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2024 DIGILAW 352 (ALL)

Brijendra Swaroop Jaisawal v. State of U. P.

2024-02-02

RAM MANOHAR NARAYAN MISHRA

body2024
JUDGMENT : RAM MANOHAR NARAYAN MISHRA, J. 1. Heard learned counsel for the revisionist, learned counsel for the opposite party No. 2 as well as learned AGA for the state and perused the material placed on record. 2. By means of instant criminal revision, the accused-revisionist has assailed impugned order dated 12.11.2022, passed by Additional Chief Judicial Magistrate, Second, Gorakhpur, in Criminal Case No. 5289 of 2017 (State vs. Brijendra Swaroop Jaiswal) under Section 419, 420, 467, 468, 471, 504, 409 IPC, Police Station Shahpur, District Gorakhpur, whereby the discharge application moved by the revisionist has been dismissed. 3. The factual matrix of the case in brief, relevant for the present revision are that the informant, who is respondent No. 2 before this Court, lodged an FIR on 14.4.2017 against revisionist accused with averment that he is Manager of Kanhaiya Junior High School, Shahpur, Geeta Vatika, Gorakhpur. He had arrayed Brijendra Swaroop Jaisawal, as accused, who was posted as Head Master in said school on 8.11.2016 for committing indiscipline and financial irregularities. However, he appended his signature on attendance Register during period of suspension on 17.3.2017 and trespassed into office and abused the clerk and assistant Head Master. The suspended Head Master Sri Brijendra Swaroop Jaisawal was asked to open Head Master room on many times but he did not made the key of the chamber available. The manager/informant brought this fact to the knowledge of Sub Divisional Magistrate, Gorakhpur and departmental officers. On directions of SDM, Sadar, Sri Shashank Shekhar Rai, Nayab Tehsildar, Gorakhpur visited the office of the school and got the chamber of Head Master unlocked on 22.3.2017. On intensive inquiry of said room, many documents related to school work were not found therein. The suspended Head Master misplaced the files relating to approval of service book of ten employees, scholarship distribution register, records relating to recognition, with mala-fide intention, which amounts to criminal breach of trust. Many fake and forged documents were found during inspection of Head Master’s chamber, which were sealed in the presence of Magistrate. The suspended Head Master misplaced the files relating to approval of service book of ten employees, scholarship distribution register, records relating to recognition, with mala-fide intention, which amounts to criminal breach of trust. Many fake and forged documents were found during inspection of Head Master’s chamber, which were sealed in the presence of Magistrate. The FIR was lodged against the revisionist under Section 419, 420, 467, 468, 471, 504, 409 IPC and the police investigated the case and recorded statements of the informant-Acting Head Master, Sri Chandrabhan Singh, Teacher of Kanhaiya Junior High School and Sri Anil Chaudhary, Sri Krishna Kant Sharma, Sri Ram Surat Patel-office clerks, Sri Inarmal Prasad, Sri Rajesh Maurya, office attendants and other witnesses and collected some documents during investigation and after finding the complicity of the accused, submitted charge-sheet against him with prayer to prosecute him before the court in said sections. 4. Learned Magistrate took cognizance of the offence on 3.6.2017 and issued process to the accused. The accused was enlarged on bail. He assailed the charge-sheet and cognizance taking order as well as entire criminal proceeding pursuant to criminal Case No. 5289 of 2017, under Section 419, 420, 467, 468, 471, 504, 409 IPC, Police Station Shahpur, District Gorakhpur, before this Court, which was dismissed by this Court with observation that on perusal of FIR and material collected by Investigating Officer, on the basis of which the charge-sheet has been submitted, it makes out a prima facie case against the accused at this stage and the Court did not find any justification to quash the charge-sheet or the cognizance or the proceeding against the applicant arising out of them. The accused moved an application for discharge before the court below at the stage of commencement of trial on 18.8.2022 on grounds that the informant is real younger brother of the accused-applicant, who has lodged a false FIR against him to grab the property of the school. The Investigating Officer has submitted the charge-sheet against the applicant without carrying out proper and fair investigation and in absence of any evidence, the applicant has not committed any false impersonation or he has not derived any unlawful gain by cheating anyone. There is no evidence that he has committed any offence. There is no any document on record which can be termed as a forged document. There is no evidence that he has committed any offence. There is no any document on record which can be termed as a forged document. No document has been placed on record in respect of the alleged forgery, which is said to have been committed or the applicant nor he has used any forged document as genuine. Even there is no specific allegation against the applicant that he abused any particular person and specific works used in abusing have also not been brought on record on the basis of entire record. It is obvious that there is no evidence available against the applicant as to what short of property was entrusted to the applicant and by which act he has committed criminal breach of trust. No offence is made out against the applicant and he deserves to be discharge from said charges. 