The High Court
Case Details
1 Cr.M.P. No. 2144 of 2013 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 2144 of 2013 Gauri Shankar Pandey … Petitioner -Versus- 1. 2. The State of Jharkhand Shiv Narayan Sah, DSE, Giridih ----- … Opposite Parties CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI -----
Legal Reasoning
For the Petitioner For the Opposite Parties : Mr. Jitendra Pandey, A.P.P. : Mr. Sudhir Kumar Roy, Advocate ----- 09/19.04.2023 Heard Mr. Sudhir Kumar Roy, learned counsel for the petitioner and Mr. Jitendra Pandey, learned counsel for the State. Earlier notice was issued upon opposite party no.2. Opposite party no.2 is DSE, Giridih and in that view of the matter, Mr. Jitendra Pandey is representing opposite party no.2. 2. This petition has been filed for quashing the entire criminal proceedings including the order dated 29.01.2013 passed by the learned Judicial Magistrate, 1st Class, Giridih in Giridih (T) P.S Case No.159/2001 dated 13.07.2001 corresponding to G.R. No.1245/2001 and T.R. No.928/2013 under Sections 409, 406, 420 of the Indian Penal Code whereby the petitioner has been summoned under Section 319 Cr.P.C. to face trial, pending in the court of the learned Judicial Magistrate, 1st Class, Giridih. 3. The FIR was lodged alleging therein that the accused Sahdeo Prasad Singh, a retired teacher of Middle School Telonari, Bengabad w.e.f 31.01.2011 and the informant got authority letter bearing No.150808 under Provident Fund Account No. GIRD No.6695 for payment of his provident fund amount of Rs.1,69,409/- from the provident fund office dated 17.05.2001 and on that basis, the informant the District Superintendent of 2 Cr.M.P. No. 2144 of 2013 Education, Giridih sent bill to the Giridih treasury, who passed the bill and prepared bank draft in favour of accused Sahdeo Prasad Singh, which was sent to the office of the informant. It was further alleged that the teacher namely Sahdeo Prasad Singh of Middle School Marudih Deori also retired on 31.01.2001 as Head Master and the provident fund office issued authority letter for payment of provident fund amount of Rs.3,82,661/- dated 14.01.2001 and the office of the informant sent that authority letter under bill to the District Treasury, Giridih, who passed the bill and prepared bank draft of the said amount and sent it to the office of the informant. It was also alleged in the FIR that Sahdeo Prasad Singh came to the office of the informant on 26.03.2001 and received the bank draft dated 26.03.2001 of the amount of Rs.3,82,661/- belonging to Sahdeo Prasad Singh, referred Head Master of Marudih Deori under his signature on the register. It was also alleged that Sahdeo Prasad Singh intentionally and in wrong ways and fraudulently received the bank draft of the retired Head Master Sahdeo Prasad Singh of Marudih, Deori. Every teacher knows his P.F. Account number and the amount due under it. The accused Sahdeo Prasad Singh of Middle School Telonari received the bank draft of higher amount than that of his own bank draft amount. The retired Headmaster Sahdeo Prasad Singh of Marudih Middle School made a written complaint to the informant on 04.05.2001 stating about the fraudulent acts and withdrawal of amount made by the accused Sahdeo Prasad Singh, a retired teacher of Telenari Middle School Bengabad. The informant on 05.05.2001 issued a registered letter to the accused Sahdeo Prasad Singh retired teacher of the said school asking him to return the bank draft immediately and further issued letter to him on 11.05.2001 to return the bank draft but accused Sahdeo Prasad 3 Cr.M.P. No. 2144 of 2013 Singh of Middle School Telenari did not response. It was also alleged that in the third week of May 2001 officials of the Teachers Federation namely Tikait Roy, Gauri Shankar Pandey and the victim Sahdeo Prasad Singh went to the house of accused Sahdeo Prasad Singh, retired teacher of Telonari who confessed his guilt before the above named persons and the villagers and stated to return the excess amount under bank draft of Allahabad Bank on 09.07.2001 and the victim Sahdeo Prasad Singh on that date did not get the bank draft. It was alleged that the accused Sahdeo Prasad Singh fraudulently taking advantage of the same name received the bank draft of Sahdeo Prasad Singh and did not return back the bank draft despite being informed and defalcated amount of Rs.3,82,261/- and the bank draft of the accused for the amount of Rs.1,69,409/- is still lying in the office of the informant. 