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Jharkhand High Court · body

2016 DIGILAW 33 (JHR)

Manoranjan S. K. Pati v. State of Jharkhand

2016-01-05

RAVI NATH VERMA

body2016
ORDER : 1. Invoking the inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure (in short ‘the Code’) the petitioners have prayed for quashing of the entire criminal proceeding including the order dated 27.06.2005 passed in connection with Manoharpur P.S. Case No. 31 of 1996 corresponding to G.R. Case No. 202 of 1996 whereby and whereunder the learned Judicial Magistrate, 1st Class, Porahat at Chaibasa has rejected the petition filed for discharge under Section 239 of the Code. 2. The facts of the case, which is relevant for the proper appreciation of the issue involved in this case, in short, is that at the instance of the informant-the Circle Officer, Manoharpur, West Singhbhum, the aforesaid case was instituted on 27.07.1996 under Sections 467, 468, 471, 420/34, 109 and 120(B) of Indian Penal Code on the allegation that after receiving an allegation petition, the Deputy Commissioner, Singhbhum directed the District Welfare Officer, West Singhbhum at Chaibasa to make an enquiry in respect of the allegations made by one Dr. Rajendra Prasad Singh in his letter dated 04.02.1992 and on the basis of the report submitted by the District Welfare Officer after enquiry, it was transpired that St. Augustin College, Manoharpur had received fund from Government in respect of tuition fee, examination fee and other fess for Scheduled Caste and Scheduled Tribe students and for the same period, the authority also received grant from Welfare Department in respect of tuition fees payable to the Scheduled Caste and Scheduled Tribe students. Thus, double funds were received by the College. By letter dated 26.08.1994, the said Enquiry Officer directed the Principal of the college to refund the tuition fees realized from Scheduled Caste and Scheduled Tribe students within a month and the balance amount, which could be refunded to those students, should be deposited/ returned to Welfare Department. After the said direction, the Principal of the college issued notice to those students and requested them to receive the amount of the period 06.06.1994 to 30.06.1994. It is alleged that the Principal had received those amounts from two different sources in violation of the rules, which is a serious offence and the college maintained 2-3 types of account books for the said purpose and without the approval of the state government, the Principal of the said college by cheating received Rs. 1,37,840/-. It is alleged that the Principal had received those amounts from two different sources in violation of the rules, which is a serious offence and the college maintained 2-3 types of account books for the said purpose and without the approval of the state government, the Principal of the said college by cheating received Rs. 1,37,840/-. The Enquiry Officer found the involvement of these petitioners and other accused persons, who were either the employees or the members of Governing body during the relevant period in the alleged offence and responsible for the misappropriation and defalcation of the amount. In the F.I.R. several documents were annexed showing allegation of cheating and misappropriation of money. 3. It appears from the record that after investigation, the police submitted the charge sheet against the petitioners and other accused persons, thereafter, the court took cognizance of the offence. At the stage of framing of charge, petitions under Section 239 of the Code were filed by the accused persons for their discharge but the court below finding prima facie case and grave suspicion rejected their prayer for discharge. It further appears that at the instance of the petitioners and other accused persons, several Criminal Writs bearing nos. W.P. (Cr.) No. 44 of 2005, W.P. (Cr.) No. 81 of 2005 and W.P. (Cr.) No. 102 of 2005 were preferred in this Court but above W.Ps. (Cr.) were disposed of by this Court vide orders dated 17.02.2005, 24.03.2005 and 31.03.2005 with direction to the court concerned to supply the copy of police papers and other documents as provided under Section 207 of the Code and thereafter proceed for framing of the charge in accordance with law. Thereafter again, petitions were filed by the petitioners under Section 239 of the Code in the court below praying therein that though the photo stat copy of the case diary has been supplied to the accused persons showing it as a police paper but copies of documents received from District Welfare Officer, Chaibasa has not been furnished and prayed for their discharge. The court below after hearing the parties passed a common order dated 27.06.2005 rejecting the petitions filed for their discharge under Section 239 of the Code and directed the petitioners and other accused persons to be physically present before the court for framing of charge. 4. Mr. The court below after hearing the parties passed a common order dated 27.06.2005 rejecting the petitions filed for their discharge under Section 239 of the Code and directed the petitioners and other accused persons to be physically present before the court for framing of charge. 4. Mr. Anwar learned senior counsel appearing for the petitioners assailing the order impugned refusing to discharge the petitioners as bad in law and perverse and seriously contended that even after direction given by this Court, the papers submitted by the District Welfare Officer enclosing some documents have not been supplied to the petitioners except the copy of the case diary. It was also submitted that the entire allegation in the first information report is vague and no individual liability has been assigned or discussed either in the first information report or in the order passed on the petition filed under Section 239 of the Code and there is no discussion regarding any criminality or any criminal act on the part of the petitioners and even the court below has not considered the evidence available on record in right perspective. Learned senior counsel further relying upon the cases Ram Kishan Singh vs. Harmit Kaur and Another, (1072) 3 SCC 282 and Kamal Kant Singh @ K.K. Sinha & Others