Monday, 19 April 2021

Whether court should consider the merits of the case at the time framing of charge or while hearing discharge application?

 Having considered the reasoning given by the High Court and the

grounds which are weighed with the High Court while discharging the

accused, we are of the opinion that the High Court has exceeded in its

jurisdiction in exercise of the revisional jurisdiction and has acted beyond

the scope of Section 227/239 Cr.P.C. While discharging the accused,

the High Court has gone into the merits of the case and has considered

whether on the basis of the material on record, the accused is likely to

be convicted or not. For the aforesaid, the High Court has considered in

detail the transcript of the conversation between the complainant and the

accused which exercise at this stage to consider the discharge

application and/or framing of the charge is not permissible at all. As

rightly observed and held by the learned Special Judge at the stage of

framing of the charge, it has to be seen whether or not a prima facie

case is made out and the defence of the accused is not to be

considered. After considering the material on record including the

transcript of the conversation between the complainant and the accused,

the learned Special Judge having found that there is a prima facie case

of the alleged offence under Section 7 of the PC Act, framed the charge

against the accused for the said offence. The High Court materially

erred in negating the exercise of considering the transcript in detail and

in considering whether on the basis of the material on record the

accused is likely to be convicted for the offence under Section 7 of the

PC Act or not. As observed hereinabove, the High Court was required to

consider whether a prima facie case has been made out or not and

whether the accused is required to be further tried or not. At the stage of

framing of the charge and/or considering the discharge application, the

mini trial is not permissible. At this stage, it is to be noted that even as

per Section 7 of the PC Act, even an attempt constitutes an offence.

Therefore, the High Court has erred and/or exceeded in virtually holding

a mini trial at the stage of discharge application. {Para 11}

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPEALLATE JURISDICTION

CRIMINAL APPEAL NO. 407 OF 2021


Diary No. 8524/2020

State of Rajasthan  Vs Ashok Kumar Kashyap 


Author:  M.R. SHAH, J.

Dated: April 13, 2021.

1. In the facts and circumstances of the case and having heard the

learned counsel for the respective parties, the delay caused in filing the

special leave petition is hereby condoned.

1A. Leave granted.

2. Feeling aggrieved and dissatisfied with the impugned judgment

and order dated 12.09.2018 passed by the High Court of Rajasthan,

Bench at Jaipur in S.B. Criminal Revision No. 1270 of 2018, by which

the High Court, in exercise of its revisional jurisdiction, has quashed the

order passed by the learned Special Judge, Prevention of Corruption

Act, Bharatpur dated 22.06.2018 framing the charge against the


respondent-accused for the offence under Section 7 of the Prevention of

Corruption Act (for short, ‘PC Act’) and consequently has discharged the

accused of the alleged offence under Section 7 of the PC Act, the State

has preferred the present appeal.

3. That the respondent herein – original accused was serving as a

Patwari. That the original complainant Jai Kishore and one another on

31.08.2010 submitted a written report before the Additional

Superintendent of Police, Anti-Corruption Bureau, Bharatpur stating that

for the purpose of issuing Domicile Certificate and OBC Certificate of his

son, he has submitted an application enclosed with complete certificates

before the accused – Patwari Ashok Kumar Kashyap for endorsing his

report. However, the Patwari in lieu of endorsing his report over the said

application demanded a bribe of Rs.2,800/-. Thereafter after conducting

the investigation a chargesheet came to be filed by the investigating

agency against the accused for the offence under Section 7 of the PC

Act. That the learned Special Judge heard the prosecution as well as

the defence at the time of framing of the charge. After hearing the

prosecution as well as the counsel for the defence and considering the

material on record which included the transcript of conversation recorded

between the complainant and the accused and considering the other

material on record and having found that there is a prima facie case

made out and the defence of the accused is not to be considered at this

stage, by order dated 22.06.2018 framed the charge against the

accused for the offence under Section 7 of the PC Act.

4. Feeling aggrieved and dissatisfied with the order passed by the

learned Special Judge framing the charge against the accused under

Section 7 of the PC Act, the accused preferred revision application

before the High Court by filing Criminal Revision No. 1270 of 2018.

