Clearly, such an approach of the Special Judge is not only erroneous but it too resulted in grave and serious prejudice to the accused. It is clear, that because of this approach, the Special Judge did not give any reasons for rejecting the applications for discharge and held that prosecution has prima facie made out a case against the accused. Relying on, or referring to charge sheet for the purpose of seeking discharge, cannot, by any stretch of imagination be treated as admission of fact or documents by the accused'. Hence, these observations in para 10 and directions in para 11 are required to be disregarded and neglected. The present Special Judge shall not take them into consideration for any purpose whatsoever.
Bombay High Court
Nirmal Kumar Pal & Others vs The Central Bureau Of ... on 25 June, 1999
Equivalent citations: 1999 (5) BomCR 898, 1999 (3) MhLj 390
1. All these applications arise out of the order of the Special Judge in Case No. 23 of 1995 dated 4-7-1997 by which the Special Judge rejected the application of all the accused for discharge and framed charges against the accused under different sections of the I.P.C. on the same day.
2. This order of the Special Judge was challenged before this Court on two grounds, namely want of jurisdiction of Mrs. R.S. Dalvi, the then Special Judge dealing with this case and secondly on the ground that while rejecting the application for discharge, the Special Judge did not give any reasons and made certain observations which were against the provisions of law and against the case of the accused.
3. So far as the rejection of the application for discharge on merit is concerned, the grievance of the petitioners appear to be genuine because in a three line paragraph i.e. para No. 9 the Judge has rejected the case for discharge only after holding that prosecution has made prima facie case against the accused.
4. In an order of discharge, the Judge is supposed to give reasonings for accepting the case of the prosecution and rejecting the case and contention of the accused. Since this has not been done, the order is liable to be set aside on that ground. Further the observations of the Judge that accused themselves relied upon the documents filed by the prosecution and that those documents have been admitted by the accused are improper and uncalled for.
5. So far as the objection to jurisdiction of the Special Judge Mrs. R.S. Dalvi, as raised by the applicants on the basis of sections 3 & 4 of The Prevention of Corruption Act, 1988 is concerned, I have considered and rejected similar objection in Criminal Applications No. 2519 of 1996 and 2127 of 1997. Applicants in those two matters raised similar objections and for that purpose had relied upon the notification in favour of Special Judge Mrs. R.S. Dalvi and Mrs. Bhatkar. Those similar notifications have been relied upon in the present applications and therefore since in those two earlier applications I have already held that Mrs. R.S. Dalvi was having jurisdiction over the cases arising out of the area of Greater Mumbai, it is not necessary now to consider those notifications or the objections. Suffice it to say that when Mrs. R.S. Dalvi, Special Judge passed the impugned order on 4-7-1997 she was fully empowered to do so and had jurisdiction in that regard as conferred upon her under sections 3 and 4 of the P.C. Act, 1988.
6. My attention was also drawn by the Counsels for the petitioners to paragraph 10 of the order wherein the Judge has observed "In fact in this case each of the accused have themselves relied on the documents relied upon by the prosecution to show how their acts were in order and in the normal course of their contract. The documents of the prosecution are in fact all admitted documents, admitted by the relevant accused." Also para 11 of the order was pointed out to me wherein the Judge has observed "The prosecution shall give notice under section 294 Cr.P. C. in view of the fact that because all the documents are admitted by the accused and are relied upon by the accused themselves."
7. It was contended by the Counsels for the petitioners that all these observations, are totally wrong and factually incorrect. What was done by the accused was that in order to support their application for discharge they referred to the documents of the prosecution and this was taken by the learned Special Judge as admission of those documents by the accused. It was also urged that replying upon the prosecution papers i.e. charge sheet for the purpose of claiming discharge was a legally permitted course open for the accused and it could never be taken as an admission by the accused of the documents of the prosecution or as admission of the facts contained in the charge sheet or those documents. Mr. Pradhan who was appearing for the C.B.I. fairly conceded that he did not support this view and opinion expressed by the learned Special Judge.
8. Clearly, such an approach of the Special Judge is not only erroneous but it too resulted in grave and serious prejudice to the accused. It is clear, that because of this approach, the Special Judge did not give any reasons for rejecting the applications for discharge and held that prosecution has prima facie made out a case against the accused. Relying on, or referring to charge sheet for the purpose of seeking discharge, cannot, by any stretch of imagination be treated as admission of fact or documents by the accused'. Hence, these observations in para 10 and directions in para 11 are required to be disregarded and neglected. The present Special Judge shall not take them into consideration for any purpose whatsoever.
9. For all these reasons, I pass the following order :
ORDER All these applications are partly allowed. The impugned order dated 4-'7--1997 is set aside and matter is remanded to the trial Court i.e. Special judge who has now taken over charge of this particular case. The application for discharge filed by all the accused will be heard by the Special Judge (after giving an opportunity to the Counsels of the accused and the prosecution. Accused to appear before the Special Judge on 27-7-1999. Mr. Pradhan appearing for the C.B.I. states that the preponed (sic) date of the hearing will be intimated to all the accused who are not before this Court today. Certified copy expedited.