Madras High Court
R. Anbalagan vs State By on 18 June, 2013
Author: S.Palanivelu
Bench: S.Palanivelu
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18.06.2013 CORAM: THE HONOURABLE MR.JUSTICE S.PALANIVELU Criminal Revision Case Nos.953 and 954 of 2012 and M.P.Nos.1 and 2 of 2012 R. Anbalagan .. Petitioner/Accused-22 [in both Crl.R.Cs.] Vs State by Additional Superintendent of Police, CBI : SPE : ACB Chennai 6 Cr.No.R.C.No.58(A)/2006-CBI/ACB/Chennai .. Respondent/Complainant [in both Crl.R.Cs.] PRAYER: Criminal Revision cases filed under Section 397 and 401 of the Code of Criminal Procedure, against the order passed by the learned XIII Additional Special Judge for CBI Cases, Chennai-104 in Crl.M.P.Nos.568 of 2011 and 572 of 2011 in CC.Nos.10 of 2009 and 33 of 2011 dated 28.06.2012. For Petitioner : Mr.A.E. Chellaiah [in both Crl.R.Cs.] Senior Counsel for Mr.K. Ramanujam For Respondent : Mr.N. Chandrasekaran [in both Crl.R.Cs.] Special Prosecutor for CBI Cases COMMON ORDER
Since the both the criminal revision cases are interconnected and the petitioner in both the petitions is one and the same, this common order is pronounced. 1. In the affidavits filed by the petitioner/Accused-22, in both the petitions, it is stated as follows:-
1.(a) The charges leveled against him by the respondent are for offences u/s.120B r/w Sec.420 IPC and Sec.13(2) r/w 13(1) (d) P.C. Act, 1988, that even though the FIRs both from the F1, Chintadripet Police Station and the later by CBI contains 86 accused persons, the charge sheet was filed in 2008 was restricted to 21 persons only and several persons who are said to have played key roles as the very source of leakage were dropped for the reasons well known to the prosecution and as the attendance register for A.1 Duraimunisamy and A.2 Chinnathambi was admittedly tampered with by a blade, by the officials maintaining the attendance register who are shown as Lws and as a result even a hole is caused and found there and as the Forensic Experts certificate contradicts the statement of A.1 and A.2 said to have given statements voluntarily as how they climbed and gained entry into the DGP's chamber to remove the question papers as the Forensic Experts opinion is that even a trained climber cannot climb and further there is no sunshade and when admittedly private xerox shop has been used for taking print out on butter paper when the facilities are available in the DGP office itself, that neither the woman constable who typed out the question paper nor the private xerox shop people were cited as witnesses and that the complainant Nataraj, the then ADGP and Member Secretary of the Recruitment Board (TNUSRB) who gave the complaint is not a witness and the same FIR is repeated by CBI also, that the petitioner name does not find a place in any of the FIR and for other glaring reasons, petition for discharge was filed under Sec.227 of Cr.P.C., that it was dismissed and the revision preferred was also dismissed by this Court and it has also embraced a dismissal in the Supreme Court.
2. After framing the charges, petition was filed u/s.482 Cr.P.C. in which this Court was pleased to allow the petition and also directed for splitting the case so far as the two occurrences are concerned and quashed the charges framed in C.C.No.10/2009 saying that there is misjoinder of charges and misjoinder of accused and that accordingly in C.C.No.33/2011 the petitioner is himself is now shown as A.22, that the sanction order of 2008 is filed now without any notice and any reply.