4. Learned counsel for the petitioner submits that the petitioner was examined as P.W.2, who was the Secretary of the Teacher Association and he had identified the accused Sahdeo Prasad Singh and details of the bank draft received by accused Sahdeo Prasad Singh. He further submits that the petitioner was examined as P.W.2 and in spite of that the learned court has summoned the petitioner under Section 319 Cr.P.C. He also submits that apart from that no further allegation is there against the petitioner and in absence of any cogent reason, the petitioner has been called upon under Section 319 Cr.P.C. He further submits that the main accused namely Sahdeo Prasad Singh and Mahendra Prasad Sharma have been acquitted by the learned court vide judgment dated 05.03.2013 itself. He also submits that once the main accused have been acquitted, there is no substance in facing the trial by this petitioner, who was only identifier of Sahdeo Prasad 4 Cr.M.P. No. 2144 of 2013 Singh. He further submits that Section 319 Cr.P.C. can apply if very cogent reason and evidence is there and in absence of that, anybody cannot be summoned. On these grounds, he submits that the entire criminal proceedings, so far as this petitioner is concerned, may be quashed. 5. Learned counsel for the opposite parties submits that the statement has come and that is why the learned court has summoned the petitioner under Section 319 Cr.P.C. There is no illegality in summoning order under Section 319 Cr.P.C. 6. In view of the above submissions of the learned counsel appearing for the parties, the Court has gone through the materials on record including the order by which the petitioner has been summoned under Section 319 Cr.P.C. and finds that only on the prayer, the petitioner has been called upon under Section 319 Cr.P.C. considering that the petitioner has identified Sahdeo Prasad Singh. Apart from that, nothing has come against the petitioner. It has also not been disclosed that during the trial how many witnesses have taken the name of this petitioner. 7. Section 319 Cr.P.C. contemplates a situation where the evidence adduced by the prosecution not only implicates a person other than the named accused but is sufficient for the purpose of convicting the person to whom summons is issued. A reference may be made to the judgment passed by the Hon'ble Supreme Court in Brindaban Das & others v. State of West Bengal; [(2009) 3 SCC 329]. Paragraphs 25, 26 and 29 of the said judgment are quoted herein below: “25. The common thread in most matters where the use of discretion is in issue is that in the exercise of such discretion each case has to be considered on its own set of facts and circumstances. In matters relating to invocation of powers under Section 319, the court is not merely required to take 5 Cr.M.P. No. 2144 of 2013 note of the fact that the name of a person who has not been named as an accused in the FIR has surfaced during the trial, but the court is also required to consider whether such evidence would be sufficient to convict the person being summoned. Since issuance of summons under Section 319 CrPC entails a de novo trial and a large number of witnesses may have been examined and their re-examination could prejudice the prosecution and delay the trial, the trial court has to exercise such discretion with great care and perspicacity. 26. Although a somewhat discordant note was struck in Rajendra Singh case the views expressed in the majority of decisions of this Court on the point subscribe to the view that the power under Section 319 CrPC is to be invoked, not as a matter of course, but in circumstances where the invocation of such power is imperative to meet the ends of justice. xxx xxx xxx 29. Section 319 CrPC contemplates a situation where the evidence adduced by the prosecution not only implicates a person other than the named accused but is sufficient for the purpose of convicting the person to whom summons is issued. The law in this regard was explained in Ram Kishan Rohtagi case and as pointed out by Mr Ghosh, consistently followed thereafter, except for the note of discord struck in Rajendra Singh case. It is only logical that there must be substantive evidence against a person in order to summon him for trial, although, he is not named in the charge-sheet or he has been discharged from the case, which would warrant his prosecution thereafter with a good chance of his conviction.” 8. In view of the provisions made under Section 319 Cr.P.C., the word 'evidence' in Section 319 CrPC has to be broadly understood and not literally i.e. as evidence brought during a trial. However, the power under Section 319 CrPC is to be invoked, not as a matter of course, but in circumstances where the invocation of such power is imperative to meet the ends of justice. In the case in hand, the main accused have already been acquitted and the petitioner has called upon under Section 319 Cr.P.C. and the Court finds that how many witnesses have taken the name of the petitioner, is not disclosed in the impugned order. 9.
Decision
In view of the above facts, reasons and analysis, the entire criminal proceedings including the order dated 29.01.2013 passed by the learned Judicial Magistrate, 1st Class, Giridih in Giridih (T) P.S Case No.159/2001 6 Cr.M.P. No. 2144 of 2013 dated 13.07.2001 corresponding to G.R. No.1245/2001 and T.R. No.928/2013, pending in the court of the learned Judicial Magistrate, 1st Class, Giridih, so far as the petitioner is concerned, is quashed. 10. Accordingly, this petition is allowed and disposed of. Ajay/ (Sanjay Kumar Dwivedi, J.)