@JUDGMENTTAG-ORDER
D.K. Sinha, J.@mdashThe instant criminal revision is directed against the order impugned dated 6.3.2009 passed by Sri. A.K. Dubey, Judicial Magistrate, 1st Class, Rajmahal by which the petition filed on behalf of the petitioner for his discharge in Barharwa P.S. case No. 112 of 1998 corresponding to G.R. No. 407 of 1998 for the alleged offence under Sections 420/120B/409 of the Indian Penal Code was rejected.
2. The prosecution story in short was that the District Superintendent of Education, Sahibganj had made a preliminary enquiry as to the allegation made by the villagers in respect of distribution of food to the students of Primary School, Barharwa and found that the accused Baidyanath Mahto, Head Master in Barharwa Primary School had obtained 9.06 quintals of wheat from the Block but distributed only 4.05 quintals of wheat on the basis of 80% attendance of the students with the balance of 5.01 quintals of wheat which was retained by him, The informant alleged that without verifying the attendance of the students in the said school to the extent of 80% he obtained wheat for all the students assuming that they had fulfilled the required criteria of 80% attendance in the school for receiving nutritious food. The Stock Register maintained by Mahto depicted that he had lifted 4.05 quintals of wheat on 24.1.1997 for its distribution amongst the students though his attendance was not marked for a single day since 6.11.1996 up to 4th October, 1997 in the school register. The informant alleged in the report that recommendation was made for 172 students in the month of June, 1996 for food whereas only 136 students had completed the required attendance in the school and wheat was shown to be distributed on 7.12.1996 and on 14.12.1996 to the students whereas, during such period, he was deputed in the Block Office and in that manner he committed irregularity in distribution of food and illegality retained stock of 5.01 quintals of wheat. On the basis of the enquiry report of the informant, FIR was lodged against the accused Baidyanath Mahto, Head Master, Primary School Barharwa (Sahibganaj).But after investigation the Investigating officer submitted charge sheet against Baidyanath Mahto, Dhirendra Kumar Singh(Petitioner herein) and Sunanda Nandi @ Sunanda Devi for the alleged offence under Sections 420/120B/409 of the Indian Penal Code.
3. The learned Counsel contended that the petitioner was nowhere in picture in the entire allegation levelled against the principal accused i.e. the then Head Master Baidyanath Mahto except the allegation that the petitioner was the BDO who had deputed him in the said school for the last two years where the alleged irregularity was committed. The principal accused had shown bonafides by offering to surrender more than 5 quintals of wheat which were found surplus after distribution, to the godown of the FCI but such offer was refused for the reasons best known to the Manager of the FCI. It was no where alleged in the entire case diary that the petitioner was any how benefited for the alleged irregularity committed by the then Head Master and the learned Judicial Magistrate without appreciating this aspect refused the petition for discharge of the petitioner though there was no allegation at all against him. Similarly situated co-accused Sunanda Nandi was exonerated from his criminal liability by the order of this Court in Cr. Rev. No. 478 of 2009 on 30.10.2009 who was the incharge Head Master for sometime, whereas the defence of the petitioner is on better footing. The petitioner had neither misappropriated nor defalcated nor cheated any one so as to attract the offence under Sections 420/120B/409 of the Indian Penal Code.
4. Having regard to the facts and circumstances of the case, upon perusal of the order impugned as also the order passed by this Court in Cr. Rev. No. 478 of 2009 on 30.10.2009(Annexure-2) I find that no direct allegation has been made against petitioner or that he was any how benefited for any irregularity alleged to be committed by the then Head Master Baidyanath Mahto except that he was deputed at the instance of the petitioner in good faith who was the BDO at the relevant time. I further find that the prosecution failed to point out nexus of the petitioner with that of the alleged misappropriation or defalcation of any amount or of wheat. The allegation was prima facie directed against the Head Master for certain illegality and for that the petitioner who was BDO cannot be held responsible. I find merit in this Criminal Revision, accordingly it is allowed and the order impugned dated 6.3. 2009 recorded by Sri. A.K. Dubey Judicial Magistrate, 1st Class, Rajmahal in Barharwa P.S. case No. 112 of 1998 corresponding to G.R. No. 407 of 1999 is set aside. The petitioner Dhirendra Kumar Singh @Dhirendra Kumar is discharged from his criminal liability.
