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Judgment
Akhilesh Chandra, J.—Heard learned Counsel for the Petitioners, learned Additional Public Prosecutor for the State and learned Counsel for the opposite party No. 2.
The two Petitioners have sought quashing of K. Hat Police Station Case No. 149 of 2005 including the order dated 30.01.2006 passed by Sub-Divisional Judicial Magistrate, Purnia taking cognizance for the offences u/s 409, 420 and 34 of the Indian Penal Code.
The relevant facts of this case is that the Petitioners were posted respectively as In-charge, District Manager and In-charge, Assistant Accounts Officer of the State Food Corporation at Purnia against whom besides another a case was instituted on the report of Dr. D.P. Upadhaya, In-charge, District Manager with the assertion that co-accused Surendra Prasad, Deputy Manager, Dhamdaha and Bhawanipur, godowns of State Food Corporation got huge amount worth Rs. 59,59,348.53 defaulcated and the Petitioners were also cooperated in such defaulcation by not properly inspecting the godowns and submitting the reports to superior authorities after physical verification in spite of informations received. No due, step was taken rather attempt was made to conceal the wrongs.
Co-accused Surendra Prasad was suspended and simultaneously departmental proceedings were also initiated against the three. The police after investigation exonerating the Petitioners submitted charge-sheet against only co-accused keeping the investigation pending against his other private associates, but the court below on perusing the case diary especially referring paragraph Nos. 14, 15, 29 & 101 finding materials against the Petitioners also by impugned order took cognizance, giving rise to instant application.
By filing supplementary affidavit, it is submitted that in the departmental proceeding also Petitioner No. 1 vide Annexure-6 has already been exonerated since nothing could revealed showing any type of inaction at his instance or any sort of his involvement in the episode. He has also been retired much before and for recoveries of defaulcation amount vide Annexure-7 Certificate Proceeding No. 709 of 2006 has already been initiated against co-accused Surendra Prasad.
By filing supplementary affidavit vide Annexure-4 it has been submitted that Petitioner No. 2 has been found guilty in the departmental enquiry, though the same has been closed, but Petitioner No. 2 has already been reduced on the basic pay and 7.5% of the amount has also been ordered to be recovered from Petitioner No. 2. However, the fact that Petitioner No. 1 has not been found guilty in departmental proceeding stands unrebutted.
The learned Counsel for the Petitioners tried to laid emphasis that there was no mensrea for the offences against either of the two Petitioners and case of Petitioner No. 1 has further been improved as he has already been exonerated in the departmental enquiry. No doubt, this is not the case with the Petitioner No. 2, but so far mensrea is concerned it was also not proved against him. It is also contended that there was no evidence before the court below attracting commission of offence at the hands of Petitioners. On the other hand on behalf of the opposite party, it is contended that there was sufficient evidence and even in paragraph No. 101 of the case diary which finds mentioned in the impugned order. The Superintendent of Police while supervising the investigation has found that there is some material, of course some more is required and since investigation against others is also going on. It cannot be said that there is absolutely no possibility of availability of any evidence.
Undisputedly, the Petitioners were in a position to control the affairs of the relevant godowns from which during a short period grains were taken out in huge quantity causing loss of more than half a crore and the evidence collected during investigation as mentioned in paragraph Nos. 14, 15, 29 & 101 of the case diary cannot be said insufficient for taking cognizance for the offences.
No doubt, Petitioner No. 1 has now recently been exonerated, but at the same time Petitioner No. 2 has got no such benefit. Thus, it cannot be said that court below while taking a different view than the report of investigating agency exonerating the Petitioners wrongly took cognizance for the offences against them.
None of the members of the Bar is in a position to make this Court aware of outcome of pending investigation against associates of Surendra Prasad one of the named accused against whom certificate proceeding has also been initiated. It may be expected that such investigation by now could have been concluded.
It is hereby made clear that all the observations made above are purely for the purpose of instant application having no effect upon independent appreciation of the materials by the court below at appropriate stage and finding no reason to interfere at this stage with the prosecution case/impugned order.
Accordingly, this application stands dismissed with a liberty to the Petitioners to raise all their submissions before the court below at appropriate stage including the stage of hearing on the point of charge. It is again reiterated that court below shall consider the prayer on its own merit and pass appropriate order without being prejudiced of instant non-interference.