3. In the counter filed by the respondent, it is stated as follows -
3.(a) The discharge petition filed by the accused is not maintainable on facts and on law, that the averments made by the accused are denied except those specifically admitted, that the case relates to leakage of question papers on 27.03.2005 and the re-exam held on 01.06.2005 for recruitment of Police constables for which written examination was conducted by TNUSRB, Chennai and that case was registered on the orders of this Court in W.P.No.25153/2005, that subsequent to cancellation of both the examns, an enquiry was conducted by DGP, Chennai and based on the enquiry report submitted by Shri P.Thamarai Kannan, IPS, an FIR in Cr. No.2600/2005 dated 08.12.2005 was registered by Chintadripet Police Station, that as subsequently ordered by this court, the case was re-registered by CBI, ACB, Chennai as RC 58(A) 2006 on 26.12.2006 and all the accused persons cited in Crime No.2600/2005 were shown as accused in the FIR registered by CBI also, that after detailed investigation, a charge sheet was filed before this court against 31 accused persons based on the evidence available against them, that A.11 N.Ravichandran entered into a criminal conspiracy with A.9 S.Devanath having the original C.C.No.10/09 (leakage of question paper of examination held on 27.03.2005) and the other (leakage of question paper of examination held on 01.06.2005), that the trial court accordingly split the charge sheet into two and thereupon the accused has again filed a petition for discharge u/s.227 Cr.P.C. The nature of evidence of the documents and witnesses are not the issue for consideration and that the trial judge has to see whether prima facie case is made out or not against the accused on the basis of the materials placed before him, that during the enquiry conducted by IPS officer, A.11, N.Ravinchandran had admitted the fact of obtaining the P.C exam question paper in advance from A.9 S.Devanath and handing over the same to Mohan (W67), Sivaraj (W68), Alamelu (W.65) and B.Nagamani (A20), that the averment of the accused that the substantive offences are not meaningful is not correct since the charge is yet to be framed by the court, that the fact that 22 accused have been shown in the charge prepared by the court as per directions of the High Court and the charge indicated 33 accused does not absolve the accused from the charges, that the person appearing in the FIR as accused may become a witness on conclusion of investigation and vice versa and that even though 87 accused were named in the FIR, charge sheet was filed against 31 accused persons only, based on the evidence available and collected during the investigation and that in respect of the remaining accused, no material evidence is available to prove the allegations levelled against them and that they are not being prosecuted. Even though various accused names are figuring in the report, the charge sheet was filed against 31 accused persons based on the available evidence and that in this regard, the statement of the senior police officers were recorded verbatim and the same were submitted before the trial court, that relevant witnesses and documents have been listed in the charge sheet to prove the charges against the accused, that at the stage of framing of charges, the trial court is not required to look for corroboration and probative value of the materials produced by the prosecution and prayed that the court may dismiss the discharge petition filed by the accused person.
4. After hearing both sides, the learned XII Additional Special Judge for CBI Cases, Chennai has dismissed both the petitions by observing that prima facie case is made out to say "no" to discharge the petitioner from the charges. Hence, these revisions have been filed by the petitioner.
5. Point for consideration :-
Whether a strong suspicion and a prima facie case is made out against the petitioner from the materials available in the prosecution case?
Point :
6. The gist of the case goes to the effect that Tamil Nadu Uniformed Services Recruitment Board (TNUSRB) conducted examination to recruit Grade 2 Constables. The written examination was slated to be held on 27.03.2005. The authorities smelt a rat that there was leakage of General Knowledge question paper. Hence, re-examination was ordered after cancelling the examination already held and the next date of examination was fixed on 01.06.2005. It was found out that there was a leakage of question paper again in General Knowledge and the examination conducted on 01.06.2005 also was written off. The Government directed enquiry in to the affair on the leakage of question papers. On the basis of the enquiry, a complaint was lodged with Chintadripet Police Station and a case was registered. Subsequently the case was transferred to CBCID, Chennai and by the orders of this Court, the investigation was transferred to CBI. Even though at the outset, 87 persons were arrayed as accused, charge sheet was laid on 31 accused and others were deleted from the charge sheet. After the charges were framed by the trial court, the petitioner moved this court with petitions to quash the charges framed against him, so also some other accused.
7. This Court, after hearing both parties, has quashed the charges on the ground of misjoinder of charges and misjoinder of accused. This Court has also directed the trial court to split the case into two, one pertaining to the occurrence relating to the leakage of question paper in connection with the examination held on 27.03.2005 and the other regarding the occurrence concerned with the leakage of question paper in connection with the examination held on 01.06.2005 and try the accused in each case separately and not by means of a joint trial and that after splitting up the case, the trial court shall frame appropriate charges in respect of each occurrence against the accused concerned and such charges may be based on the materials available on record pertaining to each case.
8. In obedience to the directions of this court as above, the trial court split the case into two as C.C.No.10 of 2011 and C.C.No.33 of 2011 and charges were framed. Subsequently petitions have been filed by the petitioner under Sec.227 of Cr.P.C. for discharging from this case. The petitioner was ranked as 27th accused in the charge sheet but when the case was split, he was ranked as 31st accused.
