Madhya Pradesh High Court
Radheshyam Sawle vs The State Of Madhya Pradesh on 15 July, 2019
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HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
SINGLE BENCH : RAJEEV KUMAR DUBEY, J
Criminal Revision No.767/2011
Radheshyam Sawle
Vs.
State of Madhya Pradesh
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Shri Manish Datt, learned Senior Counsel with Shri Pawan
Gujar, learned counsel for the applicant.
Shri Deepak Singh, learned Dy. G.A. for the respondent/State.
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ORDER
Reserved on 11/07/2019 Passed on 15/07/2019 This Criminal Revision has been filed under Section 397/401 of the Cr.P.C. against the order dated 28/03/2011 passed by II Additional Judge to the Court of IV Additional Sessions Judge, Khandwa in ST.No.196/2010, whereby learned ASJ framed charges against the applicant for the offence punishable under Sections 120- B, 467/120-B, 468/120-B, 471/120-B, 409/120-B and 420/120-B of the IPC.
2. As per prosecution case on 06/10/2007 Smt. Rukmani Bai, Sarpanch of village Kalmukhi lodged a written complaint averring that a road was constructed between Dongargarh and Kalmukhi under Employment Guarantee Scheme under the supervision of applicant Radheshyam Sawle, who was posted at Public Works Department as Sub-Engineer. It was alleged that the applicant prepared forged muster roll, in which the name of Babulal More Digitally signed by ANURAG SONI Date: 17/07/2019 14:51:44 -:2:- resident of Kalamukhi, who was employed at Indira Sagar project, Dr Laxman resident of Kalmukhi, who was posted at Veterinary Hospital, Bherukhera, Chandram resident of Bhopal, who was posted in Railway Department and Sunil More resident of Jammu, who is employed in Military, were mentioned and the applicant withdrew the payment in the name of above these persons mentioning that all of them did job in the construction work of said road. So, action be taken against him. On that, Police enquired into the matter. During enquiry it was found that the applicant Radheshyam Sawle, the then Sub-Engineer (PWD) in connivance with co-accused Govind Verma, Asha Chawda, Girdharilal, Ashok Kumar and Shyamlal by mentioning the name of Babulal More, Dr. Laxman, Chandram and Sunil More in the muster roll falsely showed that they worked under the Rojgar Guarantee Yojna for construction of road between Dongargarh and Kalimukh and withdrew the amount as wages in the name of these persons, while they were engaged in other Departments. So, Police registered Crime No.251/2008 for the offence punishable under Section 409, 420, 467, 468 of the IPC against the applicant and co-accused Govind Verma, Asha Chawda, Girdharilal, Ashok Kumar @ Ganpat and Shyamlal and filed charge- sheet before the Court. On that charge-sheet S.T.No.196/2010 was registered, which is pending before the Court of II Additional Judge to the Court of IV Additional Sessions Judge, Khandwa.
3. Learned trial Court after hearing the parties framed the charges against the applicant for the offence punishable under Sections 120- B, 467/120-B, 468/120-B, 471/120-B, 409/120-B and 420/120-B of the IPC. Being aggrieved from that order applicant filed this revision.
4. Learned counsel for the applicant submitted that there is no evidence on record to show that the applicant prepared any fake muster roll or took any payment from the department showing that Digitally signed by ANURAG SONI Date: 17/07/2019 14:51:44 -:3:- Babulal More, Dr. Laxman, Chandram and Sunil More were engaged in the construction work of road under the Employment Guarantee Scheme. The task of preparing the muster roll and filling up the attendance of the workers engaged in the work was of the Timekeeper. Applicant had no role to play in that work. So, even if it is assumed that the name of some person is wrongly mentioned in the muster roll, applicant is not liable for that. Learned trial Court without appreciating these facts wrongly framed the charges against the applicant for the offences punishable under Section 120-B, 467/120-B, 468/120-B, 471/120-B, 409/120-B and 420/120-B of the IPC.
