BHOLU RAM v. STATE OF PUNJAB & ANR

Citation: [2008] 12 S.C.R. 959

Court: Supreme Court of India

Bench: C.K. THAKKER, D.K. JAIN

Case summary

BHOLU RAM v. STATE OF PUNJAB & ANR.pdf

Judgment text

[2008] 12 S. C. R. 959 ~ BHOLU RAM v. STATE OF PUNJAB & ANR. (Criminal Appeal No. 1366 of 2008) AUGUST 29, 2008 [C. K. THAKKER AND D. K. JAIN, JJ. ] .. ~ ~~ Code of Criminal Procedure, 1973: ss. 319, 197 and 482 - Recalling order of issuance of summons against person other than accused -·Permissibility of- Held: Order passed by competent court issuing summons cannot be recalled - Aggrieli'ed party can challenge the order by invoking in{lerent jurisdiction of High Court u/s.

482 - On facts, Revisional Court and High Court not justified in recalling summoning order passed by Magistrate against Head Mastercum-Drawing and Disbursing Officer other than accused-clerk in Government School - Accused in a complaint alleging forgery and cheating, filed application to add respondent as accused and summon him - Magistrate had power and ;urisdiction to entertain the applications - It issued summons on being satisfied that depositions of prosecution witnesses prima facie made out offence against respondent - Revisional . Court erred in entering into correctness of the evidence at the stage of issuance of summons to respondent - Proceedings could not have been quashed on the ground of want of sanction - Application to issue summons could be filed by any person including accused and the court could entertain such application filed belatedly - Thus, orders of Revisional Court and High Court set aside and that ofMagistrate restored. · s.

319 - Summoning of person other than accused - Power of court - Nature and scope of - Discussed. Penal Code, 1860 - ss. 409, 420, 467, 468, 471 - Offences under- Requirement of sanction uls. 197 Cr. PC. - Held: Offences u/ss. 409, 420, 467, 468, 471 cannot be regarded as having been committed by a public servant while 'acting or purporting to act in discharge of official duty,' thus, sanction is not required - On facts, complaint alleging forgery and cheating against accused-clerk in Government school - Issuance of summons against Head Master other than accused - Quashing of, by Revisional Court on the ground of absence of sanction but holding that at the most there was negligence on the part of Head master but no criminal intent - Held: Not correct - Mens rea can only be decided at the time of trial and not at the stage of issuing summons - Need or necessity of sanction can be taken during the conduct of trial or at any stage of the proceedings - Code of Criminal Procedure, 1973 - s.

197. Administrative law - State authorities - Role of - On facts, complaint alleging forgery and cheating against accused-clerk in Government school - Issuance of summons against Head Master other than accused - Challenge to, by State before Sessions Court - Before Supreme Court also State supporting the Head master - Propriety of - Held: Not proper. First Information Report was lodged against the appellant u/ss. 409, 420, 467, 468 and 471 IPC. It was alleged that the appellant-Clerk in Government School forged signature of respondent No. 2-Head Master-cum- Drawing and Disbursing Officer and embezzled substantial amount. During investigation, signatures of respondent No. 2 were also taken but prosecution never filed the report. Witnesses deposed that respondent No. 2 had withdrawn the amount and ·signatures purported to have been forged by appellant tallied with the specimen signatures of respondent No. 2. Thereafter, appellant filed applications u/s. 319 Cr. P. C.

to add respondent No. 2 as accused and summon him. The. Magistrate allowed the application. Respondent No. 2 was --'r issued summons. Aggrieved, respondent No. 1-State filed Revision Petition which was dismissed. Thereafter, respondent No. 2 filed application to review/recall summoning order on the ground that he could not be prosecuted in absence of sanction required by s. 197 of the Code. The Magistrate dismissed the c;ipplication in view of dismissal of revision petition filed by State. ~ However, Additional Sessions Judge allowed the revision petitions filed by the respondent No, 2 and set aside the order adding respondent No. 2 as an accused and summoning him. High Court upheld-the order. Hence the present appeal. Allowing the appeal, the Court HELD: 1. 1 Section 319 Cr. P. C. ,1973 empowers Court to proceed against any person not shown tc;> be an accused if it appears from the evidence that such person has also committed an offence for which he can be tried ...

together with the accu~ed. It is only proper that Magistrate should have power to summon by joining such person as an accused in the case. The primary object underlying s. 319 is that the whole case against all the accused should be tried and disposed of not only expeditious~y but also simultaneously. Justice and convenience both require that cognizance against the newly aqded accused should be taken in the same case and in the same manner as against the original accused. ~ The power must be regarded and conceded as incidental and ancillary to the main power to take cognizance as part of normal process in the administration of criminal justice. [Paras 19 and 21] [970,G-H; ~71,G-H; 972,A] ) 1. 2 The power under Section 319 can be exercised either on an application made to the Court or by the Court suo motu.

