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CASE NO.: Appeal (crl.) 89  of  1999

PETITIONER: MR.K.RAMAKRISHNA & ORS.

       Vs.

RESPONDENT: STATE OF BIHAR & ANR.

DATE OF JUDGMENT:       22/09/2000

BENCH: D.P. Mohapatra, & R.P. Sethi.

JUDGMENT:

SETHI, J. L...I...T.......T.......T.......T.......T.......T.......T..J

   The  appellants,  who are senior officers of the  United Bank of India, have been arraigned as accused persons in the charge-sheet  submitted by the CBI in the Court of  Judicial Magistrate,  First Class, Patna, for the offences punishable under  Sections  467, 468, 420 and 120B IPC.  They  filed  a petition under Section 239 of the Code of Criminal Procedure praying  for being discharged as, according to them, no case was  disclosed  either  in  the  FIR  or  in  the  documents accompanying the final report submitted under Section 173 of the  Code  of Criminal Procedure.  The Magistrate, vide  his order  dated 6.7.1996, rejected the application and directed the  presence of the appellants in the court for framing  of charges.   Feeling  aggrieved the appellants moved the  High Court  under  Section 482 of the Code of Criminal  Procedure with prayer for quashing the order of the Magistrate.  Their prayer  was  rejected  vide the order impugned,  hence  this appeal.

   Mr.Altaf   Ahmad,  the   learned  Additional   Solicitor General,  appearing  for the appellants submitted  that  the averments  made in the FIR do not make out any case  against his  clients, inasmuch as none of them have even been  named therein.   He  further submitted that without disputing  the validity  of  the  allegations  made  in  the  FIR  and  the accompanying   documents,   including   the  statements   of witnesses  recorded  under  Section   161  of  the  Criminal Procedure  Code,  no case is made out against anyone of  the appellant  under  any penal law.  Learned counsel  appearing for  the  respondents  has,   however,  submitted  that  the Judicial  Magistrate has taken note of the case diaries  and other record produced before him and found on facts, that as the  appellants were posted on different administrative  and responsible  posts  in  the Bank at the time  of  occurrence which  took  place during their tenure, to their  direct  or indirect  knowledge and in that commission, the  possibility of  their  involvement in criminal conspiracy could  not  be ruled  out.   He has also drawn our attention towards  paras 48,  63, 64, 71, 79, 82, 83, 84, 86, 110 and 112 of the case

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diaries  to impress upon that there existed evidence against the  appellants which justified the passing of the  impugned orders.   It is contended that this Court cannot re-evaluate the  evidence at this stage for the purposes of  prima-facie finding  out as to whether the appellants had committed  the offences with which they are directed to be charged.

   The  inherent powers of the High Court under Section 482 of  the Code of Criminal Procedure can be exercised to quash proceedings,  in  appropriate  cases either to  prevent  the abuse  of  process of any court or otherwise to  secure  the ends  of justice.  Ordinarily the criminal proceedings which are  instituted against the accused must be tried and  taken to  logical conclusions under the Code of Criminal Procedure and the High Court should be reluctant to interfere with the proceedings  at an interlocutory stage.  However, there  may be   cases   where  the   inherent  jurisdiction  to   quash proceedings  can and should be exercised.  Where there is  a legal  bar  against  the institution or continuance  of  the criminal  proceedings in respect of the alleged offence, the High  Court should not be reluctant to exercise the inherent jurisdiction.  Similarly where the allegations in the FIR or the complaint, even if they are taken at their face value do not  constitute the offence alleged, or without appreciating the  evidence but only merely by looking at the complaint or the  FIR or the accompanying documents, the offence  alleged is  not  disclosed, the person proceeded against in  such  a frivolous criminal litigation has to be saved.

   The  Trial  Court under Section 239 and the  High  Court under  Section 482 of the Code of Criminal Procedure is  not called upon to embark upon an enquiry as to whether evidence in  question  is reliable or not or evidence relied upon  is sufficient  to proceed further or not.  However, if upon the admitted  facts  and  the  documents   relied  upon  by  the complainant  or  the  prosecution and  without  weighing  or sifting  of  evidence,  no case is made  out,  the  criminal proceedings  instituted against the accused are required  to be  dropped or quashed.  As observed by this Court in Rajesh Bajaj v.  State NCT of Delhi & Ors.  [1999 (3) SCC 259], the High  Court or the Magistrate are also not supposed to adopt a  strict  hyper-technical approach to sieve  the  complaint through  a  cullendar  of  finest  gauzes  for  testing  the ingredients  of  offence with which the accused is  charged. Such  an  endeavour  may be justified during trial  but  not during the initial stage.

