The Code of Criminal Procedure, 1973 - Section 239 - When accused shall be discharged - the placement of the relevant papers i.e. cash memo etc. apart from the fact that same happens to be the subject of verification, is not at all unimpeachable document and that being so, at the stage of 239 Cr.P.C., same could not be taken into consideration.
IN THE HIGH COURT OF JUDICATURE AT PATNA
CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
01-02-2019
Criminal Miscellaneous No.15423 of 2018
Arising Out of PS. Case No.-134 Year-2009 Thana- NAGARNAUSA
District- Nalanda
Shyam Kishore Prasad @ Madan Prasad v. The State Of Bihar
Appearance : For the Petitioner/s : Mr. Umesh Kumar Verma, Adv. Mr. Munna Pd.
Singh, Adv.
For the Opposite Party/s :
Mr. Kanhaiya Kishore, APP
O R D E R
1. Heard learned counsel for the petitioner as well as learned A.P.P.
2. Petitioner/accused is aggrieved by an order dated 30.11.2017
passed by Sri Sunil Kumar Singh, Judicial Magistrate, 1st Class, Hilsa, Nalanda
relating to Nagarnausa P.S. Case No.134/2009, G.R. No.1469/2009 whereby and whereunder
prayer of the petitioner to discharge in accordance with Section 239 Cr.P.C.
has been rejected.
3. In order to support the plea, it has been argued at the end of the
learned counsel for the petitioner that petitioner happens to be government
servant (teacher). On the same allegation he was departmentally prosecuted and
was exonerated on the ground that no misappropriation at his end has been
committed. So urged that in the background of aforesaid finding, instant
prosecution would not survive. In addition thereto, it has also been urged that
the petitioner had furnished details of account concerning the cash received by
him which has been accepted by the Department whereupon exonerated from the
charge of misappropriation.
4. It has further been submitted that at the stage of 239 of the
Cr.P.C. the Magistrate is not expected to act as a post office nor mouth piece
of the prosecution. The court has to scrutinize the material more particularly,
in the given facts and circumstances of the case, on account of exoneration of
charges during departmental proceeding, would have taken a sound legal ground
to discharge the petitioner and that being so, the order impugned is bad and is
fit to be set aside. Learned counsel for the petitioner on that very pretext
has relied upon Ramdoss vs. K. Thangavelu reported in (2000) 2 SCC 135, Om Prakash Gupta vs. State of Bihar reported in 2000(2) PLJR 238, P.S.
Rajya vs. State of Bihar reported in (1996) 9 SCC 1, Dr. Shiv Kumar vs. State of Bihar reported in 2018(1) PLJR 412, Naresh
Kumar Yadav vs. The State of Bihar & Anr. reported in 2013(4) PLJR 828.
5. On the other hand, the learned A.P.P. opposed the prayer and
submitted that at the stage of framing of charge, the mode of consideraion of
the material happens to be weaker than prima facie case as has been held in Amit Kapoor vs. Ramesh
Chander reported
in (2012) 9 SCC 460. Consequent thereupon, the
order impugned did not attract interference whereupon, his petition is fit to
be rejected.
6. Area Education Officer, Noorsarai, as per direction of the
District Superintendent of Education filed written report as, the Incharge
Headmaster, Moti Prasad even on superannuation, has not handed over complete
charge nor furnished account with regard to withdrawal of lacs of rupees prior
to 30.09.2007. The aforesaid order contained the inquiry report submitted by
the Area Education Officer wherein he had incorporated that even after
superannuation of Moti Sah, the Incharge Headmaster he had not handed over full
charge nor he had submitted accounts with regard to withdrawal at his end prior
to 30.09.2007. It has also been disclosed that the amount has been withdrawn by
Moti Prasad after having counter signature of Shyam Kishore Prasad @ Madan
Prasad (petitioner) and during course thereof, huge amount has been withdrawn
through cheque having in name of Shyam Kishore Prasad and for that Shyam
Kishore Prasad has also not furnished account. It has also been disclosed that
in spite of account being jointly operated by the Moti Prasad and Shyam Kishore
Prasad, in account register there happens to be endorsement only at the end of
Moti Prasad, having signature of Moti Prasad but nothing has been at the end of
Shyam Kishore Prasad with regard to withdrawal having at his end. On query,
Shyam Kishore Prasad disclosed that the original register has been changed by
Moti Prasad in order to misappropriate the amount. It has also been disclosed
that the members of the committee namely Chandrika Lal, Kailash Prasad had
withdrawn Rs.2,71,200/- but, the details of same has not been furnished. Then
there also happens to be disclosure with regard to malfunctioning of midday
meal programme.
