Punjab-Haryana High Court
Jagtar Singh (Bdpo) vs State Of Punjab on 19 February, 2013
Author: Mehinder Singh Sullar
Bench: Mehinder Singh Sullar
CRM No. M-33232 of 2011 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Misc. No. M-33232 of 2011 (O&M)
Date of Decision:- 19.2.2013
Jagtar Singh (BDPO)
....Petitioner
Versus
State of Punjab
.....Respondent
CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR Present: Mr.Jasjit Singh Bedi, Advocate for the petitioner.
Mr.K.S.Aulakh, AAG Punjab for the State.
MEHINDER SINGH SULLAR, J. (oral)
Tersely, the facts & material, culminating in the
commencement, relevant for deciding the core controversy, involved in the instant petition and emanating from the record are that, on the complaint of complainant Tara Singh son of Tek Singh (for brevity "the complainant"), a criminal case was registered against petitioner Jagtar Singh BDPO, along with his other co-accused Sukhpal Singh, SDO Panchayati Raj, Paramjit Singh BDPO, Talwandi Sabo, Thana Singh Panchayat Secretary, Ashok Kumar & Narinder Kumar, JEs, Gurdarshan Singh DDPO, Mahla Singh Sarpanch, Nachhattar Singh & Kulwant Singh Members Panchayat, vide FIR No.126 dated 22.9.2002, on accusation of having committed the offences punishable under sections 409, 465, 467, 471, 477-A and 120-B IPC by the police of Police Station CRM No. M-33232 of 2011 (O&M) 2 Raman, District Bathinda.
2. The case set up by the prosecution, in brief in so far as relevant, was that the land of Gram Panchayat of village Phulokheri was acquired by the appropriate State for establishment of Refinery and panchayat had received an amount of ` 1,36,00,000/- as compensation. The Sarpanch in collusion with the indicated accused, have embezzled the huge amount of the Gram Panchayat in the following manner as depicted in the final police report (Annexure P2):-
"The Panchayat after felling tree from the panchayat ghar, got made the furniture and obtained a fake bill from some carpenter for Rs.2,75,000/-. Inflated bills have been shown in the construction of the building. Said building could have been got constructed only for Rs.10,00,000/- but bills worth Rs.34/35 lacs have been shown in the record regarding construction of the said building. Inferior quality of material has been used. Similarly, the community centre was got constructed and large scale mis-appropriations were made. Said project could have got ready for a sum of Rs.7/8 lacs but bills worth Rs.48 lacs have been put in the record. The boundary walls of cremation ground and gaushala have been constructed. Inferior quality of material has been used whereas bills of superior quality of material have been submitted. Gross irregularities have been committed, which is against the Panchayat Act. The record of the Panchayat was prepared in which tampering was done on a large scale and resolutions were passed during the tenure of the Secretary transferred or deceased secretary and the signatures of those secretaries have been forged. The panchayati funds are being transferred in the banks and a huge loss is being caused to the department. Panchayat funds are being mis-used. The mutation of land of water works, which was not being sanctioned, now has been got sanctioned by giving bribe to Panchayat and in lieu of 30 Kanals of land, 31 kanals of Panchayat land has been transferred in favour of Baldev Singh s/o Hardit Singh. Nachattar Singh, Panch has taken 540 bags of cement and saria to his house for his personal use. The CRM No. M-33232 of 2011 (O&M) 3 telephone of panchayat is installed at the house of lady panch Ranjit Kaur and is using the same for her personal use. The bills are being deposited out of the panchayat funds. The enquiry into the said complaint was got conducted by Deputy Commissioner, Bathinda through Executive Engineer, Panchayati Raj, Bathinda and Sub Divisional Officer, Panchayati Raj, Talwandi Sabo. The enquiry reports are as under:- The works got conducted at the spot were assessed. As per the enquiry officer, as the Panchayat Secretary had not made any entries regarding expenditure and had not maintained works register, therefore, workwise