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2012 DIGILAW 1503 (JHR)

Jay Jyoti Samanta v. State of Jharkhand

2012-10-03

R.R.PRASAD

body2012
ORDER 1. Heard learned senior counsel appearing for the petitioner and the learned counsel appearing for the State. 2. Initially, this application was filed for quashing of the first information report of Baliapur P.S. Case No. 88 of 2009. Subsequently, order dated 18.02.2012, under which cognizance of the offences punishable under Sections 406, 409, 420, 467, 468, 471, 477 (A), 120 (B) of the Indian Penal Code was taken against the petitioner on submission of the charge, has been challenged to be bad. 3. Mr. P.P.N.Roy, learned senior counsel appearing for the petitioner submits that first information report was lodged on the allegation that under the Scheme of NAREGA, amounts were advanced through cheques to different agencies to execute the works. The executing agencies, without completing the works to the extent to which the amounts had been advanced, retained the amounts and, thereby, they have been alleged to have misappropriated the amounts. So far as this petitioner is concerned, it has only been stated in the first information report that this petitioner, being a Programme Officer, had advanced money to several executing agencies for execution of the works of different Schemes under NAREGA. On such allegations, the case never seems to have been registered against this petitioner. Still the Investigating Officer, after investigating the case, submitted charge sheet against the petitioner upon which the cognizance of the offences has been taken though there has been absolutely no material in the entire case diary to show that the petitioner had involved himself in any manner with the alleged offence and, thereby, the Court did commit illegality in taking cognizance of the offences against the petitioner. 4. It is further submitted on behalf of the petitioner that during investigation, the Investigating Officer did find that this petitioner had advanced money to the executing agencies, who did not execute the works to the extent to which the money had been advanced but that allegation never involves this petitioner with any criminal act rather under the Scheme itself the petitioner was supposed to make payment in advance for execution of the work. Furthermore nothing is there to show that this petitioner conspiracy with the other accused persons and in furtherance of the connivance this petitioner alongwith executing agencies, misappropriated the amounts and under such circumstances, the order taking cognizance is fit to be set aside. 5. Furthermore nothing is there to show that this petitioner conspiracy with the other accused persons and in furtherance of the connivance this petitioner alongwith executing agencies, misappropriated the amounts and under such circumstances, the order taking cognizance is fit to be set aside. 5. As against this, learned counsel appearing for the State, submits that after the case was registered, the Investigating Officer did make investigation and during investigation it has come that this petitioner being a Programme Officer, had advanced the money to the executing agencies, who never completed the works to the extent for which they have been advanced money by this petitioner. He further submits that apart from this, nothing has come during investigation against this petitioner. 6. Having heard learned counsel appearing for the parties, it does appear that the petitioner being a Programme Officer was duty bound to advance money to the executing agencies for executing certain works under the Scheme of NAREGA and in discharge of the duty if this petitioner had advanced money to the executing agencies, who did not execute the works, the petitioner cannot be held liable for the offences in absence of any allegation that this petitioner in furtherance of the conspiracy misappropriated the amount without getting the work done. 7. Under the circumstances, the materials, which have been collected, would not be sufficient to hold this petitioner guilty. Still the question would be as to whether the court in exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure would go into the matter of sufficiency or insufficiency of the materials or to relegate the petitioner to court concerned to raise the issue of insufficiency of the materials for his discharge. This question has been answered by the Hon'ble Supreme Court rendered in the case of “Ashok Chaturvedi and Others-versus-Shitul H. Chanchani and Another, reported in (1998) 7 SCC 698 .”, holding therein that merely because the accused has right to plead at the time of framing of charges that there is no material for framing of charges he is not debarred from invoking the inherent jurisdiction of the court at the earliest point of time when the Magistrate has taken cognizance. 8. Earlier also the Hon'ble Supreme Court had expressed the same view in the case of “State of Karnataka-versus-Muniswamy and Others, reported in (1977) 2 SCC 699 .” 9. 8. Earlier also the Hon'ble Supreme Court had expressed the same view in the case of “State of Karnataka-versus-Muniswamy and Others, reported in (1977) 2 SCC 699 .” 9. Thus, in the facts and circumstances as stated above, when there is absolutely no material to proceed with against the petitioner, there would be abuse of the process of law if the petitioner is allowed to face rigor of the trial. Hence, the entire criminal proceedings of Baliapur P.S. Case No. 88 of 2009, corresponding to G.R. No. 2988 of 2009, pending in the Court of Chief Judicial Magistrate, Dhabad including the order dated 18.02.2012, taking cognizance of the offences, is hereby quashed. 10. In the result, this application stands allowed. Application allowed.