9. Mr.A.E.Chellaiah, learned Senior counsel appearing for the petitioner would contend that in as much as there is no conspiracy or demand of money or receipt of money from the accused he could not be held liable, that there is no clinching materials to show that the petitioner was involved in the alleged offence, that even though the key witness Sivakumar has reportedly stated that this petitioner also received the bribe, the very same witness during disciplinary proceedings turned hostile and he has stated that he does not know this petitioner, that there is no material to show as to how and wherefrom the question paper came to this Accused 21, that without any basis, the prosecution blindly says that 'A21 fraudulently obtained question papers' but prosecution has to prove from whom and when A21 obtained question papers, that when no evidence is available for proving the alleged offence against A1 and A2, there cannot be continuity in alleging 'conspiracy' or fraudulently obtained', that presently A21 is no more and it is not shown by the prosecution from where the question paper came to A.21 and with whom A21 conspired with and that in the absence of relevant material factors, no charge could be framed against the petitioner and for other factual and legal grounds also, the order challenged before this court is liable to be set aside.
10. Repelling the contentions, the learned counsel Mr.N.Chandrasekar, Special Public Prosecutor for CBI cases would argue that at the stage of framing of charges, the trial court need not look for probative value of the materials on record produced by the prosecution, that the materials and clinching evidence are available to establish the allegations against the accused, that during investigation by CBI, the candidate Shri Sivakumar has given a statement before Judicial Magistrate and stated firmly that A.22 R.Anbalagan has received Rs.20,000/- from him for leaking the question paper alongwith A.21 Elumalai, that LW10, father of Sivakumar has also stated the above said version in his statement given under Section 131 Cr.P.C, that the call details produced alongwith the charge sheet would establish that the accused persons were having contacts with each other on the eve of the examination and in support of same, a statement of LW 64, Shri S.K.Hariharan, Divisional Engineer, BSNL, Chennai is also available, that the report of TNFSL expert had confirmed corrections made in respect of the entries pertaining to A.1 Shri Durai Munusamy and A.2 Shri Chinnathambi in the attendance register of the MT Cell of TNUSRB and this has been confirmed by the evidence of LW7 and LW4, that LW4 and LW7 also gave a detailed account of corrections made in attendance register, that the sanction order was obtained prior to the filing of the charge sheet itself and that no valid grounds are made out to set aside the order passed by the trial court.
11. The first and foremost thing to be seen in this case is the statement of the key witness Sivakumar who is the candidate who had appeared for written examination on two occasions. First of all, he has given a statement before the investigation officer of CBI and another one is statement given by him under Section 164 Cr.P.C. before the VII Metropolitan Magistrate. The petitioner's side would take advantage of the statement made by him before the enquiry officer in the departmental proceedings, where he turned hostile. He would say that he does not know the person by name Anbu @ Anbalagan, that the person presented before the enquiry is Head constable Anbalagan, that the signature found in the statement recorded by George Town Metropolitan Magistrate belongs to him, that CBI gave a statement asking him to say as per the statement produced in the court and hence he gave the statement as such.
12. In the statement recorded under Sec.164 (5) Cr.P.C. by the learned VII Metropolitan Magistrate, George Town, Chennai, he has stated that for recommending to get the employment one Elumalai, demanded Rs.20,000/- and the same was informed him (sivakumar), that his father and one Rajendran paid Rs.20000/- to Elumalai, that he came to Chennai, Anbu contacted him over phone and he got the question paper from Elumalai on the mid night of earlier day to the examination, that he prepared the answers by heart after seeing the question paper, that the questions contained in the siad question papers alone were found in the question paper given at the time of examination, that after few days, it was found that there was leakage of question papers and hence the examination was cancelled and re-examination was ordered, that just like the earlier occasion, he went to the house of Elumalai and got the question paper from him and that examination was also cancelled for the reason that there was leakage of question paper again and he appeared for the third time in October 2005 in which he did not get pass marks and that Elumalai returned the amount.