excess expenditure cannot be ascertained. The joint assessment of all the works has been conducted. The Panchayat had received Rs.1,32,61,339/- on acquisition of their land by the Refinery, which were used as panchayat funds. As per the expenses of the cash book, it has come to notice that Panchayat/Panchayat Secretary has ignored all the instructions of the Govt. and without any technical advice, has got conducted the said work and the D.D.P.O. and B.D.P.O. and concerned J.E. have hesitated in giving proper advice to the Panchayat in this regard. The panchayat in collusion with one another, spent the funds on furniture without any approval of the draftsman. With the connivance of Panchayat Secretary Bawa Singh, the illegal expenditure is apparent. The amount of compensation received by the Panchayat from Refinery Rs.1,32,61,339/-, Expenditure by Panchayat till month 4/02 as per cash book - 1,17,22,674-00, Amount deposited in the bank 1,98,899/-, The earth work, which was not to be got conducted was entered expenditure 2,31,594/-, Misc. expenses (Page 11 to 14) 16,14056, furniture given by Rama village and entry of excess expenditure on 4,93,000/-, Actual payment made 2,40,000, Bill No.394 dated 20.9.02, Darshan Mittal, Bathinda, Bathinda, Civil Wing Care 200 chairs out of 1,33,928/-, excess entry of Rs.66,964/- was made because rates are double than the market rates. Regarding hand pumps, expenditure of 48,000 (1 to 4) without approval of the draftsman, excess expenditure of 76,71,584/- on building works and labour and material, Excess expenditure of Rs.1,17,22,674/- by the Gram Panchayat Phulokheri 40.51,090/-."
3. Leveling a variety of allegations and narrating the sequence CRM No. M-33232 of 2011 (O&M) 4 of events in detail as contained in the final police report, in all, the prosecution claimed that petitioner along with his other co-accused hatched a criminal conspiracy, cheated, misappropriated the huge amount of the Gram Panchayat, prepared the false record/bills committing forgery for the purpose of cheating, used the forged bills/documents as genuine and falsified the accounts in this relevant connection. In the background of these allegations, the present criminal case was registered against the accused in the manner depicted here-in-above.
4. During the course of investigation, the police was stated to have found the petitioner and other officers as innocent and placed their names in column No.2 for the reasons best known to it. At the same time, after completion of the investigation, the police submitted the final police report (challan) (Annexure P2) only against Mahla Singh Sarpanch, Nachattar Singh & Kulwant Singh, Members Panchayat of Gram Panchayat, Phulokheri.
5. Suspecting the role of police doubtful in placing the names of petitioner and his other co-accused in column No.2, an application (Annexure P3) for taking cognizance against them under section 190(1)
(b) read with section 319 Cr.PC for summoning them as additional accused, was moved by the prosecution.
6. Considering the active participation, role & complicity, the trial Magistrate accepted the application of the State and summoned the petitioner and his other similarly situated persons as additional accused to face the trial along with other co-accused, by means of impugned summoning order dated 20.12.2006 (Annexure P4).
CRM No. M-33232 of 2011 (O&M) 5
7. Sequelly, taking into consideration the final police report (challan), evidence and the documents submitted therewith, the trial Magistrate charge-sheeted the petitioner and his other co-accused for the commission of offences punishable u/ss 120-B, 409, 465, 467, 471, 477- A and 468 IPC, by way of impugned order/separate charge sheet dated 7.10.2009 (Annexure P5).
8. Instead of submitting to the jurisdiction of the trial Magistrate, petitioner Jagtar Singh son of Buta Singh and his other co- accused Gurdarshan Singh have straightway jumped to file the revision petitions, to challenge the order (Annexure P5), which were dismissed as well, by the revisional Court, by virtue of impugned judgment dated 11.7.2011 (Annexure P6).
