414 r lN THE HlGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1 j Crl Revision PetitionNo23 of 2005 608M1 DateofDecisionl2982009 K K Jerath Petitionerthrough Shri Deepak SibalAdvocate Versus 1 Stateof U T Chandigarh r through Shri 0 RajivShanna Standing C3 Counsel for Union I Territory 0 I CORAM HONBLE MRJUSTICE MAHESH GROVER Z rJ er 1 WhetherReporters of I seethe 110 2 To be referredto theReporters or not2 08 3 Whether the should be in theDigest2J W2 Z Mahesh GroverJ Thisrevision petltion is directedagainstorder dated4122004 passed bytheSpecialJudge described as the trial Courtlvide which a chargehas been directed to be framed againstthe petitionerunder Section 13c9 read with Section 1329ofthe Prevention Act1988 or short the Act lt has been averredthat havingregardto the which have beenmadeagainstthepetitionerthe charge under section of the Act could not havebeen Oamedagainst him as the offencedid not come within theparametersofthese provisions oflaw The allegationsagainstthe petitioner111 brie are that a Parkash Om 2012.10.08 14: 30 True Scanned Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document Crlllevision PetitionNo23 of 2005 f 2 68 was receivedagainsthim while hewas posted as Union Territory that he had been his official position as publicservant byutilizingthe services of govemment drivers and other workingunder him at his residence for his privatework e r4 although the saiarywas beingpaidbythemfromthe govemmenttreasuryIt 0 was also allegedthathehad been the governmentvehicles for his C I personal work despite the fact that thesame were meant for ofOcialuse C5 Learned counsel for the with referenceto the I aforementioned contendedthat none of theseallegations comes Z within the ambitofthe provisions ofSection 13 ofthe Act which laydown r that a person is saidto have committedan offenceof criminal misconductif he or or otherwise converts of his 08 own use any propertyentrustedto him or under his control as a public 7 servant or ailows any other personto do so It is his contentionthat at best 2 even if the are taken to be correct it can be termedto be mls Oa utilization of the resources available at his command and not He 8irthercontendedthat the has beenpunished on side for havingcommitted the aforesaid but no can be attributedto him for the sameIn View of the above leamed counsel for the petitionerprayedthat the impugned order bequashed On the other hand learned counsel for the has submittedthat the petitioner is liable to be prosecuted for a criminaloffence as theallegations which have beenmadeagainsthim clearlyfall within the Parkash Om 2012.10.08 14: 30 True Scanned Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document 1 1 CrlllevisionPetitionNo923 of 2005 1 m3 nV ambitofSection 13ofthe Act I have consideredthe rival contentionsand have the flle The has been accused of causingIoss of m r Rs26848241 and Rs88 13471eto the govemment primarily 0 on two counts i9 while he was at the helm of affairs he utilized the C I servicesof flfteen officials who were meant for governmentjob at his C residencefor his private use and iil he utilizedtwo govemmentvehlclesfor I his personal use despite the fact thattheywere not entrustedto him for that Z e purpose First of all the questionthat is to be determinedis as to I whether at the timeof framing of chargewhat material is to be considered 08 C by the Court It is by nowa settledprincipleof Iaw that at the time of 7 framingof chargeonlyprimafacie material which is availablebeforethe Z Court is to be considered In Union of India Versus Prafulla Kumar Samal and another AIR 1979SC 366 their ofthe Supreme Court held as under The Judgewhile considering the questionof framing the chargesunder Section 227 of the Code has the undoubted powerto sift and weighthe evidencefor the limited purpose of findingout whether or not a primafacie case againstthe accusedhas beenmadeout Where the materials placedbefore the Court disclose grave suSplClon againstthe accused which has not been properly Parkash Om 2012.10.08 14: 30 True Scanned Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document CrRevisionPetitionNo23 of 2005 a4m 1 1 the Court will be llyjustified in framing a charge and with the trial The testto determinea primafacie case could