Jharkhand High Court

Gauri Shankar Pandey vs The State Of Jharkhand on 19 April, 2023

                                                     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.    The State of Jharkhand
            2.    Shiv Narayan Sah, DSE, Giridih                     ... Opposite Parties
                                            -----

            CORAM:         HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
                                             -----

            For the Petitioner       : Mr. Sudhir Kumar Roy, Advocate

For the Opposite Parties : Mr. Jitendra Pandey, A.P.P.

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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, 1 st 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

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

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

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

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. 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