9. The petitioner-accused Jagtar Singh still did not feel satisfied and preferred the instant 2nd revision petition (which is otherwise legally barred) in the garb of petition u/s 482 Cr.PC to quash the impugned summoning order/charge sheet/judgment (Annexures P4 to P6), leaving this Court in lurch to think, as to what extent, the finding should be recorded with regard to the controversy raised in the present petition, as the same would naturally have the direct bearing on the real issues between the parties, to be determined by the trial Court, during the course of trial. Be that as it may, but in the interest of justice, the principle of "safety saves" has to be kept in focus in this relevant behalf, while deciding this petition. That is how I am seized of the matter.
10. After hearing the learned counsel for the parties, going through the record and the legal position with their valuable assistance CRM No. M-33232 of 2011 (O&M) 6 and after considering the entire matter deeply, to my mind, there is no merit in the present petition in this context.
11. At the very outset, it is not a matter of dispute that Sukhpal Singh, SDO, Panchayati Raj, similarly situated co-accused of the petitioner, had earlier challenged the same very impugned summoning order/charge-sheet in CRM No. M-26224 of 2010. The petition came to be dismissed as withdrawn by a Coordinate Bench of this Court (Augustine George Masih, J.), by means of order dated 7.12.2011 (Annexure R1). In other words, this Court has already impliedly upheld the impugned summoning order/charge sheet.
12. Ex facie, the arguments of the learned counsel that the petitioner has been falsely implicated and since there is no (sufficient) legal evidence on record, so, he could not be charge sheeted for the pointed offences, are not only devoid of merit but misplaced as well.
13. As is evident from the record that initially, in the wake of complaint of complainant, a criminal case was registered against the petitioner and his other co-accused for hatching a criminal conspiracy, cheating, misappropriating the huge amount of the Gram Panchayat, preparing the false record/bills committing forgery for the purpose of cheating, using the forged bills/documents as genuine and falsifying the accounts in this relevant direction. In this manner, the accused have misappropriated the huge amount of the Gram Panchayat. The petitioner remained posted as BDPO from 29.6.2000 to 2.11.2001 at the relevant time, cleared/passed the forged bills as genuine and embezzled the huge amount. An amount of ` 99,94,253/- was stated to have been spent during CRM No. M-33232 of 2011 (O&M) 7 the relevant period of his posting. The fake bills/documents have been prepared by him for the purpose of cheating. Instead of reproducing the entire contents of the order and in order to avoid the repetition, suffice it to state that the detailed reasons have been mentioned by the trial Magistrate to summon the petitioner as additional accused in the impugned summoning order (Annexure P4). Moreover, the mere fact that he was posted as BDPO and supervisory officer, ipso facto, is not a ground, muchless cogent, to exonerate him at the initial stage of trial, particularly when prima-facie, there is an ample evidence on record to involve the complicity of the petitioner in the commission of pointed heinous offences.
14. Likewise, the next contentions of learned counsel that as the petitioner was exonerated by the Additional Deputy Commissioner, vide enquiry report (Annexure P7) and censured by the Financial Commissioner & Secretary, Govt. of Punjab, by virtue of report (Annexure P8), therefore, no offences are made out against him, lack merit as well. No implicit reliance can be placed on these unproved reports at this stage. Even if the A.D.C. in his report (Annexure P7) has exonerated the petitioner, then the criminal prosecution cannot legally be quashed at this initial stage. A Larger Bench of Hon'ble Apex Court in case State (NCT of Delhi) v. Ajay Kumar Tyagi (2012) 9 Supreme Court Cases 685, having considered the previous judgments on the point, ruled that exoneration in disciplinary proceedings by itself is not a ground for quashing criminal proceedings. The criminal case is decided on the basis of evidence adduced therein and cannot be rejected on the CRM No. M-33232 of 2011 (O&M) 8 basis of evidence in departmental proceedings or report of the enquiry officer by public authority, particularly when Secretary to Government of Punjab has found the petitioner guilty and censured him, vide report (Annexure P8). Moreover, the administrative authorities cannot assume the role of criminal Court and the decision of criminal prosecution cannot legally be based on the decision of executive officers.
