Jharkhand High Court

Yogesh Kumar Jha vs The State Of Jharkhand on 15 September, 2021

                                      1

      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                    Cr.M.P. No. 963 of 2020

   Yogesh Kumar Jha, aged about 50 years, son of late Birendra Kumar Jha,
   resident of Baramasia near Ambedakar Chowk, Deoghar, P.O. and P.S. Deoghar,
   District-Deoghar 814112(Jharkhand)                         ...... Petitioner
                           Versus
1.The State of Jharkhand
2. The Executive Engineer, Road Division, Deoghar, Road Construction Department,
P.O. and P.S. Deoghar, District, Deoghar-814112 (Jharkhand)   ...... Opp. Parties
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CORAM:        HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
                          ---------
For the Petitioner        : Mr. Sumeet Gadodia, Advocate
For the State             : Mr. Kaushik Sarkhel, G.A.-V

C.A.V. On:- 23/08/2021                       Pronounced on: 15/09/2021

Heard Mr. Sumeet Gadodia, learned counsel for the petitioner and Mr.

Kaushik Sarkhel, learned counsel for the State.

2. This petition has been heard through Video Conferencing in view of the

guidelines of the High Court taking into account the situation arising due to

COVID-19 pandemic. None of the parties have complained about any technical

snag of audio-video and with their consent these matters have been heard.

3. The present petition has been filed for quashing of order dated

31.01.2020 passed by learned Additional Sessions Judge-V, Deoghar in Criminal

Revision No. 125 of 2015 wherein the Revision Application filed by the petitioner

challenging the order dated 02.06.2015 passed by the learned Judicial Magistrate,

Deoghar in Deoghar Town P.S. Case No. 127 of 2009, corresponding to G.R. Case

No. 315 of 2009 wherein the application filed by the petitioner for discharge under

section 239 Cr.P.C. has been dismissed. Further prayer has been made for

quashing of order dated 02.06.2015 passed by the learned Judicial Magistrate,

Deoghar in the aforesaid case whereby the application filed by the petitioner for

discharge under section 239 Cr.P.C. has been dismissed.

4. The F.I.R. has been lodged on the basis of written application of the

Executive Engineer, Road Division, Deoghar stating therein as under:-

It has been stated that during the tenure of one Shri Santosh Kumar

Singh, the then Executive Engineer, an agreement bearing No. 9F2/2007-08 was

entered into with one Ram Kripal Singh Construction Private Limited for the work

of widening and strengthening of Sarath Palajore Road.

It is alleged that during the execution of the said work, the work of the

contractor was being supervised and entry with respect to the supervision of the

work, was entered in the Measurement Book.

It is further alleged that on the basis of entry made in the measurement

book, preparation of bills were made, checking of the bills were done, passing of

bills were undertaken and thereafter preparation of cheques were being made by

all the accused persons named in the F.I.R. including the present petitioner.

It is further alleged that the contractor in connivance with the

accused persons got defective works executed which were not as per specification

and in order to conceal the said evidence, regarding payment made towards

defective work, measurement book bearing no. 2896 was made traceless.

It is further alleged that even the representative of the contractor used

to exert pressure for payment of defective contract work upon the department.

On the basis of these premises, F.I.R. being Deoghar Town P.S. Case

No. 127 of 2009 dated 16.04.2009 for the offence under sections

406/409/420/467/468/471/201/506/508/120B of the I.P.C. has been registered.

