IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Revision No. 1180 of 2015 Krishna Murari Son of Late Jagdish Prasad, resident of Hundari, PO- Hundari PS- Hilsa, District- Nalanda (Bihar) ... … Petitioner(s) -V e r s u s- The State of Jharkhand through Vigilance … ... Opposite Party For the petitioner : Mr. P.C. Tripathi, Sr.Advocate, M/s. Nitish Krishna & Manish Krishna, Advocates For the Vigilance : Mr. Shailesh, Advocate CORAM: HON’BLE MR. JUSTICE RAVI NATH VERMA ----------- C.A.V. ON:
28. 04/2016 PRONOUNCED ON-02/09/2016 Invoking the revisional jurisdiction of this Court under Sections 397 and 401 of the Code of Criminal Procedure (in short „the Code‟), the petitioner has questioned the legality of the order dated 22.07.2015 passed by the learned Additional Judicial Commissioner- cum- Special Judge Vigilance, Ranchi in Special Case no.- 2 (A) of 2000 arising out of Patna Vigilance P.S. Case no. 11 of 2000, whereby and whereunder the petition filed by the petitioner under Section 239 of the Code for his discharge, has been rejected.
2. The factual score as depicted in the F.I.R. lodged at the instance of the Superintendent of Police under Sections 420, 467, 468, 471, 120-B and 201 of the Indian Penal Code and also under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 revelas that irregularities have been committed in appointment of Class-III and Class-IV posts in Public Health and Engineering Department between the year 1975 to 1976 and the F.I.R. was lodged after a direction given by the Hon‟ble Patna High Court. The allegation so far the petitioner is concerned, is mentioned in pargraph-4 of the F.I.R. that he had forwarded the applications of Mangru Oraon, Dinanath Singh, Gupteshwar Prasad recommended by Surendra Yadav, then then Section Officer and also the applications of Jaggu Mahali, Laurance Tuslugun, Shankar Mahli recommended by Alok Kumar Ghosh-the then Junior Engineer for 2 their appointment in IVth Grade in the said Department and in pursuance to the above recommendations, Mangru Oraon and Jaggu Mahali were appointed as Mali, Dinanath and Gupteshwar Prasad were appointed as Telephone Attendant, Laurance Tuslugun as Chowkidar-cum-Keyman and Shankar Mahali as Second Grade Plumber by Sri Raghav Choubey the then Executive Engineer of the said department. At that time, this petitioner was posted as Sub- Divisional Officer, Public Health and Engineering Department, Swarnrekha Head Works Division, Ranchi. The said appointments were made in violation of and without following the procedures prescribed for appointment of Class-IV employees.
3. After investigation, the Investigating Officer submitted the charge-sheet. Accordingly, cognizance was taken and the case was fixed for framing of charge but the petitioner filed the petition for his discharge. The learned Special Judge, Vigilance, Ranchi after hearing the parties and examining the evidences and materials on record, rejected the prayer for discharge of the petitioner by the order impugned holding sufficiency of materials including the statement of witnesses available on record to frame the charge against this petitioner. Hence, this revision.
4. Learned senior counsel Mr. P.C. Tripathi appearing for the petitioner assailing the order impugned as perverse and bad in law seriously contended that the court below without appreciating the evidence collected during investigation in right perspective rejected the prayer for discharge in a mechanical manner and even if the case of the prosecution is accepted on its face value, still on the basis of material brought on record by the prosecution, no case is made out against him in which cognizance has been taken as this petitioner being Sub-Divisional Officer had only forwarded the name of some of the persons for their appointment to the higher authorities and besides that, there is absolutely nothing on the record to show the complicity of this petitioner in the alleged offence. It was also contended that after a long delay of 11 ½ years, charge sheet has been 3 submitted and the petitioner, who retired from service on 30.06.1996 from the post of Technical Advisor, has been wrongly implicated in this case. Learned senior counsel further relying upon the order of this Court dated 21.01.2016 passed in Criminal Revision no. 481 of 2015 enclosed as Anneuxre-6 to the reply to the counter affidavit submitted that this Court after considering the case of similarly situated co-accused Ram Sundar Dasaundhi, who had also forwarded the application of one Ram Pravesh Sahu, set aside the order of the trial court rejecting the prayer for discharge and the said petitioner Ram Sundar Dasaundhi was discharged from the case and the instant case of the present accused-petitioner is exactly similar to that case.
