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2004 DIGILAW 793 (CAL)

ABDULSALAM v. STATE

2004-12-23

GORACHAND DE

body2004
( 1 ) BY this application the petitioner Abdul Salam has prayed for setting aside the order dated 29th June, 2004 passed by Shri B. Mondal, the learned Special judge, Andaman and Nicobar Island, Port Blair in Special Case No 22-A of 2000 dated 16. 6. 2000 under Section 13 (2) read with Section 13 (i) (e) of the Prevention of Corruption Act, 1988. ( 2 ) THE main contention of the petitioner in the present application is that he joined the Andaman Nicobar Police Force on 7. 11. 86 as Sub-Inspector of police and posted at Port Blair and thereafter he received different awards including the Condemnation Certificate. In March, 1999, he was transferred to a non-existence post at Car Nicobar Island. Since the petitioner was suffering from various ailments after a leg injury arising out of an accident and was in active treatment under a specialist in the Mainland Hospital, he challenged the illegal transfer order. The said order of transfer was quashed by the Competent forum but the department moved the Circuit Benchat at Port Blair in which a direction was issued upon the petitioner to join the transferred post for a period of six months and meanwhile the Administration was to consider his transfer at port Blair. ( 3 ) THE petitioner could not comply with the order as he had been in the mainland Hospital in connection with his treatment and thereafter the Inspector general of Police initiated a disciplinary proceeding against the present petitioner. The disciplinary proceeding was conducted exparte and finally an order was passed to the effect that the period of his absence from duty would be construed as break of service and a penalty of stoppage of increment of five years was also imposed. Against that order, the present petitioner moved the Central administrative Tribunal, Calcutta and the matter is still pending for adjudication. ( 4 ) AFTER becoming medically fit, the petitioner joined the transferred post at Car Nicobar on 8. 1. 2002. On 12. 4. 2002 when he came to Port Blair on official duty he sustained further leg injury as he had fallen from a ladder, as a result of which, the petitioner had to undergo major surgical operation including open brain head surgery in the Mainland Hospital and thereafter he joined the police force at Port Blair in a lessor strenuous job as advised by the doctor. Such action on the part of the present petitioner was construed to be disobeying the order of transfer issued by the Inspector General of Police who started taking various stringent actions against the present petitioner. It is also pointed out that the said Inspector General of Police being ex-official of C. B. I. started taking different actions against his subordinate Police Officers who had any occasion to disobey the order of the Inspector General of Police. ( 5 ) DURING the period of treatment of the present petitioner, a C. B. I. raid was conducted in the house of the petitioner on 20. 6. 2000 when several files and documents belonging to the petitioner were seized. It was ascertained that on 16. 6. 2000, C. B. I. Calcutta registered a case being R. C. Case No. 22-A/ 2000 against the petitioner alleging commission of offence under Section 13 (i) (e)read with Section 13 (2) of the Prevention of Corruption Act, 1988. ( 6 ) THE allegation of the prosecution was that in course of search and seizure, it transpired that the petitioner had assets to the tune of Rs. 4,68,030. 00 which was grossly disproportionate to his Own source of income. ( 7 ) THE matter was investigated by the C. B. I. and a charge sheet No. 67/2002 dated 26. 12. 2002 was filed before the learned Special Judge, Andaman and Nicobar Island, Port Blair alleging that the petitioner had disproportionate assets to the tune of Rs. 31,98,768. 93 during the check period from 7. 11. 1986 to 20. 6. 2000. ( 8 ) THE petitioner received the materials sent by the Investigating Agency along with the charge sheet and it was noticed that there were serious anomalies and gross mistakes in calculation for which an application under Section 239 of criminal Procedure Code, was filed before the learned Special Judge at Port blair on 19. 9. 2003 praying for discharge of the petitioner. In the said petition, the details of anomalies crept in the charge sheet were pointed out and the said application was taken up for hearing and a written argument was also filed on 25. 3. 2004. Further hearing on the said application was fixed on 26. 3. 2004. But without further hearing and without disposing of the said application, the learned special Judge opted to hear the argument on framing of charge on 26. 3. 3. 2004. Further hearing on the said application was fixed on 26. 3. 2004. But without further hearing and without disposing of the said application, the learned special Judge opted to hear the argument on framing of charge on 26. 3. 2004 and by the impugned order dated 29. 6. 2004 rejected that application for discharge and decided to frame a charge under Section 13 (i) (e) of the Prevention of Corruption Act, 1988, punishable under Section 13 (2) of the Act and accordingly, charge was framed. As the accused pleaded not guilty to the charge, next date for trial was fixed on 6. 8. 2004. So, the said order was challenged by this application. ( 9 ) THE present application appeared as contested application for hearing on 10. 8. 2004 before the Circuit Bench of this Court at Port Blair. It was heard on consecutive three days upto 12. 8. 2004. Since the learned Counsel for the petitioner could not complete this argument and the learned Counsel for the c. B. I. could not get proper instruction from the Investigating Agency, on the prayer of the learned Counsel of both sides, this matter was directed to be heard at Calcutta as part heard matter. By an order dated 17. 8. 2004 the Hon'ble acting Chief Justice assigned this case to this Court for further hearing. ( 10 ) IN course of hearing Mr. Ghoshal along with Mr. A. S. Roy drew attention of this Court to the entire record including the order sheets and the charge sheet and it was pointed out that the learned Special Judge though heard the application under Section 239 of Criminal Procedure Code on several dates but did not pass any specific order on it on conclusion of the argument and without disposing of the application he opted to pass an order for framing of the charge and the charge was framed against the accused person without passing any order in advance. So, it is contended that the petitioner was seriously prejudiced in not getting any chance to challenge the order of rejection of the application under Section 239 of Criminal Procedure Code, before framing of formal charge against the accused person. So, it is contended that the petitioner was seriously prejudiced in not getting any chance to challenge the order of rejection of the application under Section 239 of Criminal Procedure Code, before framing of formal charge against the accused person. It is also pointed out that the learned Special Judge without considering this aspect and without disposing of the application under section 239 of the Code abruptly decided to hear the parties on framing of charge without any formal order and as such the petitioner/accused