It is in the discretion of the Court to take an action under the said section and the Court is expected to exercise the discretion judicially and judiciously having regard to the facts and circumstances of each case. [Para 22] [972, 8-C] 1. 3 Section 319 of the Code nowhere states that such an application can be filed by a person other than the accused. It also does not prescribe any time limit within which such application should be filed in the Court. [Para 25] (972,G-H] 1. 4 In the instant case, the Magistrate had power a. nd jurisdiction to entertain applications filed by the appellant-accused u/s. 319 of the Code and to issue summons fo respondent No. 2 by adding him as accused. The said order could not be said to be illegal, unlawful or otherwise objectionable. The submission that the power u/s. 319 of the Code, cannot be exercised belatedly by the Court, and that an application u/s. 319 cannot be filed by person who is facing the trial, cannot . be accepted.

It was the case of the appellant that it was during the course of prosecution evidence that ·he came to know that signatures of respondent No. 2 were sent for examination, some report was received by the prose the proceedings so far as Chief Editor was concerned. The complainant challenged the said order by filing a revision in the High Court which was allowed. The Chief Editor questioned correctness of the order passed by the High Court. 43. The issue before this Court was whether the Magistrate had power to recall an order of summoning the accused. Considering the relevant provisions of the Code, the Court held that an order of summoning an accused could be recalled by the Magistrate. Such order is merely an interim order and not --+ a judgment and recalling thereof would not amount to review. 44. The Court stated; "It is open to the accused to plead before the Magistrate that the process against him ought not to have been issued.

) The Magistrate may drop the proceedings if he is satisfied on reconsideration of the complaint that there is no offence for which the accused could be tried. It is his judicial discretion. No specific provision required for the Magistrate to drop the proceedings or rescind the process. The order issuing the process is an interim order and not a iudgment. It can be varied or recalled. The fact that the process has already been issued is no bar to drop the proceedings if the complaint on the very face of it does not disclose any offence against the accused". (emphasis supplied) 45. The correctness of K. M. Mathew again came up for. consideration before a three-Judge Bench of this Court in Ada/at Prasad v. Roop/al Jindal & Ors. , (2004) 7 SCC 338. In Ada/at Prasad, the accused, after issuance of summons against him by the trial Magistrate, filed an application under Section 203 of the Code for dismissal of complaint recalling the order of summons.

After hearing the parties, the Magistrate granted the prayer and recalled the summons. The order of the Magistrate was challenged by the complainant in the High Court inter alia 0 on the ground that the Magistrate had no jurisdiction to recall the earlier order. The High Court allowed the petition. The accused approached this Court. 46. When the matter was placed for preliminary hearing. the learned counsel for the accused relied on K. M. Mathew wherein it was held that it was open to the Court issuing summons to recall the order on being satisfied that the issuance of summons was not in accordance with law. The Court, however, doubted the correctness of the view taken in K. M. - Mathew in view of reference made by a two Judge Bench to a three Judge Bench in Nilamani Routray v. Bennett Coleman h. & co. Ltd. , (1998) 8 sec 594. 47.

The larger Bench considered various provisions of the Code and held that in absence of express provision in the Code, the Court has no power to recall the process issued. The · accused from contending that the learned Magistrate was wrong and wholly unjustified in entertaining the complaint or taking cognizance of an offence. In such cases, however, the accused is not without legal remedy. If the act of taking cognizance, issuance of process or joining of an innocent person as an accused is totally uncalled for or ex facie bad in law, it is open to the aggrieved party to invoke inherent jurisdiction of the High Court under Section 482 of the Code. If the High Court is satisfied that the order passed by the Magistrate was illegal, improper or arbitrary, it can exercise inherent powers and quash criminal proceedings initiated against the party. But that power is independent and has nothing to do with recalling of an earlier order by the Court which passed it. 56.

