Kerala High Court
B.Radhakrishnan Nair vs State Of Kerala on 20 August, 2013
Author: K. Harilal
Bench: K.Harilal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
TUESDAY, THE 20TH DAY OF AUGUST 2013/29TH SRAVANA, 1935
Crl.Rev.Pet.No. 611 of 2013 ()
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ORDER IN CRL.M.P.NO.683/12 IN C.C.NO.71/09 ON THE FILE OF
THE COURT OF THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE,
VIGILANCE, KOTTAYAM.
REVISION PETITIONER(S)/PETITIONER:
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B.RADHAKRISHNAN NAIR,
S/O.BHASKARAN NAIR, PULIVILA VEEDU, ULAKODU WARD,
VAKKANADU PO, KAREEPRA VILLAGE,
KOTTARAKKARA TALUK,
KOLLAM DISTRICT.
BY ADVS.DR.K.P.KYLASANATHA PILLAY (SR.)
SMT.SREEDEVI KYLASANATH
SRI.P.VISHNU SANKAR
RESPONDENT/PETITIONER & STATE:
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STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI. LIJU V. STEPHEN
THIS CRIMINAL REVISION PETITION HAVING BEEN
FINALLY HEARD ON 08-07-2013, THE COURT ON 20-8-02013
PASSED THE FOLLOWING:
K. HARILAL, J.
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Crl.R.P. No. 611 of 2013
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Dated this the 20th day of August, 2013
ORDER
The revision petitioner is the 1st accused in C.C.No.71/09 on the files of the Enquiry Commissioner and Special Judge, Kottayam, and the petitioner in Crl.M.P.No.683/12 filed therein. Indisputably, he is a public servant coming under Sec.2(c) of the Prevention of Corruption Act . The 2nd accused is the driver of the 1st accused who abetted the 1st accused in doing the offence. Now, the revision petitioner/1st accused stands charge sheeted for the offences punishable under Secs.7, 12 and 13
(i)(d) read with Sec.13(2) of the Prevention of Corruption Act and Sec.120B of the Indian Penal Code along with the Crl.R.P. No. 611 of 2013 -: 2 :- 2nd accused. But, according to the revision petitioner, there are no sufficient grounds to prosecute him for the aforesaid charges. Hence the revision petitioner filed a petition under Sec.239 of the Code of Criminal Procedure for discharging him from prosecution. The learned Special Judge, after considering the police report and documents sent with it under Sec.173(2) of the Cr.P.C., dismissed the petition. This order is challenged in this revision petition.
2. The allegation against the revision petitioner and the 2nd accused is that the revision petitioner, while working as the Assistant Director, holding the charge of Deputy Director, National Savings District Officer, Pathanamthitta, and, as such, being a public servant, abused his official position as public servant by demanding an amount of Rs.50,000/- and also a girl from C.W.1 Anandha Bhai, two weeks back from 28/12/2006 and demanded the same again on 28/12/06 as bribe for not suspending the Mahila Pradhan and SAS Agency of C.W.1 and to save C.W.1 from the allegation of drawing excessive monthly incentive allowance Crl.R.P. No. 611 of 2013 -: 3 :- and in pursuance of that demand, the revision petitioner accepted an amount of Rs.25,000/- as illegal gratification on 29/12/06 at 4.25 p.m. at his office room at Pathanamthitta and committed the above said offences. The 2nd accused stood as an abetter to the commission of the said offence by his superior officer.
