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2019 DIGILAW 512 (CAL)

Sushovan Das Gupta v. State of West Bengal

2019-04-18

ASHA ARORA

body2019
JUDGMENT : 1. By the instant application the petitioner has challenged the order dated 30th November, 2016 passed by the learned Judge, Special Court, 3rd Court, Barasat in Special Case No.20 of 2014 corresponding to G.R No.3249 of 2012 arising out of Nimta P.S. Case No.230 of 2012 dated 25th July, 2012 under sections 406/408/409 IPC whereby the petitioner's application under section 173(8) of the Code of Criminal Procedure seeking further investigation in the aforesaid case was rejected after hearing the learned counsel for the parties. 2. The facts in brief leading to the present application may be summarized as follows: On 25th July, 2017 one Chandra Sekhar Naskar, Administrator of Nimta High School lodged a written complaint at Nimta P.S. alleging offences under sections 406/408/409 IPC against the opposite party nos.2 to 6 herein. According to the FIR, the accused persons being members of the Building Committee, Secretary of the Managing Committee and Assistant Head Master of the said School, misappropriated school funds amounting to Rs.10,35,416/- allotted for constructing rooms and other works of development in the school. On the basis of the aforesaid complaint the proceeding was initiated. Investigation culminated in the submission of the charge-sheet under sections 406/408/409 of the IPC against the three FIR named accused persons and the Head Master of Nimta High School. The Investigating Officer prayed for discharge of one of the FIR named accused namely, Narayan Chandra Kamila, the opposite party no. 6 herein on the ground that no evidence could be collected against him. The aforesaid accused was accordingly discharged from the case as per prayer of the investigating agency. The petitioner who is an assistant teacher in the said school, filed an application seeking further investigation under Section 173(8) CrPC before the learned Judge, Special Court Barasat where the said case was transferred for disposal. After hearing the learned counsel for the parties, the Judge Special Court rejected the aforesaid application by the impugned order. Aggrieved, the petitioner has approached this Court. 3. Learned counsel for the petitioner sought to impress that the investigation was partial, perfunctory and shoddy. To shield the real offenders, investigation was conducted in an unfair manner. It is canvassed that the minutes of the meetings of the Managing Committee during the relevant period, which were not seized during investigation, would establish that the discharged accused is also responsible for the financial scam. To shield the real offenders, investigation was conducted in an unfair manner. It is canvassed that the minutes of the meetings of the Managing Committee during the relevant period, which were not seized during investigation, would establish that the discharged accused is also responsible for the financial scam. It is contended that the opposite party no. 6 has been discharged by the investigating agency on the ground that he had no authority to sign the cheques but the enquiry report reveals that the opposite party no. 6/discharged accused, who was then the Assistant Head Master of the said school, was the custodian of the school accounts. Referring to the enquiry report at page 87 and 88 of the application, it is pointed out that payments were released with the help of the discharged accused who used the cheques signed by the Head Master of the school. Learned counsel pointed out that the investigating agency deliberately overlooked the fact that the anticipatory bail prayer of the discharged accused was rejected by this Court on the ground that there was sufficient material against him. It is strenuously argued that the opposite party no. 6/discharged accused is directly involved in the offence of misappropriation of school funds and it is a fit case for further investigation. In support of his argument reliance has been placed on Vinay Tyagi versus Irshad Ali @Deepak and others reported in (2013) 5 SCC 762 and Pooja Pal versus Union of India and others reported in (2016) 1 SCC (Cri) 743. On the point of the petitioner's locus standi to seek further investigation, it has rightly been contended that anyone can set the criminal law in motion except where the statute enacting or creating an offence indicates to the contrary. The petitioner as an assistant teacher of the said school is concerned about the misappropriation of school funds and is affected by the order of discharge of the opposite party no. 6. To fortify his submissions, learned counsel for the petitioner relied on A.R. Antulay versus Ramdas Sriniwas Nayak and another reported in (1984) 2 SCC 500 (paragraph 6), Amanullah and another versus State of Bihar and others reported in (2016) 6 SCC 699 (paragraph 19) and Ratanlal versus Prahlad Jat and others reported in (2017) 9 SCC 340 (paragraphs 8, 9 and 10). It is canvassed that the petitioner is a victim as defined in Section 2(wa) of the Code of Criminal Procedure. Therefore it has erroneously been observed in the impugned order that the petitioner, not being the defacto complaint or the aggrieved person has no locus standi to pray for further investigation. 