   In  view of the legal position, as noticed above, it has to be seen whether the FIR or the documents accompanying the final  report  under Section 173 of the  Criminal  Procedure Code  including  the statements recorded by the  prosecution under  Section  161  of  the  Code  of  Criminal  Procedure, discloses   the  commission  of   any  offence  against  the appellants.   The  charge-sheet (Annexure B) filed does  not refer  to any withness or circumstance which the prosecution intends  to use against the appellants.  From the record  it appears that for irregularities in the affairs of the Branch of  the Bank, various complaints were lodged with the  local police  and the CBI against one Abhay Kant Jha in the  years 1983,  1985  and  1987.   In its report  submitted  on  30th November, 1987, the CBI recommended prosecution of said Shri Abhay  Kant Jha along with Shri Sanjay Kumar Roy, respondent No.2 herein.  To counter blast and ward off his involvement, the said Shri Sanjay Kumar Roy filed a complaint in the year 1987  with  the Gandhi Maidan Police Station,  Patna  making

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accusations only against said Shri Abhay Kant Jha.  However, while narrating the facts therein, he submitted that some of the  appellants  had  approached  him  and  his  father  for amicable  payments  of the bank’s dues.  It may  be  noticed that  the  CBI, after detailed investigations,  addressed  a confidential  report to the bank recommending prosecution of Shri  Abhay  Kant  Jha  and 8 other  persons  including  the aforesaid  Sanjay  Kumar  Roy.  None of the  appellants  was found  to  be, in any way, connected with the commission  of the  offences alleged in the complaint.  As noticed earlier, the  Trial Court on perusal of some paras in the case  diary found  that  there existed evidence by which the  appellants could  be  connected with the commission of the  crime  with which  they  were charged.  We have perused all those  paras and  other  parts of the case diary and find that the  Trial Magistrate  was not justified in his observations so far  as the  appellants are concerned.  In paragraph 48 of the  case diary  the  investigation officer has mentioned the fact  of his  visiting the branch office of the United Bank of  India on 29.11.1987 at 11 a.m.  where despite notice, the officers of  the bank were not present.  Thereafter he served  notice upon  the Assistant Manager asking him to cause the presence of all the officers in the police station on 15.12.1987.  In paragraph  63 a fact is mentioned about the presence of  the officers  of the bank at the police station.  In  Paragraphs 64  and 71 the statement of appellant No.1 is stated to have been  recorded.   In  paragraph 79 it  is  recorded,  "diary should  be perused because documents of United Bank has  not been received and proceedings is being initiated for finding it".   In  paragraph  82 it is mentioned that on  number  of occasions  person  was sent to the United bank,  Bokaro  for getting the papers of the case but papers were not received. In  paragraph  83 a mention is made of "documents or  papers have  been  received about which the proceedings  should  be initiated   after  the  discussion   with  the  ASP   City". Paragraph  84 mentions the compliance of order of ASP  City. Paragraph  86 records that the documents received were shown to  S/Shri  Balakrishna  Rai and Ram Kishore Rai  who  after seeing  the papers and documents told that they do not  bear the signature of Shri Sanjay Kumar Roy.  In paragraph 110 it is recorded that IO reached the office of the bank at Bokaro and searched Shri Ram Deo Yadav, Branch Manager but what was recovered  upon  search  is   not  noticed.   In  paragraphs 112-113,  the  IO has recorded "I proceeded from Dhanbad  in connection  with  the  investigation  of  other  case".   On perusal  of  the  other paragraphs of the  case  diaries  we noticed  not an iota of evidence against any appellants.  We are  conscious of the fact that in the normal circumstances, this  Court or the High Court while deciding the sufficiency of  the evidence would not resort to the perusal of the case diary   and  sit  in  appeal   over  the  judgment  of   the investigating  officer  but  as   the  Trial  Magistrate  is apparently  shown  to have recorded wrongly with respect  to the  facts  allegedly noticed in the case diary, this  Court vide  order dated 17.7.1998 had no option but to direct  the counsel  of  the respondent-State to produce  the  documents referred  to  in the report filed under Section 173  of  the Code  of  Criminal Procedure.  On perusal of FIR, the  final report  under Section 173 of the Code of Criminal  Procedure and  all  other documents accompanying it, we are  satisfied that  no case is made out against any of the appellants  and the  pendency  of  the proceedings against them  before  the Magistrate  is an abuse of process of court.  The appeal  is allowed  and  the order of the High Court dated  8th  April, 1997  and  Magistrate  dated 6.7.1996 are  quashed  and  the

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appellants discharged in terms of Section 239 of the Code of Criminal Procedure.