was highly prejudiced for not getting a chance to challenge the said decision before the appropriate forum. ( 11 ) MR. Ghoshal placing reliance on a judgement of the Apex Court in niranjan Singh Karan Singh Panjabi v. Jitendra Singh, AIR 1990 SC 1962 , contended that the learned Special Judge was required to evaluate the material and documents produced by the Investigating Agency as well as by the accused person to ascertain as to whether there were prima facie materials/ingredients to justify framing of charge. ( 12 ) RELIANCE was also placed in Century Spinning and Manufacturing Co. Ltd. v. State of Maharashtra, AIR 1972 SC 545 , in State of Karnataka v. L muniswami and Ors. , AIR 1977 SC 1489 and in Satishmehra v. Delhi Administration and Anr. , JT (1996)7 SC 6 to show that the learned Special Judge did not consider the difference aspect of the materials produced before him and came to an erroneous decision. It is also argued that the learned Special Judge if evaluated the materials produced before him properly he could come to a conclusion that there was no prospect of this case ending in conviction and thereby could have saved valuable Court's hour being wasted by holding an unsuccessful trial. ( 13 ) MR. Ghoshal as well as Mr. A. S. Roy analysed the different entries made in the charge sheet for showing the gross mistakes committed by the investigating Agency in assessing the total assets and also in fixing the required expenditure. ( 14 ) SECOND dimension of argument advanced by Mr. Ghoshal is that in the present case there is ample scope of interference under Article 227 of the constitution of India. ( 14 ) SECOND dimension of argument advanced by Mr. Ghoshal is that in the present case there is ample scope of interference under Article 227 of the constitution of India. It is contended that the revisional power does not bar the exercise of inherent power of the Court and at a particular stage, the inherent jurisdiction and revisional jurisdiction are construed to be similar and both prayers can be made in a single petition. It is also pointed out that even if there is no doubt as regards revisional jurisdiction of this Court in respect of the impugned order, there is ample scope for interference under Article 227 of the Constitution of India. So, Mr. Ghosal placing reliance on several decisions made a forceful argument that the irregularities pointed in course of argument are sufficient for exercising jurisdiction either under Section 482 of Criminal Procedure Code or under Article 227 of the Constitution of India. Mr. Ghosal however, reminded that as the confusion has been created as to what power can be exercised by a court of law in such given condition the instant petition was filed both under article 227 of the Constitution of India as well as under Section 482 of Criminal procedure Code after paying full Court-fees in compliance of all other formalities. ( 15 ) MR. Ranjan Roy, learned Counsel appearing for the C. B. I. pointed out that the learned Special Judge duly considered the application filed under Section 239 of Criminal Procedure Code as well as the materials on records in course of framing of charge and thereafter rejecting the prayer for discharge it was considered that there had materials to frame a charge against the present petitioner and accordingly, charge was rightly framed. So, Mr. Ranjan Roy contended that there is no reason to interfere with the order passed by the learned Special Judge. It is also pointed out that the factual aspects analysed by the present petitioner are only oral submissions and if all these arguments are duly consider on the basis of the documents seized and produced, it would be found that without any further evidence, the guilt of the accused/petitioner can be established. So, Mr. Roy concluded that without full trial it is not at all possible for a conclusion that there is no material against the present petitioner. ( 16 ) AS regards the legal position, Mr. So, Mr. Roy concluded that without full trial it is not at all possible for a conclusion that there is no material against the present petitioner. ( 16 ) AS regards the legal position, Mr. Ranjan Roy contended that the prevention of Corruption Act being Special Act has overriding effect over the code of Criminal Procedure and as such the principles enunciated in respect of cases governed by the Code of Criminal Procedure can easily be distinguished in respect of the cases arising out of this Special Act. It is also pointed out that under Section 19 (3) (c) of the Prevention of Corruption Act no Court shall exercise the power in revision in relation to any inter locutory order passed in any inquiry, trial, appeal or other proceedings. It is pointed out that the impugned order of framing of charge being an interlocutory order, this Court is not competent to exercise the power of revision. ( 17 ) MR. Roy, also pointed out that in the First Information Report the disproportionate income of the present petitioner was construed to be was Rs. 4,63,030. 00 but after investigation it was found to be to the tune of Rs. 31,98,768. 93. The learned Special Judge duly considered all these aspects including all the documents produced along with the charge sheet and thereafter rejected the application filed by the petitioner under Section 239, Criminal procedure Code, and opted to frame charge. Charge also was read over and explained to the petitioner who pleaded not guilty to the charge and accordingly a date has been fixed for evidence. So Mr. Roy contended that the petitioner submitted to the order passed on 29. 6. 04 and after taking the plea of 'not guilty' he is not competent to challenge the impugned order. ( 18 ) AS regards the application of Section 239, Criminal Procedure Code mr. Roy analysing the provision of that section urged that there is no indication as regards taking out of a separate application praying for discharge. It is contended that the section itself gives the power to the accused to argue on the point of discharge at the time of consideration of charge and as such there is no necessity of passing any separate order under Section 239, Criminal procedure code. It is contended that the section itself gives the power to the accused to argue on the point of discharge at the time of consideration of charge and as such there is no necessity of passing any separate order under Section 239, Criminal procedure code. It is also pointed out that by the impugned order the learned Judge duly considered the written objection filed under Section 239 of Criminal Procedure code, in course of hearing on the point of charge and by the impugned order he rejected the application under Section, 239 Criminal Procedure Code and passed order for framing of charge. It is argued that there is no scope to challenge the impugned order. The next dimension of argument of Mr. Roy is that the allegations made in paragraph 8 of the present application against the Inspector General of police may be a good defence of the accused in course of trial but without impleading the Inspector General of Police as a party in this application it would not be proper to make any allegation against him. If any order or remark is passed on this score it would tantamount to unfair comment without giving the concerned officer an opportunity of being heard. Practically the said allegation was also not taken in the application under Section 239 of Criminal Procedure code. So Mr. Roy concluded that no reliance should be placed on the paragraph 8 of the present application. ( 19 ) MR. Roy further pointed out that the statements made in paragraphs 17, 18 and 19 of the present application were not properly traversed in the affidavit part of the application. Of course, this mistake was tried to be rectified on the basis of a supplementary affidavit shown on 13. 