Tripura High Court
Crl Petn. No.32/2013 vs The State Of Tripura on 24 October, 2017
Author: T. Vaiphei
Bench: T. Vaiphei
THE HIGH COURT OF TRIPURA
AGARTALA
1. CRL PETN. No.32/2013.
2. CRL PETN. No.53/2013.
In CRL PETN. No.32/2013.
Sri Ashish Ranjan Das,
S/o Sri Iresh Ranjan Das,
Resident of East Shibnagar,
P.O.- College Tilla, P.S. East Agartala,
Agartala, West Tripura.
....... Petitioner.
-: Vrs. :-
1. The State of Tripura,
Represented by the Secretary
to the Government of Tripura,
Department of Home, Secretariat,
New Capital Complex, Agartala,
P.S.- East Agartala, P.O.- Kunjaban,
Pin-799006, West Tripura.
2. Sri Swapan Das,
S/o Late Nitya Nanda Das of
Master Para, Netaji Chowmuhani,
C/o Late Sumol Sutradhar,
P.S.- West Agartala, P.O.- Agartala
Pin-799001, Agartala, West Tripura.
...... Respondents.
In CRL PETN. No.53/2013.
The State of Tripura, Represented by the Secretary, Department of Home, Secretariat, Government of Tripura, Agartala, West Tripura.
....... Petitioner.
-: Vrs. :-
1. Sri Amal Bikash Roy,
S/o Lt. Abinash Chandra Roy of
Fakir Bari, Krishnanagar, Agartala,
P.S.-West Agartala, District- West Tripura.
2. Sri Ashish Ranjan Das,
S/o Sri Iresh Ranjan Das,
Resident of East Shibnagar, Agartala,
P.O.- College Tila, P.S. East Agartala,
District- West Tripura.
CRL PETN No.32/ 2013 & CRL PETN No.53/2013 Page 1 of 22
3. Sri Swapan Das,
S/o Late Nitya Nanda Das of
Master Para, Netaji Chowmuhani,
C/o Late Sumol Sutradhar,
P.O.- Agartala, P.S.- West Agartala,
West Agartala, West Tripura.
....... Respondents.
_B_E_F_O_R_E_
THE HON'BLE THE CHIEF JUSTICE MR. T. VAIPHEI
Counsel for the petitioner : Mr. D.C. Kabir, Advocate,
(in CRL PETN No.32/2013) Mr. D. Bhattacharji, Advocate.
Counsel for respondents : Mr. B.C. Das, Adv. General,
(in CRL PETN No.32/2013) Mr. S. Kar Bhowmik, Advocate.
Counsel for the petitioner : Mr. B.C. Das, Advocate General,
(in CRL PETN No.53/2013) Mr. S. Sarkar, Public Prosecutor.
Counsel for respondents : Mr. D.C. Kabir, Advocate,
(in CRL PETN No.53/2013) Mr. S. Kar Bhowmik, Advocate,
Mr. A. Bhowmik, Advocate,
Mr. D. Bhattacharji, Advocate.
Date of hearing : 14-09-2017.
Date of Judgment & Order : 24-10-2017
JUDGMENT & ORDER
Both the criminal petitions filed under Section 482, Code of Criminal Procedure, 1973 ("CrPC" for short) are directed against the common judgment dated 22-5-2013 passed by the learned Additional Sessions Judge, Court No.5, West Tripura, Agartala in Criminal Revision No. 19(3) of 2012, and are now being disposed of by this common judgment.
2. For simplification, I will first decide Criminal Petition No. 32 of 2013 and thereafter decide Criminal Petition No. 53 of 2013 on the basis of such decision to the extent possible. In Criminal Petition No. 32 of 2013, the facts of the case as pleaded by the petitioner in his petition, are that he became the Assistant Controller, Weights and Measures, Govt. of Tripura, after he took over from one Amal Bikash Roy, who had earlier held the post between 1-4-2004 and 30-4- 2005. During the period in question, the respondent No. 2 (Swapan Das) was holding the post of Cashier in that Office. In the course of his official duties, the CRL PETN No.32/ 2013 & CRL PETN No.53/2013 Page 2 of 22 petitioner detected that the cash book in the office was not properly maintained and, as such, he asked the respondent No. 2 to produce all the relevant documents and challans on 4-5-2006 for cash verification, but the respondent No. 2 did not comply with his instructions and instead unauthorisedly absented himself from office. During that period, a detailed inquiry into the matter was also conducted by one N.C. Sen, the Controller of Weights and Measures and Joint Secretary in the Revenue Department, Government of Tripura, between 4- 5-2006 and 12-6-2006. The enquiry was concluded by recommending the initiation of departmental proceedings against the three officials including him, who had been dealing with the concerned office to verify as to whose negligence had led to such irregularities.
