Ramesh Chandra Gupta vs State of M.P.

S.L. Jain, J.

Being aggrieved by the order dated 1-8-2003 passed by the Special Judge, Jabalpur in Special Case No. 17/98 framing charges against the petitioner for offence punishable under sections 420, 476, 477, 471 and 120-B, Indian Penal Code and u/s 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the "Act"), the petitioner has filed this petition invoking revisional jurisdiction of this court under sections 397/401 of the Criminal Procedure Code.

The facts of the case which led to filing of this revision are that a charge sheet was filed by the respondent No. 1 against the petitioner and co-accused. The case of the prosecution as portrayed in the application is that the petitioner was posted as Sub-Divisional Officer in Hiran Water Resources Division, Jabalpur. Superintendent Engineer Shri M.P. Vadiya accorded sanction for engaging casual labourers on mustor roll for 14,278 days and also sanctioned Rs. 3,66,086/- but the petitioner hatched a conspiracy with co-accused and in furtherance thereof in order to misappropriate the public money engaged casual labourers for 44724-1/2 days and made payment of Rs. 11,69,303.20 paise and thus committed misappropriation of Rs. 8,03,217.20 paise. 307 mustor roll vouchers were prepared showing the payment. The mustor roll on which the thumb impression of the labourers were obtained were sent for examination by handwriting expert who reported that out of 1941 thumb impression, 1860 were not suitable for comparison. On comparing remaining 81 thumb impressions, handwriting expert found that they were put by one single person. On verification it was found that names of the labourers entered in the mustor roll were imaginary and fake. No such labourers were engaged but in the mustor roll it was shown that payment has been made.

After investigation a challan was filed for the aforesaid offence before the Special Judge. The learned Special Judge passed the impugned order framing charges against the petitioner and other co-accused for offence punishable under sections 409, 420, 468, 471, 471-A and 120-B, Indian Penal Code and u/s 13(1)(d) read with section 13(2) of the Prevention of Corruption Act.

Being aggrieved by this order the petitioner has come up in revision before this Court.

I have heard Shri S. K. Dwivedi, learned counsel appearing for the petitioner and Shri Jayant Nikhara, learned public prosecutor for the State and also, perused the impugned order and other documents filed with the petition.

The first contention of Shri Dwivedi, is that in view of para 4.005(1) of the M. P. Work Department Manual 1983, (hereinafter referred to as the "Manual"), the authority to issue sanction for casual labourers on mustor rolls vest with the Executive Engineer, therefore, even if Executive Engineer acted beyond his jurisdiction, petitioner who is S.D.O. cannot be held responsible for the same. In this case sanction was issued by the Superintendent Engineer only for 14,224 1/2 days, the work for 44,724 1/2 days could not have been permitted. When the Superintendent Engineer sanctioned only Rs. 3,66,086/- the Sub Divisional Officer could not have made the payment of Rs. 11,69,303.20.

As per Clause (vii) of para 4.005 of the Manual, it was obligation of the S.D.O. to check the attendance of casual labourers invariably and when he inspected the work he should have recorded this fact in mustor roll. Thus, during inspection he must have found that the fake entries have been made in the mustor roll and labourers whose attendance have been marked in the mustor roll have not actually worked at the site. As a superior authority, petitioner cannot escape from his responsibility. It was his duty to check the measurement as frequently as possible therefore, it cannot be said that no offence has been committed by the petitioner.

Learned Special Judge, upon consideration of the police report, documents annexed with it and hearing the parties as referred to in section 239 Criminal Procedure Code formed an opinion that there is ground for presuming that the accused has committed the offence and proceeded with the trial by framing charges against the accused. At the stage of framing charge truth, veracity or effect of the evidence which the prosecution proposes to adduce are not to be meticulously judged. If there is strong suspicion which leads to Court to think that there is ground for presuming that the accused has committed an offence, then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused.