5. Contrary to the aforesaid submissions, the learned counsel representing the Vigilance relying upon different paragraphs of the counter affidavit supported the order impugned and contended that at this stage of trial, the court has not to examine the truth, veracity and the effect of the evidences nor meticulous examination is required and only strong prima facie case, as held by the court below in the order impugned, is sufficient to frame charge against the petitioner. As such, there is no merit in this revision application.
6. Being quite conscious of the fact that the trial would be at its very threshold and that in this application, this Court is dealing with the limited aspect of the petitioner being charged or discharged, I would like to examine the scope of Section 239 of the Code, which is similar to Section 227 of the Code and the only difference is that under Section 227 of the Code, the discharge petition lies before the sessions court. The Hon‟ble Supreme Court in the case State through Inspector of Police Vs. A. Arun Kumar and Anr. [ 2015(1) East Cr. C. 450 (S.C.)] after examining the scope of Section 227 of the Code, has given a complete guidelines, which is reproduced hereinbelow: (i) “The Judge while considering the question of framing the charges under Section 227 of the Cr PC has the undoubted power to sift and weigh the evidence for the limited purpose 4 of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case. (ii) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial. (iii) The Court cannot act merely as a Post Office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. (iv) If on the basis of the material on record, the Court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. (v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the Court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. (vi) At the stage of Sections 227 and 228, the Court is required to evaluate the materials and documents on record with a view to find out if the facts emerging therefrom taken at their face value discloses the existence of all the ingredients constituting the alleged offence. For this limited purpose, to sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. (vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal.”
7. From the ratio decided in the above case, it can easily be presumed that at the initial stage, if there is strong and grave suspicion for presuming that the accused has committed an offence, in that event, it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. But in the instant case, the allegation against the petitioner is that he had forwarded the applications of some of the applicants for their appointment. On perusal of the evidence and materials on record, it would be clear that those persons were appointed on the same day 5 after the recommendation and forwarding of the application by the then Executive Engineer without following the rules and procedures for appointment of Class-IV employee. At this stage, the evidences are not to be weighed and appreciated in the same as is done at the trial and even it is not possible to make any roving enquiry into the pros and cons of the matter, but it is apparent on the face of it that the entire appointments were made in haste on the same day without following the rules and procedures. The witnesses examined during investigation have all supported the prosecution case as it appears from the order impugned. Hence, a strong and grave suspicion is there for presuming that there is a clear meeting of mind between the accused persons and it creates a suspicion over the entire appointment.
8. In the case Rajiv Thapar and others Vs. Madan Lal Kapoor; (2013) 3 SCC330 the Hon‟ble Supreme Court while dealing with the issue of discharge, held in paragraph- 28 as follows:
“28. This is not a stage of evaluating the truthfulness or otherwise of the allegations levelled by the prosecution/complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused are. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so because it would result in giving finality to the accusations levelled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in a position to succeed by establishing his defences by producing evidence in accordance with law. There is an endless list of judgments rendered by this Court declaring the legal position that in a case where the prosecution/complainant has levelled allegations brining out all ingredients of the charge(s) levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations levelled, trial must be held.“ 9. In view of the authoritative pronouncements and principles laid down by the Hon‟ble Supreme Court, this Court has only to look into the broad probabilities of the case, the strong and grave suspicion and the materials produced before the Court along with the charge sheet under Section 173 of the Code. Even if the accused is successful in showing some suspicion or doubt levelled by 6 the prosecution, at this stage it would be impermissible to discharge the accused before trial.
10. For the reason aforesaid, I do not find any illegality in the order impugned. This revision application, being devoid of any merit, is, thus, dismissed. (R.N. Verma, J.) Jharkhand High Court, Ranchi Dated, 2nd September, 2016 Ritesh/N.A.F.R.