3. The learned counsel for the revision petitioner, in support of the various grounds raised in the Memorandum of Revision Petition, advanced arguments challenging the impugned order, factually as well as legally. The learned counsel submits that the Vigilance Officers, without conducting any kind of preliminary enquiry, believing the statement of C.W.1, laid a trap as dictated by C.W.1. The main thrust of the argument is that the amount of Rs.25,000/- said to have been accepted by the revision petitioner is only towards the remittance of the amount that was misappropriated by the de facto complainant. He announced that any misappropriated money acquired by any agents should be remitted before 31/12/06. The de facto Crl.R.P. No. 611 of 2013 -: 4 :- complainant then approached the revision petitioner with an offer to remit Rs.25,000/- towards the money which she misappropriated. On 29/12/06 at about 4.10 p.m. the de facto complainant came to the revision petitioner's office and offered to remit Rs.25,000/- towards a portion of the misappropriated amount detected and handed over an amount of Rs.25,000/-. Before the petitioner could prepare a chalan for the same, she said that she had to go to toilet. Within 10 minutes the Deputy Superintendent of Police, Vigilance, entered the office and conducted the phenolphthalein test and arrested the petitioner. Thus, the petitioner is the victim of a fabricated plot hatched by C.W.1 also with the help of the Vigilance Officials. The second contention is that the statement of C.W.1 in her First Information Statement is that she had met the petitioner on 28/12/2006 at 1.30 p.m. and on that time he had demanded payment of Rs.50,000/-. But in fact, on the said date and at the said time the petitioner was at Alleppey Branch carrying out his duty of disbursing cheques pertaining to monthly Crl.R.P. No. 611 of 2013 -: 5 :- payments. The third contention is that subsequent to the trap, on departmental enquiry, it is unearthed that the de facto complainant had misappropriated an amount of Rs.1,61,660/- and three others by names Smt. Vasantha Kumari, Smt. T.N. Santhakumari Amma and Smt. Anu Joseph had also misappropriated considerable amounts and they also remitted back the respective amounts to the Department. Therefore, the claim of the petitioner that Rs.25,000/- accepted by the revision petitioner and caught hold of during trap is also a remittance to the Department. The legal contention raised by the learned counsel for the revision petitioner is that though the revision petition is filed under Secs.397 and 401 of the Cr.P.C., the revisional court has jurisdiction to embark an enquiry as to the veracity and plausibility of the contentions raised in defence, exceeding the scope of jurisdiction conferred under Sec.239 of the Cr.P.C., invoking the inherent powers under Sec.482 of the Cr.P.C. To fortify the above point, the learned counsel cited the decision in Madhu Limaye v. State of Crl.R.P. No. 611 of 2013 -: 6 :- Maharashtra (1977 KHC 221).
4. Per contra, the learned Public Prosecutor advanced arguments so as to justify the impugned order under challenge. Sri. Liju V. Stephen, the learned Public Prosecutor submitted that the scope of jurisdiction on an order passed under Sec.239 of the Cr.P.C. must be confined to the question whether there is any illegality or impropriety in the said order in view of the scope of jurisdiction and power under Sec.239 of the Cr.P.C. and the revisional court has no power or jurisdiction to exceed the scope of considerations provided under Sec.239 of the Cr.P.C. by invoking the inherent power under Sec.482 of the Cr.P.C. Put it differently, the argument advanced by the learned Public Prosecutor is that in revision also the jurisdiction must be confined to the question whether there are sufficient grounds to proceed against the accused on the basis of the police report and the documents appended to it and nothing more than that. The second point raised by the learned Public Prosecutor is that all the contentions raised Crl.R.P. No. 611 of 2013 -: 7 :- in the petition under Sec.239 of the Cr.P.C. as well as the arguments of the learned counsel for the revision petitioner at the Bar are defensive contentions which can be considered only after the full-fledged trial. At the stage of discharge the defence contentions made in alternative of the prosecution case do not deserve to be considered and the documents produced by the accused cannot be looked into. The scope of enquiry is confined to the question whether the police report and the documents appended to it disclose a prima facie case, otherwise the proceedings will amount to a mini trial before the actual trial. In short, in revisional jurisdiction this Court cannot consider the genuineness or plausibility of defence contention invoking the inherent power under Sec.482 of the Cr.P.C.
