SHRI NARAYAN SHUKLA, J. Heard Mr. Ravi Prakash Mehrotra, learned Advocate assisted by Mr. Rahul Shukla, learned counsel for the petitioner as well as Mr. Rajendra Kumar Dwivedi and Mr. R. P. Shukla, learned Additional Government Advocates. Through the instant revision, the revisionist has prayed to call for the record of criminal case No. 90 of 2000 arising out of case crime No. 821 of 1997, under Section 13 (1) (e) and 13 (2) of Prevention of Corruption Act of P. S. Hazratganj, district Lucknow pending in the court of Special Judge (Prevention of Corruption Act), Lucknow as well as the order dated 27. 9. 2008 passed therein, mainly on the ground that the trial court has failed to appreciate the orders passed by this Court in criminal misc. case No. 246 of 2001 and Criminal case No. 8656 of 2005 and further the order impugned is based on mere conjectures and surmises. Learned counsel for the petitioner submits that the cognizance of offence taken by the learned Judge is wholly based on the factor of disproportionate assets allegedly gained by the revisionist whereas this factor has already been adjudicated by the Commissioner, Income Tax (appeals) by means of order dated 22. 4. 2004 as well as by the Income Tax Appellate Tribunal by means of order dated 24. 1. 2007 in which no disproportionate assets acquired by the revisionist has been found and so far as the assets of other persons are concerned, that could not be presumed to be earned by him. He further submits that the revisionist submitted applications time to time before the court below. Firstly when by taking cognizance, the revisionist was summoned for trial, he challenged the proceedings and order of summoning through criminal misc. case No. 246 of 2001 in which this Court on 2. 3. 2001 passed the following order:- "heard learned counsel for the petitioner and I have gone through the record. The petitioner had been in service of the State holding important post and now he has retired. Therefore, there is no chance of his running away from his abode. He pleads his innocence. However, the pleas of the innocence can not be decided at this stage by this court and the chargesheet has already been submitted. The petitioner had been in service of the State holding important post and now he has retired. Therefore, there is no chance of his running away from his abode. He pleads his innocence. However, the pleas of the innocence can not be decided at this stage by this court and the chargesheet has already been submitted. In this view of the matter, it is provided that the pleas which are sought to be taken before this Court in the petition under Section 482 Cr. P. C. , may be raised by the petitioner before the learned lower court who may hear the petitioner on these pleas and may dispose of those pleas, after giving due hearing at the initial stage of the case. Till those pleas are finally disposed of, the petitioner may appear before the learned trial court through his Counsel and the court is directed to release the petitioner on bail on furnishing a personal bond of Rs. 50,000/- (Rs. Fifty Thousand only) till disposal of case. With these observations, the petition is finally disposed of. " In the light of the aforesaid order of this Court, he moved an application before the court below to drop the proceeding but the court below did not care to the order passed by this Court and proceeded with the matter. Secondly, when the Income Tax Appellate Tribunal decided the case relating to disproportionate assets, he further approached this Court through criminal misc. case No. 8656 of 2005, which was disposed of by means of order dated 1. 9. 2005 by following order:- "it has been argued by the learned counsel for the petitioner that the matter of proportionate assets has been decided by the Income Tax Department and the petitioners income has been taken into consideration by the Income Tax Department and it is prayed that while the Court below decides other pleas of the petitioner, the fact that the Income Tax Department has also considered and exonerated the petitioner, may also be considered. The application is, therefore, disposed of finally with a direction that in case the petitioner takes the aforesaid plea and files the relevant income-tax documents, judgments and orders passed and delivered by the department of Income Tax before the learned Court below, the same shall be considered by the court below while deciding the matter alongwith other pleas. The application is, therefore, disposed of finally with a direction that in case the petitioner takes the aforesaid plea and files the relevant income-tax documents, judgments and orders passed and delivered by the department of Income Tax before the learned Court below, the same shall be considered by the court below while deciding the matter alongwith other pleas. In the light of the direction as aforesaid issued by this Court, he moved an application for taking on record the submission/pleas and documents, which has to be considered alongwith other pleas already submitted in pursuance of the order passed in criminal misc. case No. 246 of 2001 but again the court below has not taken care of the order passed by this Court rather rejected the petitioners application by means of order impugned dated 27. 9. 