Common Oral Judgment

1. Criminal Misc. Application No. 3076 of 2012 is filed by the Original Accused namely Bhogilal Raijibhai Patel and Bhogilal Prabhudas Patel with a prayer to quash and set aside the Criminal Case No. 3147 of 2009, whereas, Criminal Revision Application 395 of 2011 is preferred by the State against order dated 13/6/2011 passed below Exhibit 4 and 19 in Criminal Case No. 3147 of 2009 by the learned Principal Civil Judge and Judicial Magistrate First Class, Savli, whereby the application below Exhibit 4 preferred by the original 6 accused persons under the provision Section 239 of the Criminal Procedure Code, 1973 came to be allowed discharging them, whereas an application below Exhibit 19 preferred by the investigation agency for further investigation under Section 173(8) of the CrPC, 1973 came to be rejected.

It is against the rejection of the application under Section 173(8) and allowing application under Section 239 of the CrPC for discharging the original accused, that State is before this Court

2. Brief facts leading to preferring present Application are to the effect that:-

          2.1 An offence being C.R.No.1-53/2008 came to be registered with Pandu Police Station for the offences punishable under Sections 406, 409, 420, 465, 467, 114, 471 and 120 (B) of the Indian Penal Code alleging inter alia that the accused in connivance with each other by using their post fabricated the documents, forged the signatures and thereby misappropriated the huge amount of Rs.1,48,72,235/- for the period between 1.07.1997 to 31.03.2002.

          2.2 On the basis of the said complaint the investigation was embark upon. The accused were arrested by the police and sent to the judicial custody. However, the Learned Sessions Judge released the respondents accused in connection with the said offence.

          2.3 On conclusion of the investigation, on the basis of the material collected against the accused, since the Investigating Officer found a prima-facie case against the accused, chargesheet came to be filed before the Competent Court for the alleged offences, which came to be registered as Special Case No.3147/2009. Thereafter, the trial has commenced.

          2.4 During the course of trial, the submitted the respondents- accused application Exh.4 under Section 239 of the Criminal Procedure Code for discharging them in connection with the said offence on 31.07.2010.

          2.5 Thereafter, the prosecution has submitted an application Exh.19 under Section 173 (8) of the Criminal Procedure Code for the further investigation copy of on 30.03.2011.

          2.6 That the Learned Principal Civil Judge & Judicial Magistrate, First Class, Savli vide order dated 13.06.2011 was pleased to allow application Exh.4, by which, the respondents-accused came to be discharged from the said offence. However, the Learned Principal Civil Judge & Judicial Magistrate, First Class, Savli by impugned order was pleased reject the to application Exh.19.

          2.7 Thus, being aggrieved and dissatisfied with the aforesaid orders, order below Exhibit 4 and 19 dated 13.06.2011, the State is before this Court by way of Criminal Revision Application.

3. Learned APP would submit that the order passed below Exhibit 4 and 19 passed by the learned Magistrate is contrary to the law, evidence on record, and without considering the record of Criminal Case No. 536 of 2006.

          3.1 Learned APP would further submit that the order rejecting application below Exh 19 preferred by the prosecution under Section 173(8) of Criminal Procedure Code is without application of mind and thus, is required to be quashed and set aside, in as much as, the trial Court has not considered the statements of the complainant and other witnesses cited in the charge sheet. However, passed common order, which requires to be quashed and set aside.

          3.2 Ld. APP would further submit that the trial Court ought to have appreciated the fact that the respondents herein original accused were active members of the different cooperative societies of Vadodara district, and in the said offense, the field officer and manager of the bank were also involved, and that in said offense also, the absconding accused were yet to be arrested, which is prima facie revealing from the papers of the charge sheet.

          3.3 Therefore, discharging the original accused at this stage would cause severe prejudice to the prosecution case, and hence also, the impugned order requires to be quashed and set aside.

          3.4 The trial Judge ought to have appreciated that the respondents herein original accused were members of the different cooperative society and by misusing the post they were holding, have hatched criminal conspiracy to siphon off huge amounts from the society to the tune of rupees approximately 1 crore 50 lakhs.

          3.5 It is further argued that the signatures of the present accused were not sent for the handwriting expert opinion, and the necessary documents were yet to be collected. Therefore, the trial Judge ought to have allowed the application for further investigation, and by not doing so, has again caused serious prejudice to the prosecution's case, in as much as the FSL report could have thrown light on the case of the prosecution with regard to involvement of the present accused persons

          3.6 Learned Judge ought to have considered the audit report from which it would be very evident that the accused persons have siphoned the amount to the tune of Rs. 1,48,73, 235/-, which would also be evident from the statement of Kamleshbhai, who is the Branch Manager, recorded during the investigation under Section 161 of the CrPC.

          3.7 Learned Judge ought to have appreciated the fact that the accused persons were habitual in committing such type of offenses because similar type of offenses were also registered against some of the accused persons wherein they were convicted. Thus, also the impugned order is required to be quashed and set aside.

          3.8 Learned APP would further submit that there was ample material, namely prima facie case against the present accused persons, and thus also by allowing the discharge application, the trial court has committed grave error. The factum of criminal conspiracy and/or collusion with the accused persons is a matter of evidence and ought to have been decided during trial, that too also by allowing further investigation, and by not doing so, has committed grave error in allowing the discharge application on one hand and rejecting the further investigation application on the other, and has thus argued to allow the present revision application by contending that the trial court has committed error both on law as well as facts, without considering material placed on record.