5. Mr. Sumeet Gadodia, learned counsel for the petitioner submitted

that petitioner is an employee of the office of the Principal Accountant General (A

& E), Jharkhand and at the relevant point of time, the petitioner was posted as

Divisional Accounts Officer in Road Division, Deoghar between the period

14.08.2008 and 18.08.2009. He further submitted that under the provision of Bihar

Public Accounts Code, the petitioner was posted as Divisional Accountant by the

office of the Accountant General, Jharkhand to assist the Divisional

Officer/Executive Officer in the Division in discharge of its responsibility. He

further submitted that the petitioner is not required to supervise in any manner

comment upon the quality and otherwise of the work to be executed by one or

the other departments of the State Government including Road Construction

Department. He further submitted that his role is limited to the extent of verifying

the bills submitted by concerned engineers of the department by carrying out

arithmetical calculation of the work undertaken by taking into consideration the

work of the said contractor entered in the Measurement Book and the rates

agreed to be paid to such contractor. He further submitted that from Clause 230

of the P.W.A. Code, it is evident that the petitioner had no role whatsoever in the

matter of preparation of measurement book. He further submitted that the

petitioner was made an accused in the instant case, merely because the petitioner

made certain mathematical calculations of the work entered in the measurement

book. He further submitted that from perusal of F.I.R., it is evident that the F.I.R.

was lodged primarily alleging inter alia the loss of measurement book with an

intent to conceal the evidence regarding payments made of defective works

allegedly carried out by the contractor. Learned counsel for the petitioner

further submitted that office of the Accountant General (A & E), Jharkhand vide

its letter date 28.01.2011 directed for giving clear allegation and evidence against

the petitioner in order to accord sanction for prosecution. He further submitted

that no case is made out against the petitioner.

6. On the point of maintainability under section 482 Cr.P.C. after criminal

revision, learned counsel for the petitioner relied upon judgment in the case of

"Surya Baksh Singh V. State of Uttar Pradesh " reported in (2014) 14 SCC

222 wherein para 20 & 21, the Hon'ble Supreme Court has held as under:-

"20. A three-Judge Bench clarified in Krishnan v. Krishnaveni that although a second revision before the High Court after dismissal of the first one by the Court of Session is barred by Section 397(3), the inherent powers of the High Court under Section 482 are nevertheless available albeit with restraint so as to avoid needless multiplicity of the proceedings. This Court had opined that:

"8. ... when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities.

9. The inherent power of the High Court is not one conferred by the Code but one which the High Court already has in it and [it] is preserved by the Code."

21. Raj Kapoor v. State considered the question whether the inherent powers of the High Court under Section 482 stand repelled when the

revisional power under Section 397 overlaps. The view was that: "10. ... Section 482 contradict this contention because nothing [in] the Code, not even Section 397, can affect the amplitude of the inherent power preserved in so many terms by the language of Section 482. Even so, a general principle pervades this branch of law when a specific provision is made: easy resort to inherent power is not right except under compelling circumstances. Not that there is absence of jurisdiction but that inherent power should not invade areas set apart for specific power under the same Code."

7. On the same point, learned counsel for the petitioner relied upon

judgment in the case of "Dhariwal Tobacco Products Limited & Another V.

State of Maharashtra & Another." reported in (2009) 2 SCC 370, wherein

para 6, the Hon'ble Supreme Court has held as under:-

"6.Indisputably issuance of summons is not an interlocutory order within the meaning of Section 397 of the Code. This Court in a large number of decisions beginning from R.P. Kapur v. State of Punjab to Som Mittal v. Govt. of Karnataka has laid down the criterion for entertaining an application under Section 482. Only because a revision petition is maintainable, the same by itself, in our considered opinion, would not constitute a bar for entertaining an application under Section 482 of the Code. Even where a revision application is barred, as for example the remedy by way of Section 115 of the Code of Civil Procedure, 1908, this Court has held that the remedies under Articles 226/227 of the Constitution of India would be available. Even in cases where a second revision before the High Court after dismissal of the first one by the Court of Session is barred under Section 397(2) of the Code, the inherent power of the Court has been held to be available."

8. On the point of principles of discharge, learned counsel for the

petitioner relied upon judgment in the case of "L. Krishna Reddy V.