13. For the question posed by the petitioner's side, the answer is available in the order passed by this court in the earlier proceedings. In the order passed by S.Nagamuthu,J. in Crl.O.P.Nos.23479, 21794, 21793, 22062, 22562 and 21651 of 2010 on 06.04.2011, he has observed as follows -
33. .............................Here, in the cases on hand, at the time when Mr.Sivakumar is examined before the trial court by the prosecution, the defence officer would be at liberty to use the statement made before the enquiry officer for the purpose of contradicting him as provided in Section 145 of the Evidence Act. Equally, Mr.Sivakumar would be at liberty to offer explanation in respect of the said contradiction. Based on such contradiction and explanation, if any, the court may appreciate his evidence in the light of Section 155 of the Evidence Act. Despite the said contradiction, if sufficient explanation is offered in respect of the said contradiction, the trial court may even be prepared to act upon his evidence. Therefore, at this stage, it cannot be decided as to whether the evidence of Mr.Sivakumar will be accepted by the trial court during trial in view of the above contradictory statement made before the disciplinary authority. In such view of the mater, at this stage itself, this court cannot presume that he will stick on to his statement before the disciplinary authority and that he may not offer any explanation regarding his earlier statement made before the court under Section 164 of Cr.P.C. As of now, the statement made by Mr.Sivakumar before the police (CBI) and before the Metropolitan Magistrate under Section 164 of Cr.P.C. Are very much available upon which charges have been framed. Truthfulness or otherwise of such allegations are to be tested by examining Mr.Sivakumar."
14. In view of the above said observations, this is not a stage to appreciate the statements made by Sivakumar on various occasions. Their evidentiary value have to be ascertained at the time of final hearing of the case. He is at liberty of offer his explanations in respect of the said conversation, as observed by the learned Judge. His explanation is not on record. The petitioner' side has not preferred any appeal or revision challenging the above said order of this court. Hence, findings contained thereon have become final.
15. As far as the allegations of conspiracy on the part of the petitioner is concerned, relevant evidence is available from the statement of Sivakumar itself. His Statement is manifest about the involvement of the petitioner in the offence. As for the statement of telecom officer, the learned Senior Counsel for the petitioner would argue that even though he has given various particulars, there is no material to show nexus between the petitioner and the person who has spoken on the line on the other end and hence they are not reliable. Even though the petitioner's name is not found in the call details of Mr.Hariharan, it is replied in the counter filed by the respondent that call details would prove the fact that the accused persons were contacting each other in the event of the examination. Hence, the probative value of the particulars contained in the statement could be properly appreciated at the time of trial.
16. As regards the contention of the learned Senior Counsel appearing for the petitioner with regard to tampering of Attendance Register by scratching a blade, it is replied in the counter filed by the respondent before this Court, that the alleged allegations were explained by L.Ws.4 and 7 in their statements L.W.7 was working in TNUSRB as writer from February 2004. He was in-charge of making entry in M.T.R. Register and sending returns to the Head Office, to send the vehicles to Government workshop and to checkup the diaries maintained by the drivers. He further proceeds to say that his immediate superior was Sub Inspector, that he was aware of the leakage of the question papers for the examination held on 27.3.2005 and 1.6.2005, that in M.T. Section he was maintaining attendance register for the police constables, that in the month of March 2005 for Durai Munusamy and Chinnathambi attendance were marked as 'X' denoting their presence, that the Sub-Inspector Ramasamy asked him to change the mark as 'P' i.e., permission and hence in his presence he scratched 'X' mark by means of blade and changed it into 'P' as per his instruction. The above said tampering of entries in the Attendance Register are with regard to A1 and A2 in this case. It does not relate to the present petitioner. Hence, the petitioner cannot take advantage of this reported tampering in his favour.
17. The next contention on behalf of the petitioner is that the prosecution has not shown from where the question paper came to A-21, from whom and when A21 obtained the same. The letter sent by the Superintendent of Police SB CID, Chennai, addressed to the Director General of Police, Tamil Nadu dated 4.6.2005 would reveal the chain of events with regard to the passing of question papers to various police personnel and for further enquiry, The Superintendent of Police, SB CID requested the Director General of Police to entrust the matter for further enquiry to a specialised agency since it needs specified investigation. A copy of said letter is available in page 1 to 3 of the spiral bound book submitted by the petitioner before this Court. However, by means of the statements given by Sivakumar and his father Manoharan it transpires that Elumalai and this petitioner were involved in the offence. Hence, a prima facie case is made out and a strong suspicion falls on the conduct of both the petitioner and Elumalai since died.
