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2015 DIGILAW 1149 (JHR)

Dayanand Kumar v. State of Jharkhand

2015-09-21

AMITAV K.GUPTA

body2015
ORDER: This Criminal Revision Application is directed against the order dated 17.03.2015 passed by the learned Judicial Magistrate, Koderma in G.R. No.292 of 2008, arising out of Markacho P.S. Case No.46 of 2008 whereby, the charge has been framed against the petitioner under Section 409 read with Section 34 of the Indian Penal Code. 2. Mr. Manoj Tandon, learned counsel, for the petitioner, has submitted that the court below has failed to appreciate that the ingredient for the offence under Section 409 of the Indian Penal Code, i.e., criminal breach of trust by public servant, is not made out against the petitioner. That in the F.I.R it is alleged that the petitioner had recommended for sanctioning advance of Rs.2,00,000/-to co-accused Pradeep Kumar Mehta, Panchayat Sevak, against whom there is allegation that after receiving the said amount he did not do the required construction work and despite repeated reminders he did not return the aforesaid amount. It is argued that it would be evident from the Annexure which is attached with the F.I.R, annexed at page – 32 of the application, that the petitioner had merely forwarded the application of co-accused with endorsement “yathochit karwai hetu agrasari” (forwarded for necessary action) to the Block Development Officer and it was the Block Development Officer who had sanctioned the advance of Rs.2,00,000/- for purchase of the materials required for construction of the check dam. It is argued that since he had merely forwarded the application due to this fact he was not made an accused at the time of lodging of the F.I.R. That the F.I.R reveals that the allegations were against one Junior Engineer, Ashok Kumar, who was responsible for supervision of the work in accordance with the lay-out prepared by the Junior Engineer. There is no rationale or explanation as to why the said Junior Engineer Ashok Kumar has not been made an accused neither has the Block Development Officer, who sanctioned the advance, been made an accused. That there is no material on record to show the complicity of the petitioner or his having done any act in furtherance of common intention of co-accused Pradeep Kumar Mehta in commission of the offence. Learned counsel for the petitioner has also relied on the decision reported in (2013) 1 SCC 205 in the case of C. K. Jaffer Sharief Vs. Learned counsel for the petitioner has also relied on the decision reported in (2013) 1 SCC 205 in the case of C. K. Jaffer Sharief Vs. State (Through C.B.I) and argued that in the aforementioned case the Supreme Court has held that in the absence of necessary ingredients to make out a case against the person continuance of the proceeding will only amount to abuse of process of law. It is contended by the learned counsel that from the material on record it would be evident that the ingredients for the offence under Section 409 I.P.C read with Section 34 I.P.C is not made out against the petitioner and he deserves to be discharged of the charges. 3. Learned A.P.P while opposing the prayer has not controverted the fact that at page No.32, which is Annexures of the F.I.R, the petitioner had forwarded the application of the co-accused, Pradeep Kumar Mehta, to the Block Development Officer. 4. Heard. Perused the annexures of the F.I.R. It is evident that the co-accused Pradeep Kumar Mehta, Panchayat Sevak, had filed the application addressed to the Block Development Officer for sanctioning an advance of Rs.2,00,000/-on the said application there is endorsement by this petitioner whereby he forwarded the application for needful action to the Block Development Officer, who sanctioned the advance of Rs.2,00,000/-. On perusal of the F.IR, it is amply clear that the entire allegation is against the Panchayat Sevak, i.e., co-accused Pradeep Kumar Mehta and one Junior Engineer, Ashok Kumar, who was entrusted to supervise that the work was to be executed by the Panchayat Sevak in accordance to the lay-out prepared by him. There is no allegation that the money was entrusted to the petitioner or he had dominion over the said amount. That in the case of C. K. Jaffer Sharief (Supra) cited by the learned counsel for the petitioner it has been held that to make a person criminally accountable, it must be proved that an act, which is forbidden by law, has been caused by his conduct, and that the conduct was accompanied by a legally blameworthy attitude of mind. Thus, there are two components of every crime, a physical element and a mental element, usually called actus reus and mens rea respectively. 5. Thus, there are two components of every crime, a physical element and a mental element, usually called actus reus and mens rea respectively. 5. Apparently from the materials on record the complicity or even strong suspicion regarding the complicity of petitioner in the alleged crime is not made out. As noticed there was no entrustment of money to the petitioner neither was he the sanctioning authority. The trial court has not discussed any material available on record neither assigned any reason for recording its satisfaction that the ingredients for framing charge under Section 409 I.P.C read with Section 34 I.P.C is made out against the petitioner. On the contrary the papers attached with the F.I.R and the application has not been controverted by the learned A.P.P. It is abundantly clear that there is no material on record to reasonably connect the petitioner with the crime. Thus in the facts and facts and circumstances, the petitioner is discharged for the offence under Section 409 read with Section 34 of the Indian Penal Code. The impugned order dated 17.03.2015 is hereby, quashed so far the petitioner, Dayanad Kumar, is concerned. 6. In the result, the revision application stands allowed.