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2010 DIGILAW 415 (JK)

Manzoor Ahmad Dar v. State Of J&K

2010-07-29

Hasnain Massodi

body2010
1. The petitioner-an Executive Engineer in Public Works Department of the State Government, is alleged to have in the year-2005 and 2006, entered into criminal conspiracy with other accused and in execution of conspiracy, so hatched to have accepted the supplies of 432 meters of M.S. Pipes at exorbitant rates with an intention to confer undue benefit upon himself and conspirators and exposed the State Treasury to monetary loss. The petitioner - accused, by acting in the aforesaid manner, is alleged to have committed offence punishable under section 5(2)(d) of Prevention of Corruption Act read with 120-B of Ranbir Penal Code. 2. The charge sheet, though presented on 5th June 2008, is yet to be taken to the take off stage. The Trial court till date has not been in a position to pass orders under section 251-A Code of Criminal Procedure, so that, in the event the petitioner-accused and his co-accused are formally charged of the offences alleged in the charge sheet, the trial commences and is taken to its logical end. Be that as it may, let us focus on the present controversy. 3. The petitioner-accused on 18th September 2008 filed an application before the Trial Court, praying therein that the file pertaining to accord of sanction in terms of section 6 of Prevention of Corruption Act, for prosecution of the petitioner-accused be summoned and gone through before the main case is taken up for orders under section 251-A Cr.P.C. The case set up by the petitioner - accused was that the documents on the file pertaining to accord of sanction by Government to prosecution of the petitioner - accused, would make it evident to the Court that the sanction order suffered from non-application of mind. The Sanctioning Authority, according to the petitioner - accused, failed to appreciate that the rates allowed by the petitioner - accused were at par with the rates, on which purchases were made by other Divisions/Units of the Public Works Department. The Sanctioning Authority is also alleged to have failed to take notice of Government Order No.436-PW(R&B) of 2004 dated 10.11.2004, recommending rates for the material, alleged to have been bought by the petitioner - accused at exorbitant rates. The Sanctioning Authority is also alleged to have failed to take notice of Government Order No.436-PW(R&B) of 2004 dated 10.11.2004, recommending rates for the material, alleged to have been bought by the petitioner - accused at exorbitant rates. Learned Trial Judge on an in-depth perusal of the case set up by the petitioner - accused as also one projected by the prosecution in opposition to the prayer, vide order dated 08.05.2009, disallowed the prayer and rejected the application. 4. The petitioner-accused undeterred by the order of the Trial Court now seeks exercise of inherent powers of this Court and prays for setting aside of order dated 08.05.2009. The order of Trial Court, rejecting application for summoning file pertaining to sanction of prosecution of the petitioner-accused, is assailed as amounting to abuse of process of the court and to have resulted in miscarriage of justice. The order impugned, is it insisted, merits to be set aside. 5. I have gone through petition as also documents enclosed with the petition. I have heard learned counsel for petitioner and Learned Government Advocate. 6. The Court, at the stage of framing charge, is only to go through the charge sheet and the material submitted therewith to find out whether in the opinion of the Court, there is ground for presuming that the accused has committed an offence. In the event the court, on consideration of the said material, is of the opinion that there is ground for such presumption, the Court is to frame in writing a charge against the accused. The court, on the other hand, is required to discharge the accused, where the Court on such consideration, considers the charge against the accused to be groundless. Section 251-A Cr.P.C., relevant to the present controversy, requires the court to focus on the documents referred to in section 173 Cr.P.C. i.e. charge sheet presented against the accused. The aforesaid provision does not make any room for affording accused an opportunity to get any record summoned so that the court may at the threshold return a finding on probative value of the material forming part of the charge sheet against the accused. Such an option is not given to accused for the simple reason that law does not encourage a piecemeal trial or trial within a trial. Such an option is not given to accused for the simple reason that law does not encourage a piecemeal trial or trial within a trial. If the accused, before he is formally charged of the offence alleged against him, is permitted even