5. I have given anxious considerations to the arguments advanced by the learned counsel for the revision petitioner and the learned Public Prosecutor. First of all, I shall deal with the legal contention that centres around the scope and extent of jurisdiction of the revisional court. Crl.R.P. No. 611 of 2013 -: 8 :-
6. What is the scope and extent of revisional jurisdiction under Secs.397 and 401 of the Cr.P.C.? In Shaju v. Paulose (2009 (4) KLT SN 49 - Case No.44), this Court held as follows:
"The challenges raised against the conviction of the accused concurrently held by the two inferior courts, no doubt, has to be appreciated within the narrow limits of revisional jurisdiction and in the absence of any glaring serious infirmity disclosing that such conviction will amount to miscarriage of justice, no interference thereof is permissible. Revision is a paternal jurisdiction vested with a superior forum to correct and rectify the orders of the inferior courts, provided, such order suffers from serious infirmities likely to cause miscarriage of justice. Normally in revision, a re- appreciation of evidence is impermissible unless it is shown that the findings arrived by the inferior courts could not have been formed on the materials placed or it is so perverse and unacceptable. A different view is possible than what was formed by the Crl.R.P. No. 611 of 2013 -: 9 :- inferior court on the materials is not sufficient to invoke revisional jurisdiction and supplement the view of the revisional court if that view was also possible on the materials.
However, after going through the
orders/judgments of the inferior courts
challenged in the revision with reference to the submissions made by the counsel and perusing the records of the case, if the revisional court is satisfied that the materials produced had been misconstrued and misappreciated and the conclusion arrived by the inferior courts, even if made concurrently, is patently erroneous and legally unsustainable, it has to exercise its jurisdiction to pass such orders which should have been rendered by the inferior court to avoid miscarriage of justice".
7. Being a paternal jurisdiction, the circumstance required for an interference under the revisional jurisdiction is illegality, impropriety or incorrectness committed by the inferior court. So, the first question to be considered while exercising the revisional jurisdiction is whether the inferior court has committed any illegality, impropriety or Crl.R.P. No. 611 of 2013 -: 10 :- incorrectness in the impugned order. If there is no illegality, impropriety or incorrectness, there is no scope for interference under the revisional jurisdiction. The learned counsel for the revision petitioner placed reliance on Madhu Limaye v. State of Maharashtra (1977 KHC 221) and strongly contended that the scope of interference under the revisional jurisdiction is very wide and it may go upto the extent of exercising inherent powers under Sec.482 of the Cr.P.C. But, one cannot miss the embargo laid down by the Supreme Court in the very same decision for exercising inherent powers under Sec.482 of the Cr.P.C. In that decision itself, the Supreme Court held as follows:
"At the outset the following principles may be noticed in relation to the exercise of the inherent power of the High Court which have been followed ordinarily and generally, almost invariably, barring a few exceptions:
(1) That the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party;
Crl.R.P. No. 611 of 2013 -: 11 :- (2) That it should be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice;
(3) That it should not be exercised as against the express bar of law engrafted in any other provision of the Code."
8. So, the point that can be formulated from the first principle in the very same decision cited above is that the inherent power under Sec.482 of the Cr.P.C. cannot be resorted to if there is a specific provision in the Code for the redressal of the grievance of the aggrieved party.
Necessarily it follows that when there is specific provision under the Cr.P.C., prescribing the nature and exercise of jurisdiction while exercising that jurisdiction, this Court cannot exceed the limits of that jurisdiction, by invoking inherent power under Sec.482 of the Cr.P.C. In short, inherent power cannot be a means to exceed jurisdiction, Crl.R.P. No. 611 of 2013 -: 12 :- when the limits are specifically prescribed. The revisional jurisdiction, a jurisdiction under the specific provision provided under Secs.397 and 401 of the Cr.P.C. will be limited to correct the illegality, impropriety and incorrectness committed by the inferior court only. It follows, if the inferior court has not committed any illegality, impropriety or incorrectness, in view of the considerations under Sec.239 of the Cr.P.C., there will not be any scope of interference exercising the revisional jurisdiction. So, to invoke the Revisional Jurisdiction, there must have some illegality or impropriety or incorrectness in the impugned order passed by the inferior court.
