Subrato Shaha Versus State of Bihar and Anr.
Patna High Court
---- Judgment Date: Mar 28, 1989
Patna High Court (28 Mar, 1989)
Subrato Shaha Versus State of Bihar and Anr.
L.P.N. Shahdeo, J.
1. This is an application under section 482 of the code of criminal procedure for quashing the criminal prosecution, charge-sheet dated 21.2.1984 and the order of taking cognizance dated 22.2.1984 passed by the Special Judicial Magistrate, Ranqhi in Crime case No. 8/81 under sections 120-b, 420, 468 and 471 of the indian penal code against the petitioner.
2. The short facts giving rise to the present case are as follows:
It appears that a first information report (Edt. 1) was filed by the Inspector, C.B.I, which resulted in the institution of a Crime case No. 8/81 under sections 120-b, 420, 468 and 471 of the indian penal code and the matter was taken up for investigation. Ultimately charge sheet (annexure 2) was submitted on 21.2.1984 against seven accused persons and, thereafter, cognizance under the aforesaid sections was taken by the impugned order. Out of those seven persons petitioner, Subrato Shaha has challenged his criminal prosecution and the order of taking cognizance against him in this application.
3. According to the F.I.R. lodged by the Inspector, C.B.I. on 29.8.1981, the prosecution case, in short, is that the petitioner, at the relevant time, was working as Assistant Accounts Officer, Branch Sales Office, Central Marketing Organisation/Sail Bokaro. It is alleged that he had entered into criminal conspiracy with Shri Ram Sharma and others and acted for Branch Manager, allotted various items of steel materials worth Rs. 67,520.21 paise to M/s. India Metal, Rosera, Samastipur, a non-existing firm during the year, 1980. It is alleged that supply was made on the basis of a fictitious Essentiality certificate issued by the Manager, Irrigation Department, Darbhanga on 4.12.1979. It is alleged that thereby the Steel Authority of India was cheated by use of forged document as genuine knowing the same to be forged.
4. Mr. P. S. Dayal, learned counsel appearing on behalf of the petitioner assisted by Miss Indrani Choudhary, submitted that on reading the whole of the F.I.R., the charge sheet and the materials collected in the case diary, no prima facie, case appears to have been made out against the petitioner to put him on trial.
5. On the other hand, Mr. P. P. N. Roy, learned counsel appearing for the C.B.I., submitted that the allegations, in substance, relate to a criminal conspiracy and the matter should be taken as a whole only to detect the visible hand of the petitioner easily in this case.
6. The short point which falls for examination and determination is as to whether there is any material collected during investigation to justify putting of the petitioner on trial or whether those materials, taking on their face value, make out any, prima facie, case against the petitioner.
7. It is the admitted position in this case that during the course of investigation only two important aspects on which some evidence has been collected against the petitioner, is that the petitioner, at the relevant time in the year, 1980, was working as Asstt. Accounts Officer and he was not authorised to issue Delivery Orders and in spite of that he had issued D. O. letter without any authority from any competent authority relying upon the documents like the Essentiality certificate, sales tax and clearance certificate etc. knowing the same to be the forged documents.
8. On perusal of the records, hearing the arguments and looking into the different paragraphs of the case diary referred to by the parties, it has been established beyond doubt, that the petitioner, at the relevant time, was authorised by the competent authority to sign the offer and D. O. letter during the temporary absence of the Branch Manager. It is also the admitted position that Shri D. J. Khera was the Branch Manager at the relevant time during the year, 1979-80. During that period, it is the admitted position, that Mr. Khera used to remain absent from the office in connection with other official engagement and during that period the petitioner had acted in his place, signed and issued the Orders for and on behalf of the Branch Manager.
9. Therefore, it has to be examined to find out as to whether the petitioner had done those unauthorized acts with guilty knowledge or as a result of any criminal conspiracy or under some authority in the interest of smooth working of the administration without any mens rea.
10. It will appear from a letter, annexure 5, that the Zonal Manager of the Steel Authority of India, East Zone, Patna, had issued a letter authorising the petitioner to look after all the sales and administrative matters of the Branch Sales Office in addition to his own accounts work in the absence of the Branch Manager.
11. Similarly, there are other annexures, i.e., annexures 6, 7, 8 and 9 and also annexure 10, which are undisputed documents, to show that the petitioner was authorized to work for and on behalf of the company at the relevant time in the absence of the Branch Manager. Therefore, signing of the D. O. letter or doing the work of administrative nature which was used to be done by the Branch Manager, cannot be said, in any manner, an unauthorized act on the part of the petitioner giving rise to any criminal liability against the petitioner especially in view of the authorization given to him to act in that capacity in the absence of the Branch Manager.
12. Apart from that, even accepting the prosecution case on its face value and ignoring the undisputed documents referred to above, some departmental lapses or dereliction of duty of an officer or an employee, cannot, ex facie, give rise to a criminal liability but, such misconduct may give rise to a disciplinary action in a departmental proceeding. Therefore, on this ground the criminal prosecution of the petitioner with the allegation that he had signed and issued the D. O. letter to a fictitious firm, India Metal, Samastipur, is of no criminal consequence nor does it make out any, prima facie, any criminal case against the petitioner.
13. There is absolutely no evidence inasmuch as the learned counsel for the C.B.I. could not point out from the case diary or from anywhere on the record from which it can be gathered, prima facie, that the petitioner had value issued those Essentiality certificates, sales certificates, etc., knowing fully well the same to be forged documents and, in fact, those documents were not initially handled by the petitioner, rather, it had passed through different hands and tables and ultimately it had reached to him, which is an admitted case. Therefore, it was accepted and the D. O. letter was issued by the petitioner on the basis of the essentiality certificate issued by the Irrigation Department, Government of Bihar and the petitioner had no means or reason to understand that such certificate was a forged document. Therefore, the allegation that the petitioner had used the forged documents knowing the same to be forged, must fail and to sustain this allegation there is absolutely not an iota of evidence anywhere in the case diary nor any such thing was pointed out during the course of argument which lasted for four days.