3. It is the further case of the petitioner that he, based on the said report, lodged a complaint with the Officer-in-Charge, West Agartala Police Station on 10-5-2006 by stating that the respondent No. 2 had not maintained the cash book properly and had never deposited the money collected by him during 2004 to 2006 as per the norms. His complaint was registered as West Agartala Police Station Case No. 80 of 2006 dated 12-5-2006 U/s 409 IPC corresponding to GR No.455 of 2006 presently pending before the learned Chief Judicial Magistrate, West Tripura, Agartala. The police, after investigation of the case, submitted the charge sheet being Charge Sheet No. 65 of 2007 U/s 409/420 IPC against the petitioner, the respondent No. 2 and his predecessor-in-office, the said Amal Bikash Roy. According to the petitioner, the investigating agency misdirected itself in the investigation of the case and the charge sheet so submitted is motivated by extraneous considerations rather than proper appreciation of the materials, which only prima facie disclose the involvement of the respondent No. 2 and not him. This prompted the said Amal Bikash Roy to file an application under Section 239 CrPC before the learned Chief Judicial Magistrate for discharging him from the case. The learned Chief Judicial Magistrate, after hearing the parties, found no materials against the petitioner and the said Amal Bikash Roy and, accordingly, declined to frame the charge against them. He, however, found prima facie case against the respondent No. 2 CRL PETN No.32/ 2013 & CRL PETN No.53/2013 Page 3 of 22 for the offences charged against him and, accordingly, asked him to appear before him 22-5-2012 for framing of the charge. This was how the order dated 21-4-2012 was passed. The respondent 2 and the State of Tripura are apparently aggrieved by this order. The State preferred a time barred Criminal Revision No. 1(1) of 2013 before the learned Additional Sessions Judge, West Tripura, Agartala who by the order dated 3-4-2013 declined to condone the delay and, accordingly, did not admit the revision petition. It is contended by the petitioner that the said order of the learned Additional Sessions Judge was never challenged by the State before any superior court and has, therefore, attained finality.
3. The further case of the petitioner is that the respondent No. 2 in the meantime also filed Criminal Revision No. 19(3) of 2012 before the learned same Court challenging the legality of the said order dated 21-4-2012 passed by the learned Chief Judicial Magistrate, West Tripura, Agartala. The learned Additional Sessions Judge, West Tripura, Agartala brushing aside all the objections raised by the petitioner, passed the order dated 22-5-2013 setting aside that part of the order discharging the petitioner and directing him and the respondent No. 2 to surrender before the trial court on 5-6-2013 for framing of the charge. The order of discharge in respect of the said Amal Bikash Roy was upheld by the learned Additional Sessions Judge. Aggrieved by this, the petitioner is now questioning the legality of the order dated 22-5-2013 by this criminal petition.
4. Unfolding his submissions, Mr. D.C. Kabir, the learned counsel for the petitioner, contends that the respondent No. 2 has no locus standi to challenge the impugned order discharging the petitioner inasmuch as he could not have been conceivably aggrieved by the discharge of third parties as evident from his prayer for setting aside the impugned order discharging the petitioner and the said Amal Bikash Roy; the learned Additional Sessions Judge has erroneously entertained the revision filed by the respondent No. 2 and passed the impugned order without jurisdiction. The learned counsel places strong reliance on the decision dated 17-2-2010 of Madras High Court in M.P. No. 2 of 2008 arising CRL PETN No.32/ 2013 & CRL PETN No.53/2013 Page 4 of 22 out of CRL. RC. SR. No. 39510 of 2008 (P. Ravindran v. State represented by the Deputy Superintendent of Police); the decision dated 1-10-2007 of the Delhi High Court in Crl. M.C. No. 3309/2005 (Rajeev Gupta v. State & ors) and the decision dated 12-8-2009 of the same High Court in Bail Appln. No. 825 of 2009 (Sachin Kumar Saraf v. State & ors.), to fortify his submissions. He further contends that the respondent No. 2 has suppressed the vital fact that Criminal Revision No. 1(1) of 2013 filed by the State with the respondent No. 2 as one of the party-respondents challenging the same, impugned order had been dismissed after the application for condonation of delay was rejected; had this material facts been brought to the notice of the trial court, the revision petition of the respondent No. 2 would have been dismissed at the very threshold. It is the submission of the learned counsel for the petitioner that when an order has been passed by a coordinate criminal court on a particular issue, any order passed by another coordinate court on the same issue would amount to review of that order, which is not permissible in a criminal case being barred by Section 362 CrPC. He, therefore, strenuously urges that the learned Additional Sessions Judge has improperly exercised his jurisdiction in interfering with the decision of the trial court which was passed after duly considering all aspects of the matter; this calls for the interference of this Court for restoring the order of the trial court.