4.1 Before the High Court, it was contended on behalf of the accused

that no case is made out under Section 7 of the PC Act, even on the

basis of the transcript recording the conversation between the

complainant and the accused. It was submitted that it is borne out from

the transcript that the accused in fact refused to give bonafide residence

certificate and returned the form on 29.08.2010 and that no work was

pending before him. It was also contended that on reading the entire

transcript the factum of demand of Rs.2,800/- is not revealed.

4.2 The revision application was opposed by the learned Public

Prosecutor. Heavy reliance was placed on the decision of this Court in

the case of Chitresh Kumar Chopra v. State (Govt, of NCT of Delhi), AIR

2010 SC 1446 and it was submitted that as held by this Court that at the

stage of framing of charge, 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. It was submitted that from

the transcript it is evident that bribe was demanded from the

complainant.

4.3 That by the impugned judgment and order, the High Court has

allowed the said revision application and has quashed and set aside the

order passed by the learned Special Judge framing the charge against

the accused for the offence under Section 7 of the PC Act and

consequently discharged the accused from the alleged offence by

observing in paragraphs 10 & 11 as under:

“10. In the present case in hand, complainant himself when he

moved to the Anti Corruption Department mentioned that petitioner had

returned the form without making report. From the transcript which is

available on record, it is evident that some prior transactions pertaining

to bank file was pending between the parties and matter pertained to

Rs. 4,850/- out of which as per the petitioner, Rs. 4,000/- was to be

paid to the bank and in the transcript he has explained the total amount

which was payable by the complainant. There is no specific demand for

making a bonafide residence certificate, rather, petitioner had

mentioned in the transcript that as the complainant and his son are

residing in Agra (U.P.), a bonafide residence certificate cannot be

issued. No trap proceedings were conducted in the case and the

matter has remained pending with the Anti Corruption for a period of

more than five years. There is no specific demand of money by

petitioner and on the date of transcript no matter was pending before

him.

11. In view of the same, it is evident from bare reading of the

transcript that offence under Section 7 of the Prevention of Corruption

Act would not be made out against the petitioner.”

5. Feeling aggrieved and dissatisfied with the impugned judgment

and order passed by the High Court, discharging the accused and

quashing and setting aside the order of framing charge by the learned

Special Judge, in exercise of its revisional jurisdiction, the State has

preferred the present appeal.

6. Mr. Vishal Meghwal, learned Advocate appearing on behalf of the

State has vehemently submitted that in the facts and circumstances of

the case, the High Court has erred in discharging the accused of the

charged offence when there is ample material and evidence on record

against the accused and sufficient grounds are available for proceeding

against the accused.

6.1 It is submitted that the High Court has failed to appreciate that at

the stage of framing of charge and/or consideration of an application for

discharge, the Court is to consider whether there is any prima facie case

made out against the accused or not and at that stage the Court is

required to evaluate the material and documents relied on by the

prosecution only with a view to find out whether the facts emerging

therefrom, if taken at their face value, disclose the existence of all the

ingredients constituting the alleged offence or not.

6.2 It is submitted that in the present case the High Court has

committed a grave error in evaluating the transcript/evidence on merits

which at the stage of considering the application for discharge is not

permissible.

6.3 It is further submitted by the learned Advocate appearing on behalf

of the State that in the present case even otherwise from the transcript


recording the conversation between the complainant and the accused a

case of demand of illegal gratification has been made out. It is

submitted that the accused has been charged for the offence under

Section 7 of the PC Act and therefore even an attempt is sufficient to

attract the offence under Section 7 of the PC Act. It is submitted that

therefore the High Court has erred in evaluating the evidence on record

on merits at the stage of considering the discharge application which, as

such, is impermissible and beyond the scope of the exercise of the

revisional jurisdiction.

6.4 Learned Advocate appearing on behalf of the State has heavily

relied upon the decisions of this Court in the cases of P. Vijayan v. State

of Kerana, (2010) 2 SCC 398; Srilekha Sentil Kumar v. Deputy

Superintendent of Police, CBI, ACB, Chennai, (2019) 7 SCC 82; Asim

Shariff v. National Investigation Agency (2019) 7 SCC 148; and State of

Karnataka Lokayukta, Police Station, Bengaluru v. M.R. Hiremath,

(2019) 7 SCC 515.

