Punjab-Haryana High Court
Rakesh Kumar vs State Of Haryana on 12 May, 2017
Author: Surinder Gupta
Bench: Surinder Gupta
CRM-M-234-2016 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
Crl. Misc. No.M-234 of 2016 (O&M)
Date of Decision: May 12, 2017
Rakesh Kumar
......PETITIONER(s).
VERSUS
State of Haryana
....RESPONDENT(s).
CORAM:- HON'BLE MR. JUSTICE SURINDER GUPTA
Present: Mr. Bipin Ghai, Senior Advocate with
Mr. K.S. Sidhu, Advocate
for the petitioner (s).
Ms. Neelam Kashyap, D.A.G. Haryana.
*******
SURINDER GUPTA, J.
This is petition filed by Rakesh Kumar, District Development and Panchayat Officer against the order dated 18.11.2015 passed by Additional Sessions Judge, Jind whereby his revision petition against the order passed by Judicial Magistrate, Narwana dated 07.07.2014 summoning him as additional accused to face trial in case bearing FIR No.220 dated 04.09.2017 registered at Police Station Uchana, District Jind, was dismissed.
A letter was written by District Police Inspector, Crime Branch, Jind to SHO, Police Station Uchana, placed on file as Annexure P-1, which formed basis for registration of the above referred FIR and is reproduced as follows:-
1 of 7 ::: Downloaded on - 05-06-2017 01:19:38 ::: CRM-M-234-2016 -2- "An Enquiry No.71/FSO/C.M/2006 written by Dharampal, District Police Inspector, Crime Branch, Jind was received vide 567/F.S.O. dated 20.06.2006, the detail of which is as under:- "S.No.2371/Jind Date:14.06.2006.
Memo. It has come to notice from secret sources that in the year 2005-2006, in Block Development and Panchayat Officer Office Uchana, wheat amount to Rs.754000/- at the rate of Rs.5.50 ps per kg, was received under S.G.R.Y scheme for wheat (sic distribution) in lieu of work for getting conducted development works in different villages of Block Uchana. It as come to the notice that the officers of the office of Block Development and Panchayat Officer, in collusion with one another, did not distribute the said wheat in the village and sold the same at higher rates in market and misappropriated the money. In case an enquiry is got conducted into the matter, the possibility of unearthing a big scam cannot be ruled out. In this connections, the affidavits given by persons of different villages and members of Uchana Panchayat Samiti are being forwarded to you for information and appropriate action. Sd/- Dharam Pal, District Police Inspector, Crime branch, Jind." This was inquired into by the under-signed DSP. The statements of persons relating to this enquiry were recorded. Individual and joint statements of persons of villages Kakragha, Safakheri, Kharkbura, Mohangarh, Kahsun, Kheri Masania were recorded. The office of B.D.P.O., Uchana had received 1371.26 quintals of wheat under S.G.R.Y Scheme (Sampuran Gramin Rozgar Scheme), which has been shown to have been distributed in lieu of works of filling up the earth with tractor trollies, J.C.B machines, got conducted under the supervision of J.E, whereas amount in cash has been given and the payment of works which have been got conducted on the streets, has also been made in cash to labour, mason etc., 2 of 7 ::: Downloaded on - 05-06-2017 01:19:39 ::: CRM-M-234-2016 -3- whereas the names which have been filled in muster rolls, those names are of favourites of J.E. The persons who have done work, their names have not been filled and payment was also made to them in cash. In some of the muster rolls prepared, the names and addresses of labourers have not been filled completely. It was been verified that muster rolls were filled falsely. These muster rolls have been prepared by Subhash Singla J.E., Anoop Singh J.E and Aman Kumar J.E under the supervision of S.D.O, Panchayati Raj Sh. Shyam Kumar and B.D.P.O Uchana Sh. Rakesh Kumar."
Police after investigation, presented challan against Anoop Singh, Subhash Singla Junior Engineers, Aman Kumar SD) but kept the name of petitioner, who was posted as Block Development and Panchayat Officer (BDPO), Uchana and one Shyam Lal Sub Divisional Officer (Panchayati Raj) in column No.2 with the observation that they were found innocent.
Learned trial Court on completion of prosecution evidence, observed that there are sufficient reasons for proceeding against the petitioner and SDO (P.R.) Shyam Lal and summoned both of them to face trial. The reasons stated as follows formed basis of passing of order dated 07.07.2014 by the trial Court:-
(i) Document Ex.P14, letter from Chief Executive Officer, Zila Parishad Jind to Block Development and Panchayat Officer Uchana shows that the responsibility for making payment to labourers was that of BDPO and SDO(PR).
(ii) It was required that payment of wages food grains shall be made on a fixed day of the week in the presence of BDPO/SDO(PR) at work site. Thus 3 of 7 ::: Downloaded on - 05-06-2017 01:19:39 ::: CRM-M-234-2016 -4- under SGRY scheme the responsibility to distribute food grains and to make payment was that of BDPO and SDO(PR).
