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2024 DIGILAW 47 (RAJ)

Durga Ram Mahiya v. State of Rajasthan

2024-01-08

MANOJ KUMAR GARG

body2024
ORDER : 1. Instant revision petition has been filed by the petitioner against the order dated 01.11.2023 passed by learned Special Judge (Prevention of Corruption Act) Cases, Pali whereby, the trial court framed charges against the petitioner for offences under Sections 7 of the Prevention of Corruption Act. 2. Brief facts of the case are that on 04.07.2019, the complainant submitted a written report before the Addl. S.P. Anti Corruption Bureau outpost, Pali with regard to demand of illegal gratification by two Inspectors from the office of Dy. Labour commissioner Pali with regard to demand of “labour Cess Tax”. After verification of the demand, a trap was laid and the complainant was sent to office of accused petitioner with demanded money. The complainant entered into the office of accused where the accused received the gratification from the complainant. Upon giving signal, the petitioner was caught with the money in his possession by the trap party. The hands of the petitioner were washed in a solution of Sodium Carbonate which turned pink. 3. After usual investigation, the police filed a challan against the petitioner for aforesaid offences. Thereafter, arguments upon charge were heard and by way of impugned order dated 01.11.2023, charges were framed by the trial court. Hence, this revision petition. 4. Learned counsel for the petitioner submits that on perusal of FIR as well as the challan papers, there is no evidence whatsoever to frame charges against the petitioner for aforesaid offences. It is argued that no specific demand was made by the petitioner and no work of complainant was pending before the petitioner and therefore, no question of seeking bribe is made out in the case. It is further argued that similarly situated co-accused has been exonerated by the police but the petitioner has been implicated in this case. It is submitted that the petitioner has been implicated only on the basis of recovery of bribe which is not sustainable in the eye of law as the said amount was the labour cess tax which the complainant sought to deposit with department under Building and Other Construction Workers' Welfare Cess Act, 1996. Therefore, no offence whatsoever is made out against the petitioner and the impugned order framing charges against the petitioner is liable to be set aside. 5. Therefore, no offence whatsoever is made out against the petitioner and the impugned order framing charges against the petitioner is liable to be set aside. 5. Per contra, learned Public Prosecutor supported the order passed by the learned Trial Court and argued that the police after thorough investigation submitted challan against the petitioner and the trial court after going through the entire record, has framed charges against the petitioner. It is argued that the petitioner has been caught red-handed and the bribe money was recovered from the petitioner. Therefore, the order of framing charge passed by the learned Court below does not suffer from any infirmity and all other questions raised in regard to the present case are to be considered by the learned Trial Court at the appropriate stage. 6. I have thoughtfully considered the arguments advanced on behalf of the parties and perused the material available on record. 7. From the perusal of documents on record, it is evident that upon complaint made by the complainant, a trap was conducted and during the trap, the petitioner had accepted the bribe and the bribe money was recovered from the possession of the petitioner. The petitioner was caught red handed by the trap party of the ACD and therefore, prima facie, the offence under Section 7 of the Act is made out against the petitioner. After perusing the documents and studying the evidence collected during investigation, this Court is of the opinion that trial court has not committed any error in framing charge for offence under Section 7 of Prevention of Corruption Act, 1988. It is settled law that at the time of framing the charges, the truth, veracity and the effect of the evidence, which the prosecution proposes to produce are not to be meticulously examined. At this stage, the Court only has to see whether the unrebutted evidence, which the prosecution is to adduce, makes way for conviction and if it is so then the charge can be framed. But if the evidence itself does not disclose that the accused has committed the offence, then the charge should not be framed. The Court, while framing the charges, is required to evaluate the materials and documents on record with a view to find out if the facts emerging therefrom disclose the presence of all the ingredients constituting the alleged offence. 8. The Court, while framing the charges, is required to evaluate the materials and documents on record with a view to find out if the facts emerging therefrom disclose the presence of all the ingredients constituting the alleged offence. 8. In the case of Sajjan Kumar v. Central Bureau of Investigation reported in (2010) 9 SCC 368 , Hon'ble Supreme Court in para 21 of the judgment has laid down the principles which are to be kept in mind by the Court while exercising jurisdiction under Sections 227 & 228 Cr.P.C., which are as below: “(i) The Judge while considering the question of framing the charges under Section 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 determine 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. (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 state of Sections 227 & 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 at this stage, he is not to see whether the trial will end in conviction or acquittal.” 9. In the case of Amit Kapoor v. Ramesh Chander & Anr. reported in (2012) 9 SCC 460 , Hon'ble Supreme Court has held that at the initial stage of framing of a charge, the Court is concerned not with the proof but with a strong suspicion that the accused has committed an offence, which, if put to trial, could prove him guilty. All that the Court has to see is that the material on record and the facts would be compatible with the innocence of the accused or not. The final test of guilt is not to be applied at that stage. 