Virendra Mishra and Others vs State of U.P. and Another

Ravindra Singh, J.—This revision has been filed by the revisionists Virendra Mishra, Vishwanath Dubey and Anil Kumar against the order dated 22.3.2007 passed by Addl Sessions Judge, Court No. Basti in Criminal Revision No. 208 of 2001 whereby the revision has been allowed by setting aside the order dated 12.4.2001 passed by the learned Chief Judicial Magistrate, Basti in Criminal Revision No. 440 of 2000 State v. Vishwanath Dubey and others whereby the learned Magistrate has discharged the applicants for the offence punishable under Sections 419, 420, 467 and 468 IPC.

The facts in brief of this case are that in the present case the F.I.R. was registered in case crime No. 150 of 1996 u/s 419, 420, 467, 468 IPC at P.S. Kotwali Basti, district Basti alleging therein that there was a racket active in district Basti which was indulged in preparing the forged certificates and marksheets of High School, Intermediate and B.T.C., on the basis of the same forged certificates the members of this racket used to get appointment in primary schools as a teacher in collusion with officials of the office of Basic Shiksha Adhikari and they used to grave money dishonestly from the persons who were curious for getting illegal appointments. The revisionists are the active members of this racket, they are related to each other. One Smt. Suman Devi, the daughter of Virendra Nath Misra who is married with revisionist Anil Kumar, the revisionists got the appointment of Smt Suman Devi, daughter of revisionists Virendra Kumar Mishra as a teacher in primary school, Barauli, district Basti by impersonating procuring the certificates and marksheets of High School, Intermediate and B.T.C. of one another girl Smt. Suman Devi, daughter of Prem Chandra Mishra, resident of village Barha, P.S. Kaundhiyara, district Allahabad, she is wife of Sri Vinod Kumar Tripathi, resident of village Pandey Ka Pura (Chhibaiya), P.S. Sarai Inayat, district Allahabad. The revisionists by playing a fraud and deceiving the D.I.O.S. Basti got the appointment of Smt. Suman Devi, the daughter of Virendra Nath Misra in a primary school, Barauli, Basti and the salary was drawn from the Government treasury, when the complaint was made regarding the aforesaid illegal appointment, her salary was withheld by the department concerned but the revisionists got the enquiry closed against Smt. Suman Devi by producing false affidavit and forged photocopy of Pariwar Register. On the basis of the complaint made against Smt. Suman Devi, she was terminated from the service by B.S.A. on 11.8.1995, with regard of the said allegation, a complaint was made by one Harish Pratap Singh, Advocate also.

After lodging the F.I.R. The matter was investigated by the police of P.S. Kotwali and after completing the investigation the charge-sheet was submitted against the revisionists on 1.6.1999 under Sections 419, 420, 467, 468 IPC. On the basis of charge-sheet submitted by the I.O. the learned C.J.M. Basti has taken the cognizance and summoned the revisionists to face the trial but discharge the application filed by the revisionists has been allowed on 12.4.2001 and the revisionists were discharged for the offence punishable under Sections 419, 420, 467 and 468 IPC by holding that there is no sufficient evidence against the accused persons for framing the charge in the aforesaid offences. Being aggrieved by the above order, the State of U.P. has preferred a revision No. 208 of 2001, the same was allowed and set aside the order dated 12.4.2001 passed by learned Addl. Sessions Judge, Court No. l, Basti on 22.3.2007 and the matter was remitted back to the Magistrate concerned to decide the case in accordance with law, it was also directed to decide the case expeditiously, if possible within a period of six months. The impugned order dated 22.3.2007 is under challenged in the revision in the hand

Heard Sri G.P. Dixit, learned Counsel for the revisionists, learned A.G.A. and Sri Ramanand Panday, learned Counsel for O.P. No. 2 Adya Prasad Tiwari.

It is contended by learned Counsel for the revisionists that the impugned order dated 22.3.2007 is illegal, it is based on inadmissible evidence and the learned Addl. Sessions Judge, Court No. 1 Basti could not have allowed the revision on the question of fact. It is further contended that in the present case Smt. Suman Devi, the alleged impersonator who got the service on the basis of the forged documents has not been made accused and she has not been charge-sheeted. The I.O. has not interrogated Smt. Suman Devi, daughter of Sri Prem Chandra Mishra whose documents were used by Smt. Suman Devi, daughter of Virendra Nath Misra even her father has also not been interrogated and there is no material collected by the I.O. to show that any forged documents have been used and no material has been collected by the I.O. to show that the revisionists have hatched a conspiracy and impersonating of the same they got the appointment of Smt. Suman Devi, daughter of Virendra Nath Misra on the basis of certificates and marksheets of Smt. Suman Devi, daughter of Sri Prem Chandra Mishra. It is further contended that the material against the revisionists is not sufficient for the conviction of the revisionists. Learned C.J.M., Basti has rightly discharged the revisionists for the offence under Sections 419, 420, 467 and 468 IPC by holding that matter is under enquiry and prior its result it is not proper to proceed further against the revisionists. No official of the office of Basic Shiksha Adhikari was interrogated and no such record has been collected by the I.O. during investigation even if it is assumed only Smt. Suman Devi can be made the accused but there is no evidence to show the involvement of the revisionists. If the Suman Devi was not charge-sheeted the present revisionists only being her relatives can not be charge-sheeted. The revisional court committed a manifest error in setting aside the order dated 12.4.2001 passed by learned C.J.M. Basti, the order of the revisional court is not passed after considering the material collected by the I.O. It is based on conjunctures and surmises. The order dated 22.3.2007 is illegal and liable to be set aside.

