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2015 DIGILAW 3 (ORI)

Rajendra Kumar Pati v. Union of India

2015-01-06

S.C.PARIJA

body2015
Judgment : S.C. Parija, J. : This application has been filed under Section 482 Cr.P.C., praying for quashing of the criminal proceeding initiated against the petitioner in T.R. No.24 of 2011, arising out of C.B.I. Bhubaneswar P.S. Case No.RC 015 2009 A 0020, dated 07.8.2009, pending in the Court of learned Special Judge, C.B.I.-I, Bhubaneswar, under Section 13(1)(d) and (e) r/w Section 13(2) of the Prevention of Corruption Act and the order dated 07.12.2013 passed therein, rejecting the application of the petitioner under Section 227 Cr.P.C. for discharge. 2. The brief facts of the case is that the petitioner while working as Superintending Geologist in CMPDI Ltd., Bhubaneswar, a subsidiary of Coal India Ltd., was assigned the work of leading a team, consisting of two officers of Indian Bureau of Mines, Nagpur, for check and measurement of coal stock of Mahanadi Coalfields Ltd.(‘MCL’ for short), Talcher. While the petitioner and other two members of the team were camping at Jagannath Area Guest House of MCL, Talcher and conducting coal stock measurement of different collieries since 15.7.2009, the Superintendent of Police, (I/C), C.B.I., Bhubaneswar, received information from reliable source that the petitioner along with two other team members have obtained cash and valuable things as illegal gratification from unknown MCL officials, by threatening them of showing shortage of coal stock in their measurement reports. On the basis of such information, an F.I.R. was registered vide C.B.I. Bhubaneswar P.S. Case No.RC 015 2009 A 0020, dated 07.8.2009, under Sections 7, 11 and 13(2) r/w Sections 13(1)(d) of the Prevention of Corruption Act (‘P.C. Act’, for short) and Section 120-B I.P.C. 3. During investigation, a search was conducted by the C.B.I. officials on 08.8.2009, in Room No.3 (Godavari) of Jagannath Guest House, MCL, Talcher, occupied by the petitioner, in the presence of two independent witnesses. During search, one envelop containing cash of Rs.50,000/-was recovered from the suitcase of the petitioner, for which he could not give any satisfactory explanation. On completion of investigation, the C.B.I., submitted charge-sheet against the present petitioner under Section 13(1)(d) and (e) r/w Section 13(2) of the P. C. Act, for possessing cash to the tune of Rs.29,550/-, which was disproportionate to his known sources of income during the check period from 09.7.2009 to 08.8.2009, after obtaining necessary sanction from the competent authority. 4. On completion of investigation, the C.B.I., submitted charge-sheet against the present petitioner under Section 13(1)(d) and (e) r/w Section 13(2) of the P. C. Act, for possessing cash to the tune of Rs.29,550/-, which was disproportionate to his known sources of income during the check period from 09.7.2009 to 08.8.2009, after obtaining necessary sanction from the competent authority. 4. Being aggrieved by the registration of the F.I.R. and submission of charge-sheet, the petitioner moved this Court under Section 482 Cr.P.C., in CRLMC No.493 of 2012, praying for quashing of the same on the ground that the petitioner had withdrawn an amount of Rs.1,03,000/-from his bank account just prior to the search and seizure, which fact had not been taken into consideration by the C.B.I., while submitting charge-sheet against him. 5. This Court vide order dated 04.2.2013, disposed of the application (CRLMC No.493 of 2012), giving liberty to the petitioner to raise all such points at the time of framing of charge, which shall be considered by the learned trial Court by passing a speaking order, taking into consideration all such points raised by the petitioner. 6. The petitioner accordingly filed an application under Section 227 Cr.P.C., along with the bank statement of account before the learned Special Judge, C.B.I.-I, Bhubaneswar, praying for discharge on the ground that the accused petitioner had withdrawn an amount of Rs.1,03,000/-during the month of July 2009 from his savings bank account, prior to the date of search and seizure, which fact has not been taken into consideration by the C.B.I., while filing the charge-sheet against him. 7. Learned trial Court vide order dated 07.12.2013, while taking into consideration the plea of the petitioner regarding withdrawal of Rs.1,03,000/-from his bank account prior to the search and seizure, has come to hold as under:- “xxx xxx xxx It is manifestly obvious from the material on record that the disproportionate assets case and check period have been taken from 09.7.2009 to 08.8.2009. It appears that the assets acquired by the accused to be the check period is disproportionate to his known sources of income the details of which have been mentioned in the charge sheet. It is common legal proposition that at the time of framing of charge all that is to be taken into consideration is whether the materials on record make out a prima-facie case against the accused. It is common legal proposition that at the time of framing of charge all that is to be taken into consideration is whether the materials on record make out a prima-facie case against the accused. A careful perusal of the record shows that there is sufficient material to presume that the accused has committed the offence. I, therefore, find no force in the contentions advanced by the learned counsel for the defence. Hence the petition is rejected being devoid of merit. Put up on 12.12.2013 for framing of charge. The accused is directed to remain present in the Court on the date fixed.” 