9. Here, the order under challenge is an order passed under Sec.239 of the Cr.P.C. So, the next question is whether the court below has committed any illegality, impropriety or incorrectness in exercising the jurisdiction under Sec.239 of the Cr.P.C.? For that, let us have a look at the scope and extent of jurisdiction under Sec.239 of the Cr.P.C. and nothing more than that.
Crl.R.P. No. 611 of 2013 -: 13 :-
10. Let us examine the judicial precedents. In the decision in State of Orissa v. Debendra Nath Padhi (AIR 2005 SC 359), on a reference, a Bench comprised of three Judges of the Supreme Court, as regards the matters to be considered at the time of framing charge, held that:
"18. .... 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 Crl.R.P. No. 611 of 2013 -: 14 :- 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 state of framing of charge hearing the submissions of the accused has to be confined to the material produced by Crl.R.P. No. 611 of 2013 -: 15 :- the police".
In Amit Kapoor v. Ramesh Chander and Another [2012 (2) KLD 719 (SC)], the Supreme Court cautioned the limits of evaluation of the prosecution case and documents thereunder and held as follows:
" 4. ......... The Judge has to pass thereafter an order either under Section 227 or Section 228 of the Code. If "the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing", as enjoined by Section 227. If, on the other hand, "the Judge is of opinion that there is ground for presuming that the accused has committed an offence which ...... (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused", as provided in Section 228. Reading the two provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to Crl.R.P. No. 611 of 2013 -: 16 :- adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial 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. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. 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 against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence that it is not open to the Court to say that Crl.R.P. No. 611 of 2013 -: 17 :- there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. It the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable."
11. The question raised above can be answered as follows: At the time of framing charge, the prosecution documents alone are the inputs to be used for the process Crl.R.P. No. 611 of 2013 -: 18 :- of framing charge. The accused against whom the allegations are made has a limited role and the defence case and defensive arguments thereupon are not matters to be considered at the time of framing charge. Certainly, the accused has the right to advance arguments basing on prosecution case. In short, the scope and extent of intervention of the accused in the matter of framing charge is very limited. To sum up, at the stage of framing charge the court is required to look into the materials produced by the prosecution alone for deciding the question whether the particular case is fit for framing charge and whether there are sufficient grounds for framing charge. Neither the defensive arguments nor the documents produced in support of the defence contentions can be considered at this stage.
12. The next question to be considered is, in the instant case, whether the court below has committed any illegality, impropriety or incorrectness in exercising the jurisdiction under Sec.239 of the Cr.P.C. in view of the legal Crl.R.P. No. 611 of 2013 -: 19 :- principle settled by the Supreme Court and narrated above.
13. Let us examine the impugned order in the light of the above decisions. Firstly, we have to consider the nature and scope of evidentiary value of a trap laid by the investigating officer during the course of investigation of an offence under Section 13(1)(d) of the Prevention of Corruption Act. I am of the opinion that the trap itself is an evidence collected by the prosecution, during the course of investigation after the receipt of a complaint alleging offence. Where the accused caught hold of with trap money which he allegedly accepted from the de facto complainant and if the prosecution proves the acceptance of money, then the burden is on the accused to adduce rebuttal evidence to establish that the money accepted is not an illegal gratification or bribe.
14. More importantly, the revision petitioner is charge sheeted for the offence punishable under Sec.7 of the Prevention of Corruption Act also. According to Sec.20 of the Prevention of Corruption Act, in such a case, where it Crl.R.P. No. 611 of 2013 -: 20 :- is proved that the accused person has accepted or obtained any illegal gratification or valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained that illegal gratification or valuable thing as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show favour or disfavour to any person. Here, the trap laid by the Investigating Officer prima facie establishes the acceptance of money. Then the presumption automatically comes into play and that can be rebutted either by cross examining the prosecution witnesses or by adducing rebuttal evidence by the accused at the time of trial.