18. Adverting to the legal position governing the subject, both the learned counsel would place reliance on various decisions of the Supreme Court and various High Courts in support of their respective and rival contentions. The learned Senior Counsel appearing for the petitioner would rely upon a decision of Honourable Apex Court reported in 2008(1) SCC (Crl) 507 [Onkar Nath Mishra and Others v. State (NCT of Delhi) and Another] wherein Their Lordships have formulated guidelines in the matter of dealing with the application filed for discharging of the accused. The following are the principles laid down therein:
11. It is trite 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, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence.
12. ... ... ... ... ... ...
13. Then again in State of Maharashtra v. Som Nath Thapa2, a three-Judge Bench of this Court, after noting three pairs of sections viz. (i) Sections 227 and 228 insofar as sessions trial is concerned; (ii) Sections 239 and 240 relatable to trial of warrant cases; and (iii) Sections 245(1) and (2) qua trial of summons cases, which dealt with the question of framing of charge or discharge, stated thus: (SCC p. 671, para 32) 32. if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of a charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage. (emphasis in original)
14. In a later decision in State of M.P. v. Mohanlal Soni [(2000)6 SCC 338 : 2000 SCC (Cri) 1110] this Court, referring to several previous decisions held that: (SCC p. 342, para 7) 7. The crystallised judicial view is that at the stage of framing charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused.
19. In view of the above said decision, the Court has to see whether prima facie case is made out from the materials of prosecution side and there is no need for the Court to go deep into the probative value of the material on record and that it is to be ascertained whether existence of the factual ingredients constituting the offence are found and a strong suspicion raises on the conduct of the accused and the Court has to find out whether there is sufficient grounds for proceeding against the accused and it is not required to appreciate evidence to conclude whether there are adequate materials for convicting the accused.
20. In 2009 (1) SCC (Crl) 721 [Rukmini Narvekar v. Vijaya Satardekar and others] Their Lordships have expressed view that there is no scope for the accused to produce any evidence in support the submissions made on his behalf at the stage of framing of charge and only such materials as are indicated in 227 Cr.P.C. can be taken into consideration by the Magistrate at that stage.
21. The Honourable Supreme Court in (2009) 1 SCC (Cri) 721 [Syed Basheer Ahamed and Others v. Mohammed Jameel and Another] has that a strong suspicion about commission of offence and accused's involvement was sufficient for framing of charges and at that stage there was no necessity of forumulating opinion about prospects of conviction. The relevant passages in the decision are as follows:
"11. Shri Mukul Rohatgi, learned Senior Counsel for the appellant has submitted that in the impugned judgment the learned Single Judge of the High Court largely relied on the evidence proceedings in the civil suit (No. 97 of 2004, New No. 101 of 2004). The complainant was Plaintiff 1 in the said civil suit which has been decreed on 30-12-2006. Shri Rohatgi has submitted that the High Court should not have relied on the evidence in the aforesaid civil suit for the purpose of quashing the criminal case. On the other hand Shri U.U. Lalit, learned Senior Counsel for the respondent has submitted that the said evidence could have been relied upon on the facts of this case for quashing the criminal proceedings.
12. Before dealing with these submissions, we may point out that while there were certain rulings of two-Judge Benches of this Court, which had held that the findings in a civil suit are binding in a criminal case on the same facts but not vice versa, this view appears to have been watered down somewhat in the subsequent decisions of the larger Benches of this Court e.g. the decision of the Constitution Bench of this Court in Iqbal Singh Marwah v. Meenakshi Marwah1 (vide SCC para 32) as well as the decision of the three-Judge Bench in K.G. Premshanker v. Inspector of Police2 (vide SCC paras 30 to 33).
13. The law as to when criminal proceedings can be quashed by the High Court in exercise of powers under Section 482 CrPC or Article 226 of the Constitution has been laid down by this Court in State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426 : JT (1990)4 SC 650] (vide SCC paras 102 and 103). This decision has been followed subsequently by a series of decisions e.g. Pepsi Foods Ltd. v. Judicial Magistrate [(1998) 5 SCC 749 : 1998 SCC (Cri) 1400 : JT (1997) 8 SC 705] Minu Kumari v. State of Bihar [(2006) 4 SCC 359 : (2006) 2 SCC (Cri) 310 : JT (2006) 4 SC 569], etc."