8. Learned counsel for the accused-petitioner submitted that the prosecution has deliberately not taken into consideration the fact regarding withdrawal of Rs.1,03,000/-by the petitioner from his bank account, which was just prior to the search and seizure of cash of Rs.50,000/-from him and therefore, the registration of the F.I.R. and submission of charge-sheet is tainted with mala fide. In this regard, learned counsel for the accused-petitioner has relied upon a Division Bench decision of this Court in Janaki Ballav Patnaik v. State of Orissa, 1995 CRI.L.J. 1110, wherein this Court had held that when a source of income of the accused or his wife was known to the prosecution and the prosecution has failed to take that source into consideration and that income would have a vital bearing on the framing of charge, the Court would be fully justified in refusing to frame the charge, leaving it open for the prosecution to further investigate into the matter and if materials justified to file a fresh charge-sheet. 9. Learned counsel for the accused-petitioner further submitted that the action of the C.B.I. in determining the check period from 09.7.2009 to 08.8.2009 is grossly mala fide, as the check period must be such as to enable a true and comprehensive picture of the known sources of income and the pecuniary resources and property in possession of the public servant either by himself or through any other person on his behalf, which are alleged to be so disproportionate, as has been held by the apex Court in State of Maharashtra v. Pollonji Darabshaw Daruwalla, AIR 1988 SC 88 . 10. 10. Accordingly, learned counsel for the petitioner submitted that as the material on record clearly goes to show that the petitioner had withdrawn Rs.1,03,000/-from his bank account just prior to the search and seizure, which fact had not been taken into consideration at the time of framing of charge, the petitioner is entitled to be discharged and the criminal proceeding initiated against him is liable to be quashed. In this regard, learned counsel for the petitioner has relied upon a decision of the apex Court in Rukmini Narvekar v. Vijaya Satardekar & Ors., 2009 AIR SCW 118, wherein the Hon’ble Court had observed that there may be some very rare and exceptional cases where some defence materials, when shown to the trial Court, would convincingly demonstrate that the prosecution version is totally absurd or preposterous and in such very rare cases, the defence materials can be looked into by the Court, at the time of framing of the charges. 11. In response, learned counsel for the C.B.I. submitted that during search, an envelop containing cash of Rs.50,000/-was recovered from the suitcase of the petitioner, for which he could not give any satisfactory explanation. The plea now raised by the accused-petitioner that he had withdrawn Rs.1,03,000/-from his bank account just prior to the search and seizure of cash of Rs.50,000/-from him is a defence, which cannot be considered at this stage and in this regard, he has relied upon a decision of the apex Court in State of Madhya Pradesh v. Virender Kumar Tripathi, (2009) 15 SCC 533 . 12. It is accordingly submitted by learned counsel for the C.B.I. that at the stage of framing of charge, the Court is not to examine and assess in detail the materials on record produced by the prosecution nor is it for the Court to consider the sufficiency of the materials to establish the offence alleged against the accused person. It is accordingly submitted that at the initial stage of framing of charge, the accused has no right to produce any material in support of his defence and a strong suspicion is sufficient to frame the charge and in that event, it is not open for the accused to say that there is no sufficient ground for proceeding against the accused. 13. 13. At the stage of framing charge, the trial Court is required to consider whether there are sufficient grounds to proceed against the accused. Section 227 of the Code provides for the eventuality when the accused shall be discharged. If not discharged, the charge against the accused is required to be framed under Section 228. These two sections read as under:- Section 227 Cr.P.C. “227. Discharge.-If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.” Section 228 Cr.P.C. “228. Framing of charge.-(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which- (a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, and thereupon the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of warrant cases instituted on a police report; (b) is exclusively triable by the court, he shall frame in writing a charge against the accused.” (2.) Where the Judge frames any charge under clause (b) of sub-section (1), the charge shall be read and explained to the accused, and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.” 