15. Coming to instant case, here the revision petitioner was caught hold of with Rs.25,000/- given by the de facto complainant, in a trap laid by the Investigating Officer. The contention of the accused is that Rs.25,000/-, the money which was caught hold of from the hands of the accused in the trap is nothing other than the remittance towards a portion of the amount misappropriated by the de facto Crl.R.P. No. 611 of 2013 -: 21 :- complainant, and found out in enquiry. It is also contended that four other employees holding similar posts and undergoing disciplinary proceedings for the very same allegation also remitted the amount which they misappropriated. I am of the opinion that the burden is on the accused to prove that the trap money seized from his possession is a remittance towards the money misappropriated by the de facto complainant and that burden can be discharged during the course of trial only.
16. The next contention is that on 28/12/06 when the revision petitioner allegedly demanded bribe from the de facto complainant, the accused was at Alappuzha in discharge of his official duty. Virtually, it is a defence of alibi and there also the burden of proof is on the accused and that burden can also be discharged at the time of trial only.
17. The fourth contention is that the de facto complainant was undergoing disciplinary action under the supervision of the accused. I am of the opinion that this Crl.R.P. No. 611 of 2013 -: 22 :- contention is a double edged weapon. The said contention can be considered at this stage for and against the accused. When the de facto complainant is undergoing disciplinary action under the supervision of the accused, the demand of bribe is possible either to exonerate the de facto complainant from the charges or to give lesser punishment. Similarly, on the other hand, it can be a thrusting of money to the hands of the accused, without demand; so as to see the accused is entrapped, in retaliation of the stringent action taken by the accused. But, it can be determined only after trial, on the basis of the evidence to be adduced by both parties.
18. Let us consider the decisions which are cited by the learned counsel for the revision petitioner to fortify his arguments. The learned counsel cited M/s. Pepsi Foods Ltd. and Another v. Special Judicial Magistrate and others (AIR 1998 SC 128), Janata Dal v. H.S. Choudhary and others (1992(4) SCC 305), Rajkapoor and others v. State of Delhi Administration (AIR 1980 SC 258), Abdul Crl.R.P. No. 611 of 2013 -: 23 :- Rehman v. State of Kerala and others (2012(3) KLJ 206), Kocharya Valvi v. State of Maharashtra and others (2011 KHC 6216), Chithra pandi v. Janakaraj (2008 KHC 5461), Babu v. State of Kerala (2012(3) KLT 156).
19. M/s. Pepsi Foods Ltd. and Another v. Special Judicial Magistrate and others (AIR 1998 SC 128), the Apex Court held as follows:
Nomenclature under which petition is filed is not quite relevant and that does not debar the Court from exercising its jurisdiction which otherwise it possesses unless there is special procedure prescribed which procedure is mandatory. If in a case like the present one the Court finds that the appellants could not invoke its jurisdiction under Art. 226, the Court can certainly treat the petition one under Art.227 or S. 482 of the Code. It may not, however, be lost sight of that provisions exist in the Code of revision and appeal but sometime for immediate relief S. 482 of the Code or Art. 227 may have to be resorted to for correcting some grave errors that might be committed by the subordinate Courts. The Crl.R.P. No. 611 of 2013 -: 24 :- present petition though filed in the High Court as one under Arts. 226 and 227 could will be treated under Art. 227 of the Constitution".
20. The principle that can be culled out is that unless there is a special procedure, which is prescribed mandatory, the nomenclature under which petition is filed is not quite relevant. But, here, for exercising revisional jurisdiction under Sec.397 and 401 of the Cr.P.C., a special procedure is specifically prescribed and that procedure specifically mandates that the jurisdiction and power can be exercised to satisfy as to correctness, legality and propriety of the order passed by the inferior court. If that be so, needless to say, a different view is possible than what was formed by the inferior court on the material is not sufficient to invoke revisional jurisdiction and implement the view of the revisional court if that view was also possible. The facts and circumstances of that case in the decision referred above were entirely different. There, an order passed in a writ petition filed before the High Court under 226 of the Constitution of India was under challenge, not an order Crl.R.P. No. 611 of 2013 -: 25 :- passed on a petition for discharge under Sec.239 of the Cr.P.C. So, unlike revisional jurisdiction, in the absence of special procedure, the Apex Court held that though writ petition was filed Article 226 of the Constitution of India, the Court can certainly treat it as one under Article 227 of the Constitution of India or 482 of the Cr.P.C. But, I am of the opinion that it cannot be interpreted to mean that a revision filed under Sec.397 r/w 401 of the Cr.P.C. can be treated as one filed under Sec.482 of the Cr.P.C. for jumping over the scope of jurisdiction specifically prescribed, so as to consider possibility of defense contention raised by the accused for getting discharge. It is to be borne in mind that this decision reminds that inherent power under Sec.482 of the Cr.P.C. cannot be exercised to over reach specifically prescribed procedure under another provision of the Code.