State by Station House Officer & Others" reported in (2014) 14 SCC

401 wherein para 8 to 12, the Hon'ble Supreme Court has held as under:-

"8. The charge-sheet does not indicate any complicity so far as the parents of the deceased are concerned. Obviously, if the murder has been committed in Pondicherry a direct role in that unfortunate event cannot be ascribed to them. Of course, it is theoretically possible that they may have abetted or conspired in the crime or persuaded their son to have perpetrated the crime. However, this version is not forthcoming from the charge-sheet. The appellant, in his further statement, has alleged that--"on the last 25-3-2006 night as per the plans of Ramachandra Reddy, his father Vidyasagar Reddy and mother Naarasamma, Ramachandra Reddy had killed my daughter Sujatha brutally at a hotel at Pondicherry due to dowry harassment...." This is the only statement which contains an allegation pertaining to the possible conspiracy of the husband's parents who, it must be kept in focus, were not in Pondicherry at the time when Sujatha was done to

death by her husband. In our opinion, it is not sufficient to merely make a bald statement but further catenation should exist linking all the conspirators together. Sifting through the evidence i.e. the statement made by several witnesses, there is no direct imputation that either of Respondents 2 and 3 before us had either independently or along with their deceased son, made a demand for dowry. We should not lose sight of the fact that the deceased couple had earlier been living with the unfortunate wife's family, and thereafter independently of either of the parents-in-law. In fact, as has been noted by the High Court in the impugned order according to the statement of the complainant father of the deceased, some demands have been made by his son-in-law.

9. Our attention has been drawn to a recent judgment titled CBI v. K.

Narayana Rao, wherein after discussing the previous opinions of this Court in a number of cases including State of Haryana v. Bhajan Lal, it was opined that in order to make good the commission of an offence of criminal conspiracy, it should be evident that an agreement between the conspirators should have been in existence at the material time.

10. Our attention has been drawn to Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia as well as K. Narayana Rao but we are unable to appreciate any manner in which they would persuade a court to continue the prosecution of the parents of the deceased. After considering Union of India v. Prafulla Kumar Samal, this Court has expounded the law in these words:

"14. ... In fact, Section 227, itself contains enough guidelines as to the scope of enquiry for the purpose of discharging an accused. It provides that 'the Judge shall discharge when he considers that there is no sufficient ground for proceeding against the accused'. The 'ground' in the context is not a ground for conviction, but a ground for putting the accused on trial. It is in the trial, the guilt or the innocence of the accused will be determined and not at the time of framing of charge. The court, therefore, need not undertake an elaborate enquiry in sifting and weighing the material. Nor is it necessary to delve deep into various aspects. All that the court has to consider is whether the evidentiary material on record if generally accepted, would reasonably connect the accused with the crime. No more need be enquired into."

11. The court is neither a substitute nor an adjunct of the prosecution. On the contrary, once a case is presented to it by the prosecution, its bounden duty is to sift through the material to ascertain whether a prima facie case has been established which would justify and merit the prosecution of a person. The interest of a person arraigned as an accused must also be kept in perspective lest, on the basis of flippant or vague or vindictive accusations, bereft of probative evidence, the ordeals of a trial have to be needlessly suffered and endured. We hasten to clarify that we think the statements of the complainant are those of an anguished father who has lost his daughter due to the greed and cruelty of his son-in-law. As we have already noted, the husband has taken his own life possibly in remorse and repentance. The death of a child even to avaricious parents is the worst conceivable punishment.

12. Since the prosecution would be an exercise in futility it should be brought to a quick end; and this is possible only if an order of discharge vis-à-vis the parents who are the remaining accused is passed. This is exactly what has transpired in the wisdom of the High Court by means of the impugned order. We find no error therein.

Accordingly the appeal is dismissed."

