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Shujat Ali Vs. the State of Madhya Pradesh - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Criminal Case Nos. 22, 75 and 76 of 1972
Judge
Reported inAIR1972MP151; 1972CriLJ1193
ActsConstitution of India - Article 134(1)
AppellantShujat Ali
RespondentThe State of Madhya Pradesh
Appellant AdvocateParty in person
Respondent AdvocateJ.P. Dube, Adv.
DispositionApplication dismissed
Cases ReferredIn Sunder Singh v. State of Uttar Pradesh
Excerpt:
.....certificates that the case is a fit one for appeal to the supreme court under article 134(1)(c) of the constitution filed by state as well as by the accused-applicant major shujat ali are hereby dismissed......4-10-1963 when he was transferred out of jabalpur. he was retired from service in december 1964.4. major shujat ali was at the relevant time a captain in the signals training centre, jabalpur. he was attached to hq, sub-area on 1-8-1962 for pre-staff college training. he remained attached to the hq area till 17-10-1963.5. in october 1962. brie.rajendrasingh had opened a fund for thewelfare of troops, known as 'specialtroops welfare fund'. the capital forthe fund was raised by organizing fetes,raffles, etc. major shujatali (then capt.shujatali) was appointed a receiving andaccounting officer of the fund underbrig. rajendrasingh.6. as there were reports regarding misappropriation of the moneys from the said fund, there were boards of officers appointed to look into the matter. this was.....
Judgment:

Naik, J.

1. The order in this case shall govern the disposal of Miscellaneous Criminal Case No. 75 of 1972 and Miscellaneous Criminal Case No. 76 of 1972.

2. These are all applications for certificate of fitness for leave to appeal to the Supreme Court under Article 134(1)(c) of the Constitution.

3. Brig. Rajendrasingh was Sub-Area Commander, Jabalpur from 28-4-1962. From 1-9-1963. he officiated as Area Commander, Jabalpur till 4-10-1963 when he was transferred out of Jabalpur. He was retired from service in December 1964.

4. Major Shujat Ali was at the relevant time a Captain in the Signals Training Centre, Jabalpur. He was attached to HQ, Sub-Area on 1-8-1962 for Pre-staff College Training. He remained attached to the HQ Area till 17-10-1963.

5. In October 1962. Brie.Rajendrasingh had opened a fund for thewelfare of troops, known as 'SpecialTroops Welfare Fund'. The capital forthe fund was raised by organizing fetes,raffles, etc. Major Shujatali (then Capt.Shujatali) was appointed a Receiving andAccounting Officer of the fund underBrig. Rajendrasingh.

6. As there were reports regarding misappropriation of the moneys from the said fund, there were Boards of Officers appointed to look into the matter. This was followed by a Board of Enquiry and then a Special Audit Board on whose report the matter was entrusted to the police for investigation and necessary action.

7. As a result of the police investigation, both Brig. Rajendrasingh and Major Shujat Ali were prosecuted in the Court of the Special Judge, Jabalpur.

8. It was alleged that Brig. Rajendrasingh and Major Shujatali had entered into a criminal conspiracy for embezzlement of the amounts collected for the 'Special Troops Welfare Fund' and that as a result of the conspiracy large sums belonging to the fund were in fact embezzled and misappropriated. Both Brig. Rajendrasingh and Major Shujatali were charged under Sections 120B, 465, 467 read with Sections 471. 477A. Indian Penal Code and Section 5(1)(c) and Section 5(1)(d) of the Prevention of Corruption Act.

9. The Special Judge convicted and sentenced them as under:

Conviction

Sentence

Brig. Rajendra Singh

Section 120B, I.P.C.

Rigorous imprisonment for one year.

Section 5(1)(c).Prevention of Corruption Act.

Rigorous imprisonment for a period of one year.

Section 5 (1) (d),Prevention of Corruption Act.

Rigorous imprisonment for a period of one year together with afine of Rs. 84,000/-or, indefault of payment of fine, further rigorous imprisonment for a period of oneyear.

Major Shujat Alli

Section 120B, I.P.C.

Rigorous imprisonment for a period of one year.

Section 5(1)(c),Prevention of Corruption Act.

Rigorous imprisonment for one year.

Section 5 (1) (d),Prevention of Corruption Act.

Rigorous imprisonment for a period of one year together with afine of Rs. 84,000/-or, indefault of payment of fine, further rigorous imprisonment for a period of oneyear.

Sections 465, 467/471 and 477A, I.P.C.

Rigorous imprisonment for one year onsuch count. All thesentences have been ordered to run concurrently.

10. On appeal by both, the High Court acquitted Brig, Rajendra Singh of all the three offences of which he had been convicted. The appeal of Major Shujat Ali was also allowed so far as the offence under Section 120B of the Indian Penal Code was concerned; but his convictions under Sections 465, 466/471 and (477A of the Indian Penal Code and under Clauses (c) and (d) of Sub-section (1) of Section 5 of the Prevention of Corruption Act, were affirmed. The sentences of imprisonment were also affirmed: but the sentence of a fine of Rs. 84,000/- under Section 5 (1) (d) of the Prevention of Corruption Act was reduced to Rs. 60,000/-.

11. Major Shujat Ali has filed an application for a certificate in respect of his convictions and sentences aforesaid. The State has also filed applications for certificates as it intends to challenge before the Supreme Court the acquittals of both Brig. Rajendra Singh and Major Shujat Ali under Section 120B of the Indian Penal Code and of Brig. Rajendra Singh further under Clauses (c) and (d) of Sub-section (1) of Section 5 of the Prevention of Corruption Act.