vs. State of Jharkhand, 2008 (1) JCR 74 (Jhr.) submitted that there is no prima facie case or sufficient material on record to frame charge against the petitioners and when the charges are found groundless on the face of the record, the accused persons are entitled to an order of discharge. It was also submitted that from the F.I.R. itself, it would appear that a direction was given by the District Welfare Officer to return the amount and, accordingly, the amount as alleged was returned by the co-accused the Principal of the College and as such no case was made out against these petitioners, who were working in the said College in different capacities and as members of governing body. 5. Contrary to the aforesaid submissions, the learned counsel representing the State seriously contended that the court below in the order impugned has meticulously considered the materials available on record and at this early stage, a roving enquiry into the pros and cons of the matter is not permissible. 5. Contrary to the aforesaid submissions, the learned counsel representing the State seriously contended that the court below in the order impugned has meticulously considered the materials available on record and at this early stage, a roving enquiry into the pros and cons of the matter is not permissible. It was also submitted that all the papers, which were part of the case diary, were given to the petitioners and only those documents, which were submitted in court, along with letter of District Welfare Officer, had not been given to the petitioners because they were all subject to inspection under the law. 6. Before adverting to the rival submissions, it would be proper to examine the scope and ambit of the power of the court below under Section 239 of the Code. The Criminal Procedure Code contemplates the discharge of an accused if the case is triable by a Court of Sessions under Section 227 of the Code but if the case is instituted upon a police report and is triable by a Magistrate then it is covered by Section 239 of the Code. There is basically no difference in a discharge petition filed either under Section 227 or 239 of the Code. The above two provisions of the Code provide that upon consideration of the evidence and the documents submitted with the police report as contemplated under Section 173 of the Code and after hearing the prosecution and the accused, if the Court finds a prima facie case and grave suspicion to proceed against the accused, the charge has to be framed but if there is no prima facie case, or suspicion, the Court shall discharge the accused. The settled law at this point is succinctly analyzed by the Hon’ble Supreme Court in Sajjan Kumar vs. CBI, (2010) 9 SCC 368 wherein the Hon’ble Court has observed in para 19 as under: “19. It is clear that at the initial stage, if there is strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence, then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. It is clear that at the initial stage, if there is strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence, then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. If the evidence which the prosecution proposes to adduce proves the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial.” 7. True, it is that at the time of consideration of the application for discharge, the court cannot act as mouthpiece of the prosecution or act as a post-office and may sift evidence in order to find out whether or not the allegations made are groundless so as to pass the order of discharge. It is trite that at the stage of consideration of an application for discharge, a roving enquiry into the pros and cons of the matter and weigh the evidence as if the Court was conducting a trial, is not permissible. 8. In another case Rajiv Thapar and Others vs. Madan Lal Kapoor, (2013) 3 SCC 330 , the Hon’ble Supreme Court while dealing with the issue of discharge in a complaint case, lodged at the instance of father of a deceased girl, held in paragraph- 28 that this is not a stage of evaluating the truthfulness or otherwise of the allegations levelled by the prosecution/ complainant against the accused. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution, it would be impermissible to discharge the accused before trial. This is so because it would result in giving finality to the accusations levelled by the prosecution, without allowing the prosecution to adduce evidence to substantiate the same. 9. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution, it would be impermissible to discharge the accused before trial. This is so because it would result in giving finality to the accusations levelled by the prosecution, without allowing the prosecution to adduce evidence to substantiate the same. 9. I have critically examined all the materials, evidences and the order dated 27.06.2005 passed by the court below and I find that on the relevant date, these petitioners were also working in the college in different capacities alongwith the Principal of the said college and there are sufficient evidence on record to show that there was misappropriation and defalcation of government fund. On perusal of paragraph 117 of the case diary, it would appear that the principal of the said college had himself accepted that from 1982 onwards, he had received fund from two different sources without approval of the government and amount which was collected illegally from the Scheduled Caste and Scheduled Tribe students were returned to those students after giving them notices. It also appears from the order dated 27.06.2005 that the court below has considered the evidence available on record and found a prima facie case and sufficient materials against these petitioners and other accused persons to proceed and frame charge against them. 10. In view of the discussions made above, I do not find any plausible ground to interfere in the criminal proceeding pending in the court of Judicial Magistrate, 1st Class, Porahat at Chaibasa in connection with Manoharpur P.S. Case No. 31 of 1996 and also in the order dated 27.06.2005 passed on the petition filed under Section 239 of the Code. Hence, this criminal miscellaneous petition, being devoid of any merit is, hereby, dismissed.