8. 04 and in paragraph 4 of that supplementary affidavit it was averred that the statements made in paragraphs 17,18 and 19 were true to the knowledge derived from the records which the deponent varily believed to be correct. But Mr. Roy placing the order sheet of the trial Court pointed out that the impugned order was passed on 29. 6. 2004 and long before that date the application for discharge was heard and argument both oral and documentary were placed before the trial Court. But Mr. Roy placing the order sheet of the trial Court pointed out that the impugned order was passed on 29. 6. 2004 and long before that date the application for discharge was heard and argument both oral and documentary were placed before the trial Court. So it is contended that the statements made in paragraphs 18 are not correct especially when it is sufficiently indicated that argument in the matter was concluded on 26. 3. 04. ( 20 ) MR. Roy further pointed out that series of documents on which the prosecution has been relying upon are neither annexed with the application for discharge nor those were scanned or relied upon at the time of hearing of argument on the point of consideration of charge. It is clarified by Mr. Roy that documents produced by the accused are required to be tested in the evidence and without proof of those documents it would not be possible to place any reliance as regards their authenticity, genuineness or evidentiary value. The plea taken by the petitioner, according to Mr. Roy, is merely a defence which can only be thrashed out in evidence after completion of the evidence to be produced by prosecution. So Mr. Roy concluded that all the arguments made on behalf of the petitioner can be made at the time of trial of this case and not at this stage. ( 21 ) MR. Roy also relied on several judgements in support of the contention that there is no scope to set aside the impugned order either under Section 482, Criminal Procedure Code or Article 227 of the Constitution of India inasmuch as for framing of charge no legal analysis is necessary. But such analysis would be necessary in case of framing of charge only when the Court finds no merit in a charge sheet and opts to discharge the accused. ( 22 ) AS regards the maintainability of the present application it is to be noted that in the cause title the application has been indicated as an application under article 227 of the Constitution of India and also as an application under Section 482 of Criminal Procedure Code. ( 22 ) AS regards the maintainability of the present application it is to be noted that in the cause title the application has been indicated as an application under article 227 of the Constitution of India and also as an application under Section 482 of Criminal Procedure Code. It is generally believed that if there are other provision in the Code in respect of any order passed by any Court it would not be proper to take recourse to provision of Article 227 of the Constitution of india. But at the same time it is to be pointed out that there is divergent opinion as to whether the order of framing of charge is to be construed as an interlocutory order or final order. Mr. Roy rightly pointed out that for framing of charge the details of the argument are not required to be depicted in the order passed by thetrial Court. But for the purpose of discharging the accused the details are to be analysed. So an attempt has been made to show that the order of discharge is to be construed as a final order and the framing of charge has been construed as an interlocutory order. But if the entire situation is analysed, it can safely be concluded that the basis of terming an order to be final or interlocutory depends on the stage at which the matter is taken up for consideration. While the Court of law exercises the power under Section 227 or 228 or under Section 239 or 240 of the Code of Criminal Procedure the entire question as to whether the accused is to be discharged or charge is to be framed is open for consideration. So at this stage either the proceeding can be terminated finally by passing an order of discharge or an order is to be passed for framing of charge indicating further continuation of the proceeding. So the test of finalisation of the order is the stage for consideration of charge and as such after keeping in view the several decisions it can safely be concluded that an order passed at the stage of consideration of charge is to be construed as final order and not interlocutory order. So the test of finalisation of the order is the stage for consideration of charge and as such after keeping in view the several decisions it can safely be concluded that an order passed at the stage of consideration of charge is to be construed as final order and not interlocutory order. ( 23 ) IN this connection it is also to be pointed out that under Section 19 (3) (c)of the Prevention of Corruption Act, 1988 as regards the power of revision in relation to an interlocutory order there is an embargo upon the Court. In fact the courts never allow any order of stay with regard to the proceeding under the prevention of Corruption Act. Similarly the power of revision is also not exercised in respect of interlocutory order with the object of speedy trial. In this connection it would not be out of place to mention that sudden intrusion of the embargo as regards the exercise of revisional power by Courts in a section in which previous sanction before prosecution is the principal subject matter is to some extent incongruent. But neither of the parties however, challenged this part included in section 19 (3) (c) of the said Act. But the fact remains that revisional power cannot be exercised in respect of interlocutory order in a case arising out of Prevention of Corruption Act. ( 24 ) IT is already analysed that the order of framing of charge is to be construed as final order and as such the revisional power can be exercised either under Section 397 or 401 of Criminal Procedure Code. The law is quite settled on this point that if there is provision in the Code itself for exercising power of revision then the provision of Section 482 of the Code will not be applicable. So, it is needless to analyse any further in that section when power under Section 482 of Criminal Procedure Code, is not applicable in the present case with regard to the impugned order. It is needless to mention that the impugned order has not been challenged under Section 397 read with Section 401 of Criminal Procedure Code. So, it is needless to analyse any further in that section when power under Section 482 of Criminal Procedure Code, is not applicable in the present case with regard to the impugned order. It is needless to mention that the impugned order has not been challenged under Section 397 read with Section 401 of Criminal