But in the present case, even on merits, we are of the considered view that the order passed by the learned Magistrate issuing summons to respondent No. 2 could not be said to be unlawful or even improper. 57. When applications under Section 319 of the Code were preferred by the appellant praying to join respondent No. 2 as an accused and to issue summons, the learned Magistrate considered the evidence of prosecution witnesses and he was satisfied that depositions of witnesses prima facie made out '\ offence against respondent No. 2. ··~ 58. Considering the statements of PW2-Treasury Officer, "-- PW14-Senior Assistant and PW11-Assistant Manager, State Bank of Patiala, the learned Magistrate stated; "I have heard the learned counsel for the accused and the Ld. APP for the State and have also gone through the file of this case carefully and it appears that Sher Singh who appeared as a prosecution witness in this case was working as a Drawing & Disbursing Officer and Ex.

DX audit report discloses that as per Rule 2. 2(11) of Punjab Financial Rules Volume-I, all transactions should be entered in the cash book as soon. as they occur and attested by the head of the office in token of check, further Rule 2. 31 (a) provides that with a view to enable the head of the office to see that all amounts drawn from the treasury E. ···-·· have been entered in the cash book; he should obtain a list of aii bills drawn by him during the previous month and trace all the amounts in the cash book. It was held that embezzlement pointed by the Audit was facilitated due to non-observance of procedure regarding the review of the bill book/bill transit register and reconciliation of the L withdrawals form the treasury.

Moreover, the evidence led ·by the prosecution also makes it clear that there is primafacie evidence against Sher Singh, Head Master as PW2 Satpal Mehta, Treasury Officer has deposed in his crossext;1m ination ·that amounts from the accounts were withdrawn through Headmaster Rureke Kalan and in their register signatures of Headmaster have been entered and his name is Sher Singh and they have passed the bills after comparing the signatures on the Bills with the 1-l I I specimen signatures of Sher Singh as the same are in -4 their record. Similarly, PW14 Prem Sagar, Senior Assistant in Treasury Office has deposed that Drawing & Disbursing Officer/Authority was Head Master of Rureke Kalan High School and his name was Sher Singh and on the bills signatures of Sher Singh are present which tally with the . specimen signatures. Similarly, Prem Chand, Assistant Manager of State Bank of Patiala, PW11 has deposed in >-.....

I his cross-examination that DDO of High School, Rure Ke Kalan is Head Master and the amounts are withdrawn after comparison of specimen signatures with the signatures on the bills of DDO. So, from the evidence on y record, it is quite clear that prima facie offence against Head Master Sher Singh is made out whose signatures were with the treasury office and the Treasury Officers have passed the bills after comparing the specimen signatures with the signatures on the pills and there is no o evidence on the record to show that the bills which are subject matter of embezzlement, do not bear the signatures J of Sher Singh who was DDO of Rureke Kalan High S<;hool, so, there is prima facie offence made out to summon Sher Singh, Head Master of Rureke Kalan High School as accused u/s 319 of Cr. P. C. is hereby allowed and Sher I Singh, Head Master of Government High School of Rure Ke Kalan is ordered to be summoning as an accused in this case for 1. 3. 1996.

The application of the accused is hereby allowed and is disposed of accordingly". 59. We may recall at this stage that a revision filed by the ~ State (and not by respondent No. 2) against the order of the Magistrate was dismissed by the Additional Sessions Judge on May 6, 1996. 60. The Revisional Court also considered the deposition .... of aforesaid witnesses and said; "After going through the impugned order, I find that it was found by trial Magistrate that certain bills have been passed by Sher Singh who was disbursing officer, and PW 14 I 986 SUPREME COURT REPO~RTS [2008] 12 S. C. R Prem Sagar, Assistant in the offic. e of Treasury deposed that drawing disbursing officer was Headmaster of Rureke Kalan High School and his name was Sher Singh who was appended -his signatures on the bills which tally with the specimen signatures.

A similar statement was suffered by Assistant Manager of State Bank of Patiala examined as PW11 before Trial Magistrate and bn ~ccount of this evidence read with the statement of PW2 Sat Pal Mehta, Treasury Officer the trial Magistrate found that prima facie offence is made out to summon Sher Singh as an accused and accordingly he allowed the application. In view of this, we· find that the Court has exercised his dis·cretion supported by well reasoned order and the opinion was formed by the Court after recording evidence and in such like cases some times the real offender who. has also committed the crime steps into the shoes ofcomplainant in order to save himself and in the instant case also the evidence spells ·out that the head ma$tec of the sch9ol thought of a clever device by registering the case against other accused at his instance". 61. It was·after the dismissal ~f re_yision filed by the State that respondent No. 2 moved the Judicial Magistrate to recall. the earlier order.