4. Learned counsel appearing for the State/opposite party no. 1 submitted that since sufficient material could not be collected against the opposite party no. 6, the investigating agency sought for his discharge from the case. 5. Repudiating the submissions on behalf of the petitioner, learned counsel for the opposite party no. 6/discharged accused argued that the petitioner has no right to seek further investigation since he is neither the defacto complainant nor a witness cited in the charge-sheet. The defacto complainant chose not to file any protest petition against the prayer for discharge of the opposite party no. 6 although he was served with a notice in this regard. It is contended that the discharged accused had no authority to sign cheques or withdraw money from the bank so there was no question of siphoning funds by him. He only maintained accounts and had nothing to do with the school funds or the construction works. For want of sufficient material the opposite party no. 6 was discharged from the case. Learned counsel pointed out that the seizure list dated 25/7/2012 shows that the seizure was made from the room of the Head Master and not from the custody of the discharged accused. It is contended that there is no justification from further investigation since the trial Court can take recourse to the provisions of section 319 of the Code of Criminal Procedure if material is disclosed against the discharged accused in course of trial. 6. It appears that the petitioner sought for further investigation in the above mentioned case as an assistant teacher of Nimta High School. The relevant paragraph 19 of the application under section 173(8) CrPC at page 62 is quoted herein below: "19. 6. It appears that the petitioner sought for further investigation in the above mentioned case as an assistant teacher of Nimta High School. The relevant paragraph 19 of the application under section 173(8) CrPC at page 62 is quoted herein below: "19. That the Petitioner states that since he is an assistant teacher of the said institution and the complained offences involves misappropriation and siphoning off the money which was given to the said institution for its improvement and development through grant-in-aid, he is very much interested with the fate of the investigation and since the investigating agency conducted investigation in clandestine manner and submitted charge sheet, without implicating the king pin and/or master mind of the complained financial scam as well as without collecting the necessary papers from the possession of the said discharged accused person, he intends to prefer the instant application and it is pertinent to state that he also happens to be an interested and incidental victim of the instant case." 7. At this juncture it may be beneficial to refer to paragraph 19 of the judgment in Amanullah versus State of Bihar (supra) wherein the Apex Court held as follows: "19. The term "locus standi" is a Latin term, the general meaning of which is "place of standing". Concise Oxford English Dictionary, 10th Edn., at p. 834, defines the term "locus standi" as the right or capacity to bring an action or to appear in a court. The traditional view of "locus standi" has been that the person who is aggrieved or affected has the standing before the court that is to say he only has a right to move the court for seeking justice. Later, this Court, with justice-oriented approach, relaxed the strict rule with regard to "locus standi", allowing any person from the society not related to the cause of action to approach the court seeking justice for those who could not approach themselves. Now turning our attention towards the criminal trial, which is conducted, largely, by following the procedure laid down in CrPC. Since, offence is considered to be a wrong committed against the society, the prosecution against the accused person is launched by the State. It is the duty of the State to get the culprit booked for the offence committed by him. Since, offence is considered to be a wrong committed against the society, the prosecution against the accused person is launched by the State. It is the duty of the State to get the culprit booked for the offence committed by him. The focal point, here, is that if the State fails in this regard and the party having bona fide connection with the cause of action, who is aggrieved by the order of the court cannot be left at the mercy of the State and without any option to approach the appellate court for seeking justice." 8. In the context of the above, it may also be profitable to refer to the relevant paragraphs 8, 9 and 10 of the decision of the Supreme Court in Ratanlal versus Prahlad Jat (supra) which are quoted hereinbelow: "8. In Black's Law Dictionary, the meaning assigned to the term "locus standi" is "the right to bring an action or to be heard in a given forum". One of the meanings assigned to the term "locus standi" in The Law Lexicon of Shri P. Ramanatha Aiyar, is "a right of appearance in a Court of justice". The traditional view of locus standi has been that the person who is aggrieved or affected has the standing before the court, that is to say, he only has a right to move the court for seeking justice. The orthodox rule of interpretation regarding the locus standi of a person to reach the court has undergone a sea change with the development of constitutional law in India and the constitutional courts have been adopting a liberal approach in dealing with the cases or dislodging the claim of a litigant merely on hyper-technical grounds. It is now well-settled that if the person is found to be not merely a stranger to the case, he cannot be non-suited on the ground of his not having locus standi. 9. However, criminal trial is conducted largely by following the procedure laid down in CrPC. Locus standi of the complainant is a concept foreign to criminal jurisprudence. Anyone can set the criminal law in motion except where the statute enacting or creating an offence indicates to the contrary. 