5. Mr. B.C. Das, the learned Advocate General, appearing for the State, however, defends the impugned order in so far as it decided to frame the charge against the petitioner and submits that the interference of this Court in the impugned order is not warranted by the facts on record. He submits that the learned Additional Sessions Judge has the jurisdiction to exercise his suo motu power under Section 482 CrPC to set right the manifestly wrong order passed by the trial court in discharging the petitioner. He maintains that the petitioner can be discharged under Section 239 CrPC only if he can establish that the charge against him is groundless, for which no detailed evaluation of the materials or meticulous consideration of the possible defences need be undertaken at this stage; it cannot, in the instant case, be said that the charge CRL PETN No.32/ 2013 & CRL PETN No.53/2013 Page 5 of 22 against the petitioner is groundless. In support of his contention, the learned Advocate General takes me to the decision of the Apex Court in Krishan and another v. Krishnaveni and another, (1997) 4 SCC 241 where it was held that even if the second revision before the High Court after dismissal of the first one by the Court of Sessions is barred under Section 397(3) CrPC, the inherent power of the High Court is still available under Section 482 CrPC. According to the learned Advocate General, the only question to be asked is whether the power under Section 482 CrPC is to be exercised to give effect to an order under the Code or to prevent abuse of process of court or to otherwise secure the ends of justice, and if the answer to any of these questions is in the affirmative, then nothing prevents the High Court from passing suitable/appropriate order; the facts and circumstances of this case warrant the invoking of this inherent power ex debitio justitiae. Mr. S.Kar Bhowmik, the learned counsel for the respondent No. 2, maintains that the respondent No. 2 cannot be said to have no locus standi to file the revision petition before the learned Sessions Judge. Drawing my attention to the prayer portion of the revision petition, he contends that there was indeed a prayer for discharging the respondent No. 2, apart from the prayer for quashing the order discharging the petitioner and the said Amal Bikash Roy, and the submission made by the learned counsel for the petitioner that the respondent No. 2 had no locus standi to file the said revision petition is clearly misconceived. He, therefore, submits that the revision petition has no merit and is liable to be dismissed.
6. Having gone through the impugned order and having given my anxious consideration to the submissions made by the learned counsel appearing for the rival parties, the first point for consideration is whether the learned Additional Sessions Judge is correct in proceeding to frame the charge against the petitioner on the basis of the criminal revision filed by the co-accused (respondent No. 2) after quashing the order of the trial court discharging him from the case? It may be noticed that by the impugned order, the learned Additional Sessions Judge had upheld the orders of the trial court to discharge the co-accused (Amal Bikash Roy) and frame the charge against the respondent CRL PETN No.32/ 2013 & CRL PETN No.53/2013 Page 6 of 22 No. 2 and quashed the decision of the trial court to discharge the petitioner, against whom it directed the trial court to frame the charge along with the respondent No. 2 (Swapan Das). The respondent No. 2 had admittedly challenged the order of discharge of both the petitioner and the said Amal Bikash Roy. On careful perusal of the revision petition filed by the respondent No. 2, particularly, paragraphs C, K and L of the revision petition and the prayer portion thereof, it becomes obvious, contrary to the submission of the petitioner, that the respondent No. 2 was not only questioning the legality of discharge of the petitioner and the said Amal Bikash Roy but also questioning the legality of the decision of the trial court to frame the charge against him when, according to him, he is innocent of such charge. Under the circumstances, it is difficult to accept the contention of the petitioner that the respondent No. 2 did not have the locus standi to challenge the order of the trial court. To hold otherwise will amount to taking hyper-technical view of the matter. In any case, this is case where it can truly be said that the respondent No. 2, in filing the revision petition, was espousing his cause by making a grievance, rightly or wrongly, that he should have been discharged when, on similar facts and circumstances, the petitioner and the said Amal Bikash Roy were discharged by the trial court.