7. Learned Advocate appearing on behalf of the respondent-accused

has vehemently submitted that in the facts and circumstances of the

case and as it was found from the transcript recording the conversation

between the complainant and the accused that no case, at all, has been

made out against the accused for the offence under Section 7 of the PC

Act, the High Court has rightly discharged the accused by quashing and

setting aside the order passed by the learned Special Judge framing

charge against the accused. It is vehemently submitted by the learned

Advocate for the respondent-accused that, as such, the accused refused

to issue residence certificate and caste certificate having come to know

about the complaint being the permanent resident of Agra. It is submitted

that in fact the complainant wanted a false residence certificate and

caste certificate illegally to be made in the State of Rajasthan, though he

was the permanent resident of Agra. It is submitted that in fact the

respondent-accused gave a report rejecting the request of the

complainant on 29.08.2010 and therefore, as such, there was nothing

pending before the accused and the decision regarding his application

was already taken.

7.1 It is submitted that in fact even as per the case of the prosecution

and even the complainant the trap failed and the accused refused to

accept the bribe in the trap proceedings.

7.2 It is submitted that at the time of conversation two persons were

present, (1) the complainant – Jai Kishore; and (2) Devi Singh. It is

submitted that there was a mixing of the conversation with the

complainant as well as Devi Singh. It is submitted that so far as the

complainant is concerned, the accused categorically refused to accept

any bribe. However, it is submitted that the appellant has tried to

confuse and mislead the Court by mixing the conversation of Devi Singh

regarding his dues of Rs.4,850-/ to the bank against which he has paid

Rs.2,000/- and the remaining amount of Rs.2,850/- was due to the bank.

It is submitted that therefore so far as the complainant is concerned,

neither there was any acceptance nor there was any demand of bribe

and therefore having found on the basis of the material/evidence on

record that no case is made out against the accused for the offence

under Section 7 of the PC Act, the High Court has rightly discharged the

accused.

7.3 Learned counsel appearing on behalf of the accused has heavily

relied upon the decision of this Court in the case of Dilawar Balu Kurane

v. State of Maharashtra, (2002) 2 SCC 135 and has submitted that as

held by this Court the Court while exercising powers under Section 227

Cr.P.C. and while considering the question of framing of the charge 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 accused

is made out and where the material placed before the Court discloses

grave suspicion against the accused which has not been properly

explained, the court will be fully justified in framing of the charge and

proceeding with the trial, however, by and large if two views are equally

possible and the Judge is satisfied that the evidence produced before

him will give rise to some suspicion but not grave suspicion against the

accused, he will be fully justified to discharge the accused. It is

submitted that therefore in the present case the High Court was justified

in evaluating the evidence on record to come to a conclusion whether

there is any sufficient material/evidence making out a case for the

offence under Section 7 of the PC Act or not.

7.4 Number of other submissions have been made by the learned

counsel for the respective parties on merits after taking us in detail to the

transcript recording the conversation between the complainant and the

accused. However, at the stage of framing of the charge and/or while

considering the discharge application, we do not propose to go into in

detail on merits of the allegations and the evidence on record as for the

reasons stated hereinbelow the same is not permissible at this stage.

8. We have heard the learned counsel for the respective parties.

By the impugned judgment and order, the High Court in exercise of

its revisional jurisdiction has set aside the order passed by the learned

Special Judge framing the charge against the accused under Section 7

of the PC Act and consequently has discharged the accused for the said

offence. What has been weighed with the High Court while discharging

the accused is stated in paragraphs 10 & 11 of the impugned judgment

and order, which are reproduced hereinabove.

9. While considering the legality of the impugned judgment and order

passed by the High Court, the law on the subject and few decisions of

this Court are required to be referred to.

9.1 In the case of P.Vijayan (supra), this Court had an occasion to

consider Section 227 of the Cr.P.C. What is required to be considered at

the time of framing of the charge and/or considering the discharge

application has been considered elaborately in the said decision. It is

observed and held that at the stage of Section 227, the Judge has

merely to sift the evidence in order to find out whether or not there is

sufficient ground for proceeding against the accused. It is observed that

in other words, the sufficiency of grounds would take within its fold the

nature of the evidence recorded by the police or the documents

produced before the Court which ex facie disclose that there are

suspicious circumstances against the accused so as to frame a charge

against him. It is further observed that if the Judge comes to a

conclusion that there is sufficient ground to proceed, he will frame a

charge under Section 228 Cr.P.C., if not, he will discharge the accused.

