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Jharkhand High Court · body

2001 DIGILAW 278 (JHR)

Hem Chand v. Union of India

2001-04-20

D.N.PRASAD

body2001
Judgment Deoki Nandan Prasad, J.- This criminal revision is directed against the order dated 24.2.1999 passed by the learned Special Judge, C.B.I., Ranchi, in R.C. No. 23(A) of 1992, whereby and whereunder, the learned Special Judge rejected the petition of discharge filed by the petitioner. 2. The short facts giving rise to this application that the opposite party/C.B.1. lodged a case against the petitioner on 1.12.1992 alleging therein that the petitioner while posted and functioning as Executive Director (Vigilance) in the Central Coalfields Limited during the period May, 1989 to August, 1992, acquired assets disproportionate to his known source of income to the extent of Rs. 3,29,960/- approximately which the petitioner could not explain satisfactorily. It was alleged that the assets were acquired by the petitioner by indulging corrupt practice and also by abusing his official position as public servant. Accordingly, the first information report was lodged and after completion of investigation, charge sheet was submitted. 3. The learned Special Judge took cognizance against the petitioner for the offence under section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act, 1988. 4. The petitioner filed an application before the learned Special Judge praying therein to discharge him. After hearing both sides and considering the evidence on record, the learned Special Judge rejected the petition of discharge by the order impugned, hence, this revision application. 5. On the other hand, the opposite party/C.B.I. filed counter affidavit controverting the allegation and alleged that the petitioner has also been charge sheeted in RC 17(A)/92 (R) under section 120E of the Indian Penal Code and under section 7 and 13(2) read with section 13(1)(d) of the Prevention of Corruption Act, 1988. It is further alleged that the prosecution was never informed by the petitioner about any surprise check conducted at Jarangdih Project of Kathara Area of the Central Coalfields Limited from 3.7.1992 to 7.7.1992 and the stock of coal was measured. On receipt of a copy of joint surprise check memo submitted by Shri P. K. Panigrahi, Inspector of Police, C.B.I. Ranchi, who was a member of the Joint Check Team, it was revealed that only the available stock of coal was mentioned in the memorandum and no shortage/excess, if any, was arrived at. On receipt of a copy of joint surprise check memo submitted by Shri P. K. Panigrahi, Inspector of Police, C.B.I. Ranchi, who was a member of the Joint Check Team, it was revealed that only the available stock of coal was mentioned in the memorandum and no shortage/excess, if any, was arrived at. It is also totally denied that the C.B.I. Officer had committed an offence of criminal tress-pass on 30.8.1992 by entering into the house of the petitioner for conducting search rather the C.B.I. conducted the house search after registration of a criminal case vide RC 17(A)/92(R) against the accused/petitioner and the search was made legal in presence of two independent witnesses. The petitioner never requested the Superintendent of Police, C.B.I. Ranchi vide letter dated 7.7.1992 and there is no question of implicating the petitioner falsely in the criminal case, in conspiracy with the officers of the Central Coalfields Limited, Coal India Limited and Ministry of Coal. The case was registered after recovery of incriminating documents from the residence of the petitioner which reveals that the petitioner had acquired assets disproportionate to his known source of income. Sufficient oral as well as documentary evidence came to light during the course of investigation on the basis of which, charge sheet in the case was submitted against the petitioner after obtaining sanction for prosecution from the President of India. It is also claimed that in the sanction order, check period has been mentioned as 1.5.1989 to 3.12.1989 whereas it should have been from 1.5.1989 to 3.12.1993 as the search was conducted on 3.12.1992. Thus, there is no merit in the application as there is sufficient evidence on record and, therefore, the petition for discharge filed by the accused/petitioner is fit to be rejected. 6. One supplementary affidavit was filed on behalf of the petitioner alleging therein that during the course of search, the C.B.I. officials seized several documents/files including Income Tax File as Item No. 1 and Declaration of Assets File as Item No. 20 of the Search List and the said files were with-held by the Investigating Agency at the time of submission of charge sheet. The petitioner had also filed an application before the learned Special Judge on 29.11.1998 for directing the prosecution to supply the copies of the entire files of Item No.1 and 20 as shown in the Search List, but the learned Special Judge, C.B.I. has not considered the petition and the copies of the said documents have not been supplied to the petitioner before passing the order impugned. It is clearly mentioned in the rejoinder to the reply of the opposite party that the learned Special Judge rejected the petition dated 21.11.1998 on the same day whereas the Income Tax File and the Assets Declaration File are most relevant and valuable documents so that the petitioner can be able to offer satisfactory explanation for acquisition of those assets before the Check period. 