Madhya Pradesh High Court
H.S. Gupta vs Shri Kumar Panday on 20 November, 2019
Author: Rajeev Kumar Dubey
Bench: Rajeev Kumar Dubey
1 Cr.R.No.117/2016
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Single Bench : Hon'ble Shri Rajeev Kumar Dubey, J.
Criminal Revision No.117/2016
H.S. Gupta
vs.
Shri Kumar Pandey and Anr.
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Shri R.P. Gupta, learned counsel for the applicant.
None for the complainant/respondent No.1 though represented.
Shri Shivam Hazari, learned Panel Lawyer for the respondent/State.
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ORDER
Reserved on : 13/11/2019 Delivered on : 20/11/2019 This criminal revision has been filed under Section 397/401 of Cr.P.C. against the order dated 26.11.2015 whereby learned First Additional Session Judge, Sidhi framed the charge against the applicant for the offence punishable under Sections 420/34, 467/34, 468/34, 471/34 of the IPC and Section 6 of Madhya Pradesh Vinirdishta Bhrashta Acharan Nivaran Adhiniyam (hereinafter referred to as "Adhiniyam).
Brief facts for the case which are relevant to the disposal of this petition are that complainant/respondent No.1 Shrikumar Pandey filed a private complaint before Judicial Magistrate First Class, Sidhi averring that in the year 2001 Madhya Pradesh Government sanctioned Rs.2,00,000/- for repairing work of Sidhi Dam and Canal and Collector directed to co-accused Kapil Agnihotri, Executive Engineer, Water Resources Department, Sidhi to conduct said repairing work. That work of repairing was done by the Digitally signed by VARSHA SINGH Date: 2019.11.25 12:56:56 +05'30' 2 Cr.R.No.117/2016 applicant H.S. Gupta, the then Sub-Divisional Officer, Water Resources Department, Sub-Division, Sidhi and co-accused Kapil Agnihotri. It was alleged that they prepared seven forged muster-roll Nos.(i) 03790/8, (ii) 03808/4, (iii) 03808/10, (iv) 03808/12, (v) 03808/15, (vi) B3808/16, (vii) 03790/29, in which the name of some persons who employed in other departments and some persons who died two years ago were mentioned and they withdrew the payment in the name of these persons mentioning that they also did job in the repairing work of Dam and Canal and embezzled that amount, so action be taken against them. On that learned JMFC recorded the statements of complainant/respondent No.1 Shrikumar Pandey and his witnesses, thereafter, took cognizance against the applicant and co-accused for the offence punishable under Sections 167, 466B, 468, 471 & 120-B of the IPC and registered the Criminal Case No.1434/2008 and vide order dated 17/2/2014 learned JMFC committed the case to the court of Sessions. On that, S.T. No.56/2014 was registered which is pending before 3 rd ASJ, Sidhi. Learned ASJ Vide order dated 26.11.2015, framed charge against the applicant for the offence punishable under Sections 420/34, 467/34, 468/34, 471/34 of IPC and Section 6 of Madhya Pradesh Vinirdishta Bhrashta Acharan Nivaran Adhiniyam. Being aggrieved from that order, the applicant filed this revision.
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 the name of the dead persons in the muster roll. The task of preparing the muster roll and filling up the attendance of the workers engaged in the work was of the timekeeper and Sarpanch. The 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. Likewise, according to the provisions of Section 37 & 39 of the Adhiniyam, no Court can take cognizance of the offence punishable under the Adhiniyam without prior permission of the Commissioner, while in this case learned trial Court without sanction of Commissioner took cognizance against the applicant for the offence punishable under Section 6 of the Adhiniyam and wrongly framed charges against the applicant for the offences punishable Digitally signed by VARSHA SINGH Date: 2019.11.25 12:57:17 +05'30' 3 Cr.R.No.117/2016 under Section 420/34, 467/34, 468/34, 471/34 of IPC and Section 6 of the Adhiniyam. In this regard learned counsel of the applicant also placed reliance on this Court judgement passed in the case of Murlidhar Agrawal Vs. State of Madhya Pradesh reported in 2011 (3) MPLJ 152, S.P. Kori Vs. State of M.P. (2001) 2 MPLJ 702 and another judgement passed by Division Bench of this Court in the case of Jaynaryan Para Vs. State of Madhya Pradesh and another in M.Cr.C.No.4076/2014 dated 16/7/2014.