9. However, criminal trial is conducted largely by following the procedure laid down in CrPC. Locus standi of the complainant is a concept foreign to criminal jurisprudence. Anyone can set the criminal law in motion except where the statute enacting or creating an offence indicates to the contrary. This general principle is founded on a policy that an offence, that is an act or omission made punishable by any law for the time being in force, is not merely an offence committed in relation to the person who suffers harm but is also an offence against the society. Therefore, in respect of such offences which are treated against the society, it becomes the duty of the State to punish the offender. In A.R. Antulay v. Ramdas Sriniwas Nayak, a Constitutional Bench of this Court has considered this aspect as under: (SCC pp.508-09, para 6) "6. ... In other words, the principle that anyone can set or put the criminal law in motion remains intact unless contra-indicated by a statutory provision. This general principle of nearly universal application is founded on a policy that an offence i.e. an act or omission made punishable by any law for the time being in force [see Section 2(n) CrPC] is not merely an offence committed in relation to the person who suffers harm but is also an offence against society. The society for its orderly and peaceful development is interested in the punishment of the offender. Therefore, prosecution for serious offences is undertaken in the name of the State representing the people which would exclude any element of private vendetta or vengeance. If such is the public policy underlying penal statutes, who brings an act or omission made punishable by law to the notice of the authority competent to deal with it, is immaterial and irrelevant unless the statute indicates to the contrary. Punishment of the offender in the interest of the society being one of the objects behind penal statutes enacted for larger good of the society, right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting it into a straitjacket formula of locus standi unknown to criminal jurisprudence, save and except specific statutory exception." 10. In Manohar Lal v. Vinesh Anand, this Court has held that the doctrine of locus standi is totally foreign to criminal jurisprudence. In Manohar Lal v. Vinesh Anand, this Court has held that the doctrine of locus standi is totally foreign to criminal jurisprudence. To punish an offender in the event of commission of an offence is to subserve a social need. Society cannot afford to have a criminal escape his liability since that would bring about a state of social pollution which is neither desired nor warranted and this is irrespective of the concept of locus." 9. The petitioner is an assistant teacher of the said school and not a mere stranger to the case or a "meddlesome bystander." The offence of embezzlement of funds affects the interest of the educational institution with which the petitioner is associated as a teacher. Petitioner having bona fide connection with the cause of action, has a right to move the Court for seeking justice. 10. Coming to the issue of further investigation, it may be significant to quote the relevant paragraph 22 in Vinay Tyagi versus Irshad Ali (supra) wherein the Supreme Court held as follows: "22. "Further investigation" is where the investigating officer obtains further oral or documentary evidence after the final report has been filed before the court in terms of Section 173(8). This power is vested with the executive. It is the continuation of previous investigation and, therefore, is understood and described as "further investigation". The scope of such investigation is restricted to the discovery of further oral and documentary evidence. Its purpose is to bring the true facts before the court even if they are discovered at a subsequent stage to the primary investigation. It is commonly described as "supplementary report". "Supplementary report" would be the correct expression as the subsequent investigation is meant and intended to supplement the primary investigation conducted by the empowered police officer. Another significant feature of further investigation is that it does not have the effect of wiping out directly or impliedly the initial investigation conducted by the investigating agency. This is a kind of continuation of the previous investigation. The basis is discovery of fresh evidence and in continuation of the same offence and chain of events relating to the same occurrence incidental thereto. In other words, it has to be understood in complete contradistinction to a "reinvestigation", "fresh" or "de novo" investigation." 11. This is a kind of continuation of the previous investigation. The basis is discovery of fresh evidence and in continuation of the same offence and chain of events relating to the same occurrence incidental thereto. In other words, it has to be understood in complete contradistinction to a "reinvestigation", "fresh" or "de novo" investigation." 