7. Initially, FIR was registered only against Moti Prasad. Though
presence of petitioner was in the report annexed with the written report but
was not arrayed as an accused at the time of registration. However, during
course of investigation he has been made an accused, charge sheeted and as is
evident, after having appearance of the accused persons when the matter came up
for charge, a petition has been filed at the end of the petitioner attracting
for discharge whereupon, the order impugned has been passed, subject matter of
challenge under instant petition.
8. Whether at the stage of framing of charge the documents having at
the end of the accused is to be considered or not has been subject to
consideration in Three Judges Bench State of Orissa vs. Debendra Nath Padhi reported in (2005) 1 SCC 568 and the same view has been
followed in Rukmini Narvekar vs. Vijaya Satardekar & Ors. reported in (2008) 14 SCC 1.
“22. Thus in our opinion while it is true that ordinarily defence
material cannot be looked into by the Court while framing of the charge in view
of D.N. Padhi's case (supra), there may be some very rare and exceptional cases
where some defence material when shown to the trial court would convincingly
demonstrate that the prosecution version is totally absurd or preposterous, and
in such very rare cases the defence material can be looked into by the Court at
the time of framing of the charges or taking cognizance.
In our opinion, therefore, it cannot be said as an absolute proposition
that under no circumstances can the Court look into the material produced by the
defence at the time of framing of the charges, though this should be done in
very rare cases, i.e. where the defence produces some material which
convincingly demonstrates that the whole prosecution case is totally absurd or
totally concocted. We agree with Shri Lalit that in some very rare cases the
Court is justified in looking into the material produced by the defence at the
time of framing of the charges, if such material convincingly establishes that
the whole prosecution version is totally absurd, preposterous or concocted.
The same view has reiterated in Harshendra Kumar D. vs. Rebatilata Koley
Etc. reported
in 2011(3) PLJR 100 (SC).
That being so, the
placement of the relevant papers i.e. cash memo etc. apart from the fact that
same happens to be the subject of verification, is not at all unimpeachable
document and that being so, at the stage of 239 Cr.P.C., same could not be taken
into consideration.
9. Examination of an accused in Departmental proceeding could be a
ground to discharge the accused. A three judges bench in State (NCT of Delhi)
vs. Ajay Kumar Tyagi reported in (2012) 9 SCC 685 the Hon'ble Apex Court formulated the question and answered the
same in following manner:
“15. Now we proceed to consider the question of law referred to us,
i.e., whether the prosecution against an accused, notwithstanding his
exoneration on the identical charge in the departmental proceeding could continue
or not?
16. xxx
xxx
17. We have given our anxious consideration to the submissions
advanced and in order to decipher the true ratio of the case, we have read the
judgment relied on very closely. In this case, the allegations against the delinquent
employee in the departmental proceeding and criminal case were one and the
same, that is, possessing assets disproportionate to the known sources of
income. The Central Bureau of Investigation, the prosecutor to assess the value
of the assets relied on the valuation report given later on. This Court on fact
found that “the value given as basis for the charge- sheet is not value given
in the report subsequently given by the valuer.”
This would be evident from the
following passage from paragraph 15 from the judgment:
“15…….According to the
learned counsel the Central Vigilance Commission has dealt with this aspect in
its report elaborately and ultimately came to a conclusion that the subsequent
valuation reports on which CBI placed reliance are of doubtful nature. The same
view was taken by the Union Public Service Commission. Even otherwise the value
given as basis for the charge-sheet is not the value given in the report
subsequently given by the valuers.”
18. Thereafter, this Court referred to its earlier decision in the
case of State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, and reproduced
the illustrations laid down for exercise of extraordinary power under Article
226 of the Constitution of India or the inherent powers under Section 482 of
the Code of Criminal Procedure for quashing the criminal prosecution. The categories
of cases by way of illustrations, wherein power could be exercised either to prevent
the abuse of the process of the court or otherwise to secure the ends of
justice read as follows:
“(1) Where the allegations made in the first information report or
the complaint, even if they are taken at their face value and accepted in their
entirety do not prima facie constitute any offence or make out a case against
the accused.
(2) Where the allegations in the first information report and
other materials, if any, accompanying the FIR do not disclose a cognizable
offence, justifying an investigation by police officers under Section 156(1) of the Code except under an
order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or
complaint and the evidence collected in support of the same do not disclose the
commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a
cognizable offence but constitute only a non-cognizable offence, no
investigation is permitted by a police officer without an order of a Magistrate
as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so
absurd and inherently improbable on the basis of which no prudent person can
ever reach a just conclusion that there is sufficient ground for proceeding
against the accused.
