Monday, 30 January 2017

Under which circumstances court can look in to defence material produced at time of framing of charge?

 In   the   judgment   given   in   the   case   of  Rukhmini   Narvekar   V/s.   Vijaya
Satardekar and others (cited supra) the Hon'ble Supreme Court has laid down, in
paragraph no.22, as follows:
“22. Thus in our opinion, while it is true that ordinarily defence
material cannot be looked into by the Court while framing of the
charge in view of D.N. Padhi' case 6, there may be some very rare
and exceptional cases where some defence material 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 material can be looked into by the
court at the time of framing of the charges or taking cognizance. In
our opinion, therefore, it cannot be said as an absolute proposition
that under no circumstances can the court look into the material
produced by the defence at the time of framing of the charges,
though   this   should   be   done   in   very   rare   cases   i.e.   where   the
defence produces some material which convincingly demonstrates
that   the   whole   prosecution   case   is   totally   absurd   or   totally
concocted.”
The learned advocate for the applicants has not been able to show that the
present   case   is   one   of   the   exceptional   cases   and   that   the   documents
(communications) produced by the applicants convincingly demonstrate that the
prosecution version is totally absurd or concocted.  
Considering   the   facts   of  the   case  and   the   proposition   laid   down   in   the
judgment given in the case of Rukhmini Narvekar v. Vijaya Satardekar and others,
the other judgments referred by the learned Advocate for the   applicants, do not
assist the applicants.  
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL REVISION APPLICATION NO.92/2015
 Prabhakar S/o Rupnarayan Jha, 

V
The Central Bureau of Investigation, 

­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­
CORAM  :  Z.A. HAQ, J.
DATE  :    25.2.2016
Citation:2016 ALLMR(CRI)4600

01. Heard Shri M.P. Khajanchi, advocate for the applicants and Shri S.S. Ahirkar
Special P.P. for the non­applicant.
02. Rule.  Rule made returnable forthwith.
03. The applicants have approached this Court under Section 397 read with 401
of the Code of Criminal Procedure challenging the order passed by the learned

Additional   Sessions   Judge   rejecting   the   application   (Exh.   No.42)   filed   by   them
praying for discharge from the prosecution for the offence punishable under Section
13(2) read with Section 13(1)(c) and (d) of the Prevention of Corruption Act, 1988
and Sections 120B and 409 of the Indian Penal Code.
04. The non­applicant ­ Central Bureau of Investigation has filed final report
before   the   Special   Judge,   Chandrapur   against   the   applicants   for   the   offence
punishable under Sections 120B and 409 of the Indian Penal Code and   Section
13(2) read with Section 13(1)(c) and (d) of the Prevention of Corruption Act, 1988.
The case of the prosecution is that on the complaint dated 20th/21st January, 2012
received from the Vigilance Officer at Western Coalfields Limited, Nagpur, a surprise
check in association with the Survey Team of Wani North Area and Majri Area of
Gauri Open Cast Mine­1 of Ballarpur Area was conducted on 3rd December, 2010
and shortage of 8806.7553 tonnes of coal was detected which was 22.466% short
than the permissible limit as per the Yellow Book Manual of W.C.L. The cost of the
coal found to be short is shown to be Rs.1,33,16,782.30/­.   It is alleged that the
applicants/accused   abused   their   official   position   and   entered   into   criminal
conspiracy with dishonest intention to misappropriate coal entrusted to them over
which they had dominion.  The applicant no.1 was working as Sub­Area Manager of
Gauri Open Cast Mine­1 of Ballarpur and the applicant no.2 was working as Mines
Manager of Gauri­ 1 Open Cast Mine at the relevant time.

The applicants filed the application (Exh. No.42) praying for discharge.   This
application is rejected by the learned Additional Sessions Judge by the impugned
order.
The   applicants   being   aggrieved   by   the   order   passed   by   the   learned
Additional Sessions Judge, have filed this revision application. 
05. Shri Khajanchi, learned advocate for the applicants has pointed out the
communication issued by the Area Finance Manager, Ballarpur Area on 25th May,
2013 stating that the balance sheet of 31st March, 2011 or Profit and Loss Account
for the period 2010­2011 of Ballarpur Area does not show financial loss due to
shortage of coal or theft of coal.   The communication issued by the Area Finance
Manager Ballarpur Area dated 29th  November, 2013   is pointed out to show that
financial loss is not shown in the Books of Account/Balance Sheet/Profit and Loss
Account of W.C.L. Ballarpur Area due to shortage of coal or theft of coal in the year
2010­2011.   The communication issued by the Chief Manager (Min) Manager Gauri
Extension Open Cast Mine on 18th/20th October, 2013 is pointed out which shows
that   there   is   no   “write   off”   of   coal   in   2010­2011.     Referring   to   the   above
communications, the learned advocate for the applicants has submitted that the
claim of the prosecution about loss of huge quantity of coal is not  prima facie
established and, therefore, the applicants are entitled for being discharged from the
prosecution.  It is submitted that the learned Additional Sessions Judge has wrongly