7. The next question to be determined is whether the learned Additional Sessions Judge, to whom the revision petition was apparently endorsed by the learned Sessions Judge, can order framing of the charge on the complaint of the respondent No. 2. As already noted, the learned Additional Sessions Judge on perusing the impugned order as well as other materials on record including the charge-sheet, was not satisfied that the charge against the petitioner was groundless. Under Section 397 CrPC, the power to call for records of inferior criminal Courts is conferred on two kinds of Courts: (1) High Court; and (2) Sessions Court. There are four grounds upon which the power can be exercised, namely, (a) where the decision is grossly erroneous; (b) where there is no compliance with the provisions of law; (c) where the finding of fact affecting the decision is not based on the evidence; where material evidence of the parties is CRL PETN No.32/ 2013 & CRL PETN No.53/2013 Page 7 of 22 not considered; and (d) where judicial decision is exercised capriciously. Section 397 CrPC is virtually a suo motu power of the Sessions Judge as well as the High Court to examine the correctness, legality or propriety of any finding, sentence or order, recorded or passed in any proceeding before any inferior court. While in the case of a Sessions Judge, the revisional power is confined only to a case record which has been called for by him, in the case of the High Court, a perusal of Section 401(1) CrPC will indicate that the High Court has wider powers to consider the legality, regularity or propriety of any finding, sentence or order which otherwise comes to its knowledge. This fine but real distinction between the suo motu powers of the Sessions Court and the High Court has been correctly noticed by the Kerala High Court in Chaithanya R. Menon (Dr.) @ Mini v. State of Kerala, 2008 Cri LJ 3392; State v. Baby, 1981 KLT 27 and John Samuel v. State of Kerala, 1985 KLT 902, with which I am in respectful agreement. Suffice it to reproduce below the observations of the Kerala High Court in John Samual (supra):
"5. There is a difference between the revisional powers of the High Court under S. 401(1) and the revisin powers of the Sessions Judge under S. 399(1), both of which include suo motu revisional powers. It is true that under S. 399(1) it is provided that the Sessions Judge may exercise all or any of the powers which may be exercised by the High court under sub-section (1) of S. 401. Those are the powers mentioned in S. 401, namely, "exerci of any of the powers conferred on a court of appeal by S. 386,389, 390 and 391 or on a Court of Sessions by S. 307". In dealing with the revisional ppowers of the High Court under S. 401(1), what is stated is "in the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge". "Otherwise comes to its knowledge"is absent while describing the revisional powers of the Sessions Judge under S. 399(1). What S. 399(1) provides is only that the Sessions Judge may exercise revisional powers in the case of any proceeding the record of which has been called for by himself. Therefore, the CRL PETN No.32/ 2013 & CRL PETN No.53/2013 Page 8 of 22 Sessions Judge may not be entitled to invoke revisional jurisdiction by "otherwise comes to its knowledge". The revisional jurisdiction of the Sessions Judge is limited to any proceeding, the record of which has been called by himself.
6. This aspect of the matter has been considered by a Division Bench of this Court in State v. Baby (1981 KLT 27). The Divisional Bench expressed the following opinion:-
"Powers of revision are conferred both on the High Court and the Sessions Judge. There is, however, a marked difference between S. 399(1) which deals with the revisional jurisdiction of the Sessions Judge and S. 401(1) dealing with the powers of revision vested in the High Court. Under S. 399(1), the Sessions Judge is competent to exercise powers of revision only in the case of any proceeding, the record of which has been called for by himself, either suo motu or on motion by somebody. The powers of the Hihg Court under S. 401 are wider. In addition to powers of revision in cases mentioned in S.399(1), the High Court is empowered to exercise powers of revision in cases which otherwise come to its knowledge. The omission to include cases which otherwise comes to his knowledge in S. 399(1) has its own significance. It means that the Sessions Court has power to exercise revisional jurisdiction only in a proceeding, the record of which he called for by himself and not in cases which come before him in the ordinary course of procedure. In the instant case, the records were not called for by the Sessions Judge but they were sent to that Court for trial of the case beased on the committal order. The learned Second Additional Sessions Judge was, therefore, correct in his view that he had no power to exercise revisional jurisdiction in the instant case."
7. Though that case happened to be decided in a different context, the principle laid down is a general one and it is CRL PETN No.32/ 2013 & CRL PETN No.53/2013 Page 9 of 22 applicable to the facts of the present case also. In that case the record came to the Sessions Judge by committal by the Magistrate. In this particular case when the suo motu revisional power was exercised on 5-2-1982, the records were not with the Sessions Judge either by himself calling for it or otherwise. He had only the appeal memorandum and copy of the judgment produced along with it by the appellant accused. From the papers, it is seen that records were received by the Sessions Judge only on 9-3-1982. Therefore, evidently this is a case in which the suo motu revisional power was exercised without the records being called for by the Sessions Judge.
8. The same view has been expressed by the Karnataka High court in the decision in Siddegowda v. K. Siddegowda, 1976 Cri LJ, when it held:
"7. It is to be particularly noticed that the powers vested in the High Court can be exercised by the High Court in case of any proceeding the records of which the High Court has called for, or which otherwise come to the knowledge of the High Court. Here again, we find the use of the word 'otherwise'. Therefore, what is clear is that if the Sessions Judge has to exercise powers under Section 399, Criminal Procedure Code, the records must have been called for by himself. If the records of any proceeding come to the knowledge of the Sessions Judge, in a manner otherwise than by calling for the records by the Sessions Judge, he cannot exercise the powers under Section 399, Criminal Procedure Code.
8. In the case on hand it is clear that the petitioner who was aggrieved by the order passed by the Sub-Divisional Magistrate, Pandavapura Sub-Division, Pandavapura, filed the revision petition, and on the filing of the revision petition, the Sessions CRL PETN No.32/ 2013 & CRL PETN No.53/2013 Page 10 of 22 Judge, Mandya, called for the records from the Court of Sub- Divisional Magistrate, Pandavapura. Therefore, the records in the case on hand had been called for by the Sessions Judge himself from the Court of Sub-Divisional Magistrate, Pandavapura. The learned Sessions Judge, Mandya, appears to have understood the words 'called for by himself occurring in Section 399(1), Criminal Procedure Code, to mean 'suo motu' and not on the filing of a revision petition by an aggrieved party. There is no warrant to attribute such a restricted meaning to the words 'called for by himself. This aspect is absolutely clear when Sub-section (3) of Section 399, Criminal Procedure Code is taken into consideration, because Sub-section (3) contemplates an application for revision being made before a Sessions Judge on behalf of any person and exercise of powers under Section 399, Criminal Procedure Code. What Sub-section (3) of Section 399, Criminal Procedure Code, lays down is that if an application for revision made on behalf of any person before the Sessions Judge is disposed of, against the person making the application, such person is barred from moving the High Court in exercise of its powers of revision."