In reply of the above contentions, it is submitted by learned A.G.A. and learned Counsel for O.P. No. 2 that the proper investigation has not been done by the I.O. Even the statement of Smt. Suman Devi, daughter of Prem Chandra Misra was not recorded and under the influence of revisionists of Virendra Nath Misra, a main accused has not been charge-sheeted, but on the basis of material collected by the I.O. prima facie offence is made out and involvement of the revisionists in commission of the alleged offence is established. The learned C.J.M. has tried to weigh the truthfulness of the allegation and the material collected by the I.O. was meticulously analysed for which he was not legally permitted because, at this stage it is to be seen whether on the basis of material collected by the I.O. prima facie is made out or not. It is not a stage to draw any conclusion that the material is sufficient for conviction or not. The learned C.J.M. has passed erroneous order which has been rightly set aside by the revisional court. The revisional court has not committed any error of law in passing the impugned order which is a well reasoned. Therefore, the impugned order may not be quashed.

Considering the facts, circumstance of the case, submissions made by learned Counsel for the revisionists, learned A.G.A. and learned Counsel for O.P. No. 2 and from the perusal of the record as well as the impugned order dated 22.3.2007 passed by learned Addl. Sessions Judge, Court No. l, Basti and the order dated 12.4.2001 passed by the learned C.J.M. Basti, it appears that learned Magistrate has taken the cognizance on the basis of the charge-sheet submitted by the I.O. against the revisionists though the investigation has not been properly done, the important material which could be collected by the I.O. has not been collected even the statement of Smt. Suman Devi, daughter of Prem Chandra Misra has not been recorded whereas the material collected by the I.O. is disclosing the involvement of the revisionists but the learned C.J.M. has discharged the revisionists as if he has decided the case on the basis of the evidence adduced in the court. The material collected by the I.O. was for the consideration before the learned C.J.M., Basti, who has tried to evaluate the evidence and to ascertain the truthfulness of the allegations adjudicating the evidence meticulously, for which, at this stage, he was not legally permitted because at this stage, the truthfulness, veracity and effect of the evidence can not be meticulously adjudicated. At this stage it can be adjudicated that the material is sufficient for prosecution or not, it can not be adjudicated whether the trial is sure to end in the conviction. At this stage, if there is strong suspicion which leads the court to think that there is ground for presuming that accused has committed an offence then it is sufficient for prosecution of the accused. At this stage it is obligatory for the Judge to consider in any detail and weigh in a sensitive this way the facts, if remain would be in compitable with the innocence of the accused or not. The standard of test and judgment which is to be in final applied before recording the findings regarding the guilt or otherwise or not, the accused is not exactly to be applied at the stage of framing the charge or discharge the accused.

It is also well settled law that strong suspicion against accused, if the matter remains for the reason of suspicion, can not taken the place of proving of guilt at the conclusion of the trial but on the final stage if there is strong suspicion which leads the court to think that there is ground for presuming that accused has committed an offence then it is not open to the court concerned to say that there is no sufficient ground for proceeding against the accused, it has been held by Hon''ble Apex Court in the case of Superintendent of Rememberanccr , West Bengal v. Anil Kumar Bhunja and Ors. 1979 SCC (Cri.) 1938 and in the case of State of Bihar v. Ramesh Singh 1977 SCC (Cri.) 533.

In view of the above discussion and from the perusal of the material collected by the I.O. it appears that prima facie offence is made out and there is sufficient material to proceed further against the accused. The learned Chief Judicial Magistrate erroneously discharged the revisionists. The order of the discharge dated 12.4.2001 is illegal, which has been rightly set aside by the learned Addl. Sessions Judge, Court No. l, Basti vide impugned order dated 22.3.2007. The impugned order dated 22.3.2007 is a perfect order, it has been passed after considering the legal position and facts of the case. The impugned order does not require any interference therefore, the impugned order is affirmed. The prayer for quashing the impugned order is refused.

Accordingly this revision is dismissed.