Madhya Pradesh High Court
G.D. Singh vs State Of Madhya Pradesh on 24 November, 1989
Equivalent citations: 1990(0)MPLJ39
ORDER K.L. Shrivastava, J.
1. This revision petition is directed against the order dated 8-1-1985 passed by the Sessions Judge, Jhabua in Cr. R. No. 49 of 1984 whereby the order passed by the J.M.F.C., Alirajpur in Cr. Case No. 393/84 discharging the applicant in respect of offences under sections 409, 467 and 420, Indian Penal Code has been set aside and it has been directed that charge under section 409 read with either section 109 or section 120B ibid be framed against him.
2. Circumstances giving rise to this revision petition are these: On complaints having been received that in the office of the District Organisor, Tribal Welfare, Alirajpur, Criminal breach of trust has been committed in respect of transactions relating to repairs of iron cots and repairs of electric fittings in the hostels. Enquiry was made by the Project Officer. He found that complaints were true. In addition, he found that there has been criminal breach of trust also in relation to the transactions relating to preparation of sign boards. He, accordingly, submitted his report to the Collector, Jhabua who wrote to the S. P., Jhabua for necessary action to be taken against the offenders.
3. On the basis of the reports of the Project Officer, Crime No. 42/83 was registered at P.S., Alirajpur and investigation was set afoot.
4. On the completion of the investigation, the present petitioner who was Block Development Officer, Alirajpur, together with R. K. Joshi, District Organisor, Tribunal Welfare, Alirajpur; Harish Trivedi, Hostel Supdt., Chichalgura; Patalsingh, Hostel Supdt., Alirajpur; Sub-Engineer P. N. Khode and Asstt. Accounts Officer V. R. Sonone were found involved in the crime. By the time charge-sheet could be presented, the last two had died and the other 4 alone were prosecuted.
5. The aforesaid criminal case was eventually registered in the Court of J.M.F.C., Alirajpur and in the exercise of his powers under section 239 of the Code of Criminal Procedure, 1973 (for short the 'Code') considering the charges against the present petitioner and R. K. Joshi to be groundless, he discharged them. The State, being aggrieved by the said order, filed a revision petition in the Court of Session, Jhabua. The learned Sessions Judge had disposed of the said revision by the impugned order.
6. The contention of the learned counsel for the petitioner is that the petitioner is in no way involved in the crime and the impugned order deserves to be set aside.
7. The point for consideration is whether the revision petition deserves to be allowed. On a careful consideration of the submissions made and of the material on record, I find that the impugned order cannot be allowed to stand.
8. It is clear from the decision in C. S. Mfg. Co.'s case, AIR 1972SC 545 that the order framing charge does substantially affect the person's liberty and the Court must, therefore, apply its judicial mind to the entirety of the facts and circumstances in a given case for coming to a conclusion one or the other.
9. In a criminal trial the accused has the shield of presumptive innocence around him. Barring offences where the Legislature, in public interest, excludes mens rea as a constituent of the crime and makes the criminal liability absolute, actus reus (unlawful act) and mens rea (guilty mind) both must concur to constitute the crime. Therefore, before any charge may be framed against any accused in respect of any offence under the Penal Code, it is for the prosecution to satisfy the Court that the material on record makes out a prima facie case against him or that it is such that it gives rise to a strong suspicion that he has committed the crime in question in all its ingredients.
10. It may be pointed out that conjectures and surmises cannot constitute the material contemplated as furnishing ground for framing of charge.
11. It has to be remembered that mere negligence in the discharge of duty cannot give rise to criminal liability it is a different matter that it may give ground for departmental proceedings.
12. Reference at this stage may be made to the provisions in section 211(5) of the Code. Therein the Legislature has provided thus: -
211(5) The fact that the charge is made is equivalent to a statement that every legal condition required by law to constitute the offence charged was fulfilled in the particular case.