naturallydepend uponthe facts ofeach case andit is difScuIt to Iaydown a rule 1C of universal By and largehowever if two views are 0 equallypossible and the Judgeis satisfiedthat the evidence 0 beforehim while givingnse to some but 1 C not grave suspicionagainstthe accused he will be fullywithin hisrightto discharge the accused Z In his under Sectlon227 theJudgewhich r 1 underthe presentCode is a senior and court cannot act merelyas a PostOffice or a of the 08 but hasto considerthe broad ofthe case thetotal W2 effect of the evidence andthe documents beforethe Z Court any basic infirmities in the case and so on This however does not mean that the Judgeshould make a rovingenquiryinto the pros and cons of the matter and weigh the evidence as ifhe was a trial 11 In Kanti Bhadra Shahand anotherVersus Stateof West Bengal RCR 6Crl 407 SC 722 the Supreme Court observed as underl If the trial Court decides to frame a chargethere isno legal that he should passan order specifying the reasons as to whyhe optsto do Soe Framingof chargeitself is prima Parkash Om 2012.10.08 14: 30 True Scanned Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document 1 J Crlevision PetitionNo23 of 2005 S facieorder that the trialjudgehas formed the opinionupon the policereport and other documentsand after bothsides that there is groundfor thatthe accusedhas committedthe offence concerned If thereis 1CC no legal that the trial Court should write an order 0 showing the reasons for framing a chargethere is no needto 0 furtherburden thealreadyburdenedtrial Courtswith suchextra C5 work The time has reached to adoptall possible measures to I the Court and to chalk out measures to avert Z all roadblockscausingavoidabledelays C In State by Central Bureau of Investigation Versus Sangarappa RCR Criminal 818 their Lordships ofthe Apex 08 Courtobservedas underl n 64 at the stageof framingchargetheCourt shouldnot enter Z upon a process of theevidencebydeciding its worth Qw or credibilityThe limited exerclse duringthat stage1S to flnd out whetherthe materials offered by the to be adducedas evidence are sufflcient for the Court to proceed further In Smt Om Wati and anotherVersus StatethroughDelhi Admn andothers 2001 CrJ 1723 C9 200114 SCC 333 theApexCourt observedas underl 64 We would againremind the High Courts of their statutoryobligation to not to interfere at the initial stageof Parkash Om 2012.10.08 14: 30 True Scanned Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document 419 0 Crl7evisionPetitionNo23 of 2005 4m framing thechargesmerely on and far fetchedreasons which in law amount to the trial against the accusedpersons litigantsshould be from the trial and preventing 1 culminationof thecriminalcases byhavlngresort to uncalled 0 for and unjustified litigation underthe cloak oftechnicalitiesof C I law 0 In State of Orissa and another Versus Saroi Kumar Sahoo RCR 6Criminall 324 the Supreme Court observed in 15 Z ofthe judgment as underl r 46 Even when charge is framedat that stagethe Court has 4 I to onlyprimafacie be satisfiedabout existenceof suf6cient 08 groundfor proceedingagalnstthe accused For that Iimited 7 purposethe Court can evaluate materialand documentson Z recordsbut it cannot evidence The Court is not m requiredto evidence to conclude whether the materials producedare sucient or not for the accuse In Lalu Prasad C Lalu Prasad Yadav Versus Stateof Bihar throughCBI AII Patna Law Herald SC 282 the Supreme Court laid down that at the time of framingof chargethe Court is required to form an opinionand reasons are not to be recorded A CowordinateBench ofthis Court in Ved Parkash Versus State of Puniab and another 200462RCR 6Criminall747 while referring Parkash Om 2012.10.08 14: 30 True Scanned Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document 420 0 CrlRevisionPetitionNo23 of 2005 7e various judgmentsincludingthose ltl Kanti Bhadra Shahs supral and SmtOm Watis case supralheld that the Court is not to record reasonswhen charges are to beframedagainst an accused Now the next whichis to be seen is as to whetherthe m r impugned order can be becausethe case of the doesnot 0 come within the ambit of Section 13 of the Act The primarycontentionof C the counselfor the is that no offence lS madeout even if the C5 allegations levelled against him are takento be correct I If the of Section 13 of the Act are to be perused Z then each of the wordshas to be dissectedcarefully becauseit dealswith 0 the misconduct of a publicservant Section of theAct is extracted I below 06 130 Criminal misconduct bya publicservante S7 61IApublicservant is said to committhe offenceof criminal Z misconduct 6a9XX XX XX Xx XX Xx 109 xx Xx XX XX XX XX 6 c 9 If he or or otherwiseconverts of his own use anypropertyentrustedto him or under his control as a publicservant or allows any otherperson to do so 93 A readingof the provisionsreveals that a public servant if he acts or or otherwise converts to his own use any propertyentrustedto him or under his control Parkash Om 2012.10.08 14: 30 True Scanned Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document 421 0 CrlRevisionPetitionNo23 of 2005 as a publicservant or allowsany person to do so commits a criminal misconduct Thus the scope of the above provisions 1S to check the mischiefof a publicservant andis fairlywide and it is to be in m 0 thatspiritThe 1S On misconductand therefore the allegations 0 have to be evaluatedin thecontext ofthe conductofan offlcial C I The petitioner 1S accusedof usingthe services of flfteen 0 servants at his residence which was not his entitlement The I word property as appearingin section 13116clof the Act in this Z would acquire a largermeaningThe has made dishonestgainsbydrawing the pay of these from the I and usingthe servicesof such for his own personal use ie the 08 He has thus converted to his own use some asset of the ea which is in the shapeof servlces ofthe becausethe Z servants are to be consideredas assets of the State for whichit ll paysliberallyto extract productive work and the conduct of a public servant who exploitstheir the skill talent or maroower to derive productiv ity for his own personalbenet if not entitled to such serviceunder the law and not for the rtheranceofthe interestofthe State will come withinthe definition of misconduct as termedin Section 13 ofthe Ac The word property in the Chambers Dictionaryhas been assigned a meaning that which is ones own The who are essential for the of the State are 5ts own and Parkash Om 2012.10.08 14: 30 True Scanned Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document 422 CrRevisionPetitionN0923 of 2005 e though not propertyIIl the literal sense of the tenn are to be used to enhancethe ofthe Statemachinery in a legaland a proper manner of such States resourceslassetselsewhereto take work from such to enhance a gainat the cost of the State 1 wouldcertainlyamountto usingthepropertyof the Statefor ones use and 0 hence be termed a misconductwhich because of the loss to the 0 I also invites Besides an official who Oouts the C5 normsinvites the allegationof misconductand ultimatelyit is for the I Courtto conclude on the basis of evidence whether such misconduct is Z provedand whether such misconduct if provedcomes within the 2 of Section 136196c9 of the Act or not At the time of framingof I chargethe Court can not concludea matter in a mannerthat results in 08 a result which hasto flow at the end ofthe 7 The secondallegation against the is that he had used Z thegovernmentvehiclesfor his work to which he was againnot entitledto This is straight away coveredunder the provisions of Section of the Act The vehicles were under the control of the officialswho were subordinateto thepetitioner and as per the statementsof suchofficials he is said to havecommandedthem to use the vehicles for his beneflt For this reason and also for the reasons statedabove such an act would be covered underthe aforesaid oflaw Havingregardto the law laid down in the above mentioned cases andalso for the reasons statedabove I hold that the trial Court was notin error while considering primafacie materialavailable on recordwhile Parkash Om 2012.10.08 14: 30 True Scanned Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document 423 0 45 12 CrRevisionPetitionNo923of 2005 7 1 4 Ow the of charge against thepetitioner theinstantpetition merit er re4 5 2009 1 UsiCM MaheshGroverl 4r Judge 1 0 C3 4t PrlA 1 4t2 06 e mW 2 5 CL Parkash Om 2012.10.08 14: 30 True Scanned Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document