22. In 2010 (2) SCC (Cri) 1488 : (2010) 2 SCC 398 [P. Vijayan v. State of Kerala and Another] Their Lordships have dealt with scope and object of Section 227 Cr.P.C and referred to an earlier decision where the conditions enumerated in Section 227 of the Code and other principles are found available. It is as follows:
13. In a subsequent decision i.e. in Union of India v. Prafulla Kumar Samal2, this Court after adverting to the conditions enumerated in Section 227 of the Code and other decisions of this Court, enunciated the following principles: (SCC p. 9, para 10) (1) That the Judge while considering the question of framing the charges under Section 227 of the Code 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 the accused has been made out.
(2) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the court will be fully justified in framing a charge and proceeding with the trial.
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. The Supreme Court is of the firm view that a strong suspicion may not take place of the proof at the trial stage and yet it may be sufficient for the satisfaction of the trial judge in order to frame a charge against the accused.
23. The above said principles have been re-stated by the Apex Court in another decision in (2010) 2 SCC (Cri) 141 : (2009) 16 SCC 46 [Sarabjit Singh and Another v. State of Punjab and Another]. The operative portion of the judgment is thus:
"22. The observation of this Court in MCD's case [(1983) 1 SCC : 1983 SCC (Cri) 115] and other decisions following the same is that mere existence of a prima facie case may not serve the purpose. Different standards are required to be applied at different stages. Whereas the test of prima facie case may be sufficient for taking cognizance of an offence at the stage of framing of charge, the court must be satisfied that there exists a strong suspicion. While framing charge in terms of Section 227 of the Code, the court must consider the entire materials on record to form an opinion that the evidence if unrebutted would lead to a judgment of conviction."
24. The learned Senior Counsel has alsol cited a decisioln of Himachal Pradesh High Court reported in 1981 CRI.L.J.554 [Pritam Singh v. State] wherein it is observed that when materials on record are not warranting strong suspicion about commission of offence then charge cannot be framed.
25. In karnataka High Court decision in 1983 CRI.L.J.318 [Thirthraj Upendra Joshi v. State of Karnataka] the learned single Judge has observed that Section 239 has to be read along with S.240 Cr.P.C, that reading of two sections together it clearly means that if there is no ground for presuming that the accused has committed an offence, the charge must be considered to be groundless and that the Magistrate has a duty to consider the entire materials referred to in S.239 Cr.P.C.
26. In a decision of Delhi High Court reported in 2005 CRI L J 2625 [Sarbans Singh and Others v. State of NCT of Delhi] it is observed that the statements of witnesses are not sufficient to give rise grave suspicion against the accused and if the prima facie case emerged in favour of the accused, the accused are entitled for discharge.
27. The learned Special Public Prosecutor for CBI Cases would place strong reliance upon a decision of the Supreme Court in (2008) 10 SCC 109 [Bharat Parikh v. Central Bureau of Investigation and Another] wherein the Honourable Supreme Court after referring to various earlier decision of the Supreme Court held thus:
"As observed in Debendra Nath Padhi Case [(2005) 1 SCC 568 : 2005 SCC (Cri) 415] at the stage of framing charge roving and fishing inquiry is impermissible and a mini trial cannot be conducted at such stage. At the stage of framing of charge the submissions on behalf of the accused have to be confined to the materiel produced by the investigating agency."
29. In AIR 2000 SC 522 [Kanti Bhadra Shah and Another v. State of West Bengal] the Honourable Supreme Court has expressed view with reference to Section 239 Cr.P.C., which is as under:
"8. We wish to point out that if the trial Court decides to frame a charge there is no legal requirement that he should pass an order specifying the reasons as to why he opts to do so. Framing of charge itself is prima facie order that the trial Judge has formed the opinion, upon considering the police report and other documents and after hearing both sides, that there is ground for presuming that the accused has committed the offence concerned."
30. In a recent decision of the Apex Curt reported in AIR 2013 SC 52 [Shoraj Singh Ahlawat and Others v. State of U.P. And Another] Their Lordships have dealt with the import of Section 239 of the Code and reiterated the earlier views of the Supreme Court which are as follows:
"11. ... ... ... ... This Court explained the legal position and the approach to be adopted by the Court at the stage of framing charges or directing discharge in the following words:
"11. It is trite that at the stage of framing the 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, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of a factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence." (Emphasis supplied)"
31. The following guidelines emerged for a trial judge as per the ratio laid down by the Honourable Supreme Court:
1.The Court would find prima facie case against the accused that there is sufficient ground for proceeding against him.
