Allahabad High Court
Raghvendra Pratap Singh Son Of Late Sher ... vs State Of U.P. Through Principal ... on 28 May, 2007
Author: Vinod Prasad
Bench: Vinod Prasad
JUDGMENT Vinod Prasad, J.
1. The applicant has invoked the inherent jurisdiction of this Court under Section 482 Cr.P.C. Praying therein that proceeding of Criminal Case No. 5567 of 2005 State of U.P. v. Raghvendra Pratap Singh and Ors. for offences under Sections 409, 420, 467, 468, 471, 171, 120B I.P.C. relating to P.S. Robertsganj, District Sonbhadra pending in the Court of C.J.M., Sonbhadra as well as the charge sheet Relating to the said crime be quashed.
2. The back ground facts of the case are that in the year 2000-01, the applicant was the Senior Treasury Officer in district Sonbhadra. One Ram Nath Verma by praying fraud and manipulation of the documents came with the papers that he has been appended as Principal, of Government Polytechnic, Sonbhadra and by committing fraud, cheating and falsification of document, he started withdrawing money and disbursing the same. The said fraud was committed by the said Ram Nath Verma in the capacity of appointed Principal of Government Polytechnic, Sonbhadra. The impersonation was detected by a telephonic massage received from the Additional Director Treasury (pension), Allahabad Division, Allahabad to the effect that the said Ram Nath Verma was playing fraud upon the department and the letters submitted by him for the office of principal were forged. The applicant, it is alleged in this application, lodged an FIR against the said Ram Nath Verma on 7.1.2001 vide Crime No. 23 of 2001 for offences under Sections 419, 420, 467, 468, 471, 474, 170 I.P.C. at P.S. Robertsganj vide Annexure No. 7 to the affidavit filed in support of this application. The investigation into the crime resulted into charge sheet against the said Ram Nath Verma vide annexure No. 8-C on 12.4.2006 as charge sheet No. 58 of 2001. Meanwhile, it transpires that the State Government seized the D.D.O. Code alloted to the Principal of Government Polytechnic of District Firozabad, Sonbhadra and Mau which code was 4102 and seized the power of drawing and disbursing of money vide letter dated 24.12.2001. It further transpires that on the aforesaid charge sheet against Ram Nath Verma, Chief Judicial Magistrate, Sonbhadra took cognizance of the offence on 16.4.2001 and summoned the accused. On the basis of the said charge sheet, the case which was registered against Ram Nath Verma was numbered as Criminal Case No. 794 of 2001 State v. Ram Nath Verma.
3. From the pleading made in this Crl. Misc. Application, it further transpires [that then District Magistrate, Sonbhadra M.B.S. Rami Reddy made a recommendation to the State Government for further investigation into the crime under Section 173(8) Cr.P.C. after obtaining the legal opinions. On the said recommendation, the State Government looked into the matter and found prima facie offence being committed against the applicant ordered for further investigation under Section 173(8) Cr.P.C. vide annexure No. 9 to the affidavit filed in support of this application. It was mentioned in the aforesaid letter by the Deputy Secretary, Government of U.P. dated 13.5.2002 that on enquiry, prima facie, it was found that the applicant Raghvendra Pratap Singh by ignoring and non observing of various directions instigated the accused Ram Nath Verma and in connivance with him committed fraud and cheated the Government to a tune of Rs. 12,12, 660/-. On the aforesaid recommendation vide annexure No. 9 by the State Government further investigation was engineered and the complicity of the applicant into the crime was surfaced on 16.12.2002 vide parcha No. 26 dated 16.12.2002 (Annexure No. 10). Further investigation into the crime brought out the fact that the applicant was a socio criminals and, therefore a supplementary charge sheet dated 7.10.2005 was filed against the applicant vide annexure No. 18 to the affidavit filed in support of this Crl. Misc. Application. The aforesaid charge sheet mentioned that sufficient t evidence has been collected and prima facie offence is established against the applicant and one R.P. Singh the then Senior Treasury Officer, Sonbhadra. On the basis of the said charge sheet, the concerned authority was approached for grant of sanction to prosecute the applicant which sanction was granted on 16.10.2003 vide annexure No. 14 to the affidavit for prosecuting the applicant for offences under Sections 419, 420, 467, 468, 471, 474, 170, 120B I.P.C. by the governor exercising is his power under Section 197 Cr.P.C. After the sanction was granted on the basis of in charge sheet, the Court took cognizance of the offence on 11.11.2005 and Case No. 5567 of 2005 State v. Raghvendra Pratap Singh was registered in the Court of C.J.M., Sonbhadra. In the aforesaid case the applicant was summoned for his for appearance on 11.1.2006 in the Court and hence the present Crl. Misc. Application applicant invoking the inherent power of this Court to quash the charge sheet and the proceeding of the aforesaid case.
