STATE Vs. W P F ROBERTS

JUDGEMENT

(1.) These revisions are directed against orders of discharge passed by the learned Special Judge, Kohima, in a case under Section 120B/420/468/471 of the Indian Penal Code and Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act. The broad allegations against the opposite parties were that they had conspired together to cause pecuniry loss to the Union of India by fraudulent means and in furtherance of the conspiracy misappropriated and cheated the Government by misusing official position, a sum of Rs. 1,05,989.13. Though, initially the case was one but it came to be bifurcated as would appear from the two orders of discharge passed by the learned Judge. At first, the case against the opposite parties Major W.P.F. Roberts and Naik Subedar K. P. Verma was taken up and by an order passed on 29-9-78 they were discharged. Subsequently, the case of the remaining accused was gone into and they came to the discharged by an order dated 21-12-71. Feeling aggrieved, the State has preferred these revisions.

(2.) Shri Hazarika, leanred Special Prosecutor on behalf of the C.B.I., has submitted that the learned Judge applied a wrong section, namely, Section 227 of the Code of Criminal Procedure, in discharging the accused whereas the proper section was 239. It is then contended that the second order in any case was bad as it was passed ex parte. Some comment has also been made by the learned Counsel about passing of two orders of discharge in one case. The next submission is that the order is based on extraneous considerations and the learned Judge went beyond record in passing the same. It is finally urged by Shri Hazarika that there were enough materials on record at least to frame charge against the accused persons.

(3.) Insofar as the first grievance is concerned, we may refer to a recent decision of the Supreme Court in R. S. Nayak v. A. R. Antulay, AIR 1986 SC 2045, wherein three sections, namely, 227, 239 and 245 of the Code of Criminal Procedure dealing with discharge in a trial (1) before a Court of Sessions; (2) of Warrant case and (3) of summons cases were examined and it was stated in para. 44 of the Judgment that in spite of the difference in the language of the three sections, the legal position is that if the trial Court is satisfied that a prima facie case is made out, charge has to be framed. This being the position in law, no fault can be really be found because of mentioning of Section 227 instead of Section 239 in the order of discharge which would have been the appropriate section in view of Section 8(1) of the Criminal Law (Amendment) Act, 1952.