12. It is settled law that though the only condition for the issue of a certificate that the case is a fit one for appeal to the Supreme Court is the discretion of the High Court the discretion so conferred has to be exercised on sound judicial principles: Narsingh v. State of Uttar Pradesh, AIR 1954 SC 457. It has to be exercised with great circumspection and only in cases where some substantial question of law or principle is involved: Babu v. State of Uttar Pradesh, AIR 1965 SC 1467. Where, however, the question involved is one purly of fact, this Court has no jurisdiction to grant a certificate as the Supreme Court is not a final Court of criminal appeal on fact: Haripada Dev v. State of West Bengal, AIR 1956 SC 757 In Sunder Singh v. State of Uttar Pradesh AIR 1956 SC 411, the Supreme Court said:

'The word 'certifies' in this Article (Article 134(1)(c)) has a clear meaning. It requires that when giving the leave to appeal to the Supreme Court the High Court must first determine the issue of law which in its opinion is needed to be settled by the Supreme Court and that such question must be clearly set out in its order. If in the opinion of the High Court the case does not involve any such question of law, then however difficult the questions of fact in that case might be, such difficulty about facts alone cannot justify the grant of a leave.'

13. Now, so far as the applications by the State are concerned, the learned counsel for the State contends that the High Court bad erroneously not drawnthe inference of conspiracy from the facts proved in the case. It is further contended that once it had been held that the entrustment of funds was admitted by the accused, the burden was on them to explain and account for them. It was also contended that the learned single Judge had refused to draw the inference of guilt of the accused Brig. Rajendra Singh at least in respect of the two items of Rs. 500/- and Rs. 20.03 on the ground that though entrustment in respect of them was proved, the prosecution had failed to question him regarding them when he (the accused) was in the witness-box. It is argued that this refusal to draw the inference of guilt was based on an erroneous interpretation of the law of burden of proof.

14. In our opinion, the questions raised are not substantial questions of law or principle which require to be settled by the Supreme Court. The accused Brig. Rajendra Singh had entered the witness-box and had given his explanation regarding the amounts alleged to have been criminally misappropriated by him and his explanation has found favour with the Court. Whether the explanation should have been accepted under the circumstances of the case or whether it should not have been accented is not a matter on which the case could be certified as one fit for appeal to the Supreme Court.

15. The question of conspiracy has been dealt with by the learned Judge in paragraph 4 of his judgment and it appears that according to him, on the facts alleged and found proved, no reasonable inference of conspiracy arises. He has further held that if Ex. D-51 had been a genuine document, an inference of conspiracy may have been possible; but as in his opinion Ex. D-51 was a forged document, no help could be derived from it. The question is thus of an inference from proved facts and as no question of any law or principle is involved, this contention cannot warrant the grant of a certificate.

16. As regards the two items of Rs. 500.00 and Rs. 20.03 alleged to have been criminally misappropriated by the accused Brig. Rajendra Singh, the learned single Judge says:

'It was argued by the learned counsel for the prosecution that so far as the cash of Rs. 500/- and the balance of Rs. 20.03 are concerned, no explanation was given by the Brigadier. It is true that no explanation was given by the Brigadier regarding these items, but it was the duty of the prosecution to question him on these items. The Brigadier, as already stated, entered the witness-box and was cross-examined by the prosecution and ifthe prosecution wanted to rely upon these items, he should have been asked to explain them. It appears to me that by oversight both the parties forgot to question the Brigadier on these two items. The sum of Rs. 300/-, that was borrowed by Mrs. Rajendra Singh at the time when the articles were purchased from the Canteen Stores Department. Bombay, may have been very likely utilised for other similar purchases that he had made at Bombay, As regards the other item of Rs. 20.03, it is quite likely that the Brigadier may not have been informed about it or that he may have forgotten about it. In my opinion, the Brigadier cannot be made liable for any of these items.'

In our opinion, no exception can be taken to the above observations under the circumstances of the case, especially when so far as the item of Rs. 20.03 is concerned, there is the additional fact that it had not been proved that the amount had reached the Brigadier and had thus been entrusted to him.

17. Major Shujat Ali in his application for a certificate has contended that the sanction to prosecute him was not valid. This question has been considered by the learned single Judge in paragraph 20 of his judgment. The sanction is signed 'by order and in the name of the President' by N. Krishnamachari, Under Secretary to Government of India. It cannot be disputed that it is an order made and executed in the name of the President and also authenticated in the manner prescribed by the Rules made by the President. With the consent of parties the Section Officer of the Administrative Vigilance Division, Department of Personnel, Cabinet Secretariat, Government of India, was also examined. He had produced before the Court the file relating to the sanction. This evidence showed that the sanction was accorded by the Home Minister who under the Allocation of Business Rules, was authorised to sanction the prosecution in question. It may here also be mentioned that Ex. P-A showed that the sanction had also the approval of the Defence Minister. We, therefore, see no merit in the contention that the sanction was defective or invalid.

18. The main argument of the accused Major Shujat Ali was that Ex. D-51 was wrongly held to be a forgery, because if that document (Ex. D-51) is not held to be a forgery, it gives him a complete defence.

19. It is true that the fate of the accused-applicant Shujat Ali's appeal largely depended on the authenticity or otherwise of Ex. D-51 but the finding of the learned Single Judge on the question of its being a forgery is after all a findingof fact based on an appreciation of evidence and it is not within our province to grant a certificate in respect of a question of fact.

20. In our opinion, the case raises no such question of any unusual or special importance as to warrant the grant of the certificates asked for. No substantial question of law or principle arises which may require any authoritative pronouncement of the Supreme Court.

21. Under the circumstances, we see no good and sufficient reason to certify the case as one fit for appeal to the Supreme Court.

22. The applications for certificates that the case is a fit one for appeal to the Supreme Court under Article 134(1)(c) of the Constitution filed by State as well as by the accused-applicant Major Shujat Ali are hereby dismissed.


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