Learned counsel for the respondent/State opposed the prayer and submitted that from the evidence of complainant and his witnesses prima- facie it appears that the applicant who was posted as Sub-Divisional Officer, Water Resources Department, Sub-Division, Sidhi at the time of incident prepared forged muster-roll in which the name of some persons who employed in other departments and some persons who died two years ago were mentioned and they withdrew the payment in the name of these persons mentioning that they also did job in the repairing work of Dam and Canal and embezzled that amount. So, learned trial Court did not commit any mistake in framing charge against the applicant for the offence punishable under Sections 420/34, 467/34, 468/34, 471/34 of IPC and Section 6 of Madhya Pradesh Vinirdishta Bhrashta Acharan Nivaran Adhiniyam.
This Court has gone through the record and arguments advanced by the learned counsel for the parties. Hon'ble apex court in his judgment passed in Hem Chand Vs. St. of Jharkhand reported in (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 probable conviction for commission of an offence has been made out on the basis of the materials found during the investigation. It would ordinarily not consider whether accused would be able to establish his defence if any. In Bharat Parikh Vs. Central Bureau of Investigation and another, (2008) 10 SCC 109 also 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 Digitally signed by VARSHA SINGH Date: 2019.11.25 15:22:22 +05'30' 4 Cr.R.No.117/2016 stage of framing of charge, the submissions on behalf of the accused have to be confined to the material produced by the investigating agency. in Soma Chakravarty Vs. State through CBI, (2007) 5 SCC 403 held at the stage of framing of charge-Material brought on record has to be accepted true. In- State Of Orissa Vs. Debendra Nath Padhi, AIR 2003 SC 1512 Hon'ble apex court considered the matter in detail and held that at the stage of framing of charge the defence of the accused cannot be considered. In the matter of Sheoraj Singh Ahlawat and others Vs. State of Uttar Pradesh and another, (2013) 11 SCC 476, Their Lordships of the Supreme Court, while reiterating the law laid down in Debendra Nath Padhi's case (supra), have clearly held that at the time of framing charge, the accused is entitled to urge his contentions only on materials submitted by the prosecution, he is not entitled to produce any material at this stage and the Court is not required to consider any such material, if submitted.
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. or complaint and the documents sent with it. For framing of charge strong suspicion about the commission of the offence and accused's involvement of offence is sufficient. On merits, Materials/documents filed by accused can not be considered. The 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.
If we examine the instant case, in the light of the above pronouncement of the apex court from the complaint it is apparent that at the time of incident applicant was posted as Sub-Divisional Officer, Water Resources Department, Sub-Division, Sidhi. In the complaint and in the statement of the complainant it is mentioned that the applicant in connivance with co-accused Kapil Agnihotri prepared forged muster roll and withdrew the payment in the name of the person who worked in other department and some have died, showing that they worked in Dam repairing work. At this stage, this court cannot ascertain the veracity of the statements of these witnesses by evaluating the Digitally signed by VARSHA SINGH Date: 2019.11.25 15:22:37 +05'30' 5 Cr.R.No.117/2016 statement of these witnesses on merits, because it requires evidence to decide. 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. Co-accused prepared forged muster roll without the knowledge of the applicant is the defence of the applicant which also requires evidence to decide. So that also can not be considered at this stage. So, looking to the averment of the complaint, 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 420/34, 467/34, 468/34, 471/34 of IPC and Section 6 of Madhya Pradesh Vinirdishta Bhrashta Acharan Nivaran Adhiniyam against the applicant.
Section 39 of Madhya Pradesh Vinirdishta Bhrashta Acharan Nivaran Adhiniyam reads as thus;
"39. Cognizance of offences.- All offences under this Act shall be cognizable :
[Provided that the Police Officer shall not investigate an offence under this Act except on a direction of the prescribed authority, not below the rank of Commissioner of Division on a report admitted by him to such authority].
