Karnataka High Court
K N Surendra vs The State Of Karnataka on 26 October, 2018
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF OCTOBER, 2018
BEFORE
THE HON'BLE MR.JUSTICE B.A.PATIL
CRIMINAL REVISION PETITION NO.874/2018
BETWEEN :
K.N.Surendra
S/o Nagu
Aged about 47 years
R/at No.16, Prakruthi
Alidas layout, Vijayanagar
Bengaluru-560 040.
... Petitioner
(By Sri C.H. Jadhav, Senior Counsel for
Sri Mahesha P., Advocate)
AND :
The State of Karnataka
by Police Inspector
Karnataka Lokayuktha
City Division, M.S. Building
Bengaluru-560 001.
... Respondent
(By Sri Venkatesh Arabatti, Special Public Prosecutor)
This Criminal Revision Petition is filed under Section
397 r/w 401 of Cr.P.C praying to set aside the impugned
order dated 02.07.2018 passed in Spl.Case No.16/2009
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of LXXVI Additional city Civil and Sessions Judge and
Special Judge, Mayo Hall Unit, Bengaluru presently
shifted to City Civil court Complex, Bengaluru and
discharge the petitioner (accused No.4) in Spl.Case
No.16/2009.
This Criminal Revision Petition having been heard
and reserved on 11.09.2018 coming on for
pronouncement of orders this day, the Court made the
following:-
ORDER
The present revision petition has been filed by accused No.4 challenging the order dated 2.7.2018 passed by LXXVI Additional City Civil and Sessions Judge and Special Judge, Mayo Hall Unit, Bengaluru (CCH.77) in Special Case.No.16/2009.
2. I have heard the learned Senior Counsel Sri C.H.Jadhav appearing on behalf of Sri Mahesha P, learned counsel for the petitioner and the learned Special Public Prosecutor Sri Venkatesh Arabatti appearing for the respondent-Lokayuktha.
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3. The brief facts of the case as averred in the petition are that a charge sheet was filed against the accused persons including the petitioner-accused No.4 under Section 13(1)(e) r/w. Section 13(2) of the Prevention of Corruption Act ('Act' for short) and also under Section 109 of IPC. It is alleged that accused No.1 during his tenure as a public servant during the period from 1973 to 6.4.2006 while working as Chief General Manager of Mysore Minerals has amassed wealth disproportionate to his known sources of income. The Lokayuktha Police have shown the assets of accused No.1 as Rs.1,98,56,879.06 and expenditure of the accused No.1 as Rs.28,31,349.72 and income has been shown as Rs.1,67,33,889.15, thereby there was an excess income of Rs.59,54,339.63 which would be about Rs.35.58% more than the known sources of income. It is further alleged that it is accused Nos.2 to 4 abetted accused No.1 for commission of the alleged crime by creating and fabricating the documents to show that they -4- have lent money to the wife of accused No.1 so as to support accused No.1 and thereby committed an offence punishable under Section 109 of IPC r/w. Section 13(1)(e), 13(2) of the Act. After investigation the respondent-police filed the charge sheet. After appearance of the accused, accused No.4, the present petitioner filed an application under Section 227 of Cr.P.C. to discharge him from the charges levelled against him. The Court below after giving an opportunity to the learned Public Prosecutor and after hearing both the parties, by virtue of the impugned order, rejected the application filed by accused Nos.2 to 4. Assailing the same, the petitioner-accused No.4 is before this Court.