4. I have heard Sri M.D. Singh Shekhar, learned Counsel for the applicant and the learned AGA in opposition.
5. Sri Shekhar contended that the whole prosecution of the applicant is absolutely malafide and deserves to be quashed. He submitted that once the charge sheet has been submitted in the Court then the police had no power to make further investigation and the power lied with the Court to summon any person as an accused under Section 319 Cr.P.C. He further submitted that there is no evidence in the case diary to even prima facie indicate that the applicant has committed any offence. He further submitted that a departmental proceeding was also initiated against the applicant which departmental proceeding was conducted by Commissioner, Allahabad Division, who exonerated him from the charges leveled against the applicant. He further submitted that the applicant has been reinstated in service after his suspension order was revoked vide annexure No. 11-C dated 8.3.2002. He further submitted that District Magistrate and the Director Technical Education who were directly involved in the scandal along with Ram Nath Verma aforesaid, to save their skin, got the applicant falsely implicated inconnivance Principal of DIET (District Institute of Education and Training). He further submitted that the aforesaid higher official of the State Government connived against the applicant and got him falsely implicated. He further submitted that from the various government orders, it is absolutely clear that the applicant had followed the procedure prescribed for drawing and disbursing salary from the accounts. In his support he has pointed out various, government orders filed as annexures at the rime of the arguments. Learned Counsel further contended that the supplementary charge sheet which has been filed against the applicant is absolutely illegal as the applicant has not committed any offence at all. He further submitted that the applicant had fulfilled his responsibility in accordance with the G.O. Dated 24.7.1970 detailing the job responsibility of Assistant Treasury Officer and the G.O. Dated 24.7.1991 (Annexure No. 13-B) prescribing the job responsibility of Senior Treasury Officer. He further submitted that the sanction granted by the State Government vide annexure No. 14 is absolutely illegal, unjust and unsustainable in law. He further submitted that Section 197 Cr.P.C. has been ingrafted to protect the government servants from being illegal by harassed and the present case is one such case where the applicant is being harassed at the instance of higher officials. He further pointed out that earlier the applicant had approached this Court when no charge sheet was submitted against him by filing Crl. Misc. Application No. 1971 of 2004 but on the disclosure of the said fact that no charge sheet was laid against him he withdrew that petition as not pressed. He further contended that the whole proceeding against the applicant is malafide and deserves to be quashed as no offence is disclosed and the applicant is absolutely innocent. During the course of the arguments Sri Shekar has also argued regarding the involvement of some of the leaders of the then ruling party. He further submitted that the charge sheet as well as the proceeding pending against the applicant before C.J.M., Sonbhadra be quashed.
6. Learned AGA on the other hand contended that this application is meritless. After the investigation prima facie offence was disclosed against the applicant and, therefore, charge sheet has been submitted against the applicant. He further Contended that in this case, an amount of Rs. 12,12,660/- was embezzled by unauthorized withdrawal and disbursement by the applicant inconnivance with the other accused. He further contended that the State Government looked MHO the matter and on the recommendation of the District Magistrate further investigation was undertaken in which the complicity of the applicant in the crime came out and, therefore, the applicant must be prosecuted. He further submitted that all the questions raised by learned Counsel for the applicant are disputed questions of fact if which require proof and the trial must be allowed to proceed. Learned AGA f contended that along with this application no statement of witnesses etc. which have been recorded during the investigation has been appended and, therefore, the material on the basis of which charge sheet has been filed against the applicant has not been disclosed by the applicant in the present Criminal Misc. Application and, therefore, this application deserves to be dismissed. Learned AGA further contended that the applicant has got a right to claim discharge before the Magistrate concerned and he can raise all his grievances before him. He concludingly submitted that the present Cri. Misc. Application is devoid of merit and deserves to be dismissed.
