurane vs. State of Maharashtra, reported in AIR 2002 SC 564 and also of this Court in the matter of Rajesh s/o Gajendra Singh vs. State of M. P., reported in 2007(2) MPLJ 426 he prayed to discharge the applicant by admitting and allowing this revision. ( 4. ) ON the other hand by justifying the impugned order framing the charges against the applicant and other co-accused, learned Panel Lawyer Shri Alok Tapikar said that, the same is in consonance with the police report and the papers placed along with such report showing the prima facie involvement of the applicant and the ingredients of the alleged offence against him. Thus the impugned order does not require any interference at this stage either to discharge the applicant or modify the charges in any manner and prayed for dismissal of this revision at the stage of admission. Having heard the counsel at length keeping in view their arguments, I have carefully gone through the police report filed under section 173 of Criminal Procedure Code and also the papers placed along with the charge-sheet. Having heard the counsel at length keeping in view their arguments, I have carefully gone through the police report filed under section 173 of Criminal Procedure Code and also the papers placed along with the charge-sheet. So far as the papers placed on behalf of the applicant with this revision which are not the part of the charge-sheet, in view of law laid down by the Constitutional Bench of the Apex Court in the matter of State of Orissa vs. Debendra Nath Padhi, reported in AIR 2005 SC page 637, the same could not be taken into consideration at the stage of framing the charge and besides this, in the available circumstances such document could not be considered to decide any merit or demerit of the matter at the stage of framing the charge. Such documents may be used by the applicant at the appropriate stage of the trial including the stage of recording the evidence. ( 5. ) IT is apparent from the first information report and the other papers placed with the charge-sheet that the abovementioned co-accused Dharamdas, was working as Safai Kamgar (Sweeper) in the alleged Nagar Panchayat. Long before on earlier occasion according to the Resolution No. 8 dated 5-8-2005, no one in the existing employees including the Dharamdas was found to be qualified for promotion on the post of Safai Daroga (Sanitary Inspector). On which to fill up such post by direct recruitment was resolved. From such resolution prima facie it is apparent that on that date said Dharamdas being uneducated was not found to have requisite qualification i.e. passing out the Vlllth Class. Such resolution was also passed in the tenure of present applicant and in his presence. In such circumstance, at this stage, the interference could be drawn that while considering the name of said Dharamdas for promotion, his service record was also taken into consideration and according to that, he being uneducated, his name was not found fit for promotion. In such premises, it could be deemed that on the date of aforesaid resolution the entry of passing out Vlllth Class by Dharamdas was not in existence in his service book. In such premises, it could be deemed that on the date of aforesaid resolution the entry of passing out Vlllth Class by Dharamdas was not in existence in his service book. The same was inserted in the tenure of the applicant, subsequent to aforesaid resolution and before starting the process of selection committee to select the candidate for the aforesaid post and issuing the promotion order dated 6-8-2008, how such mark-sheet was inserted in the record and the endorsement of it was made in the service book of Dharamdas, in the tenure of the applicant as Chief Municipal Officer of Nagar Panchayat. As per such entry the Dharamdas passed out Vlllth Class in the year 1994 and if it was in existence then why the same was not taken into consideration at the time of said earlier resolution, the same is yet to be examined by the trial Court after recording the evidence. Besides this, on asking Dharamdas vide official letter dated 12-11-2008, to produce the original mark- sheets of Vth and VIIIth Class, the same were not submitted by him on which, the genuineness of mark-sheet of Vth Class, available in the record without any endorsement in the service book of Dharamadas, was verified by the then In-charge of CMO of such Nagar Panchayat from the concerning School and also by the police after registration of the offence, in which it was revealed that such mark-sheets was not issued by such educational institution as no record in this regard was found in such institution. IT also prima facie shows that by inserting the forged and fabricated mark-sheet in the service book subsequent to earlier resolution by ignoring and concealing such resolution by preparing the promotion case of Dharamdas contrary to the record only with intention to get promotion order for the post of Sanitary Inspector, was sent to the higher officials by the applicant. ( 6. ) IN the interrogatory statements said Ram Kumar Mishra, the Head Master of the concerning School has categorically stated that said Vth Class mark-sheet of Dharamdas was not issued by his School as no record in that respect was found in the School. IN this regard a certificate annexed with the charge-sheet has also been issued by this witness. ) IN the interrogatory statements said Ram Kumar Mishra, the Head Master of the concerning School has categorically stated that said Vth Class mark-sheet of Dharamdas was not issued by his School as no record in that respect was found in the School. IN this regard a certificate annexed with the charge-sheet has also been issued by this witness. Accordingly, prima facie it has been established by the charge-sheet that in order to get promotion somewhere subsequent 5-8-2005 said forged and fabricated mark-sheets were submitted by Dharamdas and the present applicant by involving himself with dishonest intention to secure the promotion for Dharamdas, not only kept such mark-sheets in record but also permitted or facilitated to make an endorsement in this regard in the service book of Dharamdas. Thereafter, on that basis the applicant while sitting as member of the Selection Committee with other deputed member in spite knowing all these situation recommended the name of Dharamdas for promotion on the post of Sanitary INspector. Accordingly, the applicant being CMO of such Nagar Panchayat and also the member of Selection Committee created the situation contrary to all the aforesaid record on which the superior authority at their term had taken the decision to promote Dharamdas and thereby the applicant committed the offence for which the charges have been framed against him. In the aforesaid premises, I have not found any perversity, illegality, infirmity or anything against the propriety of law in the order impugned framing the charges requiring any interference at this stage, pursuant to it this revision deserves to be dismissed. ( 7. ) IT is settled proposition of law that on establish the prima facie ingredients of the alleged offences from the charge-sheet then, there is no option with the Court except to frame the charges. At the stage of charge, Court has not to consider whether on holding the trial the case will be culminated in conviction of the accused or not. In such premises also, the impugned order does not require any interference. IT is made clear that whatsoever arguments advanced by the applicant's counsel, the same may be good for his defence and same may be taken by him at the appropriate stage of the trial. ( 8. In such premises also, the impugned order does not require any interference. IT is made clear that whatsoever arguments advanced by the applicant's counsel, the same may be good for his defence and same may be taken by him at the appropriate stage of the trial. ( 8. ) SO far the case laws cited by the applicant's counsel are concerned, this Court did not have any dispute regarding the principle laid down in such cases, but in the available circumstances of the case at hand, as discussed above, the same being distinguishable on facts, are not helping to the applicant. In view of the aforesaid discussions, this revision being devoid of any merit is hereby dismissed at the stage of motion hearing. Revision dismissed.