2005 on the ground that the documents whatever he wanted to produce in his defence can be produced at the stage of evidence of accused whereas the judicial propriety demands that he was under obligation to follow the orders passed by this Court time to time but he has violated the same. In support of his case, learned counsel for the petitioner has placed reliance upon the judgments rendered in the following cases. State of M. P. vs. Mohanlal Soni 2000 (6) SCC 338 . In this case, the respondent was working as a Road Transport Inspector in the Regional Office of the Road Transport Corporation, Bhopal and was a public servant as such. A complaint under Section 13 (1) (e) read with Section 13 (2) of the Act for the check period 25. 9. 1982 to 27. 3. 1993 was filed stating that he had acquired the property in excess of the known source of his income. During the investigation properties and assets belonging to his mother-in- law, father, brother and nephew were shown as assets of the respondent. The assets of his wife, who was an income-tax payer and a self-earning member, were also connected with the assets of the respondent. While submitting charge sheet several important documents, which were collected during the course of investigation, were withheld. According to the respondent the said documents supported him. If those documents were considered even prima facie there was no scope to frame charges against him. While submitting charge sheet several important documents, which were collected during the course of investigation, were withheld. According to the respondent the said documents supported him. If those documents were considered even prima facie there was no scope to frame charges against him. At the time of framing charges the respondent made an application seeking production of these documents in court before proceeding to frame charge. But the said application was rejected stating that for the purpose of framing charges only the documents forwarded to the court under Section 173 (5) Cr. P. C. need to be considered. Hence he filed Criminal Revision No. 337/97 in the High court. The said Revision Petition was disposed of by the order dated 8. 9. 1997 in the following terms: - "in the result the revision is allowed, the order impugned is set-aside and it is directed that the documents made available by the accused during investigation be produced and may be taken into consideration by the court below while framing the charge. " After hearing the learned counsel for the parties and discussing the several judgments on this point, the Honble Supreme Court formed opinion that from the decisions referred to in some paragraphs and the decision already referred to above, there was no bar to consider the material on record in the case on hand, which was collected during the course of investigation and produced before the Court and particularly in view of the directions given earlier by the High Court. In this view, the High Court looking to the material and documents that were made available at the stage of framing charges on their face value in the light of the directions given earlier in Criminal Revision No. 337 of 1997 and bearing in mind the position in law concluded that charges could not be framed against the respondent and concluded on the facts and in the circumstances of the case and having regard to the legal position stated above, we see no good reason or valid ground to upset the impugned order. Hence the petition is dismissed. No costs. Soma Chakravarty vs. State through CBI 2007 (5) SCC 403 . In this case, the appellant contended that before framing the charges the court must have some material on the basis of which it can come to the conclusion that there is a prima facie case against the accused. Hence the petition is dismissed. No costs. Soma Chakravarty vs. State through CBI 2007 (5) SCC 403 . In this case, the appellant contended that before framing the charges the court must have some material on the basis of which it can come to the conclusion that there is a prima facie case against the accused. The Supreme Court has held that the settled legal position, as mentioned in the above decisions, is that if on the basis of material on record the court could form an opinion that the accused might have committed offence it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. At the time of framing of the charges the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution has to be accepted as true at that stage. Before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commitment of offence by the accused was possible. Whether, in fact, the accused committed the offence, can only be decided in the trial. In view of the aforesaid facts and circumstances of the case, learned counsel for the petitioner submitted that the order is unsustainable and is liable to be set aside. On the other hand, learned Additional Government Advocate contested the matter and urged that this Court by passing the orders in other petitions have not issued any direction to the court below to by- pass the procedure provided under the Code of Criminal Procedure for trial of warrant cases as the present case is a warrant case and triable by learned Special Judge concerned. The petitioner was given liberty to raise the pleas, which was raised before the court below, who may hear the case on those please and may dispose of those pleas after hearing. The petitioner was given liberty to raise the pleas, which was raised before the court below, who