5. Learned court below by impugned order dismissed the said application for discharge, which is maintainable under Section 239 Cr.P.C. with observation that the applicant is charged for committing trespass in the office of the school after his suspension, abusing the Acting Head Master and causing documents related to school missing as well as committing forgery with respect to certain documents. The matter is of serious nature. Whether the accused is involved in said offence or not, can only be adjudicated on tendering of evidence during trial. On the basis of material available on record, a prima-facie case is made out against the applicant, which shows his complicity in the offence and the facts brought against him, prima facie appears to be true. There is sufficient ground to proceed against the accused. Therefore, the application for discharge moved under Section 239 Cr.P.C. is hereby dismissed. 6. Learned counsel for the revisionist, while pressing grounds taken in discharge application moved by the revisionist before the court below, further submitted that the revisionist has been Head Master of Kanhaiya Junior High School, Shahpur, Geeta Vatika, Gorakhpur and has retired from his services after obtaining age of superannuation on 31st March, 2021. The school is an institution on grant-in-aid from the State Government, at its Junior High School Level. The opposite party No. 2, the complainant, is Manager of the Managing Committee of the institution. The school is an institution on grant-in-aid from the State Government, at its Junior High School Level. The opposite party No. 2, the complainant, is Manager of the Managing Committee of the institution. The institution is recognized under the provisions of U.P. Basic Education Act and provisions of Uttar Pradesh Recognized Basic Schools (Junior High School) Recruitment and Conditions of Service of Teachers Rule, 1978, are fully applicable to the institution. In the year 2016, soon after the resuming the charge of the Manager of the Committee of Management, the respondent No. 2 started to make attempts to earn money by adopting illegal means and in this direction, he started issuing orders to the revisionist to take admission of girl students in the institution as well as to admit students in the primary classes in the institution. In this respect, an order dated 24.4.2016, issued by respondent No. 2 to the revisionist directing him to take admission of girl students in the institution has been filed as Annexure No. 1 to the affidavit. The revisionist on getting copy of the order dated 24.4.2016, communicated to respondent No. 2, vide his letter dated 2.5.2016 that according to the order of Basic Education Officer, Gorakhpur, dated 9.12.1998, the institution is only recognized as an educational institution of boys wherein only boys can be admitted as student. The respondent No. 2 did not relished this reply of the revisionist to his order dated 24.4.2016 and started issuing show cause notices on different grounds to the revisionist only to harass him (victimize him). Vide order dated 25.6.2016, directions were issued to the revisionist by respondent No. 2to run primary classes in the institution, whereupon the revisionist communicated him that vide directions issued by Basic Education Officer, Gorakhpur, dated 20.7.1998, primary classes could not be allowed to run in the institution in view of the fact that recognition to this effect has already been cancelled. The respondent No. 2 got annoyed with the replies given by the revisionist to his illegal orders issued from time to time in this context. Ultimately, took a decision vide order dated 8.11.2016 to place the revisionist under suspension and directions was issued to him to handover the charge of his office to Senior Assistant Teacher namely Sri Kapil Dev Singh. Ultimately, took a decision vide order dated 8.11.2016 to place the revisionist under suspension and directions was issued to him to handover the charge of his office to Senior Assistant Teacher namely Sri Kapil Dev Singh. The respondent No. 2 after placing the revisionist under suspension and giving the charge of Office of Head Master to Senior Assistant Teacher namely Sri Kapil Dev Singh, started running primary classes in the institution and also starting taking the admission of girl students in the institution, illegally and against the mandate of order of Basis Education Officer, Gorakhpur. The revisionist reported all these illegal activities carried out by respondent No. 2 to Director of Basic Education vide his application dated 17.8.2017. In response of which, an order dated 6.9.2017 was issued to make appropriate inquiry into the matter and submit a report regarding action action taken into the matter within a week. However, no action in pursuance of order dated 6.9.2017 passed by Director of Basic Education was taken by B.S.A. Gorakhpur. Respondent no. 2 filed a frivolous and false complainant against the revisionist before the District Basic Education Officer, Gorakhpur during his period of suspension with allegation that the revisionist is not handing over the charge of his Office to Senior Assistant Teacher, Sri Kapil Dev Singh, after his suspension. Further allegations were also made that the revisionist has locked his Office and was not opening the lock despite several orders passed in this effect and therefore, a request was made by respondent No. 2 to District Magistrate to nominate any Magistrate in presence of whom, the lock of the Office of Principal of Insitution could be broken open. Resultantly, the alleged lock was broken open in presence of Nayab Tehsildar, respondent