4. Per contra, learned Senior Counsel Mr. B.S. Patel with Mr. Chirag Patel would submit that the trial court has passed the order after considering arguments and documentary evidence on record, in as much as there is clear-cut finding that there is no iota of oral or documentary evidence against the present accused persons which required either a further investigation or framing of charge, in as much as the period under consideration where the alleged siphoning of the money of the cooperative society is concerned in Criminal Case No. 536 of 2006 and other allied matters, accused were convicted. Chairman and Secretary were also convicted, and in the said criminal case also, no application for further investigation was preferred, and therefore, preferring the present application for further investigation and filing of the charge sheet itself would cause double jeopardy.

          4.1 It is thus argued that if that had been the case, the investigation agency who had conducted the investigation of Criminal Case No. 536 of 2006 and allied matters could have very well preferred an application under Section 173 at the relevant point of time, and having failed to do so, is nothing but an afterthought and is not permissible, more so, when the investigation in the present case is also silent on the aspect of involvement of the present accused persons or any documentary evidence or any oral evidence with that regard. Under such circumstances, rejection of further investigation application of the prosecution and allowing the discharge application of six accused persons is in accordance with law and after considering factual aspects, for which a reasoned order is also passed.

          4.2 That the trial court has also considered the report of inquiry under Section 93 of the Cooperative Societies Act, 1961 and as per Section 103 of the said Act, the said order is equivalent to a decree passed by the Cooperative Society and in view of the judgment passed by the Honorable Supreme Court in the case of M/s. Karamchand Ganga Prasad and Another vs. Union of India and Others, reported in AIR 1971 Supreme Court 1244, wherein it is held that the decision of the civil courts are binding on the criminal courts. Under such circumstances, the report of the inquiry officer appointed by the Registrar, having submitted a report under Section 93 of the Cooperative Act, would be binding to the trial courts. Thus, considering the said aspect also, the reasoned order passed by the trial court after considering the said report does not require any interference at the hands of this Court, and has prayed to reject the present revision application.

5. Learned APP and learned Senior Counsel Mr. B.S. Patel would further submit that said contentions would also remain for Criminal Miscellaneous Application No. 3076 of 2012. Thus, learned Senior Counsel would submit that Revision Application No. 395 of 2011 be rejected and Criminal Miscellaneous Application No. 3076 of 2012 be allowed, since asking the petitioners in Criminal Miscellaneous Application No. 3076 of 2012 to approach the trial court for preferring a discharge application would amount to abuse of process of law inasmuch as, having found no substance in the investigation carried out by the agency in the present case, and the petitioners being similarly situated to those six persons who have been discharged, no useful purpose would be served to relegate them back to the trial court for applying for discharge. Under the circumstances, it is prayed to allow the present petition.

6. Heard learned advocates for the respective parties. At the outset, the scope of Revision is required to be considered. In this regard, it is apt to refer the judgment in the case of Amit Kapoor V. Ramesh Chander reported in (2012) 9 SCC 460 wherein it held that....

          "12. Section 397 of the Code vests the Court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well - founded error and it may not be appropriate for the court to scrutinize the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. There are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits."

          The revision jurisdiction confers the power to this court for the purpose of satisfying itself as to the correctness, illegality and propriety of the finding, sentence or order recorded or passed by the subordinate Courts. It has to be exercised in exceptional cases where interest of public justice is required inference for correcting manifest illegalities or for prevention of gross miscarriage of justice. It is only in exceptional cases where there is glaring defect in the procedural or there is manifest error in point of law and consequently there has a flagrant miscarriage of justice that interference required at the hands of Revision Court.

          Tested on the anvil of the aforesaid principles and after perusal of the impugned order passed by the trial court vide Exhibit 4 and 19 in Criminal Case No. 3147 of 2009, it transpires that a detailed reasoned order has been passed. The trial court has given a specific finding in paragraph 10, observing that from the year 1992 to 2002, the investigation agency has failed to collect any evidence that they were the members of the cooperative society, nor are there any oral statements roping in the present respondents / original accused Nos. 1 to 6. There is not an iota of evidence so that a charge can be framed and trial be conducted. However, learned APP could not point out as to which documents or statements the trial court has not considered, or what material evidence collected was not considered while discharging or rejecting the application for further investigation. More particularly, the argument of learned Senior Counsel with regard to the investigation agency having failed to prefer an application under Section 173(8) of the CrPC while carrying on the investigation in Criminal Case No. 536 of 2006 and allied matters, to come up with the case against the present accused persons without there being an iota of evidence and under the garb of Section 173(8) in the name of further investigation, without there being any material to point out as to how the present accused persons were involved in the alleged crime, and merely because two of the petitioners in Criminal Miscellaneous Application No. 3076 of 2012 were not available at the relevant point of time, it cannot be said that that itself is a ground, since the role of all the accused is at par and when the trial court has found no case against original accused Nos. 1 to 6 who have been discharged by allowing their application vide Exhibit 4 and rejecting application vide Exhibit 19 of the prosecution under Section 173(8) of the CrPC, this Court is of the opinion that no palpable error on the face of the record has been committed, nor does this Court find that any of the relevant documents have not been considered or irrelevant materials have been considered while passing the impugned order. The learned APP is also unable to point out as to how the report under Section 93 of the Cooperative Societies Act is not helpful to the present accused persons.

7. Under the circumstances, Criminal Revision Application No. 395 of 2011 is rejected. As far as Criminal Miscellaneous Application No. 3076 of 2012 is concerned, the role of the present petitioner is at par with the accused persons who are respondents in Criminal Revision Application No. 395 of 2011. Under the circumstances, no useful purpose would be served to relegate the petitioner back to the trial court for preferring an application for discharge when this Court is seized of the matter. Under the circumstances, Criminal Miscellaneous Application No. 3076 of 2012 is allowed. The Criminal Case No. 3147 of 2009 along with all consequential proceedings qua the present petitioners, stands quashed and set aside.

8. Rule is made absolute to the aforesaid extent.