may hear the case on those please and may dispose of those pleas after hearing. It means that the court below is under obligation to consider petitioners/accuseds pleas at the proper stage of proceeding and it has been clarified by this Court itself on the petitioners application for clarification by issuing a direction that in case the petitioner takes the aforesaid plea and files the relevant Income Tax Tribunals judgment as well as the order passed by the Commissioner and the documents, the same shall be considered by the court below while deciding the matter alongwith other pleas. He further submitted that this Court nowhere has directed that let the documents produced by the petitioner be considered first and then only the court below may proceed with the case. Accordingly, he submits that plea of the revisionist is wholly misconceived and is not sustainable. He further submits that proceeding is pending against the petitioner before the Special Judge, (Prevention of Corruption Act, 1988 ). Section 5 of the Act provides the procedure and power of Special Judge and sub-section (1) speaks that Special Judge may take cognizance of offences without the accused being committed to him for trial and, in trying the accused persons, shall follow the procedure prescribed by the Code of Criminal Procedure, 1973 (2 of 1974), for the trial of warrant cases by the Magistrate. The trial of warrant cases by the learned Magistrate is contained in Chapter XIX of the Code of Criminal Procedure. Part a is relating to cases instituted on a police report. Since this case is instituted on a police report, only those sections of Cr. P. C. , which are relevant for consideration in the present case are reproduced hereinunder:- "238. Compliance with Section 207:- When in any warrant-case instituted on a police report, the accused appears or is brought before a Magistrate at the commencement of the trial, the Magistrate shall satisfy himself that he has complied with the provisions of Section 207. " 239. Compliance with Section 207:- When in any warrant-case instituted on a police report, the accused appears or is brought before a Magistrate at the commencement of the trial, the Magistrate shall satisfy himself that he has complied with the provisions of Section 207. " 239. When accused shall be discharged:- If, upon considering the police report and the documents sent with it under Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing. 240. Framing of Charge:- (1) If, upon such consideration, examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this chapter, which such Magistrate is competent to try, and which, in his opinion, could be adequately punished him, he shall frame in writing a charge against the accused. (2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claims to be tried. 242. Evidence for prosecution. State of Orissa vs. Debendra Nath Padhi 2005 (1) SCC 568 . In this case, the question for consideration was whether the trial court at the time of framing of charge can consider any material filed by the accused. The Honble Supreme Court after considering the several decisions held that there can only be limited evaluation of materials and documents on record and shifting of evidence to prima facie find out whether sufficient ground exists or not for the purpose of proceeding further with the trial, have so held with reference to materials and documents produced by the prosecution and not the accused. It is settled legal position that the material as produced by the prosecution alone is to be considered and not the one produced by the accused and ultimately expressed the opinion that at the time of framing of charge or taking cognizance, the accused has no right to produce any material. It is settled legal position that the material as produced by the prosecution alone is to be considered and not the one produced by the accused and ultimately expressed the opinion that at the time of framing of charge or taking cognizance, the accused has no right to produce any material. It has further been held that the accused has no right to produce any document at the time of framing of charge having regard to the clear mandate of Sections 227 and 228 in Chapter XVIII and Sections 239 and 240 in Chapter XIX. Hem Chand vs. State of Jharkhand 2008 (5) SCC 113 . In this case, the appellant filed an application for his discharge inter alia on the premise that no case for framing of charge has been made out. He furthermore, filed some documents in his own defence. The said application for discharge was rejected by the learned Special Judge, C. B. I. , opining that the documents relied on by the appellant cannot be looked into for the purpose of passing an order on his application for discharge. The allegations against the appellant were that he was found to be in possession of assets more than his known source of income. The question was as to whether any documents whereupon the appellant may rely in support of his defence, can be looked into at the stage of framing of the charge. The Honble Supreme Court had already expressed the same view in the case of State of Jammu and Kashmir vs. Sudershan Chakkar and another AIR 1995 SC 1954 . Relevant paragraph 5 of which is reproduced as under:- "in our considered view, the learned Courts below erred in basing their respective orders on the above findings. The question whether the respondents