8. In my opinion, when serious illegality or impropriety committed by a Magistrate in the exercise of its jurisdiction comes to the notice of the Sessions Judge, it would be most unreasonable to expect him to fold his hand or ignore the same and leave it to the aggrieved party to approach the High Court for rectification. In that view of the matter, I have no hesitation to hold that in given case where illegality or impropriety of serious nature are stumbled upon by the Sessions Judge while examining the record called for by him, it will always be permissible, nay, it should rather be his duty, to pass appropriate order for setting the wrong right ex debitio justitiae.
9. At this stage, it will be appropriate to refer to Ss. 239 and 240 CrPC, which read thus:
CRL PETN No.32/ 2013 & CRL PETN No.53/2013 Page 11 of 22
"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.
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.
A combined reading of both the provisions extracted above will lead to the following conclusions: under Section 239 CrPC, the obligation to discharge the accused arises when the Magistrate considers the charges against the accused to be groundless. For the purpose of discharging the accused under this provision, it is not necessary to undertake evaluation of the materials or meticulous consideration of the possible defences at this stage. The term "groundless" means without any basis or foundation. True, strong suspicion against the accused, if the matter remains in the realm of suspicion, cannot take the place of proof of guilt at the conclusion of the trial. But at the initial stage, if there is strong suspicion which leads a Court to think that there are ground for presuming that the accused has committed an offence, it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. In order to CRL PETN No.32/ 2013 & CRL PETN No.53/2013 Page 12 of 22 determine whether the charge is groundless or not, the Court shall have to consider the police report including the statement of the witness recorded U/s 161 CrPC, documents sent along with it U/s 173 CrPC and examination of the accused if he finds it necessary. The real test for determining whether the charge should be considered groundless is that the materials available are such that even if they are unrebutted, they do not make out any case whatsoever. In the absence of any material to disbelieve the statements as well as the documents at this stage, strong suspicion is created in the minds that the accused might have committed the offence. In other words, if there is strong suspicion charge, should be framed.
10. In the case at hand, it is seen from the charge sheet that between 2004- 05 and 2005-06, there was huge misappropriation of public money to the order of ₹20.76 lakhs in the Office of the Controller of Weights and Measures, West Tripura, Agartala. The respondent No. 2 was the Cashier during the entire period. The said Amal Bikash Roy was the Assistant Controller from 1-4-2004 to 30-4-2005 whereafter the petitioner took over the office from him. On the basis of the verification made by the Controller of Weights and Measures, Tripura, it was found that the respondent No. 2 was not properly maintaining the cash book. To ascertain the actual position, the respondent No. 2 was verbally asked to produce all the relevant documents, challans, subsidiary register, etc. on 4-5-2006. However, immediately after the verification, the respondent No. 2 unathorisedly absented himself from office whereupon show cause notice was issued to him. When satisfactory explanation was not available, the petitioner lodged the FIR against the respondent No. 2 on 12-5-2006. A detailed enquiry was thereafter conducted by the Controller of Weights and Measures, Tripura and the enquiry ended in recommending the initiation of departmental proceedings against all the three delinquent officers including the petitioner. Simultaneously, the police also started investigating the case and, having found a prima facie case, charge- sheeted the three of them for commission of the offences punishable U/s 409/420 IPC to face the trial. As already noticed, the said Amal Bikash Roy, who was the predecessor-in-office of the petitioner herein filed an application U/s 239 CRL PETN No.32/ 2013 & CRL PETN No.53/2013 Page 13 of 22 CrPC before the learned Chief Judicial Magistrate, Agartala for his discharge. The learned Magistrate after hearing the parties passed the order dated 21-4-2012 discharging both the petitioner and the said Amal Bikash Roy. Aggrieved by that, the respondent No. 2 filed the revision petition before the learned Additional Sessions Judge. On the basis of this revision petition, the learned Additional Sessions Judge by the impugned order proceeded to frame the charge against the petitioner and the respondent No. 2 and upheld the order of the learned Magistrate discharging the said Amal Bikash Roy from the case.
11. I have carefully gone through both the impugned order and the order of the trial court as well as the materials on record. There is no dispute that the Petitioner was the Assistant Controller of Weights and Measures from 1-5-2005 to 31-3-2006 and that he was also the Drawing and Disbursing Officer. Therefore, the entire shortfall money amounting to ₹18,77,024/- during 2005- 2006 was detected when the petitioner was undoubtedly the Drawing and Disbursing Officer. As the Drawing and Disbursing Officer, such amount was under his control. Once this amount was found to be missing when it was allegedly within his dominion, there is a prima facie of criminal breach of trust punishable under Section 409 IPC. The law is now settled that actual mode of entrustment or misappropriation is not to be proved by the prosecution. Once entrustment is proved, it is for the accused to prove as to how the property entrusted was dealt with. The respondent No. 2 was a Cashier, but all money transactions are carried out under the authority of the petitioner. At the same time, the section cannot be construed as implying that any head of an office, who is negligent in seeing that the rules about remitting money to the treasury are observed is ipso facto, guilty of the criminal breach of trust; but something more than that is required to bring home the dishonest intention. There should be an indication which justifies a finding that the accused definitely had the intention of wrongfully keeping the Government out of the money. But then, the actual mode of entrustment or misappropriation is not to be proved by the prosecution once the entrustment is proved, which appears to be the case. There, it is difficult to say at this stage that the charge against the petitioner is groundless. CRL PETN No.32/ 2013 & CRL PETN No.53/2013 Page 14 of 22 In other words, there is a prima facie case against him just as there is undoubtedly prima facie case against the respondent No. 2; both of them must face the trial. Under the circumstances, there is no infirmity in the order of the learned Additional Sessions Judge in deciding to frame the charges against the petitioner and the respondent No. 2. It is another matter that both of them may or may not eventually get acquitted on the conclusion of the trial. However, it was definitely within the jurisdiction of the learned Additional Sessions Judge to pass the impugned order on perusing the record called for by him and on the finding from such record that the trial court committed grave error in discharging the petitioner on the basis of the revision petition filed by the respondent No. 2 or on the basis of the said record called by him after admitting the revision petition. In this case, the record of the learned Sessions Judge reveals that the revision petition was admitted by him on 16-8-2012 and that the record was called for by him from the learned Magistrate on the same day. The record was received by him on 23-8-2012, while the impugned order was passed by him on 22-5-2013. Therefore, it is obvious that the learned Additional Sessions Judge has, in this case, exercised his powers under Section 399, Criminal Procedure Code on the basis of the records, which have been called for by himself and not in cases which come up before him in the ordinary course of procedure. Even if the revision petition filed by the respondent No. 2 is found to be not maintainable for lack of locus standi, the learned Additional Sessions Judge would be well within his power to exercise his suo motu revision power to take cognizance of the materials from such record called for by him to pass the impugned order and proceed to direct+ that charges should be framed against the petitioner. Consequently, the impugned judgment does not warrant any interference of this Court.
12. For the reasons stated in the foregoing, there is no merit in this criminal petition, which is, accordingly, dismissed. Transmit the LC record. The interim order passed earlier stands vacated. The parties are directed to appear before the trial court on 10-11-2017 at 10.30 AM for framing of the charge. Though the crimes allegedly committed by the petitioner was committed in the year 2005-06, CRL PETN No.32/ 2013 & CRL PETN No.53/2013 Page 15 of 22 the file has not moved an inch till now. The trial court is, therefore, directed to hold the trial on day to day basis to the extent possible for speedy conclusion of the trial. Nothing stated herein above shall be construed as final observations on the merit of the case, which is yet be independently decided by the trial court after adduction of evidence by the parties and in accordance with law. Criminal Petition No. 53 of 2013
13. In this criminal petition, the State is aggrieved by the impugned judgment discharging the said Amal Bikash Roy (respondent No. 1 herein) from the case. The respondent No. 1 herein was also posted as Assistant Controller of Weights and Measures from 1-4-2004 to 30-4-2005 when a sum of ₹4,51,272/- was allegedly misappropriated in his Office, for which he has been charge- sheeted for commission of the offences punishable U/s 409/420 IPC. As the Head of Office and the Drawing and Disbursing Officer during that period, there is prima facie case of entrustment of the misappropriated amount upon him. To my mind, I do not find any reason to distinguish between his case and the case of the petitioner in the foregoing criminal petition, which has just been disposed of. However, I will proceed to record the prima facie findings of the learned Additional Sessions Judge in discharging him from the case:
"10. ....... To begin with, I have gone through the detailed enquiry conducted by the Controller relating to the Financial Year 2004-05 and 2005-06. The entire report in many places state that money was deposited to the petitioner (Swapan Das) as the Cashier,. I have underlined all the relevant statements in the report in this regard. The report nowhere finds mention that money was received by either OP No. 1 or OP No. 2 on any occasion. As regards signing of TR 5 Forms by the OP No. 2 & 3, at page 8, para-VII, it is stated that the same in fact is supposed to be issued by the Cashier. It is also stated, however, that the counter foil of each and every receipt in TR 5 was signed both by Cashier and the DDO. Learned counsel for the CRL PETN No.32/ 2013 & CRL PETN No.53/2013 Page 16 of 22 petitioner laid much stress on the point arguing that signatures of OP Nos.2 and 3 in TR 5 proved that the money was received by them. I am unable to accept the submission. Since the document contains the signature of the Cashier as well, logical conclusion is that money was received by the cashier and the forms were filled up by him. It is only thereafter that the signature of OP Nos 2 and 3 were obtained therein. To prove the point, there must be direct evidence that somebody handed over money to the OP Nos. 2 and 3 because the normal practice is that the cashier receives the money. So, to prove anything contrary to the normal practice, nothing short of direct evidence will suffice. For misappropriation of Government money to the tune of ₹18,77,024/-, the report suggests initiation of disciplinary proceedings against the petitioner. Some suggestion is being made in respect of OP Nos. 2 & 3 for failure to act as per the requirement of rules, procedure and law. Having seen what the enquiry report is, let us now look into the Police report.