11. In Pooja Pal versus Union of India (supra), the Supreme Court held that though a court's satisfaction of want of proper, fair, impartial and effective investigation eroding its credence and reliability is the precondition for a direction for further investigation or reinvestigation, submission of charge-sheet ipso facto or the pendency of trial can by no means be a prohibitive impediment. The relevant paragraph 83 is quoted herein below: "83. A "speedy trial", albeit the essence of the fundamental right to life entrenched in Article 21 of the Constitution of India has a companion in concept in "fair trial", both being inalienable constituents of an adjudicative process, to culminate in a judicial decision by a court of law as the final arbiter. There is indeed a qualitative difference between right to speedy trial and fair trial so much so that denial of the former by itself would not be prejudicial to the accused, when pitted against the imperative of fair trial. As fundamentally, justice not only has to be done but also must appear to have been done, the residuary jurisdiction of a court to direct further investigation or reinvestigation by any impartial agency, probe by the State Police notwithstanding, has to be essentially invoked if the statutory agency already in charge of the investigation appears to have been ineffective or is presumed or inferred to be not being able to discharge its functions fairly, meaningfully and fructuously. As the cause of justice has to reign supreme, a court of law cannot reduce itself to be a resigned and a helpless spectator and with the foreseen consequences apparently unjust, in the face of a faulty investigation, meekly complete the formalities to record a foregone conclusion. Justice then would become a casualty. Though a court's satisfaction of want of proper, fair, impartial and effective investigation eroding its credence and reliability is the precondition for a direction for further investigation or reinvestigation, submission of the charge-sheet ipso facto or the pendency of the trial can by no means be a prohibitive impediment. Justice then would become a casualty. Though a court's satisfaction of want of proper, fair, impartial and effective investigation eroding its credence and reliability is the precondition for a direction for further investigation or reinvestigation, submission of the charge-sheet ipso facto or the pendency of the trial can by no means be a prohibitive impediment. The contextual facts and the attendant circumstances have to be singularly evaluated and analyzed to decide the needfulness of further investigation or reinvestigation to unravel the truth and mete out justice to the parties. The prime concern and the endeavour of the court of law is to secure justice on the basis of true facts which ought to be unearthed through a committed, resolved and a competent investigating agency." 12. In the case in hand, it is not in dispute that pursuant to a complaint of financial irregularities lodged with the Director of School Education, West Bengal by the representatives of the teaching and non teaching staff of the Managing Committee of the said school, an in situ enquiry was held on 22/10/2009 by the Assistant Director of School Education, West Bengal. The enquiry was conducted with prior intimation to the school authorities and the complainants. The District Inspector of Schools (S.E.) Barrack pore was also informed and one Assistant Inspector of School (S.E.) Barack pore was also present. All the members of the Managing Committee except Mr. Debasish Chakraborty, Vice President were present during the enquiry. The enquiry report of the Assistant Director of School Education speaks of the direct involvement of the discharged accused in the misappropriation of school funds along with the other accused persons charge-sheeted. The investigating agency evidently overlooked the enquiry report which reveals some incriminating facts (at page 87 and 88 of the application) showing the involvement of the discharged accused which are quoted hereinbelow: "(iv) that the previous Managing Committee in its meeting held on 07.10.07 adopted Resolution to the effect that "all School A/C's and financial transactions including day to day expenses of the school will be maintained and regulated by Sri Narayan Chnadra Kamila, Asstt. Head Master, Instead of the Head Master of the Institution and it is very peculiar to note that Sri Kamila carried on the responsibility upto 31.03.09(copy enclosed). Head Master, Instead of the Head Master of the Institution and it is very peculiar to note that Sri Kamila carried on the responsibility upto 31.03.09(copy enclosed). (vi) That the said Building Committee, though not empowered specifically; arbitrarily invited quotations, issued work orders (in some cases) received materials by signing Challans, signed Bills & Vouchers submitted for the purpose by the parties. Released payments with the help of the Asst. Head Master Mr. N.C. Kamila; the then custodian of School Accounts, in the way of issuing A/C payee Cheques in some cases and in some cases Bearer Cheques of heavy amount too which are highly irregular as per existing financial norms (though from a resolution adopted by the Building Committee it is observed that no Bearer Cheque beyond Rs. 500/- be issued from their end). (vii) that the Head Master of the Institution being the victim of the circumstances was compelled to play a peculiar role in the matter of releasing payments. Since, the financial power of the Head Master was ceased by the previous Managing Committee by shifting it to the Asstt. Head Master, Mr. Kamila (mentioned earlier) and since the present Managing Committee allowed the matter to continue; the Head Master was reluctant to go through the expenditure incurred for the purpose of building construction. As per his statement, he only signed the cheques as Joint Signatory after approval of the expenditure by the Secretary, Mr. U.S. Ghosh and after putting his signature in cheques first. In some cases the