Rajasthan High Court - Jaipur
Jagdish Chandra Soni vs State Of Rajasthan on 7 January, 1998
Equivalent citations: 1998CRILJ1902, 1998(2)WLC86
ORDER Amaresh Ku. Singh, J.
1. Hcanl Ihe learned counsel for the petitioner and the learned Public Prosecutor.
2. This petition under Section 482 Cr. P.C. is directed against the order dated 18th September, 1990 passed by the learned Munsif and Judicial Magistrate, 1st Class, Anoopgarh in Criminal Case No. 88/85 State v. Jagdish Chandra Soni, whereby the learned Munsif and Judicial Magistrate, Anoopgarh directed the framing of the charge against the accused petitioner under Section 409 IPC.
3. I have carefully gone through the order dated 13th September, 1990 passed by the learned Munsif and Judicial Magistrate, Anoopgarh and perused the record of the lower Court. It appears that on 6th August, 1983 the Executive Engineer, Irrigation Department, Anoopgarh Division II, Rajasthan Canal Project, Gharsana sent a written First information report to the Station House Officer of the Police Station, Gharsana. According to the aforesaid first information report, the construction of lining in the Khala pertaining to Chak 13 GD was given to Krishna Kumar, Thekedar vide work order No. 29/1981-82. Shri Jagdish Chandra Soni, the Junior Engineer was directed to look after the work of construction. Vide order No. 2508 dated 13th July, 1983 Shri Babu Lal Khatri, Assistant Engineer, Gharsana was directed to conduct an inquiry about the quality of cement use for the construction of lining. The inquiry report was submitted by Shri Jagdish Chandra Soni on 12th July, 1983 and according to that inquiry report, 100 bags of cement were misappropriated or sold illegally. In the first information report, it was also mentioned that according to the inquiry report vide carry slip No. 570 dated 12-7-1983 100 bags of cement wore issued from the store to Shri Jagdish Chandra Soni and they were carried in a tractor and those 100 hags were taken to Nai Mandi, Gharsana in a factory. In short, the allegation is that 100 bags of cement were taken by the accused Jagdish Chandra Soni and in place of utilising those 100 bags of cement for the construction of lining of the Khala. they were taken to a factory in Nai Mnndi. Gharsana and in this manner 100 bags of cement were mis-appropriated by Shri Jagdish Chandra Soni. On the basis of the first information report sent by the Executive Engineer, Irrigation Department, the police registered a case Under Section 409 IPC. After investigation, the police submitted a final report staling therein that no offence Under Section 409 IPC was made out.
4. The final report was considered by the learned Munsif and Judicial Magistrate, Anoopgarh. In place of accepting the final report submitted by the police, he found a prima facie (case) Under Section 409 IPC against the accused-petitioner Jagdish Chandra Soni and directed the issue of bailable warrant of arrest to compel his appearance.
5. After the appearance of the accused in Court, he was released on bail. Arguments and charge were heard and charge Under Section 409 IPC was framed against the accused-petitioner. The reasons for framing the charge are given in the impugned order dated 13th September, 1990. A perusal of the order dated 13th September, 1990 passed by the learned Munsif and Judicial Magistrate, Anoopgrah shows that two points were urged before him. The first was, that the accused was entitled to protection of Section 197 Cr.P.C. and only there was a proper sanction for prosecution the cognizance of the offence could not have been taken against him. The second point was that no prima facie case was made out against the accused and that in the departmental inquiry conducted against the accused the accused was exonerated of the charge. The learned Munsif and Judicial Magistrate aftercare fully considering the arguments advanced by both the parties, rejected both the submissions made by the learned counsel for the accused. Regarding the necessity of sanction Under Section 197 Cr. P.C. the learned Munsif and Judicial Magistrate held that the offence Under Section 409 IPC was alleged to have been committed by the accused and it was not a part of his official function to commit embezzlement of cement bags and therefore, the accused was not entitled to protection of Section 197 Cr.P.C. Regarding the second submission that no prima facie case was made out against the accused the learned Munsif and Judicial Magistrate held that the findings given by the Inquiry Officer in the departmental inquiry conducted against the accused were not relevant so far as the proceeding pending before the criminal Court were concerned. It was also mentioned by the learned Munsif and Judicial Magistrate in his order that the Chief Engineer, CAD IGNP, Bikaner had agreed with the findings of the Inquiry Officer vide his order No. 11113 dated 12th June, 1985.
5A. Feeling aggrieved by the order dated 13th September, 1990 and the framing of the charge against the accused-petitioner Under Section 409 IPC, the accused petitioner has filed this petition Under Section 482 Cr.P.C. with a prayer that the impugned order dated 13th September, 1990 as well as the charge framed against him should be quashed.
6. The learned Munsif and Judicial Magistrate, Anoopgarh has framed a charge Under Section 409 IPC against the accused-petitioner. The charge is to the effect that on 12th July, 1983, 100 bags of cement were issued to the accused Jagdish Chandra Soni for the purpose of construction of a Khala in Chak 13 GD and in place of utilising that cement for legitimate purposes, the cement bags were taken to Nai Mandi, Gharsana and they were delivered at some shop and thereby criminal mis-appropriation of 100 bags of cement was committed by the accused.
