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Rajasthan High Court · body

2011 DIGILAW 1796 (RAJ)

Karmaveer Singh v. U. O. I.

2011-08-24

R.S.CHAUHAN

body2011
Hon'ble CHAUHAN, J.—The petitioner is aggrieved by the order dated 7.10.2009 passed by Special Judge (Printing & Stationary, Embezzlement Cases) and CBI Cases, Jaipur, whereby the learned Judge has framed the charges for offences under Section 120-B read with Sections 420, 201 IPC, and for offences under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. 2. The brief facts of the case are that Divisional Engineer (Yojna) on behalf of the GMTD, Sikar, had invited tenders for fifteen works of laying underground cables in SDCA, Sikar. One of the conditions of Technical Bid were that the successful bidder would give a bank guarantee and would deposit 10% of the tender amount. The contract was to be signed between the BSNL and the successful bidder on the basis of the bank guarantee. It is only after the bank guarantee was submitted that the work order would be issued. According to the CBI, Mr. Prakash Choudhary, the proprietor of M/s. Maharaja Construction, Sikar had submitted six bank guarantees to the petitioner. It was the petitioner's duty to verify the authenticity of the bank guarantees. However, without doing so, the petitioner recommended the case of Mr. Prakash Choudhary. Subsequently, the work order was issued in favour of Mr. Prakash Choudhary. After a thorough investigation, the CBI filed a charge-sheet against petitioner and Mr. Prakash Choudhary. It is also filed a charge-sheet against other officers of BSNL. Vide order dated 7.10.2009, the learned Judge framed the charges as aforementioned. Hence, this petition before this Court. 3. Mr. Hanuman Choudhary, the learned counsel for the petitioner, has vehemently contended that it was not the duty of the petitioner to verify the authenticity of the bank guarantees submitted by Mr. Prakash Choudhary. Although at the relevant time, he was the Divisional Engineer (Yojna) but his job was mere clerical in nature in the sense he merely forwarded the papers to the authorities. Secondly, on the fateful day, he was on leave. Thirdly, the prosecution is not justified in claiming that Prakash Choudhary had access to his life upon an instruction issued by the petitioner to the Class IV employees. According to the learned counsel, the Clerk or the Class IV employees could be influenced by Mr. Prakash Choudhary. Therefore, the petitioner had no role to pay in facilitating Mr. Thirdly, the prosecution is not justified in claiming that Prakash Choudhary had access to his life upon an instruction issued by the petitioner to the Class IV employees. According to the learned counsel, the Clerk or the Class IV employees could be influenced by Mr. Prakash Choudhary. Therefore, the petitioner had no role to pay in facilitating Mr. Prakash Choudhary's entry into his office and in displacing the fake guarantee papers with authentic bank guarantee papers. Hence, according to the learned counsel, no offence under Section 120-B read with Sections 420, 201 IPC is made out. Therefore, the learned Judge has erred in framing charges for the aforementioned offences. 4. On the other hand, Mr. T.P. Sharma, the learned counsel for the CBI, has strenuously contended that the jurisdiction of the trial Court while framing the charges is limited one. Although it can sift through the evidence, but at the stage of charge, it cannot consider the probable defence, which may be raised by the offender during the course of the trial. Secondly, that the learned Judge has passed a detailed order dealing with some of the contentions raised by the petitioner and has rejected the same. The learned Judge has also relied on the statement of some of the witnesses in order to justify the framing of the charge under Section 120-B read with Section 420, 201 IPC. Therefore, the learned counsel has supported the impugned order. 5. Heard the learned counsel and perused the impugned order. 6. In the case of Sajjan Kumar vs. Central Bureau of Investigation ( (2010) 9 SCC 368 = 2010(4) RLW 3435 (SC)), the Hon'ble Supreme Court has recently laid down the principles which should govern the framing of charge. The principles enumerated by the Apex Court are as under : On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge:- (i) The Judge while considering the question of framing the charges under Sec. 227 Cr.P.C. has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to deter-mine prima facie case would depend upon the facts of each case. The test to deter-mine prima facie case would depend upon the facts of each case. (ii) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial. (iii) The Court cannot act merely as a Post Office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. (iv) If on the basis of the 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. (v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the Court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. (vi) At the stage of Sections 227 and 228, the Court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. (vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal. 7. (vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal. 7. It is, indeed, a settled position of law that at the time of framing of the charge, the learned trial Court cannot look into the possible defence, which may be raised by the offender during the course of trial. After all, at the initial stage, the trial Court is concerned with the broad probabilities of the prosecution case. At the stage of framing of the charge, the trial Court can neither weigh the pros and cons of the prosecution case, nor is it concerned with the issue whether the trial would eventually lead to the conviction of the offender or not. These are issues which are alien to the jurisdiction of the trial Court at that stage. 8. Therefore, the issue whether the petitioner was duty bound to verify the bank guarantees submitted by Mr. Prakash Choudhary or not, is an issue which can be decided only after the prosecution has submitted its evidence, and the defence has had a chance to rebut the same. Naturally, this is an issue, which cannot be gone into at the time of framing of the charge. Moreover, the issue whether the petitioner had instructed Sumer Singh to handover the keys of his office to Mr. Prakash Choudhary or not, this issue is also subject to the evidence, which shall be produced during the course of trial. Therefore, the defence of the petitioner, that he never gave such instructions to Mr. Sumer Singh, cannot be considered at this stage. 9. The evidence for criminal conspiracy is, ordinarily, never an apparent evidence. After all, conspiracies are hatched in the dark. The evidence of conspiracy, in fact, needs to be inferred from certain facts established by the prosecution. Therefore, till the prosecution is given a chance to marshall out its evidence, it is too early in the day to give any cogent judicial finding about the existence of criminal conspiracy. According to the board outlines given by the prosecution, prima facie, strong case does exist. Therefore, till the prosecution is given a chance to marshall out its evidence, it is too early in the day to give any cogent judicial finding about the existence of criminal conspiracy. According to the board outlines given by the prosecution, prima facie, strong case does exist. Lastly, the learned Judge has considered the statements of the witnesses in order to conclude that strong prima facie case does exist against the petitioner. Hence, the learned Judge has passed the impugned judgment within the contours of the principles laid down by the Apex Court. 10. Therefore, this Court does not find any illegality or perversity in the impugned order. This petition being devoid of any merit, is hereby dismissed.