It is further observed that while exercising its judicial mind to the facts of

the case in order to determine whether a case for trial has been made

out by the prosecution, it is not necessary for the court to enter into the

pros and cons of the matter or into a weighing and balancing of evidence

and probabilities which is really the function of the court, after the trial

starts.

9.2 In the recent decision of this Court in the case of M.R. Hiremath

(supra), one of us (Justice D.Y. Chandrachud) speaking for the Bench

has observed and held in paragraph 25 as under:

25. The High Court ought to have been cognizant of the fact

that the trial court was dealing with an application for

discharge under the provisions of Section 239 CrPC. The

parameters which govern the exercise of this jurisdiction have

found expression in several decisions of this Court. It is a

settled principle of law that at the stage of considering an

application for discharge the court must proceed on the

assumption that the material which has been brought on the

record by the prosecution is true and evaluate the material in

order to determine whether the facts emerging from the

material, taken on its face value, disclose the existence of the

ingredients necessary to constitute the offence. In State of

T.N. v. N. Suresh Rajan [State of T.N. v. N. Suresh Rajan, (2014)

11 SCC 709, adverting to the earlier decisions on the subject,

this Court held: (SCC pp. 721-22, para 29)

“29. … At this stage, probative value of the materials has to

be gone into and the court is not expected to go deep into

the matter and hold that the materials would not warrant a

conviction. In our opinion, what needs to be considered is

whether there is a ground for presuming that the offence

has been committed and not whether a ground for

convicting the accused has been made out. To put it

differently, if the court thinks that the accused might have

committed the offence on the basis of the materials on

record on its probative value, it can frame the charge;

though for conviction, the court has to come to the

conclusion that the accused has committed the offence. The

law does not permit a mini trial at this stage.”

10. We shall now apply the principles enunciated above to the present

case in order to find out whether in the facts and circumstances of the

case, the High Court was justified in discharging the accused for the

offence under Section 7 of the PC Act.


11. Having considered the reasoning given by the High Court and the

grounds which are weighed with the High Court while discharging the

accused, we are of the opinion that the High Court has exceeded in its

jurisdiction in exercise of the revisional jurisdiction and has acted beyond

the scope of Section 227/239 Cr.P.C. While discharging the accused,

the High Court has gone into the merits of the case and has considered

whether on the basis of the material on record, the accused is likely to

be convicted or not. For the aforesaid, the High Court has considered in

detail the transcript of the conversation between the complainant and the

accused which exercise at this stage to consider the discharge

application and/or framing of the charge is not permissible at all. As

rightly observed and held by the learned Special Judge at the stage of

framing of the charge, it has to be seen whether or not a prima facie

case is made out and the defence of the accused is not to be

considered. After considering the material on record including the

transcript of the conversation between the complainant and the accused,

the learned Special Judge having found that there is a prima facie case

of the alleged offence under Section 7 of the PC Act, framed the charge

against the accused for the said offence. The High Court materially

erred in negating the exercise of considering the transcript in detail and

in considering whether on the basis of the material on record the

accused is likely to be convicted for the offence under Section 7 of the

PC Act or not. As observed hereinabove, the High Court was required to

consider whether a prima facie case has been made out or not and

whether the accused is required to be further tried or not. At the stage of

framing of the charge and/or considering the discharge application, the

mini trial is not permissible. At this stage, it is to be noted that even as

per Section 7 of the PC Act, even an attempt constitutes an offence.

Therefore, the High Court has erred and/or exceeded in virtually holding

a mini trial at the stage of discharge application.

12. We are not further entering into the merits of the case and/or

merits of the transcript as the same is required to be considered at the

time of trial. Defence on merits is not to be considered at the stage of

framing of the charge and/or at the stage of discharge application.

13. In view of the above and for the reasons stated above, the

impugned judgment and order passed by the High Court discharging the

accused under Section 7 of the PC Act is unsustainable in law and the

same deserves to be quashed and set aside and is accordingly hereby

quashed and set aside and the order passed by the learned Special

Judge framing charge against the accused under Section 7 of the PC

Act is hereby restored. Now the case is to be tried against the accused

by the competent court for the offence under Section 7 of the PC Act, in

accordance with law and its own merits.

………………………………………..J.

[Dr. Dhananjaya Y. Chandrachud]

New Delhi; ………………………………………..J.

April 13, 2021. [M.R. Shah]


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