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2017 DIGILAW 2 (RAJ)

Subhash Chand Tondwal v. State of Rajasthan

2017-01-02

VIJAY KUMAR VYAS

body2017
JUDGMENT : Vijay Kumar Vyas, J. 1. This revision petition has arisen out of order dt. 10.3.2015 passed by learned Special Judge, Sessions Court Prevention of Corruption Act cases, Kota in Sessions Case No. 13/2011, whereby learned Special Judge framed charges u/s. 7, 13(1)(D) read with Section 13(2) of Prevention of Corruption Act, 1988 and Section 120-B IPC against the petitioner. 2. Learned counsel for petitioner submits that there is no independent evidence available on record so as to frame any charge against the petitioner. Learned Trial Court has relied upon statements of co-accused, which cannot be read against the other accused. Learned counsel for petitioner further submits that the documents obtained by the petitioner under Right to Information Act from the competent police authorities and produced before learned Trial Court at the time of framing of charge, have not been considered by the learned Trial Court. In the case of State of Orissa Vs. Debendra Nath Padhi, reported in 2005 Cr.L.R. 169, relied upon by learned Trial Court, it has also been held that if any document of unimpeachable evidence is produced by the accused at the time of framing of charge, it should not be discarded. 3. Learned counsel for petitioner submits that statements recorded by police u/s. 161 Cr.P.C. does not disclose any evidence so as to implicate the present petitioner. Demand of an illegal gratification is a sine-qua-none to constitute an offence u/s. 13 of the P.C. Act. In the instant matter, there is no evidence of making any such demand by the present petitioner. There is no evidence with regard to hatching of any conspiracy. No circumstances are being disclosed from the material which may inspire to believe the conspiracy. 4. Learned Public Prosecutor while opposing the petition submitted that in the telephonic conversation, transcript of which is available on record, it is clear that present petitioner was also involved along with co-accused Chauthmal in demanding an illegal gratification. He has participated in the telephonic conversation. During investigation when the same is being made by more than one Investigating Officer, difference of opinion with regard to construction of the evidence collected is possible. Accused cannot take any advantage of such difference of opinion of the Investigating Officers. The manner in which the whole conspiracy was hatched, has been described in the charge sheet submitted by police. During investigation when the same is being made by more than one Investigating Officer, difference of opinion with regard to construction of the evidence collected is possible. Accused cannot take any advantage of such difference of opinion of the Investigating Officers. The manner in which the whole conspiracy was hatched, has been described in the charge sheet submitted by police. Learned trial court has passed a just and proper order which does not require any interference by this Court. 5. I have considered the rival submissions and gone through the material available on record. 6. As per charge sheet, statement of co-accused Chauthmal with regard to involvement of the present petitioner gets corroboration from the circumstance that order for final report from higher authorities was not sought in time and the matter was kept pending despite statement of prosecutrix u/s. 164 Cr.P.C. The present petitioner was Station House Officer of the Police Station, Atru. During this period the complainant Siyaram Meena was brought by co-accused Chauthmal, a sub Inspector, before the present petitioner, SHO and the conversation took place among the three. 7. It is well settled law that at the stage of framing of the charges, the evidence available on record cannot be examined on merit. Availability of a prima facie evidence is sufficient for framing of charges. 8. I have gone through Debendra Nath Padhi's case (supra). The supreme Court has observed that the cited cases were rare and exceptional where the High Court may consider unimpeachable evidence while exercising jurisdiction for quashing u/s. 482 of Cr.P.C. Para-21 is as follows:- "It is evident form the above that this Court was considering the rare and exceptional cases where the High Court may consider unimpeachable evidence while exercising jurisdiction for quashing u/s. 482 of the Code. In the present case, however, the question involved is not about the exercise of jurisdiction u/s. 482 of the Code where along with the petition the accused may file unimpeachable evidence of sterling quality and on that basis seek quashing, but is about the right claimed by the accused to produce material at the stage of framing of charge." 9. In the present case, however, the question involved is not about the exercise of jurisdiction u/s. 482 of the Code where along with the petition the accused may file unimpeachable evidence of sterling quality and on that basis seek quashing, but is about the right claimed by the accused to produce material at the stage of framing of charge." 9. The Apex Court has concluded after the whole discussion, in Para 23 as follows:- "As a result of 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's case holding that the trial Court has powers to consider even materials which accused may produce at the stage of Section 227 of the Code has not been correctly decided." 10. For the sake of arguments, if the so called documents of unimpeachable evidence produced by the present petitioner before learned Trial Court are gone through, it reveals that these are the observations made by one or other Investigation Officer before higher officer who is final authority in the matter of taking decision as to whether final report is to be filed or a charge sheet is to be filed. During trial a case has to be weighed on the basis of material produced by the prosecution after examining its admissibility and other legal aspects. During process of investigation, different Investigating Officers may construe the evidence collected in different manner, but the Trial Court has to consider as to what finally the charge sheet has been based upon. 11. Learned Trial Court has passed a reasoned order in accordance with the principles of law and committed no error in passing the same. 12. Therefore the revision petition stands dismissed. It is made clear that whatever has been observed here, shall not affect the proceedings of the trial.