Hari Singh & Anr. vs State of M.P.

The applicant, before this Court, has filed this criminal revision under Section 397 of Cr.P.C. against the order dated 28.10.2015 passed by Additional Sessions Judge, Ganjbasoda, District Vidisha by which the charges have been framed against the applicant for commission of offences punishable under Section 409, 420, 467, 468, 471 and 472 of Indian Penal Code, 1860.

Briefly stated the allegation against the present applicant is that during his tenure on the post of Block Education Officer in Ganjbasoda, District Vidisha, the co-accused persons carried out the forgery in the Account Book and misappropriated the public money, whereas the applicant did not observe his duties properly by critically vetting the records/Accounts Book and affixed his signature on the documents. This laps on his part facilitated the co-accused persons in commission of offences indicated above. Accordingly, the same charges have been framed against the present applicant which are framed against the other coaccused persons.

The learned counsel for the applicant took this Court through charge-sheet to submit that, the memo of charge framed by the trial Court against the applicant is without any basis and the charge-sheet does not reflect any such commission of act by the applicant. The only overact which can be borne out of the charge-sheet is that, he affixed his signature on the documents placed before him by the coaccused persons without vetting the same but there is no allegation of any benefit derived by the applicant out of his transaction or that he is the beneficiary in any manner. It is submitted that, even if the allegations against the applicant are taken on their face value, no charges which are framed against the applicant are made out, at the most, the conduct of the applicant may be negligent but the same is not enough to fasten criminal liability against the applicant. Therefore, the application deserves to be allowed.

On the other hand, learned Panel Lawyer for the respondent/State supported the impugned order and submitted that, the misappropriation could only be possible due to the applicant. Therefore, no interference can be made with the impugned order.

The contention of rival parties to be examined from the basis of material brought along with the charge-sheet. The perusal of the charge-sheet indicates that, the memo of charges as drawn by the trial Court against the applicant is far from the allegations contended in the charge-sheet. The statements which are part of the charge-sheet did not insinuate the applicant as beneficiary of the transaction in any manner, nor indicate any participation of the applicant along with the other co-accused persons. Moreover, the departmental inquiry was conducted with respect to the alleged misappropriation in which the applicant had been accused of affixing signature without vetting the said documents. Apart from it, no other allegation of being a beneficiary of the transaction has been recorded in the report.

It is a common knowledge that a higher official usually affix his signature in good faith. However, this itself is not enough to make an individual criminally liable till there is any material to show that he or she participated in the commission of said offences. The charge-sheet may have been filed against the applicant although at the stage of framing of charges, the trial Court is not accepted to be a mouthpiece of the prosecution and simply frame the charges without vetting the material against the accused persons and arriving at a conclusion that the ingredients of the said offences to be framed are satisfied. At the same time, every act of negligence, if permitted to be viewed as committed with a criminal intention, then the same would lead to travesty of justice which is to be discouraged by the Courts. Further, it is well established principle of law that the cases in which the chances of conviction are bleak cannot be permitted to continue as in the opinion of this Court, in these circumstances, participation of the criminal trial by the applicant will tantamount to punishment. The observation made herein-above finds strength from the observation in judgment of Hon''ble Supreme Court in the case of Dilawar Balu Kurane Vs. State of Maharashtra reported in (2002)2 SCC 135 which is reproduced as under:- " 12. Now the next question is whether a prima facie case has been made out against the appellant. In exercising powers under Section 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section 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 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; 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 justified to discharge the accused, and in exercising jurisdiction and Section 227 of the Code of Criminal Procedure, the Judge 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 but should not make a roving inquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

As stated earlier, neither the Special Judge nor the High Court considered the materials on record while framing charge and there was no application of mind and the Special Judge merely acted as a post office. All the materials produced by the prosecution against the accused were duly considered by the High Court while disposing of the writ petition filed by the appellant. In coming to the conclusion that the prosecution case rests upon flimsy foundation and it is quite possible that the chances of a conviction are bleak, the High Court recorded as follows:

"Without in any way prejudging the issue I must say that the vital content of the prosecution case seems somewhat amazing. An association of students provides money to an examinee to get his marks increased. This is said to have been done and the answer-books attached. The first information report is given some seven days after this incident. Information of the offence is conveyed to a police station and yet investigation by the ACB is taken up as late as March 1987. Nothing incriminating has been found with the petitioner." "

The reproduced portion of the judgment leaves no iota of doubt in the facts of the present case. The trial Court has committed an error in framing of charges against the applicant without there being any material to insinuate him. Taking this view of the matter, the instant revision application is hereby allowed and the charges framed against the applicant for the offences punishable under Section 409, 420, 467, 468, 471 and 472 of IPC are hereby quashed. The trial in respect of other co-accused persons shall continue as per law.