(iii) If BDPO and SDO(PR) were not present and they delegated their duties to the accused facing trial, it is a criminal dereliction of duty and otherwise, they were themselves liable to face trial along with other accused facing trial in this case.
(iv) Evidence of witnesses PW5, PW6, PW7, PW8, PW14, PW15 etc. when reading conjointly makes it clear that under SGRY scheme during the relevant period machines were used instead of labourers to complete the work and food grains were not distributed and instead cash only was distributed in violation of provisions of scheme."
(v) BDPO concerned and SDO(PR) concerned cannot escape their liability by fixing the liability of Junior Engineers working under their control having duties to see technical work and having no responsibility to distribute food grains and wages to the labourers.
(vi) The evidence on record is such that if it remains uncontroverted, it will lead to convict of accused sought to be summoned.
Petitioner filed revision against the above order which was dismissed by learned Additional Sessions Judge with observation as follows:-
"9. The question, which arises in this case, is whether the accused named in the FIR and who have been declared innocent, during the course of investigation by the police, could be summoned under Section 420. 467, 468, 471 and 120B of IPC by aid of provisions of Section 319 Cr.P.C. The allegation against the revisionists are that 4 of 7 ::: Downloaded on - 05-06-2017 01:19:39 ::: CRM-M-234-2016 -5- purpose of SGRY was to use labour for the filling of earth etc. and to pay food-grain to them but JCB machines and tractors were used on the directions of co-accused and under the supervision of revisionists which defeated the said purpose of SGRY scheme. Even they were not present on the spot at the appointed day for distribution of food-grain and no wheat was distributed to the labour. False muster rolls with fake name entireties was dishonestly prepared. The answer to this question is in the positive. From the perusal of the record, it is revealed that besides above said facts there is an allegation in the letter dated 04.09.2007 Ex.PW18/B itself that the present revisionists were responsible for preparation of false muster roll in connivance with Subhash Singla J.E, Anup Singh J.E and Aman Kumar J.E. It is further mentioned in Ex.P14 that the responsibility for making payment to the labour would be of concerned B.D.P.O and S.D.O (PR) which shall be made on a fixed day of the week in their presence at the work site. Further a co-joint reading of evidence of PWs no. 5, 6, 7, 8, 14, 15 etc. makes it clear that revisionists were not present on work site at the time of distribution of food-grain. The work was done by aid of machines instead of labour and food-grain was not distributed but cash payment was made to the persons who performed the work by use of machines. Therefore, as noted above, specific part has been attributed to the revisionists, thus they facilitated the offence. Moreover, it would be determined during course of trial that revisionists had dishonest intention and acted in concert with their co-accused or guilty of dereliction of their duty. Therefore, they had omitted to perform their duty, hence taken active part in the occurrence. Thus, in these circumstances, the order of summoning the revisionists as additional accused does not suffer from any illegality or 5 of 7 ::: Downloaded on - 05-06-2017 01:19:39 ::: CRM-M-234-2016 -6- irregularity."
I have heard learned counsel for the petitioner and learned State counsel and have gone through the paper book.
Learned counsel for the petitioner has argued that though as per letter Ex.P4, copy of which has been placed on file as Annexure P-6, responsibility for making payment to the labour under S.G.R.Y. Scheme was of B.D.P.O. and SDO (PR), a letter had been issued by block Development and Panchayat Officer, Block Uchana on 20.06.2005 giving direction to all Junior Engineers, Block Uchana that work be got conducted through labourers only and it is not allowed to be got done through machines and contractors. They were also instructed to make payment of labour by fixing some day in the presence of Sarpanch/Panchayat Samiti/Zila Parishad members. If the petitioner has not supervised the receipt/distribution of food-grains and execution of work, it may amount to dereliction in performance of duties and not criminal negligence.
On giving a careful thought to the submission of learned counsel for the petitioner, I find no reason to agree with him.
The food-grains were supplied in this case to B.D.P.O. and the allegation is that the same was sold in the market. Instead of getting work from the labourer, machines were used. Fake muster-roles were prepared which resulted in a big scam.
PW5 Dharambir, whose statement has been placed on file, has stated that work was done under the supervision of SDO/BDPO. If the grain supplied by the State to the petitioner, was misappropriated and all the illegal acts as stated by the prosecution witnesses were being done under the 6 of 7 ::: Downloaded on - 05-06-2017 01:19:39 ::: CRM-M-234-2016 -7- nose of petitioner, he cannot escape his responsibility for such criminal acts and all this is sufficient to reflect his role as a conspirator and conniver in commission of offence with co-accused facing trial in the case. The order passed by learned trial Court and the revisional Court are well-reasoned and I find no legal or factual infirmity therein, calling for any interference in this petition.
This petition has no merits. Dismissed.
As the case is quite old, trial Court is directed to proceed with the case expeditiously and dispose of the same at the earliest, preferably within a period of one year of the receipt of this order.
( SURINDER GUPTA )
May 12, 2017 JUDGE
Sachin M.
Whether speaking/reasoned: Yes/No
Whether Reportable: Yes/No
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