13. Chapter XIX (containing sections 238 to 250) of the Code relates to trial of warrant cases by Magistrate. In regard to cases instituted on a Police report, section 239 of the Code providing as to when accused shall be discharged lays down that where after considering the documents therein referred to and making examination, if any of the accused 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. Section 240 of the Code provides for framing of charge and lays down that if upon such consideration, examination if any and hearing, the Magistrate is of the opinion that there is ground for presuming that the accused has committed an offence triable under the Chapter which the Magistrate is competent to try and which in his opinion could adequately be punished by him, he shall frame a charge against the accused. In respect of cases instituted otherwise than on Police report, section 245(1) provides that if upon taking all the evidence referred to in section 244 the Magistrate considers, for reasons to be recorded that no case against the accused has been made out, which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.
14. Despite difference in the phraseology in the two sections 239 and 245(1) of the Code the substance of the matter is that where there is no prima facie case against the accused, he is to be discharged otherwise charge has to be framed. If the material is sufficient to raise a strong suspicion against the accused, he is not entitled to be discharged. A charge can be said to be groundless when the material furnished by the record is such that no reasonable basis or foundation whatever can be found to support the accusation made against the accused. It is not for the Magistrate at this stage to consider whether the material when tested by cross-examination would or would not be capable of acceptance for a finding of conviction. It is not for him to make presumption either on the basis of omission or an ambiguous statement which are capable for explanation. Considerations which might become available to him at the conclusion of the trial cannot be availed of at this stage and benefit of doubt cannot be given. Despite order of discharge, the Magistrate is not functus officio against the accused, till the cognizance which is properly taken, comes to an end.
15. In the decision in Rajaram Gupta's case, 1983 MPLJ 56 the following pertinent observation occurs in para 6:
"While deciding the revision petition some of the well-settled principles have always to be kept in mind. For example, an order ought not to be lightly set aside unless it has entailed miscarriage of justice or where two views are possible merely the fact that the revising Court takes other view than the one taken by the lower Court. The bare possibility of an additional offence or some alleged offence being made out would not in itself justify further enquiry. A further enquiry ought not to be ordered also where it would prove futile. The order discharging an accused should not be interfered with unless it is perverse or on the face of the record incorrect or foolish or perfunctory or glaringly unreasonable or has been made without recording reasons for discharging the accused."
16. In para 5 of the aforesaid decision in Rajaram Gupta's case (supra) regarding the provision in section 398 of the Code it has been observed as under:-
"The only order that could be made by the revising Court under this section is for a 'further enquiry'. No direction, therefore, in nature of putting any impediment in the judicial discretion to be exercised by the lower Court has to be made. (See: AIR 1967 Ori. 62). Any direction or instruction indicating the manner in which further enquiry is to be made and particularly whether to frame a particular charge can also not be given. (AIR 1941 Mad. 65)
17. Reference at this stage may also be made to the decision in N. R. Dhawan's case, 1978 Cr.LJ. 769 which relates to the corresponding provision in the repealed Code, 1898. It has been observed as under:-
"It is manifestly clear that there are two courses open to the revisional court (1) either to set aside' the order of discharge and direct a fresh enquiry to be made under section 436 in which case the enquiry will automatically review or (2) that instead of directing any fresh enquiry pass an order committing the accused for trial to the Court of Session. An order of the second category amounts to an order of commitment and there is no necessity of any further enquiry at all."
18. In the instant case only allegation against the petitioner is that he had certified the repairs of the electric fittings in the hostel at Jhabua. It is not the prosecution case that he was in any way connected with the transactions relating to repairs of iron cots and preparation of sign boards.
19. On a perusal of the record I find that the learned Magistrate has rightly stated that except the mention of the name of the present petitioner in the charge-sheet there is no material against him. There is nothing on record to show that the petitioner had certified the repairs of electric fitting in the hostel at Jhabua. I find that in reversing the order passed by the learned Magistrate, the learned Sessions Judge has resorted to surmises in regard to the petitioner's criminal liability.
20. In the ultimate analysis, for the foregoing reasons, I am of the view that the impugned order cannot be allowed to stand. Apart from the fact that the impugned order is in excess of the powers under section 398 of the Code, on merits, too, it is bad as there is no material to sustain it.
21. In the result, the revision petition is allowed. The impugned order passed by the learned Sessions Judge is set aside and the one passed by the learned Magistrate so far as it relates to the present petitioner is concerned, is restored.