4. It is the submission of the learned Senior Counsel that the provisions of Section 109 of IPC are not attracted. Only to implicate the petitioner-accused No.4 they have concocted the documents. He further submitted that the document which is said to have been -5- executed by accused No.4-petitioner herein does not even remotely indicate any commission of the offence and the said material does not capable of inferring any grave suspicion or commission of an offence by the petitioner-accused No.4. He further submitted that in the statement of accused No.4 when it was recorded under Section 161 of Cr.P.C. he was not sent up for trial, but subsequently the petitioner has been shown as accused in the charge sheet alleging that he has abetted accused No.1 by creating a document in the name of wife of accused No.1. He further submitted that the document which has been executed is between the petitioner and the wife of accused No.1 and the same has not been used by accused No.1 for any other purpose. He further submitted that the Court below has failed to note that the loan agreement which has been franked on the same day and from the same sub-Registrar Office. As the loan agreement of accused No.4 is not throwing any light, only on the statement of CW.55-Ajay Gowda, the -6- petitioner has been arrayed as accused in the case. He further submitted that for having fabricated the documents a separate case was registered in Crime No.4/2009 in Vidhana Soudha Police Station, wherein accused Nos.2 to 4 have not been arrayed as accused which itself clearly goes to show that there is no role played by accused No.4 in order to help accused No.1. He further submitted that the entire charge sheet material is only as against accused No.1 and there is no evidence as against the petitioner-accused No.4. He further submitted that in the absence of any direct involvement of the petitioner to show that he has abetted accused No.1 for commission of the offence or mere failure to prevent the commission of the offence is not an offence at all. In order to substantiate the said contention, he relied upon a decision in the case of Kulwant Singh @ Kulbansh Singh Vs. State of Bihar, reported in 2007(4) UC 439. By referring to the said decision he further submitted that the provisions of -7- Section 109 of IPC are not attracted. He further submitted that the Court below while exercising its power under Section 227 of Cr.P.C. does not appreciate the entire evidence and entire evidence cannot be vague but it can be looked into for a limited purpose to find out as to whether or not a prima facie case has been made out against the accused. He further submitted that if the said material discloses grave suspicion against the accused and if the same has not been properly explained, then the Court is justified in framing the charge. He further submitted that if on the same set of facts two views are possible and one view gives rise to suspicion, then under such circumstances, the benefit has to be given to the accused. In order to substantiate his contention, he relied upon the decisions in the case of Sajjan Kumar Vs. Central Bureau of Investigation, reported in (2010)9 SCC 368; in the case of State of Maharashtra, Etc.Etc. Vs. Som Nath Thapa, Etc.Etc, reported in AIR 1996 SC 1744 and submitted that the -8- criminal conspiracy requires knowledge of indulgence in such act. If there is no such knowledge, accused is entitled to be discharged. He further submitted that at the time of framing the charge the Court has to come to the conclusion that the commission of the offence is probable and consequence otherwise the same has to be discharged. He also relied upon the decision in the case of Asian Resurfacing of Road Agency Private Limited & another Vs. Central Bureau of Investigation, reported in AIR 2018 SC 2039 and submitted that against the discharge application, there is a revisional power to the High Court and it is to be exercised to correct jurisdictional error committed by the Court below. He further submitted that the present revision petition is maintainable before this Court against the order of the trial Court. On these grounds, he prayed to allow the petition by setting aside the impugned order and to discharge accused No.4-petitioner. -9-
5. Per contra, the learned Special Public Prosecutor vehemently argued and submitted that in view of Section 27 of the Act no revision lies against the order of discharge. The order passed by the Court below is nothing, but an interlocutory order. In order to substantiate his arguments, he also relied upon the decision in the case of Asian Resurfacing of Road Agency Private Limited & another Vs. Central Bureau of Investigation (quoted supra). He further submitted that the revision petition is not maintainable and the same is liable to be dismissed. He also relied upon the decision in the case of V.C.Shukla Vs. State through CBI, reported in AIR 1980 SC 962. He further submitted that though the jurisdiction of the High Court in exercising the revisional power is inherent, it is to be exercised to correct the jurisdictional error in rarest of the rare case. He also relied upon the decision of the Division Bench of this Court in the case of Asim Shariff Vs. National Investigating Agency, in Criminal
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Appeal No.222/2018, disposed of on 8.3.2018. He further relied upon the decision of this Court in the case of Sri.T.Nagaraju Vs. State of Karnataka in Criminal Revision Petition No.935/2016 & connected matters, disposed of on 31.5.2017. He further made the submission that Prevention of Corruption Act is a special enactment enacted with the main object of speedy disposal of cases relating to offences under the said Act. He further submitted that the interpretation of the expression 'interlocutory order' for the purpose of Section 397(2) of Cr.P.C. is different from the interpretation of expression 'interlocutory order' under Section 19(3)(c) of the Act. He further submitted that there is no fundamental or inherent right of appeal or revision which is a creature of the statute. By virtue of Section 27 of the Act, there is a limited power to file a revision. On the basis of the same, he submitted that the revision petition is not maintainable and the same is liable to be dismissed. He further submitted that the material
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produced by the prosecution shows prima facie case to come to a reasonable conclusion that it is sufficient to convict the accused. He further submitted that the present petitioner-accused No.4 has abetted accused No.1 to commit an offence and to screen the offence in this behalf. On these grounds he prayed to dismiss the petition.
