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Jharkhand High Court · body

2016 DIGILAW 36 (JHR)

Z. James Terom 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 sole petitioner has prayed for quashing of the entire criminal proceeding relating to Manoharpur P.S. Case No. 31 of 1996 corresponding to G.R. Case No. 202 of 1996, pending in the court of Judicial Magistrate, 1st Class, Porahat at Chaibasa. 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 the Scheduled Caste and Scheduled Tribe students 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 this petitioner, who was the Principal during the relevant period and the involvement of five other persons namely Sunita Topno the Acting Principal, Dr. Anuj Kumar Dhan the Principal from 1987 to 1992, John Bhuiyan Acting Principal, Mojesh Sukumar Das the Cashier and Walter Bara another Cashier besides the members of Governing Body 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 this petitioner 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 this petitioner had earlier filed one W.P. (Cr.) No. 44 of 2005 against the order 04.01.2005 by which the court below refused to discharge the petitioner and the said W.P. (Cr.) was disposed of by this Court vide order dated 17.02.2005 with direction to the court concerned to supply the copy of police paper and other documents and thereafter proceed for framing of the charge in accordance with law. The petitioner and other accused persons again filed petitions 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 petitioner 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 petitioner 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 petitioner and other accused persons to be physically present before the court for framing of charge. 4. Mr. Gadodia learned counsel appearing for the petitioner assailing the order impugned refusing to discharge the petitioner as bad in law and perverse 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 petitioner 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 petitioner and even the court below has not considered the evidence available on record in right perspective. Learned 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 petitioner and when the charges are found groundless on the face of the record, the accused petitioner is 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, as such no case is made out against this petitioner. 5. Contrary to the aforesaid submissions, the learned counsel representing the State seriously contended that the prayer of the petitioner in this criminal miscellaneous petition is confined to the quashing of the entire criminal proceeding but the learned counsel for the petitioner has mainly relied on the order dated 27.06.2005 passed by the court below by which the petition for discharge of the petitioner and other accused persons was rejected. It was also submitted that the court below in the said order 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 petitioner and only those documents, which were submitted in court, along with letter of District Welfare Officer, had not been given to the petitioner 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. 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. 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. Apparently, the petitioner has prayed for quashing of the entire criminal proceeding only and there is no prayer to quash the order of the court below by which the petition filed for his discharge under Section 239 of the Code was rejected. 9. Apparently, the petitioner has prayed for quashing of the entire criminal proceeding only and there is no prayer to quash the order of the court below by which the petition filed for his discharge under Section 239 of the Code was rejected. However, in the interest of justice, 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, this petitioner was the Principal of the said college and there are sufficient evidence on record to show that there was misappropriation and defalcation of government fund and on perusal of paragraph 117 of the case diary, it would appear that this petitioner has himself accepted that from 1982 onwards, he had received fund from two different sources without approval of the government and the amounts, which were collected illegally from the Scheduled Caste and Scheduled Tribe students, were returned to those students after giving them notices. It appears from the order impugned dated 27.06.2005 that the court below has considered the evidence available on record and found prima facie case and sufficient materials against this petitioner 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.