The learned Magistrate held that in view of dismissal of revision by the Additional Sessions Judge, an application to recall the order was not maintainable. But the Court also stated; ·· · "No doubt summoning order is on interim order and not a · ji,ldgment and the same can be reviewed or recalled by the Magistrate. Proceedings against the accuse. d can be dropped of th~ . complaint on face of it does not disclose any offence against him. In the present case, my learned predecessor after going through the statements of examined prosecution witnesses found that there is prima facie offence made out against tbe'accused Sher Singh. Only thereafter accused/applicant She Singh was summoned vide summoning order _dated 22. 1. 1996 passed by Sh. Varinder Aggarwal, PCS, the then Judicial1 MagistratE?.. 1st Class, Barnala". 62. The RevisiOnal court referred to K. K.

Mathew and held that a summoning order, being interlocutory in nature, could not be termed as 'judgment' and there was no bar in recalling such, 8 order. The Additional Sessions Judge decided the revision in 1998. The law governing the field at that time was the law laid , down in K. K. Mathew. Ada/at Prasad had not seen the light of I the day. We, therefore, see nothing wrong on the part of the Additio~nal Sessions Judge in considering, following and , deciding the case on the basis of K. K. Mathew. 63. To us, however, the Revisional Court was not right in interfering with the order passed by the trial Court. We have ' seen that the learned Magistrate issued summons taking into , account evidence led by the prosecution, particularly, by PWs 0 2, 14 and 11.

The Revisional Court was thus having depositions · of those witnesses, the order passed by the learned Magistrate, the order made by the Additional Sessions Judge in revision ' instituted by the State and also the order passed by the , Magistrate in an application to recall filed by respondent No. 2. 64. In spite of the above material, the Revisional Court interfered with the order of the trial Court issuing summons by ' entering into merits of the case. 65. The Court said; 'F "As stated above, as per prosecution case during the period from 1979 to 1986 accused Bholu Ram was the Clerk of Govt. High School, Rureke Kalan while Sher Singh 1 revision/petitioner appeared to be the Head Master of the School during the relevant period.

It appears that during 'G that period accused Bholu Ram had been drawing various payments from the Treasury by submitting false and bogus Mills to the Treasury, but did not appear to have disbursed ' the amount of those bills to any person and allegedly misappropriated the amount of those false and bogus bills for . t-which 17 separate challans in case FIR No. 87/86 P. S. Tappa appeared to have been filed against him and he appeared to be facing prosecution in all those cases. However, vide order dated 22. 1. 1996 of the Ld. Trial Magistrate in all those cases Sher Singh revision petitioners appeared to have been summoned as an accused in those cases on the ground that various bills on \... _.... •'\ the basis of which those payments were drawn appeared to have been signed by Sher Singh as a Drawing and Disbursing·Officer and he also appeared to be liable in all t those cases.

It appears that Sher Singh revision petitioners ' has already been examined as a prosecution witness in various cases. Though in his statement recorded in the Court, he denied having signed various bills. It appears that those bills appeared to have be~n signed by him as a Drawing and Disbursing Officer. Being a ODO of the School, it was the duty of Sher Singh to sign various bills for presentation in the treasury, but it was nevertheless the ..... duty Bholu Ram, Clerk to maintain the record regarding the disbursement of those amounts. In case Bholu Ram, Clerk allegedly prepared false and bogus bills and ~ obtained the signatures of the ODO on the same, be alone appeared to be liable to account for the payment of those bills when those amounts did not appear to have been disbursed to various persons as mentioned n various Bills and Bholu ram allegedly misappropriated those amounts.

The mere fact that Sher Singh signed those bills as Drawing ,L and Disbursing Officer will not make him criminally liable when the amounts of the various bills, according to the prosecution case, were allegedly misappropriated by Bholu Ram alone". 66. In our considered opinion, the Revisional Court was ~ not justified in entering into correctness or otheiwise of the evidence at the stage of issuance of summons to respondent No. 2. Admittedly, the J•Jdicial Magistrate had considered a · · limited question whether on the basis of ev! dence of prosecution witnesses, prima facie offence had been made out against · respondent No. 2. He was, on the basis of such evidence, was satisfied that the case was required to be gone into and issu~d a summons. To us, the Revisional Court was not right in interfering with that order. Hence, even on that ground, the order was not in accordance with law. 67. The leaned counsel for respondent No.

