N. C. SHARMA, J. - (1.) SOMETIMES it happens that when the Magistracy does not apply its mind properly and judiciously, culprits go scot free. This is an instance of such type of cases.
(2.) THERE was a first information report lodged by Avadh Behari Bajpayee Inspector of Schools, Bikaner. In this first information report, the inspector of schools had mentioned that the petitioner was Head Master of Government Bhatad Middle School, Gangashahar. Under orders of the Director of Schools, a preliminary enquiry was held as a result of which it was found that salary of one Jethu Singh, teacher was drawn and disbursed by fabricating his signatures. According to the report, Jethusingh had not attended the school after August 1, 1971. It was further alleged that certain amounts of medical bills of Jethu Singh were also misappropriated by the petitioner by forging signatures of Jethu Singh. It was also alleged that the petitioner 'forwarded certain medical bills by forging signatures of Badridas, former teacher of the school. The next allegation was that full amount of medical bill of Raju Singh was disbursed by the petitioner. Salary of Ravindra Kumar teacher was drawn for the month of January, 1972 but signatures of Ravindra Kumar were not obtained regarding its disbursement to him. The next allegation was that some forged transfer certificates were issued by the petitioner in favour of four persons. THERE were also allegations that scholarship amounts were not disbursed to the concerned students and the amounts thereof were misappropriated by the petitioner. THERE were also some cases in which alterations were made in the results of some students. After investigation, the police filed charge sheet against the petitioner, Bhagwan Das, Jethu Singh, Badri Das and Ranjit Lal for the offences u/ss 467, 468, 409, 420, 120b and 477-A I. P. C. The Judicial Magistrate No. 1, Bikaner by his order dated July 2, 1979 discharged all the accused persons except the petitioner. The primary reason given by the Judicial Magistrate in his order is that in the first information report lodged by Avadh Bihari Bajpayee, only the name of the petitioner was mentioned as the person concerned who had defalcated various amounts and no allegations were made therein as against other persons namely Arjun Das, Bhagwan Das, Jethu Singh, Badri Das and Ranjit Lal. I have gone through the police statements and other documents filed by the police alongwith the charge-sheet. It is clear from the internal audit report given by the Accountant that from 16th November, 1971 to 10th August, 1972 Bhagwan Das used to keep and maintain the cash book. On 10th August, 1972, Bhagwan Das had given charge of this work to Ranjit Lal. All the entries in the cash book were used to be made by Bhagwan Das and Ranjit Lal and the entries were thereafter verified by the petitioner. It may be mentioned that there was no post of any Accountant or Cashier in this middle school and, therefore, as a matter of internal arrangement, the work of maintaining the cash book was entrusted to the teachers serving in that school, namely, Bhagwan Das and Ranjit Lal. The learned Judicial Magistrate has placed reliance on the police statements of Madan Gopal Pandya, Devi Singh and Daya Shanker Bhargava. Madan Gopal Pandya in his statement has admitted that the bills were endorsed by the petitioner in favour of Bhagwan Das and Ranjit Lal and the entries in cash book were also made by these two persons. Madan Gopal Pandya stated in his statement that on 31st October, 1972, the petitioner had come to him to persuade Jethu Singh to save him and that he had signed in the register and the bills in place of Jethu Singh. A chit was stated to have been given by the petitioner to this witness by forging the signatures of Jethu Singh. No such chit was produced. Devi Singh has only deposed that ordinarily it is the responsibi-lity of the Dy. Inspector of Schools for making payments of salary of the emplo-yees in the primary and middle schools. The Head Master of the school used to drawn the amounts and, therefore, he had been entrusted with the work for preparing bills, bringing the payments and making entries in the cash book. According to him, if a Head Master took these works from any Assistant Teacher, he himself was responsible for their acts and was bound to supervise their work. Nothing else is said by this witness. So far as Daya Shanker Bhargava is concerned, he also narrated about the supervisory functions of the Head Master and stated that any wrong acts done by the Assistant Teachers would be deemed to be the acts of Head Master. No doubt the supervisory duties were of the Head Master as is borne out from the above statements. It is, however, admitted by Avadh Behari Bajpayee in his police state-ment that mostly Bhagwan Das used to bring the amount of the bills from the treasury and signatures of Bhagwan Das were present on the bills. When Bhagwan Das had ceased to do this work, Ranjit Lal brought the amounts of the bills from the treasury It; is true that from the statements of witnesses recorded u/s 161 Cr. P. C, it appears that the bills were used to be endorsed in favour of Bhagwan Das and Ranjit Lal by the petitioner and these two persons used to make entries in the cash book of the receipts of the amount and their disbursements and they having been discharged for the various offences including the offence of criminal conspiracy u/s 120-B, the case against the petitioner in relation to defalcations is also adversely affected as one cannot conspire with himself. However, still there is some evidence against the petitioner regarding non-payments of scholarship, issuing of wrong transfer certificate and in this regard, there are statements of Bhagat Ram, Bhanwar Lal, Kishan Lal, Parma Lal and Jugal Kishore. It is pertinent to be mentioned that in the impugned order, the Judicial Magistrate has only stated that the petitioner is responsible for various irregularities. So far the Judicial Magistrate has not framed any specific charge against the petitioner in respect of any particular act or omission. It would not be in the interest of justice, in these circumstances, to quash the proceedings against the petitioner. The Judicial Magistrate has still to apply his mind and to frame charge and it would be open to the petitioner to argue before the Judicial Magistrate that since Bhagwan Das and Ranjit Lal have been discharged, he should also be discharged so far as defalcation of the amounts of salary and medical bills are concerned. It would be for the Magistrate, after hearing the petitioner and the Assistant Public Prosecutor, to decide whether there are grounds to frame any charges against the petitioner and if so, on what count. With the above observations, this petition is dismissed. The matter will go to the Judicial Magistrate No. 1, Bikaner and the petitioner is directed to appear in his Court on 7th September, 1988. Observations made in this order are not meant to prejudice the Judicial Magistrate this way or that way and he has to apply his judicial mind and decide whether there are grounds to frame any charge or charges against the petitioner on the basis of material on record despite the discharge made by him of Bhagwan Das and Ranjit Lal and if so, on what counts. . ;