omitted to do their mandatory duties for months together designedly or negligently can be inferred only on an overall view of all the materials collected during investigation and not in isolation as has been done by the learned Courts below. That apart in a case instituted upon a Police Report the Court is required, at the time of framing of the charges, to confine its attention to documents referred to under Section 173 of the Code of Criminal Procedure only. That apart in a case instituted upon a Police Report the Court is required, at the time of framing of the charges, to confine its attention to documents referred to under Section 173 of the Code of Criminal Procedure only. In that context the Court was not justified in referring to, much less relying upon the letters purportedly written by the accused when their authenticity and veracity are yet to be gone into. The Honble Supreme Court held that it is beyond any doubt or dispute that at the stage of framing of charge, the court will not weigh the evidence. The stage for appreciating the evidence for the purpose of arriving at a conclusion as to whether the prosecution was able to bring home the charge against the accused or not would arise only after all the evidence is brought on record at the trial. The documents whereupon the appellant intended to rely were : (i) an order of assessment passed by the Income Tax Authority and (ii) his declaration of assets. The Honble Supreme Court further held that the court exercises a limited jurisdiction. It would only have to see as to whether a prima facie case has been made out. Whether a case of probable conviction for commission of an offence has been made out on the basis of the materials found during investigation should be the concern of the court. It, at that stage, would not delve deep into the matter for the purpose of appreciation of evidence. It would ordinarily not consider as to whether the accused would be able to establish his defence, if any. In view of the provisions of Code of Criminal Procedure as enshrined in Chapter XIX as well as the aforesaid law laid down by Honble Supreme Court, learned Additional Government Advocate submitted that whatever materials are collected during the course of investigation and produced and forwarded to the court under Section 173 of the Code, only those can be seen by the learned Magistrate to consider to discharge the accused from offence otherwise only after framing of charges, the evidences produced by the accused for defence have to be considered and accordingly, he submits that since under the scheme of the Code of Criminal Procedure, it is not permitted for the accused to produce any other document except to produce the document in defence. Learned Magistrate has rightly rejected petitioners application. There is no illegality in the order impugned and the petition is liable to be dismissed. After hearing learned counsels for the parties as well as upon perusal of record, I find that the petitioner has tried to produce the document i. e. Judgment passed by the Commissioner, Income Tax as well as Income Tax Appellate Tribunal in his favour in his defence before framing of the charges, which was not part of the material collected by the police during the course of investigation and forwarded by the police to the learned Magistrate under Section 173 Cr. P. C. So far as case of Mohanlal Soni (supra) is concerned, in that case also the direction was issued by the learned Magistrate only to produce those documents, which was made available by the accused during the course of investigation because those documents were taken as material of investigation but here the position is different. Nowhere, it has been said by the petitioner that those judgments were produced before the investigating officer during the course of investigation. Therefore, I am of the view that the petitioner cannot take benefit of the said judgment in his case. So far as other judgments on this point as has been discussed herein above are concerned, in all the judgments it has been held by the Honble Supreme Court that it is a settled legal position that material produced by the prosecution alone is to be considered and not one produced by the accused and ultimately expressed the opinion that at the time of framing of charges or taking cognizance the accused has no right to produce any material. So far as question of judicial propriety is concerned, it is well settled law that no court can issue direction to proceed against the statutory provisions and since under the statute of Code of Criminal Procedure, there is specific provision of production of evidence by the accused after framing of charges, I am of the view that the learned Judge in accordance with the provisions of the Act has not violated the orders passed by this Court. Therefore, in view of the aforesaid law laid down by Honble Supreme Court, I am of the considered opinion that there is no error in the order passed by the Special Judge, (Prevention of Corruption Act), Lucknow rejecting petitioners application for seeking permission to produce the document in his defence in the light of the orders passed in earlier petitions. The petition is dismissed. . GANGA CHARAN VS. STATE OF U P This Judgement has been Published At Publisher Year Volume Page No LB(ALL) 2008 0 307 TLALL 2008 0 298 LE(ALL) 2008 0 307 Page 1 of 1 . TABLE OF ANALYSIS