AJAY PRATAP SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE sole petitioner, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of an order dated 09.03.1999 passed by Sri Arvind Kumar Srivastava, Judicial Magistrate, Ist Class, Patna in G.R.No. 4076 of 1984, Tr.No. 49 of 1988 arising out of Kotwali P.S.Case No. 1108 of 1984 whereby the petitioners petition for discharge was rejected.

(2.) SHORT fact of the case is that on the basis of written application submitted by one Jamuna Singh, the District Agriculture Officer, Patna to the Officer Incharge of Pataliputra Police Station, a first information report vide Kotwali (S.K.Puri) P.S. Case No.1108 of 1984 was registered for the offences under sections 409, 420, 468 and 471 of the Indian Penal Code against four accused persons. It was disclosed by the informant that on the order of Agriculture Production Commissioner, Joint Director of Plant Protection, Bihar, Patna, Shri C.S.Rai, the informant did physical verification of Insecticides of Plant Protection Centre, Mainpura. During physical verification, besides the informant Shri C.S.Rai, D.P.Choudhary, Assistant Director, Plant Protection, Patna, Shri Ram Charitra Prasad, Assistant Director, Agriculture, Planning, Patna Division, Patna and Shri Sakaldeo Thakur, Junior Plant Protection Officer, Patna were also present. The verification report was sent to the Government on 28.7.1984. It was further alleged that during physical verification of the stock, value of pesticides were found short for an amount of Rs.11,39,435.86. The said amount was embezzled by the then Plant Protection Officer, Mainpura, namely, Muneshwar Prasad. It was further disclosed that accused- Muneshwar Prasad had also sold pesticides during the year 1983-84 and 1984-85 on 50% subsidy to the tune of Rs.18,84,173.47. This amount had been defalcated by him. This was sold because Mainpura Centre had got no sanction to sell insecticides on 50% subsidy or on special discount. The list of pesticides sold on 50% subsidy or on special discount without permission was enclosure -2 to the first information report. The allegation was that accused-Muneshwar Prasad sold the pesticides on full payment and falsely showed to be sold on 50% subsidy and on special discount and he grabbed the whole money. It was further disclosed that accused Muneshwar Prasad, had also received pesticides of Rs. 3,90,364.67 during 1983-84 and sold the same while he was posted at Mokamah Tal Plant Protection Centre. Out of this amount he deposited only Rs. 14,480.00 to the BISCOMAUN Depot, Mokamah. The rest of the money Rs. 3,75,904.67 was alleged to have been grabbed by accused Muneshwar Prasad. It was said that he had been helped by Depot Manager in supply of pesticides without the order of the competent authority. The FIR also disclosed that the cash book was found written till 25.3.1984 but the total of the same had not been mentioned. A sum of Rs. 5,36,997.29 had been shown as balance in entries of 22.3.1984 only a sum of Rs. 2,01,000/- had been deposited with BISCOMAUN Depot, Maharajganj on 23.3.84. It was alleged that accused Muneshwar Prasad had grabbed Rs. 3,35,397.29. As per first information report accused Muneshwar Prasad, on the basis of letter no. 2493 dated 28.2.1984 issued to Depot Manager, Maharajganj and Danapur by Special Officer, Ajay Pratap Singh, sold damaged and sub standard Dithane M-45 on 25% subsidy to farmers but sale of damaged Dithane M-45 was contrary to the Insecticides Act. The BISCOMAUN did not inform the licencing authority and Joint Director, Plant Protection and hence violating the provisions of the Act, farmers were supplied with sub standards medicine. It was further alleged that records of accused Muneshwar Prasad had not been seized. It was also apparent from letter no. 869 dated 1.8.1984 issued from the office of Director, Agriculture and letter no. 78(c) dated 28.7.1984 and letter no. 102 (c) dated 13.8.1984 issued from the office of Joint Director, Agriculture Office, Plant Protection that the records were being updated. As per the first information report, accused Muneshwar Prasad, the then Plant Protection Supervisor, had misappropriated amount worth Rs. 31,99,918.80 by playing foul in pesticides deal besides he had not furnished account of cash book balance of Rs. 3,55,977/- and had violated the provisions of Insecticides Act by selling damaged insecticides.

(3.) BESIDES hearing learned counsel for the parties, I have also perused the materials available on the record. The impugned order was passed at the stage of discharge. At the stage of passing an order on charge, as per settled law, only requirement is to see as to whether prima facie case is made out or not. The Honble Supreme Court in a case reported in 1996 (3) Cr.L.J.2448 (State of Maharashtra .Vs. Some Nath Thapa) in paragraphs 30 and 32 has examined in detail regarding prima facie case for charge. It would be proper to quote the same which are as follows: Paragraph 30: In Antulays case (A.I.R. 1986 SC 2045), Bagwati, C.J., opined, after noting the difference in the language of the three pairs of section, that despite the difference there is no scope for doubt that at the stage at which the Court is required to consider the question of framing of charge, the test of prima facie case has to be applied. According to Sri Jethmalani, a prima facie case can be said to have been made out when the evidence, unless rebutted, would make the accused liable to conviction. In our view, better and clearer statement of law would be that if there is ground for presuming that the accused has committed the offence, a Court can justifiably say that a prima facie case against him exists, and so, frame charge against him for committing that offence. Paragraph 32: The aforesaid shows that if on the basis of materials on record, a Court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the Court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage.