IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Criminal Revision No.76 of 2009. Date of decision: 16.03.2010. State of H.P. ….Petitioner Versus Sher Singh & Others ….Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 Yes. For the Petitioner: Mr.Anshul Bansal, Additional Advocate General. For Respondents No.1: Mr.B.C. Negi, Advocate. 5 and 7 to 10. For Respondent No.2: Mr.Y.P. Sood, Advocate. For Respondent No.3: Mr.B.M. Chauhan, Advocate. For Respondent No.4: Mr.Romesh Verma, Advocate. For Respondent No.6: Mr.Anup Chitkara, Advocate. Dev Darshan Sud,J. The State challenges the order passed by the learned Special Judge(F), Shimla, in Criminal Case No.8-S/7 of 2007, discharging all the accused for purported offences under Sections 420, 467. 468, 471, 201 and 120-B of the Indian Penal Code read with Section 13(2) of Prevention of Corruption Act, 1988. 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 The case urged against the respondents was with respect to illegalities in the appointment of Grade-III and Grade-IV employees in Himachal Pradesh State Cooperative Agriculture and Rural Development Bank, Shimla. The prosecution case is that a report was received by Principal Secretary (Vigilance) to the State of Himachal Pradesh that during inquiry it was found that five posts of Grade-III Officers and six of Grade-IV Clerks and typists were advertised in different news papers and the names of candidates were also called from the different Employment Exchanges. The further allegation is that the names were to be sent by the Employment Exchange on the basis of seniority but one of the accused Arun Chauhan, respondent No.2 herein, sent a supplementary list of candidates although no such demand was made by the bank. The allegation is that some of the candidates were registered at Theog Exchange though they were not permanent residents of that area. The prosecution case then proceeds with the allegation that Arun Chauhan had obtained a loan of Rs.1.50 lacs from the bank which was at the relevant point of time headed by Shri Sher Singh Chauhan, respondent No.1. More important, a charge was leveled that the answer sheets of accused Vivek Kumar, Smt.Deepa Khajuria, Smt.Ramla Devi, Smt.Tripta Devi, Surya Prakash and Sanjiv Kumar 3 were not correctly evaluated and they were awarded “excess marks”. I have heard learned counsel for the parties and have gone through the record. Mr.Anshul Bansal, learned Additional Advocate General, submits that the trial Court has exceeded its jurisdiction in assessing the evidence on the record to determine the guilt or innocence of the accused. At the time of framing of charge no such exercise is permissible under law. Learned counsel appearing for the respondents submit that a prima facie examination of the material on the record is permissible to ascertain as to whether the charge is groundless or not and that the material on the record justifies the framing of the charge not by testing the material by cross- examination but on a prima facie scrutiny. Turning to the first aspect of the case, that is, a supplementary list of candidates had been sent, it is not understood as to how this constitutes an offence. The mere sending of a supplementary list of incumbents for the post advertised, does not ensure their selection for which, a written test and an interview were a sine qua non. In other words even if the names were sent that did not ensure selection of the sponsored candidates. They have to further satisfy the criteria of passing a written examination and an interview. If a supplementary list was sent, it only increased the area of competition and did not 4 restrict it. This cannot be treated as an act of criminal conspiracy or corruption as alleged by the prosecution. The best talent in public service can be got by making selection from amongst a large number of candidates on the basis of their merit and ability tested by the other criteria, namely written test, oral interview etc. Public interest is not subserved by restricting the area of competition. The second aspect of the case that Arun Chauhan had obtained a loan of Rs.1.50 lacs and was, therefore, prompted by respondent No.1 to issue a supplementary list does not constitute an offence for the reasons that it has not been found that the loan had been improperly sanctioned or received. Again, at the cost of repetition, there is no causal relationship between obtaining the loan and sending a list and does not establish commission of an offence. The connection, if any, is remote. Sending the supplementary list did not guarantee selection. Mere sponsoring of the name did not amount selection perse but the other mandatory process had to be followed viz. written test and interview. I do not find any force in the submission of the learned Additional Advocate General that sanction of loan was the motive for sending of the additional list. One other submission was made that some candidates, namely, Vivek Kumar, Deepa Khajuria, Ramla Devi, Tripta Devi, Surya Parkash and Sanjiv Kumar could not have been 5 registered with the Theog Exchange as they were not permanent residents of Theog. The learned Court holds on the interpretation of the Rules that permanent residency is not the sine qua non for registration. Registration of the name is at best may be irregularity and not an illegality which finding of the learned Judge is correct. Next aspect of the case that the answer sheet of one Vivek Kumar was wrongly evaluated as against question No.18 he has first written the figure `1858’ which has been cut and then `1854’ has been written as correct answer. Similarly, against question No.35 this candidate has answered `U.P.’ and according to the key provided to the Examiner, the answer should have been `Uttranchal U.P.’ Using this analogy the answers of two more candidates namely, Deepa Khajuria and Sajiv Kumar and the marks awarded to one Vivek Kumar and Surinder Singh were also challenged. Out of them, Vivek Kumar, Deepa Khajuria and Sanjiv Kumar have been selected, according to the Resolution passed by the Board of Directors of the bank. I have scrutinized the record and I find that there is no allegation or otherwise that it was the respondents who were responsible for either effecting those cuttings on the record or acting in concert to have marks awarded to them. There is no link evidence at all to show who was the Examiner and under what circumstances the papers were evaluated. 6 Moreover, it is but common knowledge that the candidates can correct their answer sheets even when they are answering the question etc. Surely the Examiner cannot be penalized for this. Again, no key answer-sheets have been produced during investigation to show that wrong marking has been done. The blame obviously cannot be apportioned on the respondents. I find no evidence on the record to show that the marks have been changed with deliberate intent. The learned Court, considering the provisions of Section 239 of the Code of Criminal procedure holds that a prima facie scrutiny of the evidence shows that the material on record is not at all sufficient for framing a charge. Referring to the case of Supreme Court in L.Chandraiah vs. State of Andhara Pradesh, 2004 CRI.L.J., 365, the Court concludes that negligence cannot be equated with criminal intent. Learned Additional Advocate General submits that the learned Judge has undertaken an exercise which goes beyond his jurisdiction and he was not required to evaluate the evidence. This submission cannot be accepted. In Niranjan Singh Karam Singh Punjab Advocate vs. Jitendra Bhimraj Bijjayya and Others, (1990)4 SCC 76, on the basis of entirety of the case law considered by the Supreme Court, the following principles were laid down:- 7 “6.(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. (2) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the court will be fully justified in framing a charge and proceeding with the trial. (3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence adduced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total 8 effect of the evidence and the documents produced before the court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.” This principle is reflected by the Court in State of M.P. vs. S.B. Johari and Others, (2000)2 SCC, 57 and Dilawar Balu Kurane vs. State of Maharashtra, (2002)2 SCC 135. The Supreme Court has again reiterated: “12. Now the next question is whether a prima facie case has been made out against the appellant. In exercising powers under Section 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the court will be fully justified in framing a charge and proceeding with the 9 trial; by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused, and in exercising jurisdiction under Section 227 of the Code of Criminal Procedure, the Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial (see Union of India v.Prafulla Kumar Samal, (1979)3 SCC 5). To similar effect is the judgment of the Supreme Court in State of U.P. Through Central Bureau of Investigation vs. Dr.Sanjay Singh and Another, 1994 Supp(2) SCC, 707 and State of Maharashtra vs. Priya Sharan Maharaj and Others, (1997)4 SCC 393. Last but not least the Supreme Court in Dilawar Balu Kurane’s case while reaffirming these principles holds that: “12. … … … … … … the Judge cannot act merely as a post office or a 10 mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial (see Union of India v.Prafulla Kumar Samal, (1979)3 SCC 5). (Emphasis supplied) Applying the principles as stated above, I do not find that the learned Judge has committed any error. In fact he does not undertake a meticulous examination of the evidence but a prima facie examination of the depositions made and the material on the record which does not in any manner support the criminality attributed to the respondents. There is no evidence that the loan was sanctioned for an ulterior motive and that it was only for that purpose that one of the respondents obliged respondent No.1 for sponsoring additional names. At the cost of repetition, the sponsoring of the names does not by itself result in selection, but the other process/procedure of a written examination and interview has to be followed before a candidate is selected. I have also scrutinized the answer sheets and I do not find that any interpolation in the mark 11 sheets has been done as alleged. The cuttings, if any, are by the candidates. There is, thus, no merit in this revision which is dismissed. The bail bonds are discharged. March 16, 2010. (Dev Darshan Sud) (aks) Judge.