6. I have carefully perused the grounds urged in the revision petition and the order passed by the Court below so also the submissions made by the learned counsel appearing for the parties.
7. Sri C.H.Jadhav, the learned Senior Counsel contended that the impugned order though appears to be interlocutory, in view of the decision of the Hon'ble Apex Court quoted supra, the revision lies in this behalf. In this context, he relied upon the decision of Asian Resurfacing of Road Agency Private Limited & another Vs. Central Bureau of Investigation (quoted
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supra) and the learned Special Public Prosecutor has also relied upon the same decision. For the purpose of brevity, I quote paragraph Nos.19, 22 and 44 of the said decision, which read as under:-
"19. The principles laid down in Madhu Limaye (AIR 1978 SC 47) (supra) still hold the field and have not been in any manner diluted by decision of four Judges in V.C.Shukla v. State through CBI or by recent three Judge Bench decision in Girish Kumar Suneja v. Central Bureau of Investigation. Though in V.C.Shukla (supra), order framing charge was held to be interlocutory order, judgment in Madhu Limaye (supra) taking a contrary view was distinguished in the context of the statute considered therein. The view in S.Kuppuswami Rao (supra), was held to have been endorsed in Mohanlal Manganlal Thacker (AIR 1968 SC 733) (supra), though factually in Madhu Limaye (supra), the said view was explained differently, as already noted. Thus, in spite of the fact that V.C.Shukla (supra) is a
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judgment by Bench of four Judges, it cannot be held that the principle of Madhu Limaye (supra) does not hold the field. As regards Girish Kumar Suneja (supra), which is by a Bench of three Judges, the issue considered was whether order of this Court directing that no Court other than this Court will stay investigation/trial in Manohar Lal Sharma v. Principal Secretary and Ors. [Coal Block allocation cases] violated right or remedies of the affected parties against an order framing charge. It was observed that the order framing charge being interlocutory order, the same could not be interfered with under Section 397(2) nor under Section 482 Cr.P.C. It was further held that stay of proceedings could not be granted in PC Act cases even under Section 482 Cr.P.C. It was further observed that though power under Article 227 is extremely vast, the same cannot be exercised on the drop of a hat as held in Shalini Shyam Shetty v. Rajendra Shankar Patil as under:
16. (1980)Supp.SCC 92: (AIR 1980 SC 962)
17. (2017) 14 SCC 809: (AIR 2017 SC 3620)
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18.(2014) 9 SCC 516: (2014 AIR SCW 5068)
19.Paras 24, 25, 27
20.Para 32.
21.(2010)8 SCC 329: (2010 AIR SCW 6387) "37.... This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 of the Constitution is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above."
xxxx xxxx xxxx
22. It was further observed that no stay could be granted in PC Act cases in view of bar contained in Section 19(3)(c). The relevant observations are:
"64. A reading of Section 19(3) of the PC Act indicates that it deals with three situations:
(i) Clause (a) deals a situation where a final judgment and sentence has been delivered
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by the Special Judge. We are not concerned with this situation. (ii) Clause (b) deals with a stay of proceedings under the PC Act in the event of any error, omission or irregularity in the grant of sanction by the authority concerned to prosecute the accused person. It is made clear that no court shall grant a stay of proceedings on such a ground except if the court is satisfied that the error, omission or irregularity has resulted in a failure of justice-then and only then can the court grant a stay of proceedings under the PC Act. (iii) Clause (c) provides for a blanket prohibition against a stay of proceedings under the PC Act even if there is a failure of justice [subject of course to Clause(b)]. It mandates that no court shall stay proceedings "on any other ground" that is to say any ground other than a ground relatable to the error, omission or irregularity in the sanction resulting in a failure of justice.