Procedure Code. ( 25 ) IN course of hearing of this argument the learned Counsel for the petitioner submitted that as this Court has power under Section 401 read with section 397 of the Code it can be exercised notwithstanding the fact that it is not indicated in the application itself. On this score Mr. Ghosal further pointed out that keeping in view such a situation the author of the Code opted to keep the provision as regard transformation of a petition from revision to an appeal under Section 401 (5) of the Code. Of course relying on the decision of the Apex court in Pepsi Foods Ltd. and Anr. v. Special Judicial Magistrate and Ors. , reported in (1997)9 Supreme 279 Mr. Ghoshal contended that nomenclature under which the petition is filed, is not quite relevant and that does not debar the Court from exercising its jurisdiction unless there is special procedure prescribed, which procedure is mandatory. It is also argued that in a fit case the Court can exercise power either under Article 226 or under Article 227 of the Constitution of India or under Section 48 of Criminal Procedure Code. ( 26 ) IT is true that provisions of Article 226 or Article 227 of the Constitution or order under Section 482 of the Code of Criminal Procedure are devised to justice and not to frustative. But the procedures laid down are required to be followed for the purpose of judicial discipline. But in a case of this nature where there is a doubt as to whether a particular order is interlocutory or a final order, it is always open to the aggrieved party to pray for an appropriate order from a court having jurisdiction. Admittedly this Court has got the jurisdiction as revisional Court or as Court exercising inherent power under Section 482 of the code or power of superintendence under Article 227 of the Constitution of India. Admittedly this Court has got the jurisdiction as revisional Court or as Court exercising inherent power under Section 482 of the code or power of superintendence under Article 227 of the Constitution of India. If there is any doubt as regards the existing forum it would be open to the aggrieved party to seek any relief applicable to a particular case. The present case is to be viewed on the basis of this principle. It is pertinent to mention that to avoid all confusions appropriate Court Fees required for an application under article 227 of the Constitution was also deposited along with the application thereby keeping no scope for raising any objection on technical ground. ( 27 ) SO, from the scheme of the Prevention of Corruption Act, it can safely be concluded that no revision lies against the inter-locutory order. But at the same time, it is also to be noted that if there is a final order, revisional jurisdiction can be exercised. It is also clarified hereinabove that if there is a scope for revision, the provision of Section 482 of the Code is not applicable. So, at the risk of repetition, it is concluded that when the Court considered the nature of the order as a final order, it does not entertain the application under Section 482 of the Code. Similarly, exercising of power under Section 483 of the Code cannot be conceived of inasmuch as the Special Court constituted under the Prevention of Corruption Act is not construed as Court of Judicial Magistrate. On the other hand under Section 5 (6) of the Act, the Special Judge is entitled to exercise all powers and functions exercisable by a District Judge. Of course, under the provision of Section 401 of the Code, the High Court while exercising power of revision is competent to exercise any of the powers conferred on Court of appeal by Sections 386,389,390 and 391 of the Code. This provision practically enables the High Court to go into the merit of a particular application. ( 28 ) SO, it appears that the Code authorises the High Court to take into consideration the merits of a particular case while exercising power under Section 401 of the Code. This provision practically enables the High Court to go into the merit of a particular application. ( 28 ) SO, it appears that the Code authorises the High Court to take into consideration the merits of a particular case while exercising power under Section 401 of the Code. But in the present case, when a doubt has been expressed as to whether the impugned order is to be considered as an interlocutory order or a final order, I feel that it would be proper to exercise power of superintendence under Article 227 of the Constitution of India. Since the required Court-fees has already been paid in respect of an application under Article 227 of the constitution, I do not think that there is any technical bar in considering the present application as revision under Article 227 of the Constitution. ( 29 ) IT is needless to mention that extra-ordinary power of superintendence over all Courts under Article 227 of the Constitution invokes the duty on the part of the High Court to keep all Courts and Tribunals within its territorial jurisdiction within the bounds of their authorities, to that they do what their duty requires and that they do in a legal manner. Such view was also taken by the Apex Court in the case of Umar Saheb v. Kala Laskar, reported in AIR 1970 SO 61. In the subsequent judgements of the Apex Court such view was further elaborated and it had been upheld the High Court can interfere in cases of - (a) Erroneous assumption or excess of jurisdiction. (b) Refusal to exercise jurisdiction. (c) Error of law apparent on the face of the record, as distinguished from a mere mistake of law or error of law relating to jurisdiction. (d) Violation of principles of natural justice. (e) Arbitrary or capricious exercise of authority or discretion. (f) Arriving at finding which is perverse or based on no material. ( 30 ) BUT at the same time, principle enunciated by the Apex Court in the case of D. N. Banerjee v. Mukherjee, reported in 1953 SCR 302 may be recollected. (d) Violation of principles of natural justice. (e) Arbitrary or capricious exercise of authority or discretion. (f) Arriving at finding which is perverse or based on no material. ( 30 ) BUT at the same time, principle enunciated by the Apex Court in the case of D. N. Banerjee v. Mukherjee, reported in 1953 SCR 302 may be recollected. In the said judgement a view was also taken that the power under article 227 of the Constitution would be restricted to interference in cases of grave dereliction of duty or flagrant violation of law and would be exercised most sparingly in cases where grave injustice would be done unless the High court interferes. In the subsequent judgement, the Apex Court further viewed that such power cannot be used as appellate or revisional power. So, the question is open for discussion as to whether such extra-ordinary power under Article 227 of the Constitution is required to be exercised in the present case. ( 31 ) IT is rightly argued by Mr. Roy that the trial Court on perusal of the materials on record considered that a charge is required to be framed against the present petitioner. It is also true that the learned Special Judge while passing the impugned order rejected the application filed by the present petitioner before him under Section 239 of the Code. On scrutiny of the order sheets, it appears that on receipt of the charge sheet dated 26. 12. 