IMPORTANT POINT
An order of High Court in 1987 for fresh trial in a case in which 20 accused persons are involved in misappropriation of a sum of Rs. 1 lakh in 1970-71 is bound to result in harassment and abuse of judicial process where the prosecution has submitted a long list of documents numbering about 1512 and there are 91 charge-sheeted witnesses.

JUDGMENT

Hansaria, J. - These revisions are directed against orders of discharge passed by the learned Special Judge, Kohima, in a case under sections 120B/420/468/471 of the Indian Penal Code and section 5(2) read with section 5(1)(d) of the Prevention of Corruption Act. The broad allegations against the opposite parties were that they had conspired together to cause pecuniary loss to the Union of India by fraudulent means and in furtherance of the conspiracy misappropriated and cheated the Government by misusing official position a sum of Rs. 1,05,989.13. Though, initially the case was one but it came to be bifurcated as would appear from the two orders of discharge passed by the learned Judge. At first, the case against the opposite parties Major W.P.F. Roberts and Naik Subedar K.P. Verma was taken up and by an order passed on 29.9.78 they were discharged. Subsequently the case of the remaining accused was gone into and they came to be discharged by an order dated 21-12-71. Feeling aggrieved the State has preferred these revisions.

2. Shri Hazarika, learned Special Prosecutor on behalf of the C.B.I., has submitted that the learned Judge applied a wrong section, namely, section 227 of the Code of Criminal Procedure, in discharging the accused whereas the proper section was 239. It is then contended that the second order in any case was bad as it was passed ex parte. Some comment has also been made by the learned Counsel about pursing of two orders of discharge in one case. The next submission is that the order is based on extraneous considerations and the learned Judge went beyond record in passing the same. It is finally urged by Shri Hazarika that there were enough materials on record at least to frame charge against the accused persons.

3. Insofar as the first grievance is concerned, we may refer to a recent decision of the Supreme Court in R.S. Nayak v. A.R. Antulay.1 wherein three sections, namely, 227, 239 and 245 of the Code of Criminal Procedure dealing with discharge in a trial (1) before a Court of Sessions; (2) of Warrant-Case, and (3) of summons cases were examined and it was stated in para 44 of the judgment that in spite of the difference in the language of the three sections, the legal position is that if the trial Court is satisfied that a prima facie case is made out, charge has to be framed. This being the position in law, no fault can really be found because of mentioning of section 227 instead of section 239 in the order of discharge, which would have been the appropriate section in view of section 8(1) of the Criminal Law (Amendment) Act, 1952.

4. As regards the grievance that the second order was passed ex parte, Shri Misra, learned counsel for the respondents, has drawn our attention to the Order Sheet wherein it is to be found that the learned Senior Public Prosecutor on behalf of the CBI, had concluded his address to the Court on 2-8-78. This is apparent from the observation in this order that "arguments for the Prosecution concluded". Thereafter the defence addressed the Court, which was over by 20-11-78. The case was then fixed for further disposal on 20.12.1978. That day, however, came to be prefixed by order passed on 15-12-78 which stated that the case would be taken up at Kohima instead of Dimapur Camp Court, on 20th if the parties happened to attend that day, otherwise, it would stand adjourned till 19th January, 1978. But then instead of doing that, the order of discharge was passed on 21-12-78. It is contended by Shri Hazarika that after the order dated 15-12-78 was communicated to all concerned by telegram, the learned Public Prosecutor on behalf of the C.B.I. did not make his appearance on 20.12.78 and he did not know that the case would be taken up at Kohima on 21.12.78. But then this grievance has no cutting edge inasmuch as prosecution's arguments on the charge were concluded by 2.8.78.

5. As to the two orders of discharge we would only observe that this was at best an irregularity, whi