65. A conjoint reading of clause(b) and clause(c) of Section 19(3) of the PC Act
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makes it is clear that a stay of proceedings could be granted only and only if there is an error, omission or irregularity in the sanction granted for a prosecution and that error, omission or irregularity has resulted in a failure of justice. There is no other situation that is contemplated for the grant of a stay of proceedings under the PC Act on any other ground whatsoever, even if there is a failure or justice. Clause (c) additionally mandates a prohibition on the exercise of revision jurisdiction in respect of any interlocutory order passed in any trial such as those that we have already referred to. In our opinion, the provisions of clauses (b) and (c) of Section 19(3) of the PC Act read together are quite clear and do not admit of any ambiguity or the need for any further interpretation."
xxxx xxxx xxxx
44. A perusal of Section 19(3) of the Act would show that the interdict against stay of proceedings under this Act on the ground of any error, omission or irregularity in the
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sanction granted by the authority is lifted if the Court is satisfied that the error, omission or irregularity has resulted in a failure of justice. Having said this in clause (b) of Section 19(3), clause (c) says that no Court shall stay proceedings under this Act on any other ground. The contention on behalf of the Appellants before us is that the expression "on any other ground" is referable only to grounds which relate to sanction and not generally to all proceedings under the Act. Whereas learned counsel for the Respondents argues that these are grounds referable to the proceedings under this Act and there is no warrant to add words not found in sub-section (c), namely, that these grounds should be relatable to sanction only."
8. On going through the above proposition of law, it makes clear that the order passed for discharge is an intermediatory order. If the order of the trial Court passed under Section 227 of Cr.P.C. is confirmed, then it
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amounts to nothing but interlocutory order. If the order of the trial Court is set aside and the accused is discharged, then it will not be considered to be an interlocutory order. In the light of the discussion held by me above and with reference to the decision of the Hon'ble Apex Court, I am of the considered opinion that it all depends upon the facts of each case.
9. It is no doubt true that the application filed under Section 227 of Cr.P.C. if it is allowed, the order passed by the Court below would have concluded the entire proceedings and would have become a final order. Only because the application has been rejected, the learned Special Public Prosecutor contends that it is an interlocutory order, but one thing is sure that though it is not going to terminate the entire proceedings, as stated above, if the revision is allowed then it will become a final order. In that light, it will be a intermediatory order. This Court as well as the Hon'ble Apex Court have
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held that a revision will lie before this Court. In that light, the contention taken up by the learned Special Public Prosecutor does not have any force.
10. Be that as it may, this issue was referred to by the learned Single Judge in the case of Syed Ifthekar Ahmed Vs. State by Karnataka Lokayuktha, City Division in Criminal Petition No.2721/2017 and connected matters. In the said case, the Division Bench of this Court by its order dated 10.10.2018 has observed at paragraph Nos.36, 37, 38, 39 and 40 as under:-
"36. The learned Counsel for the Lokayukta has dubbed the decision of Asian Resurfacing of Roads Agency Pvt. Ltd. (supra) as per incurium. And, thus, not binding on this court. However, such arguments only need to be uttered to be rejected. For, in the said case the Hon'ble Supreme Court has not only noticed the case
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of V. C. Shukla (supra), but has observed as under:
The principles laid down in Madhu Limaye (AIR 1978 SC 47) still hold the field and have not been in any manner diluted by decision of four Judges in V. C. Shukla v State through CBI or by recent three Judges Bench decision in Girish Kumar Suneja v Central Bureau of Investigation. Though in V. C. Shukla (supra), order framing charge was held to be interlocutory order, judgment in Madhu Limaye (supra) taking a contrary view was distinguished in the context of the statute considered therein. ...Thus, in spite of the fact that V. C. Shukla (supra) is a judgment by Bench of four Judges, it cannot be held that the principle of Madhu Limaye (supra) does not hold the field.