No. 2 and his staff. Inventory of items found in the chamber of Head Master was prepared on 22.3.2017, soon after the opening of the lock. The photocopy of the inventory has been filed as Annexure No. 9 to the affidavit, in which routine documents/articles are shown. Some material and files belonging to some other institution are also shown to be recovered in the inventory. However, it is not specified therein that any forged document was found therein. The photocopy of the inventory has been filed as Annexure No. 9 to the affidavit, in which routine documents/articles are shown. Some material and files belonging to some other institution are also shown to be recovered in the inventory. However, it is not specified therein that any forged document was found therein. The FIR dated 14.4.2017 was lodged by respondent No2 on the basis of alleged recovery, having been made from the office of Head Master on 22.3.2017, after opening the lock of the office. The Investigating Officer carried out the investigation after lodging of the FIR. He recorded statement of PW-2 under Section 161 Cr.P.C. in which he almost repeated the FIR version. The Investigating Officer submitted charge-sheet against the revisionist whereupon cognizance was taken by the court below and revisionist was summoned to face trial. He has already been released on bail in said criminal case by learned Sessions Judge. The impugned order passed by learned court below is outcome of non application of mind and non consideration of grounds taken in discharge application. 7. Learned counsel for the revisionist placed reliance on a judgment of Hon’ble Apex Court in State by S.P. through SPE CBI vs. Uttamchand Bohra in Criminal Appeal No. 1590 of 2021, dated 9th December, 2021. In this case, Hon’ble Apex Court placed reliance on its previous judgment in Central Bureau of Investigation vs. K. Narayana Rao, (2012) 9 SCC 512 , wherein Hon’ble Supreme Court summarized the principles of discharge under Section 227 Cr.P.C. in the following terms: “13. Discharge of the accused under Section 227 of the Code was extensively considered by this Court in P. Vijayan, (2010) 2 SCC 398 wherein it was held as under: (SCC pp. 401-102, Paras 10-11) “10.........If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage he is not to see whether the trial will end in conviction or acquittal. Further, the words ‘not sufficient ground for proceeding against the accused’ clearly show that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the court, after the trial starts. 11. At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In other words, the sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him. 12. The first decision in Ramesh Singh, (1977) 4 SCC 39 , relates to interpretation of Sections 227 and 228 of the Code for the considerations as to discharge the accused or to proceed with trial.” 8. In Uttamchand Bohra’s case (supra), Hon’ble Apex Court has observed as under: “21. On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge: (i) The Judge while considering the question of framing the charges under Section 227 Cr.P.C. has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case. (ii) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing a charge and proceeding with the trial. (iii) The court cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. (iv) If on the basis of the material on record, the court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. (v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. (vi) At the stage of Sections 227 and 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. (vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal.” 9. Per contra, learned AGA as well as learned counsel for the opposite party No. 2 supported the impugned order and submitted that there is no infirmity or illegality in the impugned order passed by the learned court below. The charge can be framed even on the basis of a strong suspicion and meticulous examination of evidence collected during investigation is not required while framing of charge. A clear, prima facie, case is made out on the basis of FIR version and material collected during investigation against the revisionist and learned court below issued summon to him after finding sufficient grounds to proceed against him and discharge application moved by the revisionist has been dismissed on the ground that a, prima facie, case has been made out to frame charges against accused/revisionist. The revisionist was found guilty of various irregularities and misconduct committed by the him while carrying out his duties as Head Master of said institution, who was placed under suspension and an inquiry was instituted against him. 10. Learned counsel for the opposite party No. 2 further submitted that he got appointment as Assistant Teacher and thereafter as Head Master without having requisite qualification in violation of the rule 4(2) and 4(2)-Kha of U.P. Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978. The deficiencies in connection with his appointment were found correct in departmental enquiry by Enquiry Committee and his services are terminated by orders of Managing Committee and approved by B.S.A. His termination order was issued on 30.6.2020 by the Authorized Controller. 11. As the offence is in the nature of warrant trial, which is triable by a Magistrate and in case of a prayer for discharge made by the accused, Section 239 Cr.P.C. is applicable, which provides as under: “239. When accused shall be discharged - If, upon considering the police report and the documents sent with it under Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused and record his reasons for so doing.” 