2, however, submitted that the Revisional Court was right in any case In allowing the revision and in quashing proceedings against the said respondent on the ground ,of absence of sanction as required by Section 197 of the Code. 68. We express our inability to agree with the learned counsel. It is settled law that offences punishable under Sectioris 409, 420, 467, 468, 471 etc. can by no stretch of imagination by their very nature be regarded as having been committed by 0 a public servant while 'acting or purporting to act in dischar9e of official duty' [vide Prakash Singh Badal v. State of Punjab, c2001) 1 sec 1]. 69. The Revisional Court was aware of legal position. 1lt was, however, held by the Court that at the most there w'-'s negligence on the part of respondent No. 2 but there was no criminal intent and he cannot be held criminally liable. We have already held that mens rea can only be decided at the time of trial and not at the stage of issuing summons.

Moreover, a poifl'lt as to need or necessity of sanction can be taken during the conduct of trial or at any stage of the proceedings. Hence, proceedings could not have been quashed on the ground of want of sanction in the present case. The order of the Revisional Court deserves to be set aside even on that ground. 70. It was also urged that no applications by the appellant -; could have been entertained by the trial Court after about 8 to 10 years from the date of filing of FIR. Now, an application under Section 319 of the Code can only be made to a Cour:t and the Court may exercise the power under the said Section if it appears from evidence that any person other than the accused had also committed an offence for which he can be tried together with the accused. It was the case of the appellant that it was during the course of prosecution evidence that he came to know that signatures of respondent No. 2 were sent for . examination, some report was received by the prosecution .

: which was not produced in Court and on the basis of such evidence, the case was made out against respondent No. 2. If in these circumstances, applications were made and the prayer was granted, we see no infirmity therein. 71. In our opinion, the Revisional Court, i. e. the Court of Additional Sessions Judge ought not to have interfered with the order passed by the trial court under Section 319 of the Code. As already noted earlier, the order of addition of respondent No. 2 as an accused and summoning him was not ·immediately challenged by respondent No. 2. The challenge was by the State and it failed. After a long time, the respondent No. 2 approached the Revisional Court. Since the order passed by the Judicial Magistrate was in consonance with law, the Additional S~ssions Judge should have refrair. ed from exercising revisional jurisdiction. 72. We may examine the role of the State also. \Ne have already noted earlier that an order passed by the Judicial .

Mag·istrate summoning respondent No. 2 as accused was challenged by the State by filiqg a revision in the Court of Sessions, which was dismissed. Even in this Court, the. State supported respondent No. 2. An affidaviUn reply is filed by the State through Deputy Superintendent of Police in March 2007, ·· even before counter affidavit was filed by contesting respondent No. 2'. Though in the affidavit, it is not necessary to deal with law points and/or decisions rendered by a Court of law, the deponent refers to and relies on K. K. Mathew expressly overruled by a larger Bench in Ada/at Prasad. No reference at all has been 1 . m8de to Ada/at Prasad. It is respondent No. 2 who, in his counter, refers to ~oth the decisions. In the totality of the facts and tirctimstances, the submission of the learned counsel for the H . appi;311ant that the State Authorities were helping and asslsting respondent No. 2 cannot be said to be totally ill-founded or without substance.

The State , in our opinion , could have easily avoided such embarrassment. 73. For the foregoing reasons , the appeal deserves to be allowed and is accordingly allowed. The orders passed by the 8 Additional Sessions Judge and the High Court are set aside and the order passed by the Judicial Magistrate, Barnala is restored . Since the matter pertains to FIR of 1986, the learned Magistrate is directed to conclude the trial expeditiously. 74. Before parting with the matter, we may clarify that we have not entered into allegations and counter-allegations. We have considered the facts and circumstanced to a limited extent to decide correctness of the order passed by the Judicial Magistrate under Section 319 of the Code. We make it clear that we may not be understood to have expressed any opinion 0 on the merits of the matter.

As and when the case will come up for hearing, it will be decided·strictly on its own merits without being inhibited or influenced by any observations made by the trial court, by the Additional Sessions Judge, by the High Court or by us. 75. Ordered accordingly. N. J . Appeal allowed.