37. In the case of Madhu Limaye (supra) the Apex Court noticed the apparent contradiction between the revisional power bestowed upon the High Court under Section 379(1) Cr. P. C. and the limitation on the said
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power clamped by Section 379 (2), and yet with the use of non-obstante clause the inherent power of the High Court declared in Section 482 Cr. P. C. The issues which arose for the consideration of the Hon'ble Supreme Court were, whether an order framing a charge could be challenged under the revisional power contained in Section 379(1) of Cr.P.C. or not? Whether an order framing charge was an interlocutory order or not? Whether the challenge to such an order is hit by the bar contained in Section 379(2) of Cr.P.C. or not? Whether the inherent power under Section 482 Cr. P. C. could be invoked for challenging the charge order or not? Whether invoking the inherent power under Section 482 Cr. P. C., would place the said provision in conflict with the bar contained in Section 379 (2) or not? Answering these issues, the Apex Court observed as under:
On the one hand, the Legislature kept intact the revisional power of the High Court and, on the other, it put a bar on the exercise of that power in relation to any interlocutory order. In
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such a situation it appears to us that the real intention of the Legislature was not to equate the expression "interlocutory order" as invariably being converse of the words "final order". There may be an order passed during the course of a proceeding which may not be final in the sense noticed in Kuppuswami's case (supra), but yet it may not be an interlocutory order--pure and simple. Some kinds of order may fall in between the two. By a rule of harmonious construction, we think that the bar in sub-section (2) of Section 397 is not meant to be attracted to such kinds of intermediate orders. They may not be final orders for the purposes of Article 134 of the Constitution, yet it would not be correct to characterise them as merely interlocutory orders within the meaning of Section 379 (2). It is neither advisable, nor possible to make a catalogue of orders to demonstrate which kinds of orders would be merely, purely or simply interlocutory and which kinds of orders would be final, and then to prepare an exhaustive list of those types of orders which will fall in between the two. The first tow kinds
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are well-known and can be culled out from many decided cases. We may, however, indicate that the type of order with which we are concerned in this case, (the order framing charges), even though it may not be final in one sense, is surely not interlocutory so as to attract the bar of sub-section (2) of section
397. In our opinion it must be taken to be an order of the type falling in the middle course.
38. Dealing with the apparent contradiction between Section 397 (2) Cr. P. C., and the non-obstante clause contained in Section 482 Cr. P. C. the Supreme Court observed as under:
On a plain reading of Section 482, however, it would follow that nothing in the Code, which would include sub-section (2) of Section 397 also, "shall be deemed to limit or affect the inherent powers of the High Court". But, if we were to say that the said bar is not to operate in the exercise of the inherent power at all, it will be setting at naught one of the limitations imposed upon the exercise of the revisional
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powers. In such a situation, what is the harmonious way out? In our opinion, a happy solution of this problem would be to say that the bar provided in sub-section (2) of section 397 operates only in exercise of the revisional power of the High Court, meaning thereby that the High court will have no power of revision in relation to any interlocutory order.
Then, in accordance with one of the other principles enunciated above, the inherent power will come into play, there being no other provision in the Code for the redress of the grievance of the aggrieved party. But then, if the order assailed is purely of an interlocutory character, which could be corrected in exercise of the revisional power of the High Court under the 1898 Code, the High Court will refuse to exercise its inherent power. But in case the impugned order clearly brings about a situation which is an abuse of the process of the Court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in Section 397 (2) can limit or affect the exercise of the inherent power by
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the High Court. But such cases would be few and far between. The High Court must exercise the inherent power very sparingly. ... The answer is obvious that the bar will not operate to prevent the abuse of the process of the Court and/or to secure the ends of justice. The label of the petition filed by an aggrieved party is immaterial. The High Court can examine the matter in an appropriate case under its inherent powers.