12. Section 240 Cr.P.C. reproduced as under: 240. Framing of charge: (1) If, upon such consideration, examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused. (2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claims to be tried. 13. Section 227 Cr.P.C. reproduced as under: 227. (2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claims to be tried. 13. Section 227 Cr.P.C. reproduced as under: 227. Discharge - If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. 14. On perusal of FIR and material on record, it appears that following allegations are made against the revisionist in present matter: (1) He committed tempering in records, indiscipline and financial irregularities while posted as Head Master of Kanhaiya Junior High School, Shahpur, Geeta Vatika, Gorakhpur, and for that reason, he was placed under suspension on 8.11.2016. (2) He trespassed into the office of the School, misbehaved with and insulted the acting Head Master and office clerks and also abused them. (3) He signed the attendance register in unauthorized manner. (4) He locked his Head Master’s room on being placed under suspension and even after many requests, he abstained from opening the lock and ultimately the matter was reported by the Manager to higher authorities and lock was broken open on 22.3.2017, in presence of a nominated Executive Magistrate (Nayab Tehsildar) and videography was conducted. (5) Large number of files and other documents were found in the locked office of Head Master, which included files regarding approval of service book of ten employees, files relating to payment, files relating to grant in aid, scholarship distribution recognition, sheets of examination result of students, files relating to correspondence; (6) The revisionist misplaced certain important documents/records, which were entrusted to him dishonestly and some forged and fake documents were found while conducting search of the office. 15. So far as, appending signature on attendance register by the revisionist during period of suspension is concerned, this is not an offending act but obviously this is an official misconduct. In statement of the informant as well as witnesses, no document has been specified regarding which forgery has been committed by the revisionist. It is also not specified as to what short of documents were stolen or misplaced by the revisionist. In statement of the informant as well as witnesses, no document has been specified regarding which forgery has been committed by the revisionist. It is also not specified as to what short of documents were stolen or misplaced by the revisionist. Even it, it is accepted that the document found in the Office of the Head Master at the time of conducting search comes within the purview of property and being Head Master, these documents were entrusted to him, are will be presumed to be under constructive entrustment of the revisionist by the institution. It cannot be discerned that the misappropriated these documents only due to the fact that he had locked these documents in his Office room after being placed under suspension and avoided opening the lock on being required to do by the Management. 16. The allegations with regard to fraud, forgery and criminal breach of trust must be specific and not vague. Learned Magistrate while dismissing the application for discharge has not properly addressed the grounds taken in discharge application and only narrating the allegations made against the revisionist in FIR and case diary, he opted to dismiss the discharge application, while observing that the prima facie case is made out against the revisionist for framing charge and his discharge application is liable to be dismissed. No doubt, the meticulous analysis and examination of material collected during investigation is neither called for nor required for framing of charge or adjudicating the issue of question of discharge raised by the accused, yet charge cannot be made only on the baiss of bald allegations and there must be some material in respect of the said allegations. Learned Magistrate failed to specify the material collected during investigation in support of the allegations and charge made against the revisionist. Therefore, the impugned order is not supported with well considered reasons and established principles of law regarding framing of charge and discharge of the accused. 17. In view of foregoing discussions and the case law cited above, this Court is of considered opinion that the learned court below has failed to pass a reasoned and speaking order addressing the grounds taken in discharge application. The right of seeking discharge is a valuable right of the accused and trial court is atleast under obligation to address the grounds taken in discharge application in the light of material collected during investigation. The right of seeking discharge is a valuable right of the accused and trial court is atleast under obligation to address the grounds taken in discharge application in the light of material collected during investigation. Therefore, the revision is liable to be allowed and the impugned order deserves to be set aside. 18. Accordingly, present revision stands allowed and the impugned order passed by learned Additional Chief Judicial Magistrate, Second, Gorakhpur, is hereby set aside and the matter is remanded back to learned Magistrate to hear and decide the application for discharge moved by the revisionist afresh, strictly, in accordance with law as well as in the light of observations made in present revisional order.