2002, the trial Court passed an order on 31. 12. 2002 indicating that the trial Court had perused the charge sheet and thereafter opted to take cognizance. That order has not been challenged at that stage. But the accused petitioner Abdul Salam on receipt of summon from the Court appeared before that Court on 27. 2. 2003 and he was taken into custody. However, a prayer for bail filed by the petitioner was allowed and 19. 5. 2003 was fixed for consideration of charge. On the same day, the accused submitted his bail bond and was released on bail. But the record does not indicate that immediately on appearance of the accused, all copies of the documents were served on the accused. On the other hand, on 25. 2. 2003, a prayer was made on behalf of the accused to supply copies of the documents and the statement of the witnesses. The order dated 19. 6. But the record does not indicate that immediately on appearance of the accused, all copies of the documents were served on the accused. On the other hand, on 25. 2. 2003, a prayer was made on behalf of the accused to supply copies of the documents and the statement of the witnesses. The order dated 19. 6. 2003 indicates that the prosecution supplied copies of some of the documents relied upon by them and further time was sought for supplying copies of other documents. The trial Court was pleased to allow the prayer and 6. 8. 2003 was fixed for supply of those documents. On that day, attention of the Court was drawn to the fact that few copies of the document supplied to the accused were not legible and accordingly, another date was fixed for supplying the same on 29. 9. 2003. Meanwhile, on 10. 9. 2003, the present petitioner filed an application under Section 239 of criminal Procedure Code, praying for his discharge relying upon the documents which were supplied to him by the prosecution and the trial Court was pleased to fix 22. 10. 2003 for hearing of that petition. Liberty was also given to file written objection against the said petition. But no written objection was filed by the prosecution on 22. 10. 2003 and on their prayer, hearing was adjourned to 19. 11. 2003 and on that day, on consent of the learned Counsel of both sides, 19. 1. 2004 was fixed for hearing of argument on that application under Section 239 of the Code and liberty was given to the parties to submit written argument on 19. 1. 2004. On the prayer of the prosecution, the date of hearing fixed on 19. 1. 2004 was adjourned to 25. 3. 2004 on which date the hearing of the petition under Section 239 of Criminal Procedure Code, was started and written argument was filed on behalf of the accused. Since the hearing of the argument was not concluded next date for hearing of further argument was fixed on 26. 3. 2004. ( 32 ) THE order dated 26. 3. 2004 does not indicate that further hearing on the application under Section 239 of Criminal Procedure Code, was taken up, on the other hand, the order was passed as follows : "the accused on c. b. is present. Argument heard in relation to framing of charge. 3. 2004. ( 32 ) THE order dated 26. 3. 2004 does not indicate that further hearing on the application under Section 239 of Criminal Procedure Code, was taken up, on the other hand, the order was passed as follows : "the accused on c. b. is present. Argument heard in relation to framing of charge. On 12. 4. 2004 for order's". ( 33 ) ON 12. 4. 2004, the order was not passed and the next date fixed 'for orders' was 29. 6. 2004. The impugned order dated 29. 6. 2004 indicates that on the same day, the accused was present and the learned Additional P. P. was also present and in their presence, the impugned order was passed. The starting portion of the order is as follows. "this day is fixed for passing order in relation to framing of charge. By filing the application on 25. 3. 2004 the accused prays for discharging him from this case with the main allegation that the charge sheet has been filed with frivolous grounds and for this reason the petitioner-accused may be discharged from this case for the offence alleged against him. " ( 34 ) IN course of hearing for framing of charge, the learned Special P. P. after drawing attention of the Court on the materials on record and the charge sheet argued that Sri Abdul Salam, the accused was found during the check period, i. e. from 7. 1. 1986 to 20. 6. 2000, in possession of properties and pecuniary resources disproportionate to his own source of income. ( 35 ) IT was argued on behalf of the petitioner scanning the order sheet that no application for discharge was filed on 25. 3. 2004 and it was actually filed on 10. 9. 2003. It is also discussed above that the written argument was filed on 25. 3. 2004. So, it is undoubtedly an error on the face of the record when the learned Judge considered the written argument as the application for discharge filed on 25. 3. 2004. An attempt was made to argue that the trial Court perused the written argument and had no occasion to peruse the application dated 10. 9. 2003. It is also pointed out that the trial Court in paragraph 6 of the impugned order again considered the written note filed on 25. 3. 3. 2004. An attempt was made to argue that the trial Court perused the written argument and had no occasion to peruse the application dated 10. 9. 2003. It is also pointed out that the trial Court in paragraph 6 of the impugned order again considered the written note filed on 25. 3. 2004 as an application for discharge and in concluding part of the order, the Court considered that the application for discharge filed on 25. 3. 2004 is liable to be rejected. It is also pointed out that in the four corners of the order impugned order there is no discussion with regard to anomalies pointed out in the application for discharge filed on 10. 9. 2003. ( 36 ) MR. Roy on this score tried to point out that it is simply an error as regards date. But the entire order will indicate that the Court had occasion to peruse the application for discharge and also written argument. It is also pointed out earlier that Mr. Roy clarified that a separate application under Section 239 of the Code is not required to be filed inasmuch as it is incumbent upon the court of law to take into consideration the police report and the documents sent with it under Section 173 and also after making such examination, if any, of the accused, as the Court thinks necessary and after giving the prosecution and the accused an opportunity of being heard. ( 37 ) MR. Ghoshal placing reliance on a decision of the Bombay High Court reported in 1987 Cr LJ 58, Babu Rao Hari Power v. State of Maharashtra, contended that the accused is entitled to ask for discharge from the prosecution at any stage and there is no time limit for filing of such application. ( 38 ) IT is to be noted that the trial Court did not fix any date for consideration of framing of charge. On the other hand, it fixed several dates upto 26. 3. 2004 for hearing of the application under Section 239 of Criminal Procedure Code, filed on 10. 9. 2003. There was an order that on 26. 3. 2004 also further hearing of the application under Section 239 of the Code was to be continued. So, it is abundantly clear that after 26. 3. 2004, no date was fixed for consideration of charge but on 26. 3. 9. 2003. There was an order that on 26. 3. 