39. Similar views are expressed in the case of Asian Resurfacing of Roads Agency Pvt. Ltd (supra). In the said case, the Hon'ble Supreme Court has concluded as under:
Thus, we declare the law to be that order framing charge is not purely an interlocutory order nor a final order. Jurisdiction of the High Court is not barred irrespective of the label of a petition, be it under Sections 397 or 482 Cr. P. C. or Article 227 of the Constitution. However, the said jurisdiction is to be exercised consistent with the legislative policy
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to ensure expeditious disposal of a trial without the same being in any manner hampered. Thus considered, the challenge to an order of charge would be entertained in a rarest of rare case only to correct a patent error of jurisdiction and not to re-appreciate the matter.
40. With the authoritative pronouncement of the Apex Court, the twin issues referred to this Bench are no longer res integra. To answer the second issue first, an order framing the charge, or the order refusing to discharge the accused, or the order dismissing an application for discharge, such an order is not an interlocutory order. In fact, such an order is an intermediate order. Therefore, such an order is not hit by the bar contained in Section 397 (2) Cr. P. C."
11. On going through the said discussion, it can safely be held that revision petition is maintainable. In that light, the submission made by the learned Senior Counsel is having force and same is accepted.
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12. It is also the contention of the learned Special Public Prosecutor that there is no fundamental or inherent power of appeal or revision which is only a creature of statute. He further submitted that in relation to Prevention of Corruption Act, filing of an appeal or a revision is provided under Section 27 of the Act. For the purpose of brevity, I quote Section 27 of the Act, which reads as under:-
"27. Appeal and revision - Subject to the provisions of this Act, the High Court may exercise, so far as they may be applicable, all the powers of appeal and revision conferred by the Code of Criminal Procedure, 1973(2 of 1974) on a High Court as if the court of the Special Judge were a Court of session trying cases within the local limits of the High Court."
13. On going through the said provision, it starts with the words "subject to the provisions of this Act.." which itself goes to show that appeal or a revision under
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the Act is subject to the provisions of the other Sections. When that being the case, one has to see whether other provision in the said Sections puts a bar or restriction for preferring the revision under Section 19(3)(c) of the Act. For the purpose of brevity, I quote Section 19(3)(c) of the Act, which reads as under:-
"19(3)(c):- no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.
14. Though the learned Senior Counsel by drawing the attention of this Court to Sections 22 and 28 of the Act submitted that in view of the said provision, the provisions of Cr.P.C. are equally made applicable and hence the revision is maintainable, when there is a specific provision dealing with the provisions under Section 27 of the Act, it indicates that the maintainability
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will be governed by the said provision. Though there is a specific bar, as held by the Hon'ble Apex Court in the decision quoted supra, the revision is maintainable. It is the contention of the learned Senior Counsel that the statement of accused No.4 was recorded under Section 161 of Cr.P.C. as a chargesheet witness. But subsequently accused No.4 has been shown as an accused alleging that he has abetted accused No.1 for commission of offence. He further submitted that abetment for commission is not an abetment or mere failure to prevent the commission of an offence is not by itself an abetment of that offence and there must be direct involvement of the accused in order to convict him for abetment. In order to substantiate the said contention, he has relied upon the decision in the case of Kulwant Singh @ Kulbansh Singh Vs. State of Bihar (quoted supra). At paragraphs-11 and 12 it has been observed by the Hon'ble Apex Court as under:-
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"11. Where a person aids and abets the perpetrator of a crime at the very time the crime is committed, he is a principal of the second degree and section 109 applies. But mere failure to prevent the commission of an offence is not by itself an abetment of that offence. Considering the definition in Section 109 strictly, the instigation must have reference to the thing that was done and not to the thing that was likely to have been done by the person who is instigated. It is only if this condition is fulfilled that a person can be guilty of abetment by instigation. Section 109 is attracted even if the abettor is not present when the offence abetted is committed provided that he had instigated the commission of the offence or has engaged with one or more other persons in a conspiracy to commit an offence and pursuant to the conspiracy some act or illegal omission takes place or has been intentionally induced the commission of an offence by an act or illegal omission. In the absence of direct involvement, conviction for abetment is not
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sustainable. (See Joseph Kurian v. State of Kerala. (AIR 1994 SC 34).
12. Section 109 provides that if the act abetted is committed in consequence of abetment and there is no provision for the punishment of such abetment then the offender is to be punished with the punishment provided for the original offence. Section 109 applies even where the abettor is not present. Active abetment at the time of committing the offence is covered by Section
109."