to discredit the documents, proposed to be proved by the prosecution during the course of trial, by summoning the record, the whole proceedings shall be hijacked and way paved for a mini trial before the trial commences. Cases are conceivable, where accused may be in a position to assail the credibility of the documents sought to be pressed into service by the prosecution and make such documents to fall under their own weight without any external aid. In such a case the case set up by the petitioner - accused shall be given due weight by the Trial court while opining whether the documents referred to in Section 173 Cr.P.C. disclose a ground for presuming that the accused has committed offence triable under Chapter XXI of the Code. But such right cannot be extended to get the record summoned and make an effort to discredit the documents, collected during investigation against the backdrop of summoned record. 7. In State of Maharashtra and others v. Som Nath Thapa and others, 1996 (4) SCC 659 , the Supreme Court held: "If on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of a charge, probative value of the materials on record cannot be gone into; the material brought on record by the prosecution has to be accepted as true at that stage." 8. The principle of law has been reiterated in Umar Abdul Sakoor Sorathia v. Intelligence Officer, Narcotic Control Bureau, 2000 (1) SCC 138 , wherein the Supreme Court held: "It is well settled that at the stage of framing charge the court is not expected to go deep into the probative value of the materials on record. The principle of law has been reiterated in Umar Abdul Sakoor Sorathia v. Intelligence Officer, Narcotic Control Bureau, 2000 (1) SCC 138 , wherein the Supreme Court held: "It is well settled that at the stage of framing charge the court is not expected to go deep into the probative value of the materials on record. If on the basis of materials on record the court come to the conclusion that the accused would have committed the offence the court is obliged to frame the charge and proceed to the trial". 9. In State of Orissa v. Devendara Nath AIR 2005 SC 259, the Supreme Court rejecting the contention that disallowing accused at the charge stage to file unimpeachable and unassailable material would be violative of Article 21 and 24 of the Constitution, observed: "Contention of accused that the procedure which deprives the accused to seek discharge at the initial stage by filing unimpeachable and unassailable material of sterling quality would be illegal and violative of Arts.21 and 24 of the Constitution cannot be accepted. The reliance on Arts. 14 and 21 is misplaced. At the stage of framing of charge roving and fishing inquiry is impermissible. If the contention of the accused is accepted, there would be a mini trial at the stage of framing of charge. That would defeat the object of the Code. It is well settled that at the stage of framing of charge the defence of the accused cannot be put forth. The acceptance of contention f the accused would mean permitting the accused to adduce his defence at the stage of framing of charge and for examination." 10. The Supreme Court held that the expression "record of the case" in Section 227 Cr.P.C. refers to the documents mentioned in Section 209 Cr.P.C. and that no provision in the Code grants to the accused any right to file any material or document at the stage of framing of the charge. That right, the Supreme Court held, is granted only at the stage of the trial. 11. The petitioner - accused, it needs no emphasis, shall be free to convince the Court that the sanctioning authority in the present case, accorded sanction to his prosecution in a mechanical manner and without application of mind. To frame charge against the petitioner accused, is not end of the road for the accused. 11. The petitioner - accused, it needs no emphasis, shall be free to convince the Court that the sanctioning authority in the present case, accorded sanction to his prosecution in a mechanical manner and without application of mind. To frame charge against the petitioner accused, is not end of the road for the accused. It is only to take the matter to take off such stage and to apprise the accused, what precisely is prosecution case against him, so that the accused is in a position to defend himself fully, aware of the sum and substance of prosecution case. 12. For the reasons discussed above the petitioner - accused has not been in a position to demonstrate how and why the order, forming subject matter of the petition, amounts to abuse of process of court or that the inherent powers of the court were required to be exercised to secure ends of justice. Viewed thus petition is dismissed. Copy of the order be sent to the Trial court so that the proceedings, which are stalled for last two years, Commence without further delay.