10. Hon'ble Apex Court in the case of 'State of Rajasthan v. Fatehkaran Mehdu' reported in AIR 2017 SC 796 , while dealing with the scope of interference under Section 397 Cr.P.C when the charge had been framed, has held as under: “26. The scope of interference and exercise of jurisdiction Under Section 397 of Code of Criminal Procedure has been time and again explained by this Court. Further, the scope of interference Under Section 397 Code of Criminal Procedure at a stage, when charge had been framed, is also well settled. The scope of interference and exercise of jurisdiction Under Section 397 of Code of Criminal Procedure has been time and again explained by this Court. Further, the scope of interference Under Section 397 Code of Criminal Procedure at a stage, when charge had been framed, is also well settled. At the stage of framing of a charge, the court is concerned not with the proof of the allegation rather it has to focus on the material and form an opinion whether there is strong suspicion that the Accused has committed an offence, which if put to trial, could prove his guilt. The framing of charge is not a stage, at which stage final test of guilt is to be applied. Thus, to hold that at the stage of framing the charge, the court should form an opinion that the Accused is certainly guilty of committing an offence, is to hold something which is neither permissible nor is in consonance with scheme of Code of Criminal Procedure. 27. Now, reverting to the limit of the scope of jurisdiction Under Section 397 Code of Criminal Procedure, which vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept in the proceeding. ........ 29. The Court in para 27 has recorded its conclusion and laid down principles to be considered for exercise of jurisdiction Under Section 397 particularly in context of quashing of charge framed Under Section 228 Code of Criminal Procedure Para 27, 27(1), (2), (3), (9), (13) are extracted as follows: “27. Having discussed the scope of jurisdiction under these two provisions, i.e., Section 397 and Section 482 of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but is inherently impossible to state with precision such principles. However, it is not only difficult but is inherently impossible to state with precision such principles. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction Under Section 397 or Section 482 of the Code or together, as the case may be: (27.1) Though there are no limits of the powers of the Court Under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. (27.2) The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere. (27.3) The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. (27.9) Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the Court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice. (27.13) Quashing of a charge is an exception to the Rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie. 30. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie. 30. Applying the above tests, we are of the considered opinion that High Court erred in quashing the charges framed by the order dated 05.05.2009. In result, both the appeals are allowed. The order of the High Court is set aside and the order dated 05.05.2009 is restored. The learned Special Judge may proceed with the trial in accordance with the law expeditiously.” 11. Recently, Hon'ble Apex Court in the case of 'Bhawna Bai v. Ghanshyam & Ors' reported in 2020 Cr.L.R (SC) 5, while considering the judgment rendered in the case of Amit Kapoor (Supra) dealing with the scope of interference when the charges had been framed, held as under: “16. As discussed above, in the present case, upon hearing the parties and considering the allegations in the charge sheet, the learned Second Additional Sessions Judge was of the opinion that there were sufficient grounds for presuming that the Accused has committed the offence punishable Under Section 302 Indian Penal Code read with Section 34 Indian Penal Code. The order dated 12.12.2018 framing the charges is not a detailed order. For framing the charges Under Section 228 Code of Criminal Procedure, the judge is not required to record detailed reasons. As pointed out earlier, at the stage of framing the charge, the court is not required to hold an elaborate enquiry; only prima facie case is to be seen. As held in Knati Bhadra Shah and Anr. v. State of West Bengal : (2000) 1 SCC 722 , while exercising power Under Section 228 Code of Criminal Procedure, the judge is not required record his reasons for framing the charges against the Accused. Upon hearing the parties and based upon the allegations and taking note of the allegations in the charge sheet, the learned Second Additional Sessions Judge was satisfied that there is sufficient ground for proceeding against the Accused and framed the charges against the Accused- Respondent Nos. 1 and 2. Upon hearing the parties and based upon the allegations and taking note of the allegations in the charge sheet, the learned Second Additional Sessions Judge was satisfied that there is sufficient ground for proceeding against the Accused and framed the charges against the Accused- Respondent Nos. 1 and 2. While so, the High Court was not right in interfering with the order of the trial court framing the charges against the Accused- Respondent Nos. 1 and 2 Under Section 302 Indian Penal Code read with Section 34 Indian Penal Code and the High Court, in our view, erred in quashing the charges framed against the Accused. The impugned order cannot therefore be sustained and is liable to be set aside. 17. In the result, the impugned judgment dated 25.02.2019 passed by the High Court of Madhya Pradesh at Indore Bench in Criminal Revision No. 402 of 2019 is set aside and this appeal is allowed. Sessions Trial Case No. ST/150/2018 is restored and Second Additional Sessions Judge, Mandleswar, West Nimad, Madhya Pradesh shall proceed with the matter in accordance with law. We make it clear that we have not expressed any opinion on the merits of the matter.” 12. Thus, it is well settled legal position that at the stage of framing charge for an offence against an accused only prima facie has to be seen whether sufficient grounds are available on record to proceed against him and even strong suspicion is enough to frame charge and at this stage of the proceedings evidence is not required to be analyzed, as it is required to be done at the final stage after trial. It is also well settled that at this stage of the proceedings only the charge-sheet and evidence collected during investigation which has been produced alongwith the charge-sheet is required to be considered. 13. In view of above, this Court is of the opinion that trial court has not committed any error in framing charge for offence under Section 7 of the Prevention of Corruption Act against the petitioner. 14. The revision thus being bereft of any force, is hereby rejected. The stay petition also stands rejected.