15. In the aforesaid decision, it has been ruled that mere help in preparation for commission of an offence which is not ultimately committed, is not an abetment. But that particular aspect is not in the case on hand. If the statement of the Sub-Registrar Sri S.Basavaiah recorded under Section 161 of Cr.P.C. is gone through, he has stated that from 2002 to 2005 he was working as Sub-Registrar at Gandhinagara Sub-Registrar's Office
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and he used to issue the franked paper after franking and he was not doing franking on blank papers. He has also stated that on the said agreement which has been shown to him, there was no signature made by him. If we peruse the statement of Smt.G.T.Shakunthala, wife of accused No.1, recorded under Section 161 of Cr.P.C. by the police, she has stated that when her mother relinquished the right an amount of Rs.20,00,000/- has been paid and she is aware of the said fact. But she has further stated that she does not know whether the said relinquishment deed was registered with any of the Sub- Registrars. Even the statement of accused No.4- petitioner herein if it is perused, he has stated that since five years he is acquainted with accused No.1 and he used to get instructions from accused No.1 for doing iron ore business and accused No.1 was close to him and they have purchased a building at Nagadevanahalli and accused No.1 asked him to give as a loan and during August 2005 he paid Rs.2,00,000/- and in September,
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2005, Rs.2,50,000/-, in all Rs.4,50,000/-. He has further stated that an agreement has also been entered into in this behalf and he is not receiving any rent. He is paying income tax and his total income for the year 2005-06 is 1,60,66,720/- and he has paid an amount of Rs.47,70,016/- as a tax. He has further stated that he has not paid any tax for having paid Rs.4,50,000/- to accused No.1. He has further stated that he is capable of giving Rs.4,50,000/- and he has given the loan in the name of G.T.Shakunthala, wife of Accused No.1. On going through the said statements of the wife of accused No.1 and the present petitioner-accused No.4 as well as the statement of the accused reveals that there is a prima facie material as against accused No.4-petitioner herein.
16. How the power has to be exercised under Sections 227 and 228 of Cr.P.C. has been considered by the Hon'ble Apex Court after considering catena of
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decisions in the case of Sajjan Kumar Vs. Central Bureau of Investigation (quoted supra). At paragraph-21 of the said decision, it has been observed as under:-
"21. On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge:
(i) The Judge while considering the question of framing the charges under Section 227 Cr.P.C. 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. The test to determine prima facie case would depend upon the facts of each case.
(ii) 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.
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(iii) The 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, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
(iv) If on the basis of the material on record, the court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.
(v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.
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(vi) At the stage of Sections 227 and 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.
(vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal."
17. In the aforesaid paragraph, it has been observed that if two views are possible and one of them gives rise to suspicion only as distinguished from grave suspicion the trial Judge is empowered to discharge the
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accused at that stage. He is not required to see as to whether the trial will end in conviction or acquittal. But on going through the statements of the above said witnesses, it gives rise to a grave suspicion not a suspicion so as to give the benefit and discharge the accused. The material placed by the prosecution shows that accused No.4-petitioner herein has lent the amount as stated above. At one stretch he has stated that he has given to accused No.1, but subsequently he says that the agreement has been entered into with the wife of accused No.1. But accused No.1 has not whispered a single word for having taken any loan from the present petitioner-accused No.4. Even the statement of wife of accused No.1 is contrary to the statement of accused No.4. In that light, the material throws light that it is petitioner-accused No.4 who has also helped accused No.1 or abetted accused No.1 by creating the false documents. Whether he has been directly involved or not is a matter which has to be considered and
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appreciated at the time of trial not at this stage. It is well established principle of law that while considering an application for discharge, the Court has to see that even the entire prosecution case if it is accepted as it is, even then if no case has been made out as against the petitioner-accused No.4 then only the accused can be discharged otherwise the charge has to be framed.
In the light of the discussion held by me above, the petition being devoid of merits is liable to be dismissed and accordingly the same is dismissed.
Sd/-
JUDGE *ck/-