Head Master was compelled to sign the cheques under duress. And for that matter he has already lodged one G.D. to the Officer-in-Charge, Nimta P.S. on 03.12.07 (vide G D No. 148) and he has made several communications to the Dist. Inspector of Schools (S.E.), Barrack pore, the Secretary, WBBSE and the Secretary, Managing Committee of the school for redressal. The Head Master is the person who protested against such illegal payments made by the Secretary in connivance with the Asstt. Head Master and two other members of the Construction Committee namely Sri Biswanath Banerjee and Sri Debasish Chakraborty and brought the matter to the notice of the Managing Committee. (ix) That during the puja vacation of 2008, motivatedly and purposefully a huge amount was withdrawn from the General Fund of the school by Secretary in connivance with the Asst. Head Master and two other members of the Construction Committee namely Sri Biswanath Banerjee and Sri Debasish Chakraborty and brought the matter to the notice of the Managing Committee. (ix) That during the puja vacation of 2008, motivatedly and purposefully a huge amount was withdrawn from the General Fund of the school by Secretary in connivance with the Asst. Head Master beyond the knowledge of the Managing Committee (vide A/c No. 68861, U B I, Nimta Branch)." 13. The above mentioned facts revealed during enquiry have not been probed and inquired into by the investigating agency. It is not in dispute that the opposite party no. 6/discharged accused was the Assistant Head Master of the said school during the relevant period and was the custodian of the accounts. It is significant to refer to the penultimate paragraph of the enquiry report which reads as follows: "It is suspected that some of the members of the Building Committee who played pivotal and active role are directly involved in the embezzlement of huge amount of money. List of suspected accused-- (i) Mr Uma Shankar Ghosh - Secretary Issued Work Orders, received materials, signed Challans, approved Vouchers and signed Cheques. (ii) Mr Narayan Chandra Kamila - Asstt. Head Master Custodian of the Accounts, prepared Cheques Including Bearer Cheques, worked during the Puja Holidays and helped the Secretary. (iii) Mr Biswanath Banerjee - Guardian Representative Received materials, signed Challans and Intimidated the Head Master. (iv) Mr Deba ishs Chakraborty - Vice-President Received materials, signed Challans etc. Some of the Challans signed by the above persons seem to be false/fake. Legal steps, if admissible, may be initiated against the above suspected accused for embezzling money from the School Account Fund." 14. It is pertinent to mention that from the enquiry report it appears that in course of enquiry all the documents and records relating to the school funds were properly verified with reference to the cash book and the resolution book of the Managing Committee. Curiously enough, for reasons best known to the investigating agency, no probe was conducted regarding the abovementioned facts revealed in the enquiry report. The books of account for the period in question, cash book and other relevant documents relating to embezzlement of funds which would help unravel the truth regarding involvement of the opposite party no. 6 were not seized during investigation. The books of account for the period in question, cash book and other relevant documents relating to embezzlement of funds which would help unravel the truth regarding involvement of the opposite party no. 6 were not seized during investigation. The only seizure list dated 25/7/2012 does not relate to seizure of the books of accounts for the relevant period. It is evident that the investigation was biased and lackadaisical. 15. In Vinay Tyagi versus Irshad Ali (supra) the Supreme Court held that the expression "fair and proper investigation" in criminal jurisprudence encompassed two imperatives; firstly, the investigation must be unbiased, honest, just and in accordance with law; and secondly, the entire emphasis has to be to bring out the truth of the case before the Court of competent jurisdiction. In the case in hand, it can hardly be said that the investigation was fair, proper and effective on the issue as to the involvement of the opposite party no. 6 against whom sufficient incriminating material transpired in course of enquiry by the Assistant director of School Education. It appears that the investigating agency made no attempt to bring out the truth regarding the involvement of the opposite party no. 6 who was given a clean chit solely on the ground that he had no power to pass any bill or sign cheques. 16. For the reasons aforestated, I am of the view that it is a deserving case for further investigation. Accordingly, the impugned order is set aside. 17. The Superintendent of Police, North 24 Parganas, is directed to appoint a competent Police Officer not below the rank of Deputy Superintendent of Police for conducting further investigation of Nimta P.S. Case No. 230 of 2012 dated 25/7/2012 under Sections 406/408/409 IPC. Report of such investigation shall be filed before the learned Judge, Special Court, Barasat expeditiously and in accordance with law within two months from the date of communication of this order. 18. The application being CRR 4051 of 2016 is thus disposed of. 19. Let a copy of this order be communicated forthwith to the Superintendent of Police, North 24 Parganas, for information and necessary action. 20. Urgent Photostat certified copy of this order, if applied for, be given to the applicant on compliance of requisite formalities.