9. On the same point, learned counsel for the petitioner relied upon

judgment in the case of " Yogesh @ Sachin Jagdish Josshi V. State of

Maharashtra" reported in (2008) 10 SCC 394 wherein para 15 & 16 the

Hon'ble Supreme Court has held as under:-

"15. Chapter XVIII of the Code lays down the procedure for trial before the Court of Session, pursuant to an order of commitment under Section 209 of the Code. Section 227 contemplates the circumstances whereunder there could be a discharge of an accused at a stage anterior in point of time to framing of charge under Section

228. It provides that upon consideration of the record of the case, the documents submitted with the police report and after hearing the accused and the prosecution, the court is expected, nay bound to decide whether there is "sufficient ground" to proceed against the accused and as a consequence thereof either discharge the accused or proceed to frame charge against him.

16. It is trite that the words "not sufficient ground for proceeding against the accused" appearing in the section postulate exercise of judicial mind on the part of the Judge to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. However, in assessing this fact, the Judge has the power to sift and weigh the material for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine a prima facie case depends upon the facts of each case and in this regard it is neither feasible nor desirable to lay down a rule of universal application. By and large, however, if two views are equally possible and the Judge is satisfied that the evidence produced before him gives rise to suspicion only as distinguished from grave suspicion, he will be fully within his right to discharge the accused. At this stage, he is not to see as to whether the trial will end in conviction or not. The broad test to be applied is whether the materials on record, if unrebutted, make a conviction reasonably possible."

10. Relying on the aforesaid judgments, learned counsel for the petitioner

submitted that this is a fit case for allowing petition as the Trial Court as well as

the Reivisional Court has erred in dismissing the petition under section 239 Cr.P.C.

11. Mr. Kaushik Sarkhel, learned counsel appearing for the State

submitted that it is apparent from the order dated 31.01.2020, passed in Criminal

Revision No. 125 of 2015 by the learned Additional Sessions Judge-V, Deoghar that

six accused persons including the petitioner have filed the criminal revision

challenging the order dated 02.06.2015 passed in Deoghar Town P.S. Case No.

127/2009, corresponding to G.R. No. 315 of 2009 and the said criminal revision

has been dismissed by the concerned court. He further submitted that the

concerned Court has came to finding that F.I.R. was lodged against nine accused

persons on 16.04.2009. An agreement was entered into between one Ram Kripal

Singh Construction Private Limited for the work of widening and strengthening of

Sarath-Paljore Road. During execution of the work, the work of the contractor

was being supervised and entry with respect to the supervision of the work was

entered in the measurement book and on the basis of entry made in the

measurement book, preparation of bills were made, checking of the bills were

done, passing of bills were undertaken and thereafter, preparation of cheques

were being made He submitted that these facts were done in connivance of all the

accused persons including the petitioner. He submitted that the contractor in

connivance with the accused persons got defective works executed, which were

not as per the specification and in order to conceal the said evidence regarding

payment made towards defective works, measurement book bearing no. 2896 was

made traceless. Even the representatives of the contractor are also involved in the

entire work of execution and payment of defective contract. He further submitted

that it was found in the letter of the then Executive Engineer, Road Construction

Department, Road Division, Deoghar that an agreement was entered in the year

2007-08 dated 25.07.2007 for a total amount of Rs. 15,59,33,510/- and Rs.

9,95,15,000/- had been spent for the above construction work till December, 2008.

The work executed is of extremely poor quality and not as per the specifications.

He submitted that several witnesses were examined. The Measurement Book No.

2896 is traceless. He submitted that petitioner has conducted the verification of

the bills and given his consent on the back side of the cheques, which were sent

for payment which clearly reflects the involvement of the petitioner along with

other accused persons. He further submitted that the case was handed over to

the Crime Investigation Department on 05.09.2011 by the Deoghar District Police.

He further submitted that for discharge even after under section 239 Cr.P.C., the

Court is required to satisfy that the case is made out and there are some material

proceeding against him. The Court is to prima facie find out whether beyond

reasonable doubt there is commission of offence for framing of charge at this

stage or not.