Learned counsel appearing for the petitioner submitted that the facts emerging from the material collected by the prosecution during investigation do not constitute the offence for which the accused is alleged to have been charged, therefore, no charge can be framed against him.

The petitioner being a Sub Divisional Officer, it was his duty to restrict the use of mustor roll. It was also his duty to ensure that the persons whose names have been entered in the mustor roll and to whom the payment was made have actually worked at the site. From the facts alleged, it appears that petitioner hatched conspiracy for committing embezzlement. When the sanction was only of Rs. 3,66,086/-, he should not have allowed to pay the amount of Rs. 11,69,303.20. If he would have discharged the duty of checking the attendance of casual labourers as frequently as possible, entries of fake persons in the mustor roll would not have been possible. If he would have properly checked the measurement the embezzlement would not have taken place.

When from the facts alleged, prima facie it appears that petitioner was a party to the conspiracy and allowed the misappropriation to take place by not properly inspecting the attendance of casual labourers and forged thumb impressions were put on mustor roll, it cannot be said that there is no prima facie case to proceed against him for commission of alleged offence.

For framing charge it was not necessary for the Special Judge to arrive at a definite finding. At the time of framing of charge only prima facie case is to be seen from the documents submitted by the police along with the challan. It is not necessary to enter into detail and discuss the evidence. When in the report of Handwriting Expert it was found that most of the thumb impressions were blurred and 81 thumb impressions were of one single person, it cannot be said that no offence has been committed and the matter is of departmental enquiry only.

It is true that unless there is a strong suspicion against a person he should not be subjected to the agony of a protracted criminal trial by framing charges but where the Special Judge has considered all the material avail able on record and found that prima facie the facts do constitute the offence against the accused, the High Court cannot embark upon a enquiry as to whether the evidence in the case is reliable or not to justify the framing of the charge.

Learned counsel for the petitioner next contended that the investigation in the case was made by the Sub-Inspector of Police in violation of section 17(c) of the Act and, therefore, the whole investigation is without authority of law and the charges framed deserve to be quashed. He submits that where the investigation has been carried out in violation of section 17(c) of the Act, such investigation is not a mere irregularity but is an illegality and the entire proceedings based on the charge-sheet must fail. Sub Inspector having no authority to investigate the offence, investigation is illegal.

The contention cannot be accepted. In this case as is clear from the observation made by the learned Special Judge in his order that Judicial Magistrate was approached for granting permission u/s 17 and the Magistrate on being satisfied about existence of case, permitted Sub Inspector to investigate the matter. The legality of the investigation cannot be said to be faulted with. The petitioner could not furnish any material to rebut the observation made by the Special Judge that the permission was granted by the Magistrate.

Even otherwise failure to comply with the provisions of section 17 of the Act would not necessarily vitiate the trial as the omission of this type falls within the category of curable irregularities. Generally a trial is not vitiated because there has been no strict compliance of the Act in the matter of investigation by the police officer, therefore, the contention cannot be accepted.

Learned counsel for the petitioner lastly contended that sanction accorded u/s 19 of the Act is absolutely without application of mind and therefore, the charges framed must be quashed.

The learned Special Judge after examining the order of sanction found that the sanction order is valid. The learned counsel appearing for the petitioner could not satisfy that sanctioning authority did not examine the facts and without considering the whole matter, illegally sanction was given. Learned counsel for petitioner could not show that the sanction order does not contain facts constituting the offence and the grounds of satisfaction. Therefore, the finding of the trial Court that the sanction is valid cannot be disturbed at this stage.

The purpose of section 240, Criminal Procedure Code is to ensure that the accusation made against the accused are not frivolous. Of course, where the material available in the case creates a very strong ground and suspicion about the complicity of the accused in the crime, the Court has to frame charge as the truth, veracity and effect of evidence cannot be judged at initial stage of trial.

Thus, the order of framing charge against the petitioner is perfectly justified and I do not find any illegality in the order impugned. The petition is, therefore, dismissed.