2004 also further hearing of the application under Section 239 of the Code was to be continued. So, it is abundantly clear that after 26. 3. 2004, no date was fixed for consideration of charge but on 26. 3. 2004, an order was passed to the effect that the argument was heard in relation to framing of charge. This means that without fixing any date for hearing of charge it was taken up for consideration. In course of further hearing of the application under Section 239 of the Code. The order further indicates that the petition under Section 239 of the Code was filed long before fixation of any date for consideration of charge. So it is rightly argued by Mr. Ghoshal that the accused had the impression that his application for discharge was being considered by the trial Court. It is also true that no specific date was fixed for consideration of charge and abruptly in course of hearing of the application for discharge, it was indicated that the case was taken up for consideration of charge. I am satisfied that on this score the accused had a confusion. But the order dated 26. 3. 2004 made it clear that argument was heard in relation to framing of charge and 12. 4. 2004 was fixed for order. It was also made known to the accused that the order of framing of charge was not ready on 12. 4. 2004 and the next date fixed for order was 29. 6. 2004. But those orders dated 26. 3. 2004 and 12. 4. 2004 were not challenged before the trial Court or before any superior forum. This indicates that the accused actually submitted to those orders. ( 39 ) ON 29. 6. 2004, the impugned order was passed in which there were specific indications that the petition for discharge was rejected, that there were sufficient materials for framing of charge and that the charge under Section 13 (1) (e) of the Prevention of Corruption Act, 1988 punishable under Section 13 (2) of the Act was framed as per separate sheet. It was also indicated in the order that the charge was read over and explained to the accused who pleaded not guilty and claimed to be tried. Accordingly date was fixed for trial. It was also indicated in the order that the charge was read over and explained to the accused who pleaded not guilty and claimed to be tried. Accordingly date was fixed for trial. Consequently the prosecution was directed to file a list of witnesses whom the prosecution intended to examine in the trial. But it is to be noted that all such actions were taken in the impugned order dated 29. 6. 2004 and the accused came to know about the said order only after it is delivered. So it is rightly argued by Mr. Ghoshal that the accused had no opportunity to challenge the finding of the trial Court as regards rejection of the application for discharge as well as the framing of the charge. ( 40 ) IN this connection it is to be pointed out that when a specific application for discharge was filed by the accused and there was hearing on merits, the trial Court could pass a specific order on it. But when the trial Court opted to hear that application for discharge along with consideration of charge, a single order could be passed ventilating that the application for discharge was rejected and a charge is to be framed on the basis of the materials on record. Thereafter the Court could proceed to frame the charge in separate sheet and examine the accused thereafter. In such a course of action, the defence could get an opportunity to challenge the order of rejection of the application for discharge as well as the order of framing of charge. Since the impugned order contained all the details upto the framing of charge in separate sheet and examination of the accused, such a chance was not given to the defence and as such, it is very difficult to come to a conclusion that the accused actually accepted the order or submitted to the order for which he is incompetent to challenge the impugned order any further. ( 41 ) MR. ( 41 ) MR. Roy in this connection placed reliance on the observation of the apex Court at paragraph 61 of the judgment reported in AIR 2003 Supreme court 511, Bhabnagar University v. Palitana Sugar Mill Pvt. Ltd. , in support of the contention that-"if a party thinks that happenings in Court have been wrongly recorded in a judgment, it is incumbent upon a party while the matter is still fresh in the minds of the Judges to call the attention of the very Judges, who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error. This is the only way to have the record corrected. If no such step is taken the matter must necessarily end there. " ( 42 ) IN this connection, Mr. Roy also pointed out the observation of the trial court in the last but third paragraph of the order which is as follows :"in course of hearing arguments it is submitted by both parties that the alleged disproportionate asset is to be found or determined in the basis of documentary evidence to be adduced by the respective parties. " ( 43 ) SO it was contended that the accused person also admitted that other documentary evidence was to be adduced. Since this portion of submission of the learned Counsel for the defence was not challenged, it is to be presume that the facts stated therein are correct. ( 44 ) BUT it is to be noted from the impugned order itself that it was a final verdict given after performing all the actions upto the stage of examination of the accused on framing of charge. So no scope was given to the defence to challenge the order in the line indicated by the Apex Court in the case of bhabnagar University (supra ). In the said judgment, the Apex Court also took the view-"of course a party may resile and an appellate Court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice; but, he may not call in question the very fact of making the concession as recorded in the judgment. " ( 45 ) SINCE there was no scope to challenge the order before the Trial Court after the passing of the impugned order, the accused person had no other alternative than to move the higher forum challenging the impugned order. So the accused person neither waived his right nor he got any opportunity to challenge the order. So it is rightly argued that there was no question of approbate and reprobate on the part of the accused. After a careful scrutiny of the impugned order, I must say that the courses of action should have been distinctly separated by passing separate order one after another thereby giving appropriate opportunity to the parties to challenge the order and not in the manner done in the impugned order. The impugned order, in fact, is the description of the actions taken by the parties as well as by the Court upto the stage of examination of the accused on framing of charge. So the objection raised by the opposite party that the application is not maintainable is not correct. The nature of the order indicates that it is liable to be challenged in the manner done in this case. Judging from this standpoint, it can be said that the application is quite maintainable. ( 46 ) THE learned Counsel for the petitioner scanning the charge sheet and other materials annexed with the present petition made a forceful argument for discharge of the present petitioner. It is pointed out that there are different errors in calculating the assets of the present petitioner, it is also pointed out that if all the assets indicated in the charge sheet are taken into