7. I have considered the submissions raised by both the counsels.
8. From the averments made and the prosecution allegations it is clear that on the basis of falsification of document and by cheating the government, the accused persons have cheated the government to a tune of Rs. 12,12,660/-. The FIR was got registered by the applicant but subsequently at the recommendation of the District Magistrate the crime was further investigated. During further investigation complicity of the applicant was also disclosed and the charge sheet was laid against him in the Court. Along with this Crl. Misc. Application no statement of witnesses and other documents on the basis of which charge sheet has been filed against the applicant has been appended by the applicant and, therefore, this application has been filed concealing the materials on the basis of which the applicant has been charge sheeted and consequently this application is based on material concealment. Further all the grounds raised by learned Counsel for the applicant related with the disputed question of fact which can not be adjudicated upon this Court in exercise of its power under Section 482 Cr.P.C. It is for the trial court to go into the merits of the matter after the evidence is led and then critically appreciate the evidence. This Court under Section 482 Cr.P.C. can only examined as to whether prima facie offence is disclosed or not. It is not for this Court to critically appreciate the evidence and fetch out a defence for the accused.
9. So far as the first contention of learned Counsel for the applicant, that under Section 173(8) Cr.P.C, the police does not have the power to investigate after it had submitted the charge sheet in the Court is concerned, the said argument is wholly bereft of any sound legal principles. Section 173(8) Cr.P.C. indicate that police has got the power to make further investigation on disclosure of the now material. The power of the police to investigate a cognizable offence never comes to end. Moreover, the accused person cannot object further investigation into the crime. This matter has been exhaustively dealt with by the Apex Court in two of its judgment Ram Lal Narang v. State (DELHI ADM.) and State of Bihar v. J.A.C. Saldhana. In the former case Ram Lal Narang (supra) the Apex Court has held as under:
18. In H.N. Rishbud v. The State of Delhi , this Court contemplated the possibility of further investigation even after a Court had taken cognizance of the case. While noticing that a police report resulting from an investigation was provided in Section 190 Criminal Procedure Code as the material on which cognizance was taken, it was pointed out that it could not be maintained that a valid and legal police report was the foundation of the jurisdiction of the Court to lake cognizance. It was held that where cognizance of the case had, in fact, been taken and the case had proceeded to termination, the invalidity of the precedent investigation did not vitiate the result unless miscarriage of justice had been caused thereby. It was said that a deject or illegality in investigation, however, serious had no direct bearing on the competence of the procedure relating to cognizance or trial. However, it was observed:
It does not follow that the invalidity of the investigation is to be completely ignored by a Court during trial. When the breach of such a mandatory provision is brought to the knowledge of the Court at a sufficiently early stage, the Court, while not declining cognizance, will have to take the necessary steps to get the illegality cured and the defect rectified, by ordering such re-investigation as the circumstances of an individual case may call for.
This decision is a clear authority for the view that further investigation is not altogether ruled out merely because cognizance of the case has been taken by the Court defective investigation coming to light during the course of a trial may be cured by a further investigation, if circumstances permit it.
19. In Tara Singh v. State 1951 SCR 729 the police first submitted a report styled as "an incomplete challan" which, however, contained all the particulars prescribed by Section 173(1) Later, two supplemental challans were submitted containing the names of certain formal witnesses. The Magistrate had taken cognizance of the case when the incomplete challan was submitted. It was urged that the Magistrate had taken cognizance of the case illegally and the statements of witnesses-examined before submission of the supplemental challans should be excluded from the record. This Court held that the so-called incomplete challan was in fact a complete report of the kind contemplated by Section 173(1)(a), and, therefore, the Magistrate had properly taken cognizance of the case. The Court declined to express any opinion on the question whether the police could be permitted to send incomplete reports under Section 173(1) Criminal Procedure Code. This case while neither approving nor disapproving the practice of submitting incomplete challans in the first instance, certainly notices the existence of such practice.