14. It also appears that initially the offer of supply of steel materials to Indian Metal, Rosera, Samastipur was signed by the Branch Manager on 17.12.1979 after due scrutiny of the various certificates including the Essentiality certificate issued by the Irrigation department which is borne out from the different documents seized during the course of investigation and during that period the petitioner, in the capacity of the Accounts officer, had signed so many other D. O. letters also in the absence of the Branch Manager and no allegation has been levelled against the petitioner or any officer of the Steel Authority of India, Bokaro, that the action of the petitioner had resulted into any loss to the Bokaro company and the money which was received by sales, was also deposited.
15. There is no allegation that any wrongful loss was caused to the Bokaro Steel Plant or the petitioner had derived any benefit. There is also no evidence in the diary which was, admittedly, put to the learned counsel for the C.B.I. to show that what was the price prevalent at that time in the open market and in what manner the Steel Authority of India had sustained loss but, he could not make any reply or suggest that the Steel Authority had sustained any loss. Therefore, it is a case in which there was no loss and no gain for which any offence remotedly can be said to have been made out under section 420 of the indian penal code for which the petitioner is said to have entered into criminal conspiracy.
16. So far the offences under Sections 471 and 468 are concerned, there is no evidence against the petitioner. The petitioner does not appear to have played any role either in the forging of the documents nor he used any forged documents knowing the same to be forged one. The Essentiality certificate was produced by the India Metal Company and the same was accepted by Mr. D. J. Khera. The petitioner was not present at that time and these facts have emerged during course of investigation and, therefore, no offence, what to say of any prima facie, offence, is made out against the petitioner under section 468 or section 471 of the indian penal code. When no offence is found to have been made out, prima facie, or even remotedly, nor there is any material or ingredient to make out a case under sections 420, 468 and 471 of the indian penal code, the charge of criminal conspiracy under Section 120-B is not applicable to the petitioner at least.
17. The above facts also stand clarified from the statements of Mr. D. J. Khera recorded in the case diary at paras 85 and 86 (page 24 serial Nos. 47 to 56). The statement of M. Subramayam, ex-marketing officer, recorded at page 50 of the case diary is also of no consequence. Only accepting the offer and signing of the D.O., cannot make out a case under section 420 of the penal code without any loss or gain and more so without any knowledge that those documents were forged. Evidence has been collected in the case diary in para 8 at page 10 that several D. Os. were signed by the petitioner and those D. Os. were not forged. It is relevant to note that the offer becomes D. O. when the money is paid. The petitioner is said to have signed the offer No. 3400 dated 7.3.1980 which became D. O. when the money was paid. Similarly, in D, O. No. 1630 dated 19.3.1930 payment was also made. The gist of the investigation, therefore, appears to be that the petitioner had put up those documents before D. J. Khera and so there is complete absence of evidence that he had forged those documents purported to have been issued by the Irrigation Department, Government of Bihar, produced by the India Metal.
18. The only allegation against the petitioner was pointed out under section 120-b of the penal code, during the course of argument, that he was not authorised to issue offer or D. O. to M/s. India Metal but still he had done so. This aspect of the matter has been dealt with above and, therefore, it can be easily concluded that the petitioner was authorised to do so in the absence of the Branch Manager. There is no evidence that in spite, of the presence of the Branch Manager, he had used that right or authority. In absence of that, no case of conspiracy can be said to have been made out against the petitioner only because under the authority of the company he had signed those documents as discussed elaborately above.
19. The another point which has been urged is that admittedly, the petitioner is an employee of the Steel Authority of India Ltd. which is a Government undertaking and, therefore, the petitioner is a public servant under the provisions of section 21 of the indian penal code and, as such, sanction was required to be obtained from the Steel Management for the prosecution of the petitioner. The petitioner had not done anything in his individual capacity but in the capacity of an officer or employee of the Government undertaking. The allegation of signing of the D. O. related to his official duty to be performed in that capacity and, therefore, sanction of the Management of Steel Authority of India, was necessary before putting him on trial as according to the allegation he is alleged to have done or acted in the capacity of an officer of that company.
20. It is the admitted position that no sanction of the competent authority has been obtained for prosecuting the petitioner in a criminal case. This case has already deprived him of his promotional avenue and the investigation which is required to be concluded within a period of six months, has taken a span of more than two and half years and still nothing adverse or any evidence against the petitioner has been collected to substantiate or to make out any criminal case against the petitioner. An officer or employee doing his duty sincerely and in good faith should not be demoralised and harassed in this rude manner without any valid basis. They must feel secured in discharge of the official duty without any element of fear which is necessary for better management and good result. In these circumstances, obtaining of the sanction was a sine-qua-non for putting the petitioner on trial and the same having not been done, the order of taking cognizance or putting the petitioner on trial must be held to be bad in law and on this ground alone, the criminal prosecution of the petitioner is fit to be quashed.
21. On examination of the records from all angles and taking into consideration its possibility, in my view, the criminal prosecution of the petitioner, in this nature of evidence, must be held to be a futile exercise of criminal prosecution without any basis which amounts to abuse of the process of the Court and so interference by this Court is necessary to secure the ends of justice.
22. In the result, this application is allowed. The criminal prosecution of the petitioner and the order of taking cognizance against the petitioner only are quashed.