10. Except the statement of Sri Souvik Bardhan Roy, Inspector of Weights and Measures, Kamalpur, there is no incriminating statement against OP No. 2 to the effect that he handled any money at any point of time from any person relating to the matter in question. Sri Souvik Bardhan Roy in his statement has stated that while being posted as Inspector at Dharmanagar, he had seen how Sri A.B. Roy (respondent No. 1 herein) to the effect that he misappropriated the Government money and that ₹2.5 lakhs taken from him (AB Roy) by Sri Pranab Debbarma, a Group D employee of Agartala was not returned till then. It is further stated that while being posted at Teliamura Inspectorate, he had seen that there was similarity in the Case (sic) Book of Sri AB Roy and the case disposed of. Firstly, it needs to be stated that the allegations made, does not relate to the Office of Conroller, Agartala for the period 2004-05 and 2005-06 relating to which the investigation was carried on. Secondly, CRL PETN No.32/ 2013 & CRL PETN No.53/2013 Page 17 of 22 the statements does not make out any specific case of entrustment or dominion of money by Sri AB Roy. In this regard, it needs to stated that in any office, cash is handled by the Cashier and the role of DDO is supervisory. As regards Bank accounts, the operation is made by the DDO through the Cashier. It is possible for a Cashier singly to misappropriate the government money but of course, when the DDO fails to perform his duty as such and not vigilant. But the DDO alone cannot misappropriate the money keeping the Cashier in dark for the reason that cash is handled by the Cashier and the Bank account is operated by the DDO through the Cashier. No evidence having been revealed in this regard, the learned Court below was not unjustified in recording the discharge order in favour of OP No. 2".
14. I was compelled to reproduce the above observations in extenso so that there is no room for confusion about the reasoning of the learned Additional Sessions Judge. What is discernible from the above observations is that the learned Additional Sessions Judge has not clearly understood the ingredients of Section 409 IPC. As already discussed in the foregoing case, all that the prosecution at the stage of framing of charge is required to do is to establish a prima facie case of entrustment of the misappropriated amount upon the respondent No. 1. He was the Assistant Controller and the DDO from 1-4-2004 to 30-4-2005 when a sum of ₹4,51,272/- was allegedly misappropriated. No direct evidence is really necessary to prove a case of this nature; documentary evidence can also do the job. The learned Additional Sessions Judge as well as the learned Chief Judicial Magistrate were either guilty of ignorance of law or deliberately ignored the law applicable in this field. This is also a case where it cannot be said that the charges against the respondent No. 1 are groundless as in the case of the petitioner in the connected criminal petition. This definitely calls for the interference of this Court.
15. It is, however, the contention of Mr. A. Bhowmik, the learned counsel for the respondent No. 1 (Swapan Das), that when the criminal revision being Crl. CRL PETN No.32/ 2013 & CRL PETN No.53/2013 Page 18 of 22 Rev. No. 1(1) of 2013 challenging the order of the trial court discharging the respondent No. 1 was not entertained by the learned Sessions Judge for delay (the condonation application was dismissed), and no appeal was preferred against such an order, the decision of the trial court discharging him has attained finality, and the same cannot be entertained by filing a criminal petition U/s 482 CrPC. He submits that when the second criminal revision filed by the same petitioner before this Court or the Sessions Court is barred by Section 397(3) CrPC, and this criminal petition cannot be entertained by resorting to Section 482 CrPC; what cannot be done directly cannot be done indirectly. He, therefore, contends that this criminal petition is not maintainable and is, therefore, liable to be dismissed. Refuting this contention, Mr. BC Das, the learned Advocate general, submits that even if a second revision before the High court is barred by Section 397(3) CrPC, the inherent power of this Court U/s 482 CrPC is still available, and this Court can still interfere with the order of criminal courts to prevent miscarriage of justice or abuse of process of court or otherwise to secure the ends of justice. To fortify his submissions, the learned Advocate General relies on Krishnan v. Krishnaveni, (1997) 4 SCC 241.