15. As indicated earlier, it has been clearly depicted in the impugned summoning order (Annexure P4) that petitioner remained posted as BDPO from 29.6.2000 to 2.11.2001 at the relevant time, cleared/passed the forged bills as genuine and embezzled the huge amount. An amount of ` 99,94,253/- was claimed to have been spent during the relevant period of his posting. The fake bills/documents have been prepared by him for the purpose of cheating. Therefore, no implicit reliance can be placed on these enquiry reports (Annexures P7 & P8) at this initial stage.
16. What would be the evidentiary value, effect of subsequent reports in question and other submissions, relatable to the appreciation of evidence (now sought to be urged on behalf of petitioner), would be the moot points to be decided during the course of trial by the trial Court. If all such points, which require determination by the trial Court, are to be decided by this Court in the garb of petition under section 482 Cr.PC, then the sanctity of the trial would pale into insignificance and amount to nullify the statutory procedure of trial as contemplated under the Code of Criminal Procedure, which is not legally permissible.
17. Above-all, it is now well settled principle of law that the CRM No. M-33232 of 2011 (O&M) 9 High Court should not ordinarily embark upon an inquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it the accusation would not be sustained, are the functions of the trial Judge to do so. The High Court must be careful to see that its decision in exercise of its power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. Reliance in this connection can be placed upon the judgment of Hon'ble Supreme Court in case U.P.Pollution Control Board v. Dr.Bhupendra Kumar Modi and another (2009) 2 SCC 147.
18. Not only that, as is clear from the impugned charge-sheet (Annexure P5) that all the accused have also separately been charge- sheeted for hatching criminal conspiracy. The offence of criminal conspiracy punishable under Section 120-B IPC is an independent offence and some general evidence pertaining to the conspiracy would be sufficient, to form part of the charge of conspiracy in the charge-sheet. As a matter of fact, some connecting link or connecting factor somewhere here and there in the evidence would be good enough to frame the charge. The stage of framing of charge and the stage to establish the guilt of conspiracy after the trial cannot possibly be equated and placed at par. There is a very less possibility of direct evidence and the evidence of hatching such criminal conspiracy has to be gathered from variety of facts, situations and circumstances, oozing out from the evidence brought on record by the prosecution at the time of final conclusion of the trial. The reliance in this regard can be placed to a judgment of the Hon'ble Apex Court in case Hardeo Singh Versus State of Bihar and others, CRM No. M-33232 of 2011 (O&M) 10 AIR 2000 Supreme Court 2245.
19. Similarly, at the stage of framing the charge, the Court has to prima facie consider, whether there is sufficient ground for proceeding against the accused or not and the Court is not required to appreciate the evidence sufficient for conviction, at this stage.
20. A similar question was considered by the Hon'ble Supreme Court in case State of M.P. Versus S.B.Johari and others, AIR 2000 Supreme Court 665. Having interpreted the provisions of Sections 227/228 of the Cr.P.C., it was ruled that at the stage of framing the charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for conviction of the accused. If the Court is satisfied that a prima facie case is made out for proceeding further, then a charge has to be framed. Thus, it cannot possibly be saith at this initial stage that there is no sufficient evidence against the petitioner, he is innocent and has been falsely implicated.
21. Finding no alternative, the next celebrated argument of the learned counsel that as the impugned order of framing of charges and charge-sheet are non-speaking orders and the result of non-application of mind, therefore, the same deserve to be set aside, sans merit as well.
22. It is now well-settled legal proposition of law that, if the trial Court decides to frame the charge, there is no requirement to include all the facts contained in the final police report (challan), as urged on behalf of petitioner-accused or that he should pass an order specifying the CRM No. M-33232 of 2011 (O&M) 11 reasons as to why he had to do so. The framing of charge itself is a prima facie order, indicative of the fact that the trial Judge has formed the opinion upon considering the police report, other documents and after hearing both the parties that there is a ground for presuming that the accused has committed the offence, as contemplated under Sections 225 to 228 Cr.P.C. This matter is no more res integra and is now well-settled.
