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.
HIGH COURT OF ORISSA : CUTTACKCRLMC No. 161 of 2014
Sri Rajendra Kumar Pati Vs Union of India
PRESENT :
SHRI JUSTICE S.C. PARIJA
Date of Judgment : 06.01.2015
Citation;2015 CRLJ1392 Orissa
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
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
3
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
4
been taken into consideration by the C.B.I., while filing the charge-
sheet against him.
7.
taking
Learned trial Court vide order dated 07.12.2013, while
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. 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
5
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.
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
6
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
7
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.
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.”
8
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. 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
9
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.
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
10
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. 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.
11
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. 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
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
12
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.
13
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 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
14
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.
( S.C. PARIJA, J.)
Orissa High Court, Cuttack,
Dated the 6th January, 2015/MPanda
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