14. In State of Bihar v. Ramesh Singh, (1977) 4 SCC 39 , the apex Court while considering the scope of Sections 227 and 228 of the Code, it was held that at the stage of framing of charge it is not obligatory for the judge to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. At that stage, the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. At that stage, the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion, at the initial stage of framing of charge, is sufficient to frame the charge and in that event it is not open to say that there is no sufficient ground for proceeding against the accused. 15. In Supdt. and Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja, (1979) 4 SCC 274 , a three-Judge Bench of the apex Court held that the Magistrate at the stage of framing charges had to see whether the facts alleged and sought to be proved by the prosecution prima facie disclose the commission of offence on general consideration of the materials placed before him by the investigating police officer. Though in that case the specific question whether an accused at the stage of framing of charge has a right to produce any material was not considered as such, but that seems implicit when it was held that the Magistrate had to consider material placed before it by the investigating police officer. 16. In State of Delhi v. Gyan Devi, (2000) 8 SCC 239 , the apex Court reiterated that at the stage of framing of charge the trial Court is not to examine and assess in detail the materials placed on record by the prosecution nor is it for the Court to consider the sufficiency of the materials to establish the offence alleged against the accused persons. 17. In State of Maharashtra v. Priya Sharan Maharaj, (1997) 4 SCC 393 , it was held by the apex Court that at Sections 227 and 228 stage, the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may, 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. 18. The Court may, 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. 18. In State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568 , a similar question came up for determination before a three-Judge Bench of the apex Court, as to whether the trial Court can, at the time of framing charge, consider materials filed by the accused. The Hon’ble Court, while taking note of its earlier decisions, has come to hold as under:- “16. All the decisions, when they hold that there can only be limited evaluation of materials and documents on record and sifting 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. The decisions proceed on the basis of settled legal position that the material as produced by the prosecution alone is to be considered and not the one produced by the accused. The latter aspect relating to the accused though has not been specifically stated, yet it is implicit in the decisions. It seems to have not been specifically so stated as it was taken to be a well-settled proposition. This aspect, however, has been adverted to in State Anti-Corruption Bureau v. P. Suryaprakasam, 1999 SCC (Cri) 373, where considering the scope of Sections 239 and 240 of the Code it was held that at the time of framing of charge, what the trial Court is required to, and can consider are only the police report referred to under Section 173 of the Code and the documents sent with it. The only right the accused has at that stage is of being heard and nothing beyond that. The judgment of the High Court quashing the proceedings by looking into the documents filed by the accused in support of his claim that no case was made out against him even before the trial had commenced was reversed by this Court. The only right the accused has at that stage is of being heard and nothing beyond that. The judgment of the High Court quashing the proceedings by looking into the documents filed by the accused in support of his claim that no case was made out against him even before the trial had commenced was reversed by this Court. It may be noticed here that learned counsel for the parties addressed the arguments on the basis that the principles applicable would be same -whether the case be under Sections 227 and 228 or under Sections 239 and 240 of the Code. 17. As opposed to the aforesaid legal position, the learned counsel appearing for the accused contended 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 Article 21 of the Constitution since that would result in the accused having to face the trial for a long number of years despite the fact that he is liable to be discharged if granted an opportunity to produce the material and on perusal thereof by the court. The contention is that such an interpretation of Sections 227 and 239 of the Code would run the risk of those provisions being declared ultra vires of Articles 14 and 21 of the Constitution and to save the said provisions from being declared ultra vires, the reasonable interpretation to be placed thereupon is the one which gives a right, howsoever limited that right may be, to the accused to produce unimpeachable and unassailable material to show his innocence at the stage of framing charge. 18. We are unable to accept the aforesaid contention. The reliance on Articles 14 and 21 is misplaced. The scheme of the Code and object with which Section 227 was incorporated and Sections 207 and 207-A omitted have already been noticed. Further, 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. 