[Provided further that the State Government may, at any time for the purpose of satisfying itself as to the propriety of any order passed by the Commissioner of the Division as prescribed authority either on its own motion or on reference made by the prescribed authority, shall call for and examine the record of any case pending before or disposed by such authority and may pass such order in reference thereto as it thinks fit.] Which clearly shows that Section 39, of the Madhya Pradesh Vinirdishta Bhrashta Acharan Nivaran Adhiniyam, provides for the permission of a police officer to investigate the crime under the Adhiniyam and not in relation to cognition of crime. While in this case, the police did not investigate the matter. Complainant/respondent No.2 filed the private complaint, before JMFC. Even learned trial court also took cognizance Digitally signed by VARSHA SINGH Date: 2019.11.25 15:22:52 +05'30' 6 Cr.R.No.117/2016 against the applicant for the offence punishable under Sections 420/34, 467/34, 468/34, 471/34 of the IPC and for taking cognizance for those offences no sanction of Commissioner is required.
Even applicant earlier also had filed Criminal Revision No.2782/2015 against the order dated 16/10/2015 whereby learned ASJ rejected the applicant's application filed under Section 205 of Cr.P.C. and also rejected co- accused Kapil Agnihotri's application filed under Section 197 of Cr.P.C. and held that without taking sanction from the government prosecution is maintainable. Criminal Revision No.2782/2015 filed by the applicant was dismissed by co-ordinate Bench of this Court in want of prosecution vide order dated 24.08.2016 and the Criminal Revision No.2741/2015 filed by the co-accused Kapil Agnihotri was dismissed by the co-ordinate bench of this court vide order dated 16/11/2015 observing that "present revision is hereby dismissed as withdrawn with the liberty that all such objections of merits can be raised before the trial Court at the time of framing of charges but objection under Section 197 of Cr.P.C. cannot be raised again" while applicant by way of this petition again raised objection regarding cognizance.
The facts of the cases Murlidhar Agrawal Vs. State of Madhya Pradesh (Supra), S.P. Kori Vs. State of M.P. (supra) and Jaynaryan Para Vs. State of Madhya Pradesh and another (supra) as relied upon by the learned counsel of the applicant do not match with the present case. In the first case charge-sheet was filed by the police after investigation of crime while in this case a private complaint was filed by the respondent. In that case co-ordinate bench of this court acquitted the accused for the charge punishable under Section 6 on the ground that mens rea is not proved from the statement of prosecution witnesses. While in this case trial is going on and at this stage, this court is no right to evaluate all the prosecution evidence on the merits. In the second case, police filed charge sheet against the accused on that coordinate Bench of this court held that police has no right to file charge sheet for the offences punishable under the Adhiniyam without taking permission from the officer below the rank of Commissioner. In that case, also co-ordinate bench of this Court directed to the trial court to proceed Digitally signed by VARSHA SINGH Date: 2019.11.25 15:23:05 +05'30' 7 Cr.R.No.117/2016 further in the case for the commission of an offence punishable under Section 409/34 of the IPC. In this case also apart from Section 6 of Madhya Pradesh Vinirdishta Bhrashta Acharan Nivaran Adhiniyam trial court also framed charge against the applicant for the offence punishable under Sections 420/34, 467/34, 468/34, 471/34 of the IPC, so only on the basis that the charge of Section 6 of Madhya Pradesh Vinirdishta Bhrashta Acharan Nivaran Adhiniyam is not made out against the applicant. Applicant can not be discharged for all the charges. In third case a division bench of this Court set aside the proceeding of criminal case on the ground that Magistrate has no right to send the complaint under Section 156 (3) of Cr.P.C. for investigation to Special Police Establishment, Lokayukta while in this case Magistrate did not send the complaint to Special Police Establishment, Lokayukta, so that judgements do not assist the applicant.
Learned counsel of the applicant also admitted that the statement of only one prosecution witnesses remains to be recorded. Which shows that the trial is all most completed. In these circumstances, there is no need to interfere in the impugned order of the trial court. Hence the petition is dismissed with the liberty to the applicant that the applicant is free to raise all his objection before the trial Court at the appropriate stage which shall be decided by the learned trial Court according to law at an appropriate stage without being influenced by the impugned order or observation made by this Court in this revision.
(Rajeev Kumar Dubey) Judge vs Digitally signed by VARSHA SINGH Date: 2019.11.25 15:23:18 +05'30'