23. An identical question came to be decided by the Hon'ble Apex Court in case U.P.Pollution Control Board Versus Mohan Meakins Limited and others, 2000(3) SCC 745, wherein it was ruled as under (para 6):-
"6. In a recent decision of the Supreme Court it has been pointed out that the legislature has stressed the need to record reasons in certain situations such as dismissal of a complaint without issuing process. There is no such legal requirement imposed on a magistrate for passing detailed order while issuing summons vide Kanti Bhadra Shah and another Versus State of West Bengal, 2000(1) RCR(Crl.) 407 : 2000(1) SCC 722. The following passage will be apposite in this context:
"If there is no legal requirement that the trial Court should write on order showing the reasons for framing a charge, why should the already burdened trial Courts be further burdened with such an extra work? The time has reached to adopt all possible measures to expedite the Court procedures and to chalk out measures to overt all (sic) causing avoidable delays. If a Magistrate is to write detailed orders at different stages, the snail-paced progress of proceedings in trial Courts would further be slowed down. We are coming across interlocutory orders of Magistrates and Sessions Judges running into several pages. We can appreciate if such a detailed order has been passed for culminating the proceedings before them. But it is quite unnecessary to write detailed orders at other stages, such as issuing process, remanding the accused to custody, framing of charges, passing over to next stages of the trial."
(Emphasis supplied)
24. Now adverting to the next contention of learned counsel that CRM No. M-33232 of 2011 (O&M) 12 since no sanction under section 197 Cr.PC was obtained from the competent authority against a public servant, before taking cognizance by the Magistrate, so, the charges against the petitioner cannot legally be sustained, is neither tenable nor the observations of this Court in case Dr.Jaswant Singh v. State of Punjab and another 2006(4) RCR (Criminal) 525 are at all applicable to the facts of the present case, wherein while interpreting the provisions of Section 19 of the Prevention of Corruption Act, 1988 (hereinafter to be referred as "the PC Act"), it was observed that valid sanction is a condition precedent for taking cognizance of an offence. The object of the legislation in providing for a sanction under section 19 of the P.C.Act is to afford a reasonable protection to the public servants in the discharge of their official duties. The competent authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not.
25. Possibly, no one can dispute with regard to the aforesaid observations, but, to me, the same would not come to the rescue of petitioner in the instant controversy.
26. As indicated here-in-above, the very serious and specific allegations of preparing false documents, clearing forged bills and embezzling the huge amount etc. are assigned to the present petitioner. Therefore, to my mind, committing such heinous offences of misappropriation and cheating cannot possibly be termed to be an act of petitioner relatable and in connection with or in relation to the discharge of his official duty. Hence, for such illegal act, no sanction u/s 197 Cr.PC CRM No. M-33232 of 2011 (O&M) 13 is at all necessary at this stage.
27. There is yet another aspect of the matter, which can be viewed entirely from a different angle. The trial Court has rightly summoned the petitioner-accused, through the medium of impugned summoning order (Annexure P4). Similarly, having completed all the codal formalities and taking into consideration the entire evidence on record, the Magistrate charge-sheeted the petitioner and his other co- accused, by way of impugned charge sheet (Annexure P5).