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 the contention of the learned counsel for the accused would mean permitting the accused to adduce his defence at the stage of framing of charge and for examination thereof at that stage which is against the criminal jurisprudence. By way of illustration, it may be noted that the plea of alibi taken by the accused may have to be examined at the stage of framing of charge if the contention of the accused is accepted despite the well-settled proposition that it is for the accused to lead evidence at the trial to sustain such a plea. The accused would be entitled to produce materials and documents in proof of such a plea at the stage of framing of the charge, in case we accept the contention put forth on behalf of the accused. That has never been the intention of the law well settled for over one hundred years now. It is in this light that the provision about hearing the submissions of the accused as postulated by Section 227 is to be understood. It only means hearing the submissions of the accused on the record of the case as filed by the prosecution and documents submitted therewith and nothing more. The expression “hearing the submissions of the accused” cannot mean opportunity to file material to be granted to the accused and thereby changing the settled law. At the stage of framing of charge hearing the submissions of the accused has to be confined to the material produced by the police. xxx xxx 23. As a result of the aforesaid discussion, in our view, clearly the law is that at the time of framing charge or taking cognizance the accused has no right to produce any material. Satish Mehra case, (1996) 9 SCC 766 , holding that the trial Court has powers to consider even materials which the accused may produce at the stage of Section 227 of the Code has not been correctly decided.” 19. Satish Mehra case, (1996) 9 SCC 766 , holding that the trial Court has powers to consider even materials which the accused may produce at the stage of Section 227 of the Code has not been correctly decided.” 19. The question whether any documents, upon which the accused may rely in support of his defence, can be looked into at the time of framing charge, again came up for consideration before the apex Court in Hem Chand v. State of Jharkhand, (2008) 5 SCC 113 . Hon’ble Court while affirming the views of the three-Judge Bench in Debendra Nath Padhi (supra), has held that the Court at the stage of framing charge 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. 20. In view of the above, the legal position which crystallizes is that reading Sections 227 and 228 Cr.P.C. together in juxtaposition at the initial stage, the Court is not to meticulously judge the evidence proposed to be adduced by the prosecution and not to see whether there is sufficient ground for conviction, nor is any weight to be attached to the probable defence. At that stage, even a very strong suspicion founded upon materials leading the Magistrate to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, may justify the framing of charges. The trial Court has to be satisfied whether there is “sufficient ground for proceeding” and not “whether there is sufficient ground for conviction”. At the stage of Section 227 Cr.P.C., the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclose the existence of all the ingredients of the offence. At the stage of Section 227 Cr.P.C., the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclose the existence of all the ingredients of the offence. At that stage, the accused has no right to produce any material or summon any document or materials in addition to those collected by the investigating agency, or invite the Court to pass an order of discharge on the basis of such additional material. The Court may, for the limited purpose of framing charge, sift the evidence and if on the basis of materials on record, the Court comes to the conclusion that the commission of offence is probable consequence, a case of framing of charge exists and the order rejecting application for discharge is legal and valid. 21. In the present case, as the plea of the accused-petitioner regarding withdrawal of amount of Rs.1,03,000/-from his bank account just prior to the search and seizure of cash of Rs.50,000/-from him is by way of his defence, which has to stand the test of trial, the same cannot be taken into consideration at the initial stage to discharge the accused. Learned trial Court, on the basis of the materials on record, having come to find that there are sufficient materials to presume that the accused has committed the offence alleged and has accordingly rejected the application under Section 227 Cr.P.C., for discharge, the same cannot be faulted. 22. For the reasons as aforestated, I do not find any infirmity in the criminal proceeding initiated against the petitioner in T.R. No.24 of 2011, arising out of C.B.I. Bhubaneswar P.S. Case No.RC 015 2009 A 0020, dated 07.8.2009, pending in the Court of learned Special Judge, C.B.I.-I, Bhubaneswar, under Section 13(1)(d) and (e) r/w Section 13(2) of the P. C. Act and the order dated 07.12.2013 passed therein, rejecting the application of the petitioner under Section 227 Cr.P.C. for discharge, so as to warrant any interference. CRLMC being devoid of merits, the same is accordingly dismissed.