relied on the judgment given in the case of  State of Orissa V/s. Debendra Nath
Padhi  reported   in  2005(1)   Crimes   1(SC)  and   refused   to   consider   the
communications which show that there was no shortage or theft of coal in 2010­
2011.  The learned advocate has submitted that it is not that the defence material
cannot be looked into by the Court while framing of the charge and there are cases
when defence material is required to be considered by the Court while framing the
charge,   if   the   defence   material   convincingly   demonstrate   that   the   prosecution
version is absurd or preposterous. It is further submitted that the trial Court is
entitled to sift and weigh the material on the record including the defence material,
for the purpose of finding out whether a prima facie case exists against the accused
for   prosecution   or   not.     To   support   this   submission,   Shri   Khajanchi,   learned
advocate has relied on the following judgments:
(i) Judgment given in the case of  Harshendra Kumar D. V/s.
Rebatilata Koley and others reported in (2011) 3 SCC 351,
(ii) Judgment given in the case of Ajay Kumar Das V/s. State of
Jharkhand and another reported in 2011(12) SCC 319,
(iii) Judgment given in the case of  Union of India V/s. Prafulla
Kumar Samal and another reported in (1979) 3 SCC 4,
(iv) Judgment given in the case of Rajiv Thapar and others V/s.
Madan Lal Kapoor  reported in (2013) 3 SCC 330 and
(v) Judgment   given   in   the   case   of  Rukhmini   Narvekar   V/s.
Vijaya Satardekar and others reported in (2008) 14 SCC 1.
It is submitted that the communications issued by the Authorities of W.C.L.
show that there had been no shortage of coal or “write off” of coal in 2010­2011 and

it cannot be said that the huge quantity of 8806.7553 tonnes of coal was found to be
short during that period.   The learned advocate has submitted that the learned
Additional Sessions Judge has committed an error in not considering the above
referred communications, under the misconception that the defence material cannot
be looked into at the stage of framing of charge.  It is submitted that the impugned
order is unsustainable and has to be set aside and the applicants be discharged
from the prosecution.
06. Per   contra,   Shri   Ahirkar,   learned   Special   P.P.   has   submitted   that   the
prosecution has been initiated on the complaint received from the Chief Vigilance
Officer of W.C.L. itself and after investigation it was found that substantiate quantity
of coal (8806.7553 tonnes) has been misappropriated and ample material having
been found against the applicants, the sanction of competent authority of Ministry of
Coal was sought as per Section 19 of the Prevention of Corruption Act and the
competent   authority,   after   considering   the   material,   has   granted   sanction   to
prosecute the applicants.   It is submitted that the learned Additional Sessions Judge
has rightly relied on the judgment given by the Hon'ble Supreme Court in the case of
State of Orissa V/s. Debendra Nath Padhi (cited supra) and has rightly rejected the
application   filed   by   the   applicants.   It   is   submitted   that   the   documents
(communications), on which the applicants are relying, cannot be considered at this
stage and it cannot be said that there is no material at all on the record to prosecute

the applicants on the charge as levelled against them.   It is prayed that the revision
application be dismissed with costs.
07. After hearing the learned advocate for the applicants and the learned Special
P.P. and examining the documents placed on the record, I find that the prosecution
has levelled specific charge against the applicants that in furtherance of criminal
conspiracy they have misappropriated the substantial quantity (8806.7553 tonnes)
of coal causing wrongful loss of about Rs.1,33,16,782/­ to the W.C.L.   It is not
disputed by the applicants that applicant no.1 was working as Area Manager of
Gauri Open Cast Mine­1 of Ballarpur Area and the applicant no.2 was working as
Mines Manager of Gauri Open Cast Mine­1 during the relevant period.  It is not the
case of the applicants that they being Sub Area Manager and Mines Manager, they
had  no   control  or  dominion   over   the   coal,  as   alleged  by  the  prosecution.  The
applicants are relying on some communications which are issued under the Right to
Information Act and are contending that there is neither any shortage nor “write of”
of coal during 2010­2011.   It cannot be said that the communications, on which the
applicants   are  relying,  convincingly  demonstrate  that the  prosecution  version  is
totally absurd or                    preposterous.  The learned Special P.P. has rightly
pointed that prima facie material exists against the applicants for prosecuting them
and   that   the   competent   authority,   after   considering   that   material   has   granted
sanction for prosecuting the applicants.

   
08. In   the   judgment   given   in   the   case   of  Rukhmini   Narvekar   V/s.   Vijaya
Satardekar and others (cited supra) the Hon'ble Supreme Court has laid down, in
paragraph no.22, as follows:
“22. Thus in our opinion, while it is true that ordinarily defence
material cannot be looked into by the Court while framing of the
charge in view of D.N. Padhi' case 6, there may be some very rare
and exceptional cases where some defence material 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 material can be looked into by the
court at the time of framing of the charges or taking cognizance. In
our opinion, therefore, it cannot be said as an absolute proposition
that under no circumstances can the court look into the material
produced by the defence at the time of framing of the charges,
though   this   should   be   done   in   very   rare   cases   i.e.   where   the
defence produces some material which convincingly demonstrates
that   the   whole   prosecution   case   is   totally   absurd   or   totally
concocted.”
The learned advocate for the applicants has not been able to show that the
present   case   is   one   of   the   exceptional   cases   and   that   the   documents
(communications) produced by the applicants convincingly demonstrate that the
prosecution version is totally absurd or concocted.  
Considering   the   facts   of  the   case  and   the   proposition   laid   down   in   the
judgment given in the case of Rukhmini Narvekar v. Vijaya Satardekar and others,
the other judgments referred by the learned Advocate for the   applicants, do not
assist the applicants.  

09. In my view, the impugned order passed by the learned Additional Sessions
Judge rejecting the prayer of the applicants to discharge them from the prosecution
does not require any interference.  The revision application is dismissed with costs
quantified at Rs.20,000/­, out of which Rs.10,000/­ shall be paid by the applicant
no.1 and Rs.10,000/­ shall be paid by the applicant no.2, to the non­applicant within
one month. 
As   the   proceedings   are   of   2013,   the   learned   Special   Judge   should
endeavour to dispose the proceedings till 30th May, 2016. 

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