12. Learned counsel for the State submitted that two Courts have

applied their mind and discharge petition has been dismissed. He further

submitted that the Court is not required to make a roving enquiry. He relied on

judgment in the case of " M.E. Shivalingamurthy V. Central Bureau of

Investigation, Bengaluru" reported in (2020) 2 SCC 768 wherein para 11 &

17, the Hon'ble Supreme Court has held as under:-

"11. We notice the following findings: (M.E. Shivalingamurthy Case, SCC Online Kar Paras 16-17)

16. Applying the formulae of (some/mere suspicion -- grave suspicion: as enunciated in Dilawar Balu Kurane case and Union of India v. Prafulla Kumar Samal, to the evidentiary material placed before the court against respondent, then also the needle tilts more towards grave suspicion. The subject-matter involved in this case is the natural resource of the country and the alleged offence is said to have caused loss to the State exchequer substantially. The respondent is a responsible officer of the State. Consciously he passed the order in violation of the statutory provisions.

17. The learned trial Judge in the order impugned has made an omnibus observation that his action does not fasten criminal liability on him and the statement of the witnesses does not show that he committed criminal conspiracy. Though there was no direct evidence, the learned trial Judge has lost sight of incriminating material appearing in the circumstantial evidence placed by the prosecution. Limited power vested with the trial court to sift and weigh the evidence is transgressed by the learned trial Judge in the impugned order, hence requires intervention in this revision jurisdiction."

17. This is an area covered by a large body of case law. We refer to a recent judgment which has referred to the earlier decisions viz. P. Vijayan v. State of Kerala and discern the following principles: 17.1. If two views are possible and one of them gives rise to suspicion only as distinguished from grave suspicion, the trial Judge would be empowered to discharge the accused.

17.2. The trial Judge is not a mere post office to frame the charge at the instance of the prosecution.

17.3. The Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding. Evidence would consist of the statements recorded by the police or the documents produced before the Court.

17.4. If the evidence, which the Prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, "cannot show that the accused committed offence, then, there will be no sufficient ground for proceeding with the trial".

17.5. It is open to the accused to explain away the materials giving rise to the grave suspicion.

17.6. The court has to consider the broad probabilities, the total effect of

the evidence and the documents produced before the court, any basic infirmities appearing in the case and so on. This, however, would not entitle the court to make a roving inquiry into the pros and cons. 17.7. At the time of framing of the charges, the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution, has to be accepted as true.

17.8. There must exist some materials for entertaining the strong suspicion which can form the basis for drawing up a charge and refusing to discharge the accused."

13. Learned counsel for State further relied upon judgment in the case of

"State through Inspector of Police Vs. A. Arun Kumar & Another" reported

in (2015) 2 SCC 417 wherein para 9, the Hon'ble Supreme Court has held as

under:-

"9. This Court then went on to cull out principles as regards scope of Sections 227 and 228 of the Code, which in our view broadly apply to Sections 238 and 239 of the Code as well. It was observed thus in para 21: (Sajjan Kumar case, SCC pp. 376-77) "Exercise of jurisdiction under Sections 227 and 228 CrPC

21. On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge:

(i) The Judge while considering the question of framing the charges under Section 227 CrPC 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. 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 material 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, 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."

14. Learned counsel for the State submitted that on the stage of

discharge, the principles have been dealt with by the Hon'ble Supreme Court in the

case of " P. Vijayan V. State of Kerala & Another" reported in (2010) 2

SCC 398 wherein para 10, it has been held as under:-

"10. Before considering the merits of the claim of both the parties, it is useful to refer to Section 227 of the Code of Criminal Procedure, 1973, which reads as under:

"227. Discharge.--If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing."

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. Further, the words "not sufficient ground for proceeding against the accused" clearly show that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the court, after the trial starts."