5. Learned counsel for the State opposed the prayer and submitted that from the complaint, statement of prosecution witness and the other documents collected by the Police during investigation, prima facie it appears that the applicant in connivance with other co- accused prepared forged muster roll and took payment in the name of Babulal More, Dr. Laxman, Chandram and Sunil More showing that they worked in the construction work of the road between Dongargarh and Kalimukh under the Employment Guarantee Scheme, while these persons were engaged anywhere else. So, the learned trial Court did not commit any mistake in framing the charges against the applicant for the offence punishable under Sections 120-B, 467/120-B, 468/120-B, 471/120-B, 409/120-B and 420/120-B of the IPC.
6. This Court has gone through the record and arguments advanced by the learned counsel for the parties.
7. Hon'ble Apex Court in his judgment passed in the case of Hem Chand Vs. St. of Jharkhand, (2008) 5 SCC 113 has held that at the stage of framing of charge, Court exercises a limited jurisdiction. It has to see whether prima facie case has been made out or not, concerned of the Court should be to see whether the case of Digitally signed by ANURAG SONI Date: 17/07/2019 14:51:44 -:4:- probable conviction for commission of an offence has been made out on the basis of the materials found during investigation. It would ordinarily not consider whether accused would be able to establish his defence, if any. In the case of Bharat Parikh Vs. Central Bureau of Investigation and another, (2008) 10 SCC 109 also Hon'ble Apex Court held while framing charge the trial Court can only look into the materials produced by the prosecution while giving an opportunity to the accused to show that the said materials were insufficient for the purpose of framing charge. At the stage of framing of charge the submissions on behalf of the accused have to be confined to the material produced by the investigating agency.
8. In the case of Soma Chakravarty Vs. State through CBI, (2007) 5 SCC 403 Hon'ble Apex Court held that at the stage of framing of charge-Material brought on record has to be accepted true. In the case of State Of Orissa Vs. Debendra Nath Padhi, AIR 2003 SC 1512 Hon'ble Apex Court held that at the stage of framing of charge the defence of the accused cannot be considered.
9. Which shows that, at the time of framing of a charge what the trial Court is required to, and can, consider only the Police report referred to under Section 173 Cr.P.C. and the documents sent with it. For framing of charge strong suspicion about commission of offence and accused's involvement of offence is sufficient. On merits, materials/documents filed by accused can not be considered. Material produced by prosecution alone is to be considered. Roving inquiry and mini trial is not permissible. Defence of accused is not relevant. The only right the accused has at that stage is of being heard and nothing beyond that. Accused is competent to make his submissions only on the material supplied by the prosecution.
10. If we examine the instant case, in the light of the above judgments of the Hon'ble Apex Court from the charge-sheet it is apparent that at the time of incident applicant was posted as Sub-
Digitally signed by ANURAG SONI Date: 17/07/2019 14:51:44 -:5:-Engineer in Public Works Department, Division Khandwa. In the FIR and in the case diary statements of Sundar Lal Batham, Rohit Das, Kadwa, Mohan and Lakshman it is mentioned that the applicant in connivance with other co-accused persons prepared forged muster roll and withdrew the payment in the name of Babulal More, Dr. Laxman, Chandram and Sunil More, showing that they worked under the Employment Guarantee Scheme for construction work of road between Dongargarh and Kalimukh, while these persons were engaged anywhere else.
11. At this stage, this Court cannot ascertain the veracity of the statements of these witnesses by evaluating the statement of these witnesses on merits, because it requires evidence to decide. Likewise, the task of preparing the muster roll and to filling up the attendance of the workers engaged in the work was of the timekeeper. Applicant had no role in that work, is the defence of the applicant, which also requires evidence to decide. So that also can not be considered at this stage.
12. So, looking to the charge-sheet and material collected by the Police against the present applicant during investigation of the crime, in the considered opinion of this Court learned trial Court did not commit any mistake in framing the charge for the offences punishable under Sections 120-B, 467/120-B, 468/120-B, 471/120- B, 409/120-B and 420/120-B of the IPC against the applicant.
13. Hence the petition is dismissed with the liberty that the applicant is free to raise all his objections before the trial Court at appropriate stage.
C.c. as per rules.
(Rajeev Kumar Dubey) Judge as/ Digitally signed by ANURAG SONI Date: 17/07/2019 14:51:44