7. The opposite party also filed reply to the supplementary affidavit filed on behalf of the petitioner claiming therein that the petitioner had given a wrong statement stating that the opposite party withheld the documents contained in Item Nos. 1 and 20 of the Search List rather the list of documents as• well as these documents were supplied to the petitioner before framing of charge. It is also claimed that the learned Special Judge has taken into consideration all these documents while rejecting the petition of discharge filed by the petitioner. 8. Mr. P. C. Tripathy, learned counsel appearing on behalf of the petitioner at the very out set submitted that this criminal case has been registered out of vengeance and with malafide motive in order to harass the petitioner who conducted series of surprise checks in several Coalfields Area and exposed organised rackets of corruptions and the report was also submitted by the petitioner but no action was taken against the errining officials and this case has been registered only because of the fact that the petitioner had filed a Complaint Case No. 260 of 1992 against the C.B.I. officials and in order to circumvent the order passed by the High Court in connection with R. C. No. 17(A)/92, this false case being R. C. No. 23(A)/92 was registered against the petitioner. It is further submitted that this case is squarely covered by the recent judgment of the Hon'ble Supreme Court in State of Madhya Pradesh vs. Mohan lal Soni [2000(5) Supreme Today 139]. It is further submitted that this case is squarely covered by the recent judgment of the Hon'ble Supreme Court in State of Madhya Pradesh vs. Mohan lal Soni [2000(5) Supreme Today 139]. The petitioner had never been supplied the copy of the documents as referred to in Item Nos. 1 and 20 of the Search List which are the valuable documents for consideration of this case as the petitioner had already declared his assets which were acquired before the check period. It is also submitted that the learned Special Judge, C.B.I., Ranchi, erred in not considering the said documents at the time of passing of the impugned order. 9. In this connection, learned counsel also relied on the various judgments of the Supreme Court and the High Courts viz., State of Madhya Pradesh vs. Mohan Lal Soni [ 2000(5) Supreme 139 ], Satish Mehra vs. Delhi Administration and another [1996 SCC (Cri) 1104], R. S. Nayak vs. A. R. Antulay [1986 SCC (Cri) 256], State of Maharashtra vs. P. D. Daruwalla [1988 East Cri. C. 81 (SC) 7] and Bhagwan Das vs. Smt. Rita Kumari [1993(3) PLJR 875]. 10. On the other hand Mr. P.P.N.Roy, learned counsel for the opposite party/C.B.I. contended before me that there is no illegality in the order impugned as the learned Special Judge considered the whole evidence on the record and passed the order impugned as well as he had also considered the document of Item Nos. 1 and 20 of the Search List. It is further argued that the documents of Item Nos. 1 and 20 of the Search List were actually supplied to the petitioner and there is no cogent/proper reason coming forward to show about the malafide intention on the part of the opposite party as the petitioner had amassed huge properties by indulging corrupt practice which is disproportionate to his known source of income. It is further argued that there is limited scope in passing the order for framing charge as there is no legal requirement that the trial court should pass the order specifying reason for framing charge. If the court below found prima facie case then it had no option but to frame charge. At this stage, the court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the court below found prima facie case then it had no option but to frame charge. At this stage, the court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. The charge can even be framed if there is a strong circumstance about committing the offence. 11. In this connection, Mr. P.P.N.Roy, learned counsel for the opposite party/C.B.I. also relied upon the case in Kanti Bhadra Saha and another vs. The State of West Bengal [ 2000(1) Supreme 6 ], State of M. P. vs. S. B. Johari and others [ 2000(1) Supreme 142 ], State of Maharashtra vs. Ishwar Piraji Kalpatri and others (1996 Cri.L.J.1127), State of Maharashtra vs. Priya Sharan Maharaj and others (AIR 1997 Supreme Court 2041), State of Bihar and another vs. P. P. Sharma and another [1992 Supp(1) Supreme Court Cases 222 : 1991 (2) PLJR (SC) 11]. 