15. Learned counsel for the State submitted that what needs to be required

by the Court to follow while considering the discharge petition, has been discussed

in the case of " Sheoraj Singh Ahlawat & Others V. State of Uttar Pradesh

& Another" reported in (2013) 11 SCC 476 wherein para 18, the Hon'ble

Supreme Court has held as under:-

"18. In State of Orissa v. Debendra Nath Padhi this Court was considering whether the trial court can at the time of framing of charges consider material filed by the accused. The question was answered in the negative by this Court in the following words:

"18. We are unable to accept the aforesaid contention. The reliance on Articles 14 and 21 is misplaced. ... Further, at the stage of framing of charge roving and fishing inquiry is impermissible. If the contention of the accused is accepted, there would be a mini-trial at the stage of framing of charge. That would defeat the object of the Code. It is well settled that at the stage of framing of charge the defence of the accused cannot be put forth. The acceptance of the contention of the learned counsel for the accused would mean permitting the accused to adduce his defence at the stage of framing of charge and for examination thereof at that stage which is against the criminal

jurisprudence. By way of illustration, it may be noted that the plea of alibi taken by the accused may have to be examined at the stage of framing of charge if the contention of the accused is accepted despite the well-settled proposition that it is for the accused to lead evidence at the trial to sustain such a plea. The accused would be entitled to produce materials and documents in proof of such a plea at the stage of framing of the charge, in case we accept the contention put forth on behalf of the accused. That has never been the intention of the law well settled for over one hundred years now. It is in this light that the provision about hearing the submissions of the accused as postulated by Section 227 is to be understood. It only means hearing the submissions of the accused on the record of the case as filed by the prosecution and documents submitted therewith and nothing more. The expression 'hearing the submissions of the accused' cannot mean opportunity to file material to be granted to the accused and thereby changing the settled law. At the state of framing of charge hearing the submissions of the accused has to be confined to the material produced by the police."

16. Relying on the aforesaid judgments, learned counsel for the State

submitted that at this stage two Courts have given concurrent finding on the said

petition as such this petition is fit to be dismissed. He further submitted that this is

not a case of interference in view of the fact that the petitioner was found prima

facie guilty of criminal misconduct in discharging his official duty and cooperating

with the accused persons.

17. On perusal of impugned order dated 02.06.2015, it transpires that the

Trial Court has discussed at length the role of the accused persons wherein it has

been found that the bills prepared on the basis of measurement book were

scrutinized by the petitioner and accused Mukesh Kumar Singh, the then Accounts

Clerk and the same were forwarded to the petitioner Yogesh Kumar Jha, Accounts

Officer, who after checking the bills, M.B. and the allotment presented the same

before the accused Santosh Kumar Singh, who knowing well that those bills and

M.B. were defective and forged used to pass it. In the revisional order the

concerned Court has dealt with all the points and passed detail order. It has been

considered by the revisional Court that the informant has stated in his statement

that the bills passed were forged and defective and the same were sent to the

accused Dinesh Prasad Bharti for preparation of cheques, and the petitioner -

Yogesh Kumar Jha used to give his consent on the back side of the cheque before

the same was sent to accused Santosh Kumar Singh. The accused Dipendra

Kumar Mishra used to carry the documents from one table to another. In the case

diary in para 14 & 15 it has been disclosed that the measurement book was made

traceless under the conspiracy by the accused persons including this petitioner.

Even accepting the submissions of Mr. Sumeet Gadodia, learned

counsel for the petitioner about the role of the petitioner, the petitioner was

required to satisfy with the cheque as it was not his duty, the trial court as well

as reivisional court applied their judicial mind and passed detail order in rejecting

the discharge petition of the petitioner.