7. The crucial question is whether the learned Munsif and Judicial Magistrate had sufficient grounds to frame aforesaid charge. Apart from the Inquiry Officer's report, there are statements of Hari Singh, Samunder Singh and Hira Lal, who were examined by the Investigating Officer Under Section 161 Cr. P.C. The statement of Hari Singh shows that on 12th July, 1983 he was working as Store Clerk and on that day Samunder Singh brought the tractor to the Store. He was accompanied by two labourers and he gave a slip issued by the Junior Engineer and there was a direction in the slip that 100 bags of cement should be given to Samunder Singh. According to Hari Singh, he delivered 100 bags of cement to Samunder Singh vide carry slip No. 570 dated 12th July, 1983. Samunder Singh is the driver of the tractor and Hira Lal is one of the labourers. Both of them have given statement to the effect that 100 bags of cement were taken to Nai Mandi, Gharsana and there at the instance of Jagdish Chandra Soni, the cement bags were un-loaded from the tractor near a factory. These witnesses could not tell the name of the owner of the factory. The case of the accused petitioner is that 100 bags of cement were not taken to Nai Mandi. nor they were un-loaded near any factory. In view of the statements of above named witnesses and the report of the Inquiry Officer and the documentary evidence relating to issue of 100 bags of cement, it is difficult to say that the learned Munsif and Judicial Magistrate was not justified in framing the charge Under Section 409 IPC against the petitioner.
8. The learned counsel for the petitioner had led much influences on the fact that in the departmental inquiry, the petitioner was exhonerated of the charge and therefore, no prima facie case is made out. I am afraid, the contention cannot be accepted as correct, because the findings given in the departmental inquiry do not appear to be relevant in view of the provisions contained in Sections 40 to 43 of the Evidence Act. Section 43 of the Evidence Act provides that judgments, orders or decrees, other than those mentioned in Sections 40, 41 and 42, are irrelevant, unless the existence of such judgment, order or decree, is a fact in issue, or is relevant under some other provision of the Act. The findings given by the Inquiry Officer in the Departmental Inquiry is not relevant under Sections 40, 41 and 42 or any other section of the Evidence Act. Therefore, there can be no escape from the conclusion that the findings given by the Inquiry Officer or the Disciplinary Authority in the departmental inquiry is irrelevant by virtue of the provisions contained in Section 43 of the Evidence Act.
9. In State of Bihar v. Radha Krishna Singh, (1983) 3 SCC 118 : (AIR 1983 SC 684) the Hon'ble Supreme Court considered the provisions of Sections 40 to 43 of the Evidence Act. At page 164 (of SCC) : (at pp. 710-711 of AIR) of the report the Hon'ble Supreme Court observed :--
Taking the first head, it is well settled that judgments of Courts are admissible in evidence under the provisions of Sections 40, 41 and 42 of the Evidence Act. Section 43, which is extracted below, clearly provides that those judgments which do not fall within the four corners of Sections 40 to 42 are inadmissible unless the existence of such judgment, order or decree is itself a fact in issue or a relevant fact under some other provisions of the Evidence Act:
43. Judgments, etc., other than those mentioned in Sections 40 to 42, when relevant-Judgments, orders or decrees, other than those mentioned in Sections 40, 41 and 42, are irrelevan t unless the existence of such judgment, order or decree, is a fact in issue, or is relevant under some other provision of this Act.
Some Courts have used Section 13 to prove the admissibility of a judgment as coming under the provisions of Section 43, referred to above. We are, however, of the opinion that where there is a specific provision covering the admissibility oi a document, it is not open to the Court to call into aid other general provisions in order to make a particular document admissible. In other words, if a judgment is not admissible as not falling within the ambit of Sections 40 to 42, it must fulfil the conditions of Section 43 otherwise it cannot be relevant under Section 13 of the Evidence Act. The words "other provisions of this Act" cannot cover Section 13 because this section does not deal with judgments at all.
It is also well settled that a judgment in rem like judgments passed in probate, insolvency, matrimonial or guardianship or other similar proceedings, is admissible in all cases whether such judgments are inter partes or not. In the instant case, however, all the documents consisting of judgments filed are not judgments in rem and therefore, the question of their admissibility on that basis does not arise. As mentioned earlier, the judgments filed as Exhibits in the instant case, are judgments in personam and, therefore, they do not fulfil the conditions mentioned in Section 41 of the Evidence Act.
10. The learned counsel for the petitioner has not been able to show under which provision of the Evidence Act the order passed by the disciplinary authority in the departmental inquiry conducted against the petitioner, is relevant so far as the proceedings pending before the criminal Court is concerned. I am therefore, of the opinion that in view of the authoritative pronouncement of the Hon'ble Supreme Court in State of Bihar v. Radha Krishna Singh (AIR 1983 SC 684) (supra), the findings given by the Inquiry Officer in the departmental inquiry should be held to be irrelevant. In other words, the findings given in the departmental inquiry cannot be used for the purpose of showing that no prima facie case is made out against the petitioner.
11. As pointed earlier in this order, there are three witnesses examined by the Investigating Officer Under Section 161 Cr.P.C. One of them is the store keeper, who has given evidence to the effect that he issued 100 bags of cement to Samunder Singh, who brought the slip signed by the accused. Samunder Singh, who is the driver of the tractor and Hira Lai, one of the labourers have given evidence to the effect that they carried 100 bags of cement, which was issued from the store to Nai Mandi, Gharsana and there they un-loaded cement bags near a factory at the instance of Jadgish Chandra Soni. The petitioner's case is that the cement bags were not taken to Nai Mandi, Gharsana. Since the findings given by the Inquiry Officer in the departmental inquiry are not relevant, those findings cannot be used for the purpose of discarding the oral evidence of the Store Clerk, the tractor driver and the labourer. The learned Munsif and Judicial Magistrate was therefore, justified in framing the charge under Section 409, IPC against the petitioner.
12. For the reasons mentioned above, I do not find any force in this petition. This petition deserves to be rejected and is hereby rejected. A copy of this order along with the record of the trial Court be sent to the trial Magistrate without delay so that the trial may be expedited.