20. Some High Court took the view that with the submission of a charge-sheet under Section 173 the power of the police to investigate came to an end and the Magistrate's cognizance of the offence started. It was said that any further investigation by the police would trench upon the magisterial cognizance. Vide - Ram Copal v. State of West Bengal. In Hunuman v. Raj , it was held that when a case was pending before a Magistrate, the action of the police in resuming investigation and putting up a new challan against a person not originally an accused as a result of the further investigation was unauthorised and unlawful. In State v. Mehar Singh ILR (1973) 2 Punj and Har 561 : 1974 Cri LJ 970, a Full Bench of the High Court of Punjab and Harayana held that the police became functus officio once the. Court took cognizance of an offence on the filing of a charge-sheet by the police and thereafter further investigation by the police was not permissible. The police, it was said, could not 'tinker' with the proceedings pending in the Court. It was, however, observed that it would be open to the Magistrate to 'suspend cognizance' and direct the police to make further investigation into the case and submit a report. The High Court of Punjab and Haryana acknowledged the existence of the practice of submitting supplemental charge-sheets, but was of the view that such practice was not sanctioned by the Code. Faced with the impracticality of banning all further investigation once cognizance of an offence was taken by the Court, the High Court tried to find a solution to the problem by suggesting the procedure of the Magistrate suspending cognizance and ordering further investigation. The procedure of 'suspending cognizance' suggested by the High Court of Punjab and Haryana does not appear to us to be warranted by the provisions of the Criminal Procedure Code.
21. Anyone, acquainted with the day-to-day working of the criminal Courts will be alive to the practical necessity of the police possessing the power to make further investigation and submit a supplemental report. It is in the interests of both the prosecution and the defence that the police should have such power. It is easy to visualise a case where fresh material may come to light which would implicate persons not previously accused or absolve persons already accused. When it comes to the notice of the investigating agency that a person already accused of an offence has a good alibi, is it not the duty of that agency to investigate the genuineness of the plea of alibi and submit a report to the Magistrate? After all the investigating agency has greater resources at its command than a private individual. Similarly, where the involvement of persons who are not already accused comes to the notice of the investigating agency, the investigating agency cannot keep quiet and refuse to investigate the fresh information. It is their duty to investigate and submit a report to the Magistrate upon the involvement of the other persons. In either case, it is for the Magistrate to decide upon his further course of action depending upon the stage at which the case is before him. If he has already taken cognizance of the offence, but has not proceeded with the enquiry or trial, he may direct the issue of process to persons freshly discovered to be involved and deal with all the accused, in a single enquiry or trial. If the case of which he has previously taken cognizance has already proceeded to some extent, he may take fresh cognizance of the offence disclosed against the newly involved accused and proceed with the case as a separate case. What action a Magistrate is to take in accordance with the provisions of the Code of Criminal Procedure in such situations is a matter best left to the discretion of the Magistrate. The criticism that a further investigation by the police would trench upon the proceedings before the Court is really not of very great substance, since whatever the police may do, the final discretion in regard to further action is with the Magistrate. That the final word is with the Magistrate is sufficient safeguard against any excessive use or abuse of the power of the police to make further investigation. We should not, however, be understood to say that the police should ignore the pendency of a proceeding before a Court and investigate every fresh fact that comes to light as if no cognizance had been taken by the Court of any offence. We think that in the interests of the independence of the magistracy and the judiciary, in the interests of the purity of the administration of criminal justice and in the interests of the comity of the various agencies and institutions entrusted with different stages of such administration, it would ordinarily be desirable that the police should inform the Court and seek formal permission to make further investigation when fresh facts come to light.
22. As observed by us earlier, there was no provision in the Code of Criminal Procedure, 1898 which, expressly or by necessary implication, barred the right of the police to further investigate after cognizance of the case had been taken by the Magistrate. Neither Section 173 nor Section 190 lead us to hold that the power of the police to further investigate was exhausted by the Magistrate taking cognizance of the offence. Practice,' convenience and preponderance of authority, permitted repeated investigation on discovery of fresh facts. In our view, notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted under Section 173 of the 1898 Code, the right of the police to further investigate was not exhausted and the police could exercise such right as often as necessary when fresh information came to light. Where the police desired to make a further investigation, the police could express their regard and respect for the Court by seeking its formal permission to make further investigation.