18. It is needless to say that at the time of consideration of the

applications for discharge, the court cannot act as a mouthpiece of the prosecution

or act as a post office and may sift evidence in order to find out whether or not

the allegations made are groundless so as to pass an order of discharge. It is trite

that at the time of consideration of an application for discharge, the court has to

proceed with an assumption that the materials brought on record by the

prosecution are true and evaluate the said materials and documents with a view to

find out whether the facts emerging therefrom taken at their face value disclose

the existence of all the ingredients constituting the alleged offence. At this stage,

probative value of the materials has to be gone into and the court is not

expected to go deep into the matter and hold that the materials would not warrant

a conviction. What needs to be considered is whether there is a ground for

presuming that the offence has been committed and not whether a ground for

convicting the accused has been made out. To put it differently, if the court thinks

that the accused might have committed the offence on the basis of the materials

on record on its probative value, it can frame the charge, though for conviction,

the court has to come to the conclusion that the accused has committed the

offence. At this stage, mini trial is not permitted.

19. The principles laid down by the Hon'ble Supreme Court in the

judgments relied by the learned counsel for the State are required to be looked

into at the time of deciding petition for discharge. On the point of maintainability,

the judgment relied by the learned counsel for the petitioner in the case of

"Surya Bakshi Singh"(supra) and in the case of "Dhariwal Tobacco

Products Limited" (supra), the said principles are well settled. For doing

substantial justice though even after the criminal revision order, the Court can

exercise its power under section 482 Cr.P.C.

20. In the case in hand, both the Courts have dealt with discharge

petition effectively. The judgment relied by the learned counsel for the petitioner

in the case of "L. Krishan Reddy" (supra) the fact in that case was that in the

chargesheet it was not indicated about any complicity so far as parents were

concerned and on that ground the Hon'ble Supreme Court has passed that order

but the fact of this case is different. The judgment relied by the learned counsel

for the petitioner in the case of "Yogesh @ Sachin Jagdish Joshi" (supra) the

Hon'ble Supreme Court has observed that the test to determine a prima facie case

depends upon the facts of each case and in this regard it is neither feasible nor

desirable to lay down a rule of universal application. This judgment is not helping

the petitioner.

21. The Hon'ble Supreme Court in the case of "State V. S. Selvi"

reported in (2018) 13 SCC 455 in para 6 has held as under:-

6. It is well settled by this Court in a catena of judgments including Union of India v. Prafulla Kumar Samal, Dilawar Balu Kurane v. State of Maharashtra, Sajjan Kumar v. CBI, State v. A. Arun Kumar, Sonu Gupta v. Deepak Gupta, State of Orissa v. Debendra Nath Padhi, Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya and Supt. & Remembrancer of Legal Affairs v. Anil Kumar Bhunja that the Judge while considering the question of framing charge under Section 227 of the Code in sessions cases (which is akin to Section 239 CrPC pertaining to warrant cases) 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 material placed before the court discloses grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing the charge; 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 within his rights to discharge the accused. 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 statements and the documents produced before the court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the materials as if he was conducting a trial.

.

22. The Hon'ble Supreme Court in the case of "State V. J.

Doraiswamy" reported in (2019) 4 SCC 149 in para 15 and 16 has held as

under:-

"15. While considering the case of discharge sought immediately after the charge-sheet is filed, the court cannot become an appellate court and start appreciating the evidence by finding out inconsistency in the statements of the witnesses as was done by the High Court in the impugned order running in 19 pages. It is not legally permissible.

16. We have neither set out the facts and nor the evidence (which is yet to be led and tested in the trial) in detail and have also refrained ourselves from recording any finding on the merits of the case, else it will cause prejudice to the rights of the parties while prosecuting their case in the trial."

23. The record of the present case suggests that there is material against

the petitioner. The petitioner has signed on the back of the cheque which was not

his duty.

24. No interference is required in order dated 31.01.2020 passed by

learned Additional Sessions Judge-V, Deoghar in Criminal Revision No. 125 of 2015

and in order dated 02.06.2015 passed by the learned Judicial Magistrate, Deoghar

in connection with Deoghar Town P.S. Case No. 127 of 2009, corresponding to G.R.