16. It is true that the State should have prosecuted the revision filed by them earlier in a competent manner, but then such negligent conduct of counsel appearing for the State is not unusual in this country. The question is whether due to the negligent or incompetent conduct of the prosecuting counsel, the State representing the public should be penalized? I do not think so. This is a case where public money in terms of lakhs has been siphoned off by the officials of the Government. The culprit or culprits must be brought to justice and duly punished if he or they is/are found to be guilty of the charge after holding a fair and impartial trial. As already noticed elsewhere, it cannot be said that the charges against the respondent No. 1 like the remaining accused are groundless. Therefore, both the courts below have improperly exercised their jurisdiction in discharging the respondent No. 1. In so far as anxiety of the learned counsel for the respondent No. 1 with respect to the jurisdiction of this Court U/s 482 CrPC to interfere with the impugned judgment is concerned, the observations of the CRL PETN No.32/ 2013 & CRL PETN No.53/2013 Page 19 of 22 Apex Court in Krishnan case (supra) completely answer the same in the following manner:
"9. The inherent power of the High Court is not one conferred by the Code but one which the High Court already has in it and which is preserved by the Code. The object of Section 397(3) is to put a bar on simultaneous revisional applications to the High Court and the Court of Sessions so as to prevent unnecessary delay and multiplicity of proceedings. As seen, under sub-section (3) of Section 397, revisional jurisdiction can be invoked by "any person" but the Code has not defined the word "person". However, under Section 11 of the IPC, "person" includes any company or association or body of persons, whether incorporated or not. The word "person" would, therefore, include not only natural person but also juridical person in whatever form designated and whether incorporated or not. By implication, the State stands excluded from the purview of the word "person" for the purpose of limiting its right to avail the revisional power of the High Court under Section 397(1) of the Code for the reason that the State, being the prosecutor of the offender, is enjoined to conduct prosecution on behalf of the society and to take such remedial steps as it deems proper. The object behind criminal law is to maintain law, public order, stability as also peace and progress in the society. Generally, private complaints under Section 202 of the Code are laid in respect of non-cognizable offences or when it is found that police has failed to perform its duty under Chapter XII of the Code or to report a mistake of fact. In view of the principle laid down in the maxim ex debito justitiae, i.e., in accordance with the requirements of justice, the prohibition under Section 397(3) on revisional power given to the High Court would not apply when the State seeks revision under Section 401. So the State is not prohibited to avail the revisional power of the High Court under Section 397(1) read with Section 401 of the Code.
CRL PETN No.32/ 2013 & CRL PETN No.53/2013 Page 20 of 22
"10. Ordinarily, when revision has been barred by Section 397(3) of the Code, a person -- accused/complainant -- cannot be allowed to take recourse to the revision to the High Court under Section 397(1) or under inherent powers of the High Court under Section 482 of the Code since it may amount to circumvention of the provisions of Section 397(3) or Section 397(2) of the Code. It is seen that the High Court has suo motu power under Section 401 and continuous supervisory jurisdiction under Section 483 of the Code. So, when the High Court on examination of the record finds that there is grave miscarriage of justice or abuse of the process of the courts or the required statutory procedure has not been complied with or there is failure of justice or order passed or sentence imposed by the Magistrate requires correction, it is but the duty of the High Court to have it corrected at the inception lest grave miscarriage of justice would ensue. It is, therefore, to meet the ends of justice or to prevent abuse of the process that the High Court is preserved with inherent power and would be justified, under such circumstances, to exercise the inherent power and in an appropriate case even revisional power under Section 397(1) read with Section 401 of the Code. As stated earlier, it may be exercised sparingly so as to avoid needless multiplicity of procedure, unnecessary delay in trial and protraction of proceedings. The object of criminal trial is to render public justice, to punish the criminal and to see that the trial is concluded expeditiously before the memory of the witness fades out. The recent trend is to delay the trial and threaten the witness or to win over the witness by promise or inducement. These malpractices need to be curbed and public justice can be ensured only when trial is conducted expeditiously."
17. Need I say more? Resultantly, this criminal petition succeeds. The impugned judgment discharging the respondent No. 1 (Amal Bikash Roy) from the case is set aside. So much time has already been unnecessarily wasted. CRL PETN No.32/ 2013 & CRL PETN No.53/2013 Page 21 of 22 Disposal of the case can brook no further delay. The trial court is, therefore, directed to hold the trial on day to day basis to the extent possible for speedy conclusion of the trial. Nothing stated herein above shall be construed as final observations on the merit of the case, which is yet be independently decided by the trial court after adduction of evidence by the parties and in accordance with law. The parties are directed to appear before the trial court on 10-11-2017 at 10.30 AM. On the appearance of the respondent No. 1, he shall execute fresh bail bonds to the satisfaction of the trial court to ensure his future appearance in court. Transmit the LC record forthwit.
CHIEF JUSTICE CRL PETN No.32/ 2013 & CRL PETN No.53/2013 Page 22 of 22