10. In the subsequent judgment J.A.C. (supra) the Apex Court has laid down the power of the police under Section 173(8) Cr.P.C. in the following terms;
25. There is a clear-cut and well demarcated sphere of activity in the field of crime detection and crime punishment. Investigation of an offence is the field exclusively reserved for the executive through the police department, the superintendence over which vests in the State Government. The executive which is charged with a duty to keep vigilance over law and order situation is obliged to prevent crime and if an offence is alleged to have been committed it is its bounden duty to investigate into the offence and bring the offender to book. Once it investigates and finds an offence having been committed it is its duty to collect evidence for the purpose of proving the offence. Once that is completed and the investigating officer submits report to the Court requesting the Court to take cognizance of the offence under Section 190 of the Code its duty comes to an end. On a cognizance of the offence being taken by the Court the police function of investigation comes to an end subject to the provision contained in Section 173(8), there commences the adjudicator function of the judiciary to determine whether on offence has been committed and if so, whether the person or persons charged with the crime by the police in its report to the Court, and to award adequate, punishment according to law for the offence proved to the satisfaction of the Court. There is thus a well defined and well demarcated function in the field of crime detection and its subsequent adjudication between the police and the Magistrate. This has been recognized way back the King Emperor v. Khwaja Nazir Ahmad (1944) 71 Ind App 203 at p. 213, where the Privy Council observed as under:
In India, as has been shown, there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The junctions of the judiciary and the police are complementary, not overlapping, and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Court to intervene in an appropriate case when moved under Section 491 of the Criminal Procedure Code to give directions in the nature of habeas corpus. In such a case as the present, however, the court's functions begin when a charge is preferred before it, and not until then.
11. In view of the above law laid down by the Apex Court the contention of learned Counsel for the applicant that the police did not had the power to make further investigation holds no ground and is therefore repelled.
12. Coming to the second contention of learned Counsel for the applicant that the applicant is absolutely innocent and there is no material in the case diary to make out any offence against him only this much is to be said that no evidence recorded during the investigation has been filed by the applicant nor any 161 Cr.P.C. statement has been appended and, therefore, the said contention of learned Counsel for the applicant also does not hold good and is hereby repelled as I am not in a position to appreciate the said contention of learned Counsel for the applicant.
13. Coming to the third submission raised by learned Counsel for the applicant that in the departmenta inquiry the applicant has been exonerated and, therefore, his prosecution is malafide, I have gone through the report of the Inquiring Officer Commissioner, Allahabad which he has submitted by him and which is appended as annexure in this Criminal Misc. Application. The said report does not exonerated the applicant from committing any offence. The report by the Inquiring Officer is wholly inclusive in this respect any observation by me at this stage may prejudice the trial of the applicant at the later stage and, therefore, I am not inclined to make any observation regarding the findings recorded by the Inquiring Officer as the same is to be judged by the trial court. The statements recording during departmental proceedings are the previous statements of a living person which are wholly inadmissible in a criminal prosecution. If any of the witnesses who was the witnesses in the inquiry comes into the witness box then his statement given in the inquiry can be utilized only for the purposes of contradicting his aforesaid statement in accordance with the Section 162 Cr.P.C. as any previous statement of a witness cannot be utilized only for the purposes of contradicting him and it cannot be utilized to thwart a legitimate prosecution. Moreover, under Section 482 Cr.P.C. this Court cannot critically appreciate the defence evidence so as to fetch out a defence in favour of the accused which is the work of the trial court.
14. So far as the contention regarding grant of sanction is concerned, I have gone through the sanction order dated 16.10.2003 annexure No. 14. From the perusal of the sanction granted by the State Government for the prosecution of the applicant, I have not been able to find out anything which is illegal in it. Moreover in the absence of any relevant material in the case diary which has not been filed by the applicant along with this application, the said contention raised by counsel for the applicant also is without any basis and, therefore, the same is rejected as well.
15. Coming to the last submission of learned Counsel for the applicant that the prosecution of the applicant is tainted with malafides. It is for the trial court to look into the evidence adduced before it and then record a finding as to whether the offence is established or not or the accused is entitled to the benefit of doubt. Allegation of malafide relegates into background and becomes irrelevant once the charge of cheating and fraud is surfaced.
16. So far as the allegations regarding, the District Magistrate, the Additional of Treasury and Pension and Director Technical Education are concerned only this much is observed that the applicant has only pleaded his eulogy in the present application criticizing everyone. His eulogy can be accepted only when it K been tested on an anvil of the evidence led during the trial by the prosecution.
17. From the reasons made above, I do not find any merit in this Crl. Misc. Application which deserves to be dismissed.
18. This Criminal Misc. Application is dismissed.
19. Let a copy of this order be sent to the trial court for its intimation within a period of one week from today.