K.M.Natarajan, J. - (1.) THESE revisions are directed by A4 and A5 against the order of dismissal of their petitions Cr.M.P. No. 316 of 1991 in C.C. No. 1157 of 1990 on the file of the Judicial Magistrate No. 1, Kancheepuram under S.239, Cr.P.C.
(2.) THE brief facts, which are necessary for disposal of these two revisions, can be stated as follows: These two revision petitioners, who are A4 and A8 along with A6 filed a petition under S.239, Cr.P.C, to quash the proceedings against them in the said case alleging that none of the ingredients have been established even on the materials which have been furnished to the petitioners and that the trial is nothing but an abuse of process of Court and as such the prosecution has to be quashed. The District Supply Officer, Kancheepuram, through the District Collector of Chengalpattu, at Kancheepuram gave a complaint on 9.3.89 to the respondent/police alleging that A1 to A3 being the licensed dealers allegedly received additional quota of kerosene from Hindustan Petroleum Corporation by using bogus additional allotment orders. On the basis of the said complaint a case was registered in Cr. No. 7/89 under Ss.420, 469, 466, 471 and 34, I.P.C., against A1 to A3 alone. After investigation and after examination of several witnesses a charge -sheet was filed on 19.6.90 against A1 to A6 and as regards A1 to A6 are concerned, they are concerned in the first charge that between August 1988 and February 1989 they hatched a criminal conspiracy to use 13 bogus additional allotment orders purported to have been issued by the District Supply Officer, Chengai -Anna District and to obtain 2300 KLs of Kerosene from Hindustan Petroleum Corporation and thereby A1 to A6 committed the offence punishable under S.120B read with Ss.420 and 471, I.P.C. and as per the charge No. 4, A3 to A6 are alleged to have aided and abetted A -1 to A -3 by advancing money to them for taking delivery of the additional quantity of Kerosene and thereby they committed an offence punishable under S.420 I.P.C. read with S.309, I.P.C. The main charges were against A2 and A3 alleging that they used bogus documents and thereby cheated the Hindustan Petroleum Corporation and obtained Kerosene of additional quantity by using 13 bogus orders. The respondent examined during investigation about 159 persons who were cited as witnesses. The learned trial Magistrate discharged A6 holding that only witness No. 61, who was employed under him had given statement that he had obtained Pay Order from the bank in which A6 was having account as there was no difficulty for the account holder to get pay orders immediately, otherwise it will take some time and no other witness has spoken about his complicity with the offence. As regards A4 and A6 are concerned their petitions were dismissed on the ground that there are statements of witnesses Nos. 132, 58, 59 and 60 available. Hence they are not entitled to the order of discharge. In this case, as per the admitted case of prosecution A1 to A3 are the licence dealers in Chengalpattu District and they secured the documents purported to have been issued by the Civil Supplies Corporation in respect of additional allotment of kerosene and on the basis of 13 bogus orders from 1988 to 14.2.89 they obtained additional allotment of 2379 KLs of Kerosene were meant for public distribution. It is only on the basis of the communication sent by the Hindustan Petroleum Corporation regarding the allotment of Kerosene to the District Supply Officer. It was verified and it was found that A1 to A3 who are wholesale kerosene dealers committed the offence of forging and cheating by forged documents and taking delivery of kerosene. During investigation it was revealed that they transported kerosene through the tankers and lorries belonged to A4 to A6 and hence the charge -sheets have been filed against them along with A1 to A3 for various circumstances as stated above. Learned Counsel for the petitioners Mr. Karpagavinayagam submitted that the case of the petitioners stands on the same footing as that of A6, who was discharged by the trial court, whose order was confirmed by this Court in Cr. R.C. No. 302 of 1991. According to learned counsel the alleged witnesses whose statements were relied on viz., Witnesses 59 and 60 are only employees under A5. Their statement is only to the effect that as far as A5 is concerned, two pay orders were obtained by P.Ws and one Gopal obtained the other pay orders. He would submit that the main allegation is cheating and forgery. But, there are no materials to show that the petitioners have got any connection with the preparation and presentation of bogus orders by A1 to A3. The statement of these witnesses who are employees under A4 to A6, regarding their obtaining pay orders at the instance of the accused from the bank cannot be said to be involving them in the conspiracy or abetment. There is no evidence to show that the petitioners had any knowledge that A1 to A3 are going to use bogus orders for obtaining the additional allotment. Witness 1 is the senior