consideration that will show that the allegation of disproportionate acquisition of property and pecuniary resources is not only baseless but unfounded too. The learned Counsel after pointing out the allegedly wrong and illegal interpretation of materials on record and the arithmetical mis-calculation contended that the trial Court was required to examine the calculation of income, expenditure and assets of the petitioner and if all these were properly checked it would have been seen that there was no materials to book the petitioner anyway under the provisions of the Prevention of Corruption Act. ( 47 ) IT is also argued showing the calculation in the application for discharge that there is no basis for framing a charge against the accused and as such the order of framing of charge is to be set aside and the accused is to be discharged. ( 48 ) THE learned Counsel for the petitioner in support of his contention placed reliance of several judgments of the Apex Court and other Courts and prayed for setting aside the impugned order. The learned Counsel placing reliance on niranjan Singh Karan Singh Punjabi v. Jitendra Singh (supra), pointed out that the Court is required to evaluate the materials and documents on record with a view to finding out if the facts emerging therefrom taking at the face value disclose the existence of all the ingredients constituting the alleged offence. It is also contended that the Court may for the limited purpose shift the evidence as it cannot be expected, even at the initial stage to accept all the prosecution states as gospel truth even if it is opposed to commence since or the broad probability of the case. ( 49 ) RELIANCE was placed in Century Spinning and Manufacturing Co. Ltd. v. State of Maharashtra (supra) to remind that the responsibility of framing the charge is on the Court and as such without fully adverting to the materials on record it must not blindly adopt the decision of the prosecution. ( 50 ) IT is further pointed out that in the case of Sri Satish Mehra v. Delhi administration and Anr. , (supra) it has been clarified that the Court is to consider the record of the case and the documents produced along with the charge sheet before framing of charge and thereafter hearing the submission of the accused as well as the prosecution it is required to be considered whether there is sufficient ground to proceed. It is pointed out that in course of such hearing as well as consideration of charge the Court can consider even the materials which the accused may produce at that stage. Such a provision is kept in the Code only to decide whether it is necessary to proceed to conduct the trial. If the case ends there it gains a lot of time of the Court and saves much human efforts and cost. Such a provision is kept in the Code only to decide whether it is necessary to proceed to conduct the trial. If the case ends there it gains a lot of time of the Court and saves much human efforts and cost. Reliance was also placed on several judgments to the argument that the accused is presumed to be not guilty unless he is proved to be so and if he is found to point out even before the commencement of the trial that he has been falsely implicated and that there is no prima facie case against it, he is at liberty to ask for discharge from the prosecution at initial stage even without filing an application to this effect. ( 51 ) MR. Roy appearing on behalf of the opposite party, C. B. I. did not oppose the principles enunciated in the decisions relied upon by the learned Counsel for the petitioner. But he pointed out that the documents annexed with the charge sheet having not been produced before this Court it is not at all possible to make any comment on those documents. Referring to the impugned order Mr. Roy contended that the learned Counsel of the accused submitted before the trial Court that the alleged disproportionate asset is to be found or determined on the basis of documentary evidence to be adduced by the respective parties. So considering such submission the trial Court took the view that both parties should be given chance to adduce their respective documentary evidence in support of the respective cases. ( 52 ) IT is also pointed out that since all the documents were not produced by the accused person the trial Court relied on the documents on record and found out prima facie ingredients for framing of charge for the offence as alleged. ( 53 ) MR. Roy pointed out that in the discharge petition a portion of defence case was made out, but all the relevant documents were not produced in support of the defence case. On the other hand, the prosecution took charge of series of documents found in possession of the accused and placed reliance on those materials while filed the charge sheet. Roy pointed out that in the discharge petition a portion of defence case was made out, but all the relevant documents were not produced in support of the defence case. On the other hand, the prosecution took charge of series of documents found in possession of the accused and placed reliance on those materials while filed the charge sheet. ( 54 ) IT is pointed out that the charge sheet itself does not form the basis of framing of charge, it is the materials collected in course of investigation which are to be relied upon for finding out whether a prima facie case is made out or not. As regards the allegedly wrong arithmetical calculation or wrong interpretation of the documents it is pointed out that those can be set at rest after taking evidence in course of trial. Since the Trial Court after a scrutiny of the materials produced before it and also examining the documents of the accused came to the conclusion that there are ingredients for framing of charge, that finding cannot be set aside only by pointing out the allegedly arithmetical mis-calculation or wrong interpretation of the orders. ( 55 ) MR. Roy in this connection placed reliance in the case of Krishanand v. State of Madhya Pradesh, reported in 1977 SCC (Cr) 190 to analyse the scope of investigation under the Prevention of Corruption Act, 1947. It is pointed out that where the accused possesses pecuniary resources of property more than ten per cent of the total income there cannot be any embargo in framing of charge and to proceed with the trial. It is argued that if in course of the trial it is proved that the prosecution could not establish the charge the accused will be acquitted. Mr. Roy pointed out that the materials collected so far by the prosecution are sufficient to indicate that the accused was in possession of resources more than per cent of his income and as such the charge was rightly framed. ( 56 ) MR. Roy also pointed out that after the framing of charge and after pleading not guilty the accused/petition cannot challenge the same order. So it is concluded that it is a fit case for rejection of the present application with a direction upon the trial Court to proceed with the trial. ( 56 ) MR. Roy also pointed out that after the framing of charge and after pleading not guilty the accused/petition cannot challenge the same order. So it is concluded that it is a fit case for rejection of the present application with a direction upon the trial Court to proceed with the trial. ( 57 ) AFTER hearing the learned Counsel of both sides and on perusal of