(6) Where there is an express legal bar engrafted in any of the
provisions of the Code
or the Act concerned (under
which a criminal proceeding is instituted) to the institution and continuance
of the proceedings and/or where there is a specific provision in the Code or the Act concerned,
providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala
fide and/or where the proceeding is maliciously instituted with an ulterior
motive for wreaking vengeance on the accused and with a view to spite him due
to private and personal grudge.”
The aforesaid illustrations do not contemplate that on exoneration
in the departmental proceeding, the criminal prosecution on the same charge or evidence
is to be quashed. However, this Court quashed the prosecution on the peculiar
facts of that case, finding that the said case can be brought under more than
one head enumerated in the guidelines. This would be evident from paragraphs 21
and 22 of the judgment, which read as follows:
“21. The present case can be brought under more than one head
given above without any difficulty.
22. The above
discussion is sufficient to allow this appeal on the facts of this case.”
19. Even at the cost of repetition, we hasten to add none of the heads
in the case of P.S. Rajya (Supra) is in relation to the effect of exoneration in
the departmental proceedings on criminal prosecution on identical charge. The
decision in the case of P.S. Rajya (Supra), therefore does not lay down any
proposition that on exoneration of an employee in the departmental proceeding,
the criminal prosecution on the identical charge or the evidence has to be
quashed.
20. It is well settled that the decision is an authority for what it
actually decides and not what flows from it. Mere fact that in P.S. Rajya (Supra),
this Court quashed the prosecution when the accused was exonerated in the
departmental proceeding would not mean that it was quashed on that ground. This
would be evident from paragraph 23 of the judgment, which reads as follows:
“23.
Even though all these facts including the Report of the Central Vigilance
Commission were brought to the notice of the High Court, unfortunately, the
High Court took a view that the issues raised had to be gone into in the final proceedings
and the Report of the Central Vigilance Commission, exonerating the appellant of
the same charge in departmental proceedings would not conclude the criminal
case against the appellant. We have already held that for the reasons given, on
the peculiar facts of this case, the criminal proceedings initiated against the
appellant cannot be pursued. Therefore, we do not agree with the view taken by
the High Court as stated above. These are the reasons for our order dated
27-3-1996 for allowing the appeal and quashing the impugned criminal
proceedings and giving consequential reliefs.”
From the reading of the
aforesaid passage of the judgment it is evident that the prosecution was not
terminated on the ground of exoneration in the departmental proceeding but, on
its peculiar facts.
21. It is worth mentioning that decision in P.S. Rajya (supra) came up
for consideration before a two-Judge Bench of this Court earlier, in the case of
State v. M. Krishna Mohan, (2007) 14 SCC 667. While
answering an identical question i.e. whether a person exonerated in the
departmental enquiry would be entitled to acquittal in the criminal proceeding
on that ground alone, this Court came to the conclusion that exoneration in departmental
proceeding ipso fact would not lead to the acquittal of the accused in the
criminal trial. This Court observed emphatically that decision in P.S. Rajya (supra)
was rendered on peculiar facts obtaining therein. It is apt to reproduce paragraphs
32 and 33 of the said judgment in this connection:
“32. Mr Nageswara Rao relied upon a decision of this Court in P.S. Rajya v. State of
Bihar [1996 (9) SCC 1]. The fact situation
obtaining therein was absolutely different. In that case, in the vigilance report,
the delinquent officer was shown to be innocent. It was at that juncture, an application
for quashing of the proceedings was filed before the High Court under Section 482 of the Code of Criminal Procedure
which was allowed relying on State of Haryana v. Bhajan Lal [1992 Supp. (1) SCC 335] holding: (P.S. Rajya case
[1996 (9) SCC 1, SCC p.9, para 23)]
“23. Even though all these facts including the report of the Central
Vigilance Commission were brought to the notice of the High Court,
unfortunately, the High Court took a view that the issues raised had to be gone
into in the final proceedings and the report of the Central Vigilance
Commission, exonerating the appellant of the same charge in departmental
proceedings would not conclude the criminal case against the appellant. We have
already held that for the reasons given, on the peculiar facts of this case,
the criminal proceedings initiated against the appellant cannot be pursued.”
Ultimately this Court concluded as follows:
“33. The said decision was, therefore, rendered on the facts
obtaining therein and cannot be said to be an authority for the proposition
that exoneration in departmental proceeding ipso facto would lead to a judgment
of acquittal in a criminal trial.”