manager of Hindustan Petroleum Corporation. According to him, the delivery is only on the basis of the bogus orders and not with reference to any pay orders which were obtained by these witnesses at the instance of A4 to A6. He had also vehemently argued that there is absolutely no material to show that these A4 to A6 had any part in the preparation or presentation of the said bogus orders or about the offence of the alleged cheating, or forgery. Though the learned trial Magistrate observed that Witness 32 shows that it is not correct and the learned counsel drew the attention of this Court in support of this contention. According to him, actually the case was investigated and sanction was obtained from Witness 5 for filing the charge sheet only for the violation of clause (18) of the Tamil Nadu Kerosene Regulation and Trade Act read with Ss.7(1) and 8 of the Essential Commodities Act. But, they filed a charge -sheet for a different offence without any basis. He would submit that if actually there was a conspiracy of abetment on the part of the petitioners, certainly they would not have obtained the pay orders in their names. Witnesses Nos. 45 and 50, the bank officials, would say in their statement that the pay order can be obtained by anybody but, what all stated is that all that is required for collection of pay order is the case and commission thereon. According to him, whatever evidence available against A6 is the one similar evidence that is available against A4 and A5. This case cannot be differentiated. The only reason for distinguishing was that one Durai who obtained a pay order for A6 was not examined. Similarly in the case of A4, one Gopal, who obtained a pay order was not examined and the only contention against A4 to A6 is that they asked their employees to obtain the pay orders and for that they have not issued any cheque or drawn for that they have not issued any cheque or drawn any money from their account but the amount was only by way of cash. Besides that there is no other circumstance in this case available against these accused. The witnesses who had given statements against these persons are none other than their employees and the sum and substance of the statement is only that they obtained pay orders and they also categorically state that those pay orders were obtained by filing application in the name of the petitioners only in order to get the pay orders quickly as they happened to be account -holders and beyond that they had nothing. Admittedly they are all transport operators and they transported the kerosene from the godown to the place of destination after collecting are or charge. There is no connection with the offence committed by A1 to A3.
(3.) LEARNED Additional Public Prosecutor appearing for the respondent fairly submitted that though nearly 159 witnesses were cited in the charge -sheet only the employees had given statements against these petitioners and they are witness 59 and witness No. 60 and they have conceded that witness No. 132 has not spoken to anything about A4 and he also admitted that their evidence is only in respect of obtaining the pay orders at the instance of their masters viz., A4 and A5. The only contention urged on behalf of the respondent was these transport operators who are A4 and A5 after obtaining pay orders have taken delivery and they used to transport kerosene and as a transport contractor they are expected only to transport and deliver the goods at the destination and that they have gone beyond that jurisdiction. Their act creates a suspicion in the mind of the prosecution. The said submission itself is sufficient for framing the charge and in support of that contention reliance was placed in State of Bihar v. Ramesh Singh (AIR 1977 SC 2013) where this Court had occasion to consider the said decision while deciding Cr. R.C. No. 402 of 1991. The facts of the above decision squarely apply to the facts of this case as rightly pointed out by learned counsel for the petitioners. Learned counsel for the petitioners also submitted that there is absolutely nothing on the side of the prosecution when the pay order was obtained, there is no material on the side of the prosecution that these pay orders are going to be used for getting the allotment by utilising the bogus orders. According to him, this case cannot come under the category of 'strong suspicion'. He also relied on certain decisions in support of his contention regarding the scope of inherent powers of the High Court to quash the proceedings at the stage of filing of the charge -sheet and also regarding the materials which are required for the charge of abetment. The decisions are: (1) Ramu alias Ramaswamy v. State by Inspector of Police (1988 L.W. Cri 458) wherein it is held as follows: On the facts of this case, there was no acceptable material for a charge of conspiracy and admittedly the petitioner was not present at the scene. There will be no useful purpose served in the trial being conducted against the petitioner. Therefore the proceedings are liable to be quashed. (2) Madhavrao