2.The Court need not take up a roving enquiry or fishing enquiry at the stage of framing of charges.
3.The Court ought to discern a strong suspicion over the existence of facts constituting offence as against the accused.
4.There is no necessity for the Court to evaluate the probative and evidentiary value of the materials nor oral evidence placed by the prosecution and see whether they would be adequate to convict the accused.
5.The Court is not at a duty at the intermediate stage to speculate whether allegations are true or false to direct discharge.
32. Coming to the facts of the present case, following the principles laid down by the Honourable Supreme Court, it has to be necessarily held that on a scrutiny of materials on record and after hearing the rival submissions of both sides, this Court is able to see that there is prima facie materials available as against the petitioner to frame charge, and a strong suspicion about the existence of facts constituting offence against the petitioner is also perceived.
33. The learned Senior Counsel for the petitioner would argue strenuously about the conduct of the Public Prosecutor who was appearing before the trial Court, that she has filed counter on behalf of respondent with the caption as "Counter filed by the complainant against petition for discharge under Section 227 Cr.P.C.", that the Public Prosecutor is not complainant, that she has signed the counter and argued the matter and it is to be construed as a statement from the prosecutor and not counter from the complainant. The Honourable Supreme Court in the case of Bharat Parikh (supra) has observed that at the stage of framing of charge the submissions on behalf of the accused have to be confined to the materiel produced by the investigating agency. If any lapse on the part of the learned Public Prosecutor who was appearing before the trial Court is found out, it will not help the petitioner to get discharge from the case. At the most, it may be a procedural irregularity. Further, in the counter filed by the respondent before this Court, it is stated that as per Section 301 Cr.P.C. the Public Prosecutor or Additional Public Prosecutor in-charge of a case may appear and plead without any written authority before any Court in which that case is under inquiry, trial or appeal and as per Section 225 of Cr.P.C. in every trial before a Court of Session, the prosecution shall be conducted by a Public Prosecutor and whereas the role of the complainant/respondent is limited with the conduct of investigation.
34. In para 13 of the Counter filed before this Court, two decisions of the Honourable Supreme Court have been furnished wherein it is observed that "Public Prosecutor though an executive officer is in larger sense also an officer of the Court and that he is bound to assist the court with his fairly considered view and Court is entitled to have the benefit of the fair exercise of his function." [State of Bihar v. Ram Naresh Pandey (AIR 1957 SC 389; 1957 Cri.LJ 567)], and "the Public Prosecutor is appointed, as indicated in Section 24 of the Code, for conducting any prosecution, appeal or other proceedings in the Court. He is the officer of the Court." [Sarala v. T.S.Velu and Others (2000) 4 SCC 459: 2000 SCC (Cri) 823: AIR 2000 SC 1731: 2000 Cri LJ 2453)]. In view of the above, it is to be observed that there is no need to ascertain and furnish opinion or finding with regard to the conduct of the learned Public Prosecutor who was appearing before the trial Court.
35. It is also contended by the learned Senior Counsel that when the sanction order dated 27.11.2008 was not filed then but filed only in 2011 and that without any affidavit indicating the reason for the delay, it is for the learned Prosecutor to explain the delay and need for filing now and especially when this Court has given direction to split the case and frame appropriate charges on the materials available on records. It is responded in the counter to the effect that when the combined charge sheet was filed before the Special Judge for CBI Cases on 12.12.2008, the sanction order for prosecuting the accused/petitioner was submitted alongwith it and it was taken on file after verification of annexures and enclosures of the charge sheet by the Court.
36. In the light of the above said observations, obtained after following the illuminating judicial pronouncements of the Honourable Supreme Court, this Court is of the considered opinion that there are valid grounds available against the petitioner to frame charges. In such view of the matter, the orders challenged before this Court deserve to be confirmed and accordingly they are confirmed. These revisions have to fail. This point is answered in the affirmative.
37. In fine, both the revision petitions are dismissed. Connected M.Ps are closed.
To
1. XIII Additional Special Judge for CBI Cases, Chennai-104
2. The Public Prosecutor, High Court Madras Rgr ggs