12. It has specifically been stated on behalf of the petitioner that one petition was filed on 21.11.1998 in the court below praying to direct the prosecution to supply copies of the Assets Declaration File to which the prosecution had also filed a reply on 21.11.1998 stating therein that the prosecution does not rely upon the documents, namely, declaration of assets and Income Tax File and thus the question of supply of copy of those documents to the accused/petitioner does not arise. After hearing both sides, the learned Special Judge rejected the petition of the petitioner on the same day i.e. 21.11.1998. A copy of the order sheet along with a copy of the petition filed by the prosecution dated 21.11.1998 has been filed and from the order dated 21.11.1998 it appears that the said petition for supply of copy of declaration of assets and Income Tax file contained in Item Nos. 1 and 20 of the Search List was rejected. It was mentioned in the petition of the prosecution itself that it does not rely upon the document, namely, declaration of assets and the court below passed the order dated 21.11.1998 rejecting the petition of the petitioner on the ground that the said petition is not maintainable. Thus, it is clear that the copy of Item Nos. It was mentioned in the petition of the prosecution itself that it does not rely upon the document, namely, declaration of assets and the court below passed the order dated 21.11.1998 rejecting the petition of the petitioner on the ground that the said petition is not maintainable. Thus, it is clear that the copy of Item Nos. 1 and 20 of the Search List being Income Tax File and Declaration of Assets have not been supplied to the accused/petitioner before hearing on the matter of charge. 13. From going through the order impugned it further appears that the said documents being declaration of assets and the Income Tax File have also not been considered by the court below in passing the impugned order. There is no doubt that the said documents being Income Tax Assessment file and Declaration of Assets file have been seized by the prosecution/C.B.I. along with other materials/documents at the relevant time and both the documents being Item Nos.1 and 20 have duly been mentioned in the Search List as those documents were seized at the relevant time. In this connection Section 207 of the Code of Criminal Procedure reads as under:- "207. In this connection Section 207 of the Code of Criminal Procedure reads as under:- "207. Supply to the accused of copy of police report and other documents.-In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following:(i) the police report; (ii) the first information report recorded under section 154; (iii) the statements recorded under sub-section (3) of section 161 of all persons whom the prosecution proposes to examine as its witness, excluding therefrom any part in regard to which a request for such exclusion has been made by the police officer under sub-section (6) of section 173; (iv) the confessions and statements, if any, recorded under section 164; (v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub-section (5) of section 173 : Provided that the Magistrate may, after perusing any such part of a statement as is referred to in clause (iii) and considering the reasons given by the police officer for the request, direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper shall be furnished to the accused: Provided further that if the Magistrate is satisfied that any document referred to in clause (v) is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court." 14. Evidently it is incumbent upon the Magistrate/Judge concerned to furnish the copy of any other document or relevant extracts thereof forwarded to the Magistrate with the police report under sub-section (5) of section 173 of the Code of Criminal Procedure. 15. I have already discussed above that the charge-sheet has been submitted in this case showing the seizure of several documents including Income Tax file and Declaration of Assets contained in Item Nos. 1 and 20 of the Search List. The order dated 21.11.1998 of the court below clearly indicates that copy of the said documents have not been supplied to the petitioner/accused before passing the order impugned as the petition for the same was rejected. 16. 1 and 20 of the Search List. The order dated 21.11.1998 of the court below clearly indicates that copy of the said documents have not been supplied to the petitioner/accused before passing the order impugned as the petition for the same was rejected. 16. Various points were raised on behalf of both sides but it is unnecessary to enter into all those points on merit ~at this stage as I find that the order passed by the learned Special Judge has got to be set aside and thus it would be appropriate to remit the matter back to the court below leaving it open to the parties to raise their respective contentions before the learned Special Judge, C.B.I., Ranchi and the learned Special Judge, C.B.I., Ranchi, is directed to furnish the copies of Item Nos. 1 and 20 of the Search List to the accused/petitioner and those documents may also be taken into consideration along with other documents placed by the C.B.I. while passing the order on the matter of discharge. 17. In the result, this criminal revision is allowed, the impugned order is set aside and the matter is remitted back to the Special Judge, C.B.I., Ranchi, for fresh hearing of both sides on the point and to pass order afresh in accordance with law.