28. Not only that, the revisional Court has correctly re-examined the matter and negated the plea of petitioner, vide impugned judgment (Annexure P6), which, in substance, is as under (para12):-
"I have gone through the record. From the final report under Section 173 of the Code of Criminal Procedure and documents annexed therewith it is prima facie evident that petitioner Gurdarshan Singh was working as DDPO, Bathinda and petitioner Jagtar Singh was working as BDPO, Tawandi Sabo at the relevant time when the offence of criminal conspiracy, criminal breach of trust, forgery, use of forged documents as genuine and falsification of record for the purpose of cheating etc. was committed. Panchayat land of village Phullo Khari was acquired for setting up Oil Refinery of Bathinda and a compensation of Rs.1,36,00,000/- was given to the Panchayat, out of which amount of Rs.40,51,090/- were misappropriated by showing exaggerated expenditure and false books by showing total amount of Rs.1,17,22,674/- allegedly used for the purpose of development work of Phullo Khari were prepared. Both the petitioners-accused have been charged for having committed the offence of criminal conspiracy with the other accused in order to commit the offence of criminal breach of trust, forgery and use of forged documents as genuine as well as for having committed falsification of records. It is not disputed that both the accused in one capacity or the other had supervisory powers for utilization of the amount in question. So, at this stage it cannot be said that embezzlement out of the huge amount of Rs.1,36,00,000/- was done without their knowledge or notice. While exercising revisional jurisdiction this court has very limited powers and has to see if the trial Court while framing charge against the accused has committed any illegality or error. At this stage, it cannot be presumed that the offence in question of criminal conspiracy and falsification of record for the purpose of committing criminal breach of trust and forgery etc. was committed by the accused while performing official duty as public servant or that sanction under CRM No. M-33232 of 2011 (O&M) 14 Section 197 of the Code of Criminal Procedure is required to prosecute them. The law laid in the above said judicial pronouncements relied upon by the learned counsel for the revision petitioners relating to sanction required for prosecution of public servant is not applicable to the facts in hand at this stage and on the basis of these judicial pronouncements it cannot be presumed that the impugned order has been passed by the learned trial Court illegally."
29. The learned counsel for petitioner did not point out any material/ground, muchless cogent, so as to warrant any interference in the concurrent findings contained in the impugned summoning order/charge sheet/judgment (Annexures P4 to P6) of the Courts below.
30. Meaning thereby, if the nature of accusation of criminal conspiracy, cheating, mis-appropriation, material evidence, legal position and totality of the facts and circumstances of the case, as discussed here- in-above, are put together, then, to me, the conclusion is inescapable that there is an ample evidence on record to frame the charges against the petitioner. Therefore, the contrary arguments of learned counsel for petitioner "stricto sensu" are liable to be and are hereby repelled under the present set of circumstances, as the ratio of the law laid down in the aforesaid judgments "mutatis mutandis" is applicable to the facts of the present case and is the complete answer to the problem in hand.
31. Moreover, the Courts below, after taking into consideration and appreciating the entire material on record in the right perspective, have correctly summoned the petitioner, framed the charges against him, dismissed his revision petition, by virtue of impugned summoning order/charge sheet/judgment and recorded the cogent grounds in this relevant behalf. Such order/charge-sheet (Annexures P4 & P5) and articulated judgment (Annexure P6), containing valid reasons, cannot CRM No. M-33232 of 2011 (O&M) 15 possibly be interfered in exercise of the limited jurisdiction of this Court, in the present 2nd revision petition, which is otherwise legally barred under section 397(3) Cr.PC, in the garb of petition under section 482 Cr.PC, unless and until, the same are illegal, perverse and without jurisdiction. Since no such patent illegality or legal infirmity has been pointed out by the learned counsel for the petitioner, so, the impugned summoning order/charge sheet/judgment (Annexures P4 to P6) deserve to be and are hereby maintained in the obtaining circumstances of the case.
32. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties.
33. In the light of aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of trial of the main case, as there is no merit, therefore, the instant petition is hereby dismissed as such.
34. Needless to mention that nothing observed, here-in-above, would reflect, on the merits of the main case, in any manner, during the course of trial, as the same has been so recorded for a limited purpose of deciding the present petition in this relevant connection.
19.2.2013 (Mehinder Singh Sullar)
AS Judge
Whether to be referred to reporter? Yes/No