v. Sambhajrao ( : AIR 1988 SC 709) wherein it is held thus: The legal position is well -settled that when a prosecution at the initial stage is asked to foe quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilised for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage. (3) Solaiyappan v. State (1990 L.W. Cri 469) wherein it is observed thus: It has been observed in, 1975 S.C. 175 Shri Ram v. State of Uttar Pradesh that in order to constitute abetment, the abettor must be shown to have intentionally aided to commission of the crime. Mere proof that the crime charged could not have been committed without the interposition of the alleged abettor was not enough compliance with the requirements of S.107, IPC. A person may for example, invite another casually or for a friendly purpose and that may facilitate the murder of the invitee. But unless the invitation was extended with intent to facilitate the commission of murder the person inviting cannot be said to have abetted murder. It was not enough that an act on the part of the alleged abettor happened to facilitate the commission of the crime. Intentional aiding and, therefore, active complicity was the gist of the offence of abetment under the third paragraph of S.107, I.P.C. (4) State of Karnataka v. L. Muniswamy & Ors. : 1977 L.W. Cri 39 : AIR 1977 S.C. 1489 wherein it is observed as under: (1) The High Court was justified in holding that for meeting the ends of justice the proceedings against the respondents ought be quashed. It would be a sheer waste of public time and money to permit the proceedings to continue against the respondents, when there is no material on the record on which any tribunal could reasonably convict them for any offence connected with the assault on the complainant. This is one of these cases in which a charge of conspiracy is hit upon for the mere reason that evidence of direct involvement of the accused is lacking. (2) The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a Court proceedings ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the persecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. (3) Consideration justifying the exercise of inherent powers for securing the ends of justice vary from case to case and a jurisdiction as whole some as the one conferred by S.482, ought not to be encashed within the strait -jacket of a rigid formula. The three instances cited in the Judgment in R.P. Kapoor v. The State of Punjab : (1960) 3 SCR 388), as to when the High Court would be justified in exercising its inherent jurisdiction are only illustration and can in the very nature of things not be regarded as exhaustive. (4) It is wrong to say that at the stage of framing charges the Court cannot apply its judicial mind to the consideration whether or not there is any ground for presuming the commission of the offence. (5) While considering whether there is sufficient ground for proceeding against an accused, the court possesses a comparatively wider discretion in the exercise of which it can determine the question whether the material on the record, if unrebutted, is such on the basis of which a conviction can be said reasonably to be possible. Vadilal Panchal v. D.D. Ghadigaonkar, AIR 1960 SC 113 Century Spinning & Manufacturing Co. v. State of Maharashtra ( : AIR 1972 SC 545) applied. (6) In the instant case the High Court is right in its view that the materials on which the prosecution proposed to rely against the respondents is wholly inadequate to sustain the charge that they are in any manner connected with the assault on the complainant. (7) The grievance that the High Court interfered with the Session's Court's order prematurely is not justified. The case was adjourned by the Sessions Judge not for deciding whether any charge at all could be framed against the remaining accused, but for the purpose of deciding as to which charge or charges could appropriately be framed on the basis of the material before him. (8) The object of S.227 of the Code of Criminal Procedure, Act 2 of 1974 is to enable the superior Court to examine the correctness of the reasons for which the Sessions Judge has held that there is no sufficient ground for proceeding against the accused. (9) The High Court is entitled to go into the reasons given by the Sessions Judge in support of his order and to determine for itself whether the order is justified by the facts and circumstances of the case. (10) In the exercise of the wholesome powers S.482 of the Act 2 of 1974 (S.561 of 1898 Code), the High Court is entitled to quash a proceeding it if comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. Observations: The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. Without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction. The ratio laid down in the above decisions squarely applies to the facts of the present case. The learned trial Judge has not considered the effect of the statement of the witnesses but merely stated that in view of the statement of these witnesses they are not entitled to an order of discharge.;