22. This point also fell for consideration before this Court in the
case of Supdt. of Police (C.B.I.) v. Deepak Chowdhary, (1995) 6 SCC 225, where quashing
was sought for on two grounds and one of the grounds urged was that the accused
having been exonerated of the charge in the departmental proceeding, the
prosecution is fit to be quashed. Said submission did not find favour with this Court and it
rejected the same in the following words:
“6. The second ground of departmental exoneration by the
disciplinary authority is also not relevant. What is necessary and material is whether
the facts collected during investigation would constitute the offence for which
the sanction has been sought for.”
23. The decision of this Court in the case of Central Bureau of
Investigation v. V.K. Bhutiani, (2009) 10 SCC 674, also throws light on the question involved.
In the said case, the accused against whom the criminal proceeding and the departmental
proceeding were going on, was exonerated in the departmental proceeding by the Central
Vigilance Commission. The accused challenged his prosecution before the High
Court relying on the decision of this Court in the case of P.S. Rajya (supra)
and the High Court quashed the prosecution. On a challenge by the Central Bureau
of Investigation, the decision was reversed and after relying on the decision
in the case of M. Krishna Mohan (supra), this Court came to the conclusion that
the quashing of the prosecution was illegal and while doing so observed as
follows:
“6. … In our opinion, the reliance of the High Court on the ruling of
P.S. Rajya was totally uncalled for as the factual situation in that case was
entirely different than the one prevalent here in this case.”
24. Therefore, in our opinion,
the High court quashed the prosecution on total misreading of the judgment in
the case of P.S. Rajya (Supra). In fact, there are precedents, to which we have
referred to above speak eloquently a contrary view i.e. exoneration in
departmental proceeding ipso facto would not lead to exoneration or acquittal
in a criminal case. On principle also, this view commends us. It is well
settled that the standard of proof in department proceeding is lower than that
of criminal prosecution. It is equally well settled that the departmental proceeding
or for that matter criminal cases have to be decided only on the basis of
evidence adduced therein. Truthfulness of the evidence in the criminal case can
be judged only after the evidence is adduced therein and the criminal case can
not be rejected on the basis of the evidence in the departmental proceeding or
the report of the Inquiry Officer based on those evidence.
25. We are, therefore, of the opinion that the exoneration in the
departmental proceeding ipso facto would not result into the quashing of the criminal
prosecution. We hasten to add, however, that if the prosecution against an
accused is solely based on a finding in a proceeding and that finding is set
aside by the superior authority in the hierarchy, the very foundation goes and
the prosecution may be quashed. But that principle will not apply in the case
of the departmental proceeding as the criminal trial and the departmental
proceeding are held by two different entities. Further they are not in the same
hierarchy.
10. In State vs. S. Selvi reported in (2018) 13 SCC 455, it has been held:
“It is well settled by this Court in catena of judgments including
the cases of Union of India v. Prafulla Samal, (1979) 3 SCC 4; Dilawar Babu v.
State of Maharashtra (2002) 2 SCC 135 Sajjan Kumar v. CBI (2010) 9 SCC 368;
State v. A. Arun Kumar (2015) 2 SCC 417; Sonu Gupta v. Deepak Gupta (2015) 3
SCC 424; State of Orissa v. Debendra Nath Padhi (2003) 2 SCC 711; Niranjan
Singh Karam Singh Punjabi etc. v. Jitendra Bhimraj Bijjayya (1990) 4 SCC 76 and
Superintendent & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja
(1979) 4 SCC 274 that the Judge while considering the question of framing charge
Under Section 227 of the Code in sessions cases (which is akin to Section 239 Code
of Criminal Procedure pertaining to warrant cases) has the undoubted power to sift
and weigh the evidence for the limited purpose of finding out whether or not a prima
facie case against the Accused has been made out; where the material placed before
the Court disclose grave suspicion against the Accused which has not been properly
explained, the Court will be fully justified in framing the charge; by and
large if two views are equally possible and the Judge is satisfied that the
evidence produced before him while giving rise to some suspicion but not grave
suspicion against the Accused, he will be fully within his rights to discharge
the Accused. The Judge cannot act merely as a Post Office or a mouth-piece of the
prosecution, but has to consider the broad probabilities of the case, the total
effect of the statements and the documents produced before the Court, any basic
infirmities appearing in the case and so on. This however does not mean that
the Judge should make a roving enquiry into the pros and cons of the matter and
weigh the materials as if he was conducting a trial.
11. Accordingly, instant petition sans merit and is rejected.