materials on record and the series of cases relied upon by the learned Counsel of both sides it is pointed out that the main objective of the present petitioner is to get an order of discharge mainly on the ground that the materials so far produced do not make out a prima facie case for framing of charge. It is already discussed above that the accused person did not get ample opportunity to challenge the order of framing of charge inasmuch as by a single order the trial court decided the fate of the application for discharge after finding prima facie case for framing of charge and consequently the charge was framed and the accused was asked as to whether he pleads guilty or not. Accordingly the question of challenging the order of rejection of the application for discharge or finding out the prima facie case for framing of charge cannot arise. It is also indicated hereinabove that such orders were to be passed stage wise before framing of formal charge and examination of the accused on the charge. Since such an action was not taken the view has been taken that the present application is maintainable. ( 58 ) AS regards finding out of prima facie case it is rightly pointed out by Mr. Roy that all the materials collected in course of investigation are neither produced before this Court nor the documents to be relied upon by the accused are placed before this Court. True it is that the learned Counsel for the petitioner pointed out some miscalculations or arithmetical mistakes in the charge sheet, but the fact remains that all these materials were collected from the documents seized in course of investigation and to be relied on. Since the Constitution Bench judgement in K. Veeraswami v. Union of India and Ors. True it is that the learned Counsel for the petitioner pointed out some miscalculations or arithmetical mistakes in the charge sheet, but the fact remains that all these materials were collected from the documents seized in course of investigation and to be relied on. Since the Constitution Bench judgement in K. Veeraswami v. Union of India and Ors. , reported in 1991 SCC (Cr)734 it is a settled principle of law that the Court while taking cognizance is not to be guided by the conclusions arrived at by the Investigating Officer in the charge sheet, the prosecution to bring home the charge under Section 13 (9) (e) of the prevention of Corruption Act, 1988 has to prove : (i) the accused is a Public Servant (ii) the nature and extent of the pecuniary resources or property found in this possession (iii) his known sources of income; known to the prosecution (iv) the pecuniary resources or property found in his possession were disproportionate to the sources known to the prosecution. ( 59 ) THEREAFTER the burden shifts to the accused to satisfactorily account for his possession of disproportionate assets. ( 60 ) FROM the documents produced along with the charge sheet there are ample indications of acquisition of resources or property by the petitioner/ accused. There is also indication of wrong calculation of the valuation of few of the properties during the check period. But the series of materials prima facie suggest that the resources is more than ten per cent of the income of the accused. The trial Court practically placing reliance on all these materials found out a prima facie case and framed the charge. ( 61 ) IT is to be pointed out that if this Court takes the view that the calculations so far made are not correct or that there are certain gaps as regards the valuation of the properties acquired by the accused it would be open to the prosecution to proceed with the case for further investigation even after discharge of the accused. Only to avoid such a situation and for giving ample opportunity to the accused to adduce proper defence the proper course would be to face the trial. Only to avoid such a situation and for giving ample opportunity to the accused to adduce proper defence the proper course would be to face the trial. In course of such trial both parties will get ample opportunity to make out their respective cases and thereafter the entire question is to be left for consideration by the Court as to whether the charge has been established or not. In the event of not proving the charge the accused will be acquitted thereby leaving no scope for further investigation in the matter. Since the learned Counsel of both sides before the trial Court wanted to place reliance on the documents I feel that the proper course in a case of this nature would be to proceed with the trial. ( 62 ) AS regards framing of charge it is to be pointed out that detail analysis of the materials collected are not required for the purpose of framing of charge. It appears that the trial Court in a short compass analysed that there are materials to proceed with the trial. The prosecution is accordingly called upon to prove all these materials to bring home the charge levelled against the accused. Keeping in view the nature of the case an the circumstances and only to avoid further harassment of the accused, it is felt that the trial should proceed immediately without interfering with the charge. At the risk of repetition it is to be pointed out that "discharge" means reinvestigation thereby keeping scope of further harassment of the accused and further scope of unveiling other materials not so far collected. In a case under the Prevention of Corruption Act where charge sheet is filed and the Court finds out a prima facie case for framing of charge, the best course open is to proceed with the trial and not to upset the trial by challenging the order of framing of charge, unless it is necessary to do so on the basis of the materials available on the face of the record. In this case there are ample materials to raise many questions in course of trial, but for the present the order of framing of charge does not require any interference under Article 227 of the Constitution of India. Accordingly the order as regards framing of charge is upheld, though the entire portion of the order is not confirmed. In this case there are ample materials to raise many questions in course of trial, but for the present the order of framing of charge does not require any interference under Article 227 of the Constitution of India. Accordingly the order as regards framing of charge is upheld, though the entire portion of the order is not confirmed. ( 63 ) IN disposing of the present application the trial Court is directed to take effective steps for conclusion of the trial as expeditiously as possible after fixing the date of trial on everyday. For the purpose of fixing such dates, the opposite party/prosecution is to submit the list of witnesses along with their present address to the trial Court within 28th of January, 2005. On getting such list, the trial Court shall proceed with the trial without allowing any unnecessary adjournment, on prayer of the parties. The trial Court shall also take appropriate steps for conclusion of the trial as expeditiously as possible in the manner indicated hereinabove. ( 64 ) LET a copy of this order along with the lower Court record be sent to the trial Court at Port Blair as expeditiously as possible. ( 65 ) URGENT xeroxed plain copy of this order be made available to the parties duly countersigned by the A. R. Court, on usual undertaking.