21. The above view gets support from Janata Dal v. H.S. Choudhary and others (1992(4) SCC 305) cited by the learned counsel for the revision petitioner. The relevant portion which supports the above view reads as follows: Crl.R.P. No. 611 of 2013 -: 26 :-
The inherent power under this Section can be exercised by the High Court (1) to give effect to any order passed under the Code; or (2) to prevent abuse of the process of any Court; or (3) otherwise to secure the ends of justice. The power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party. It should not be exercised as against the express bar of law engrafted in any other provision of the Code. The power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a premature decision in a case wherein the entire facts are extremely incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved whether factual or legal are of great magnitude and cannot be seen in their true perspective without sufficient material.
22. In Rajkapoor and others v. State of Delhi Administration (AIR 1980 SC 258), the Apex Court held that, when a specific provision is made easy resort to, Crl.R.P. No. 611 of 2013 -: 27 :- inherent power should not invade areas set apart for specific power under the same Code.
23. In Babu v. State of Kerala (2012(3) KLT 156), fact and circumstances of the case are entirely different. There a preliminary investigation was ordered on a private complaint, seeking investigation under Sec.156(3) of the Cr.P.C. Considering the allegations in the complaint filed by a private person, the Court held that a preliminary investigation is desirable before registration of the FIR; but here, the accused was caught hold of red handedly with the alleged bribe money. In such a case, there no scope for a preliminary investigation. Therefore, this decision has no application at all in the instant case. All the other decisions are decisions of other High Courts, having persuasive value only and in the light of the legal position well settled by the Supreme Court, those decisions do not render any assistance or aid to fortify the point canvassed by the revision petitioner.
24. In short, none of these decisions would render any Crl.R.P. No. 611 of 2013 -: 28 :- assistance to fortify the argument that while considering legality, propriety or correctness of an order passed under S.239 of the Cr.P.C. by the inferior court, the Revisional Court can invoke inherent power under Sec.482 of the Cr.P.C. to evaluate the defense contentions of the accused, particularly, in a trap case under Sections 7 and 13(1)(d) r/w 13(2) of the PC Act.
25. Thus, I am of the opinion that the entire arguments advanced in this Revision Petition are defensive version that can be determined only after the process of trial, as the burden is on the accused to substantiate the defensive contentions in evidence, at least with the standard of preponderance of probability.
26. To sum up, the persuasive argument advanced by the learned counsel is that while exercising the jurisdiction under revision, the revisional court has power to consider the defensive contentions invoking the inherent power under Sec.482 of the Cr.P.C. But I am inclined to reject this argument and I do so. While exercising revisional Crl.R.P. No. 611 of 2013 -: 29 :- jurisdiction on an order passed by the inferior court under Section 239 of the Cr.P.C., the scope and extent of jurisdiction of this Court is confined to the question whether there is any illegality, impropriety or incorrectness in the impugned order in view of the scope of consideration under Section 239 of the Cr.P.C. Needless to say, this Court cannot invoke power under Section 482 of the Cr.P.C. to exceed or jump over the above limited scope of consideration, at this stage, to consider defence contentions.
This revision petition is meritless and dismissed accordingly.
Sd/-
(K. HARILAL, JUDGE) Nan/ //true copy// P.S. to Judge