Allahabad High Court
Satish Chand vs State Of U.P. And Another on 26 September, 2023
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:186210 Court No. - 78 Case :- APPLICATION U/S 482 No. - 29658 of 2023 Applicant :- Satish Chand Opposite Party :- State of U.P. and Another Counsel for Applicant :- Vivek Kumar Srivastava,Manu Srivastava Counsel for Opposite Party :- G.A. Hon'ble Raj Beer Singh,J.
1. Heard learned counsel for the applicant and learned A.G.A. for the State.
2. The present application under Section 482 Cr.P.C. has been filed against the judgement and order dated 29.03.2023, passed by learned Additional Session Judge/Special Judge (Prevention of Corruption Act), Special Court No. 2, Meerut, in Special Criminal Case No. 01 of 2020 (State Vs. Montu and others), arising out of Case Crime No. 1694 of 2019, under Section 409, 420, 467, 468, 471, 120-B I.P.C. and Section 3(1)(b), 13(2) of Prevention of Corruption Act, Police Station-Surajpur, District-Gautam Budh Nagar, whereby, the application filed by the applicant for discharge, has been rejected.
3. Learned counsel for the applicant submitted that there is no evidence against the applicant and that no prima facie case is made out against him. The applicant was not named in the first information report, which was lodged against the unknown officers and employees of the District Commandant Office. During investigation, involvement of applicant has been shown on the basis of statements of co-accused Sailendra Kumar and Satyaveer Yadav and except the said statements, there is no other evidence against the applicant. The statements of co-accused cannot be considered as admissible evidence against the applicant. The applicant was working as Assistant to the Commandant Home Guard, Gautam Buddha Nagar and the applicant was not dealing with the work of preparation of muster rolls of home guard constables. The applicant has absolutely no role in the entire incident and thus, no prima facie case is made out against the applicant but the trial court has not considered the matter in correct perspective and rejected the discharge application of the applicant in an arbitrary manner. It was submitted that in view of aforesaid facts, the impugned order is liable to be set aside.
4. Learned A.G.A. has opposed the application and submitted that in view of allegations made in the first information report and material collected during investigation, a prima facie case is made out against the applicant. It was pointed out that the first information report was lodged against the officers and employees of District Commandant Office and it was found that without any duty by home guard constables, forged muster rolls were being prepared by showing the duties of home guard constables in different police stations and huge amount was withdrawn against the duty allowances of home guard constables. Referring to facts of the matter, it was submitted that there is evidence that the applicant/accused was involved in the incident. It is further submitted that there is no illegality or perversity in the impugned order.
5. I have considered the rival submissions and perused the record.
6. It is trite that main consideration at the stage of framing of charge is the test of existence of a prima facie case, and at this stage, probative value of materials on record are not to be gone into. The provisions which deal with the question of framing of charge or discharge, relatable to a sessions trial case are contained in section 227 and 228 Cr.P.C., which read as under:
"227. Discharge.--If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.
228. Framing of charge.--(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which--
(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report;
(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.
(2) Where the Judge frames any charge under clause (b) of sub- section (1), the charge shall be read and explained to the accused, and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried."
7. In case of Onkar Nath Mishra and others Vs. State (NCT of Delhi) and another, it was held that at that stage the Court has to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged and it is not expected to go deep into the probative value of the material on record. The relevant observations made in the judgment are as follows:-
"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".
8. Reiterating a similar view in Sheoraj Singh Ahlawat and others Vs. State of Uttar Pradesh and another, it was observed that while framing charges court is required to evaluate materials and documents on record to decide whether facts emerging therefrom taken at their face value would disclose existence of ingredients constituting the alleged offence. At this stage, the court is not required to go deep into the probative value of the materials on record. It needs to evaluate whether there is a ground for presuming that the accused had committed the offence and it is not required to evaluate sufficiency of evidence to convict the accused. It was held that the court at this stage, cannot speculate into the truthfulness or falsity of the allegations and contradictions, inconsistencies in the statement of witnesses cannot be looked into at the stage of discharge.
9. The legal position with regard to the principles to be applied while considering a discharge, in the context of the provisions under Section 227 of the Code was considered in Union of India Vs. Prafulla Kumar Samal and Another, wherein it was observed as follows:
"10. Thus, on a consideration of the authorities mentioned above, the following principles emerge:
(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 mouth-piece 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."
10. In case of M.E. Shivalingamurthy Vs. Central Bureau of Investigation, Bengaluru the legal principles governing the exercise of such power were stated as follows:
"Legal principles applicable in regard to an application seeking discharge 17, This is an area covered by a large body of case law. We refer to a recent judgment which has referred to the earlier decisions viz. P. Vijayan v. State of Kerala and discern the following principles:
17.1. If two views are possible and one of them gives rise to suspicion only as distinguished from grave suspicion, the trial Judge would be empowered to discharge the accused.
17.2. The trial Judge is not a mere post office to frame the charge at the instance of the prosecution.
17.3. The Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding. Evidence would consist of the statements recorded by the police or the documents produced before the Court.
17.4. If 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 offence, then, there will be no sufficient ground for proceeding with the trial".
17.5. It is open to the accused to explain away the materials giving rise to the grave suspicion.
17.6. The court has to consider the broad probabilities, 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, would not entitle the court to make a roving inquiry into the pros and cons.
17.7. At the time of framing of the charges, the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution, has to be accepted as true.
17.8. There must exist some materials for entertaining the strong suspicion which can form the basis for drawing up a charge and refusing to discharge the accused.
18, The defence of the accused is not to be looked into at the stage when the accused seeks to be discharged under Section 227 CrPC (see State of J&K v. Sudershan Chakkar10). The expression, "the record of the case", used in Section 227 CrPC, is to be understood as the documents and the articles, if any, produced by the prosecution. The Code does not give any right to the accused to produce any document at the stage of framing of the charge. At the stage of framing of the charge, the submission of the accused is to be confined to the material produced by the police (see State of Orissa v. Debendra Nath Padhi11)."
11. Thus, it is the consistent judicial view 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.
12. In the instant matter, the first information report was lodged against the officers and employees of the District Commandant Home Guard, Gautam Budh Nagar and it was alleged that forged muster rolls were prepared by showing fictious duties of home constables and against that forged muster rolls, salary was withdrawn. It was mentioned that in a period of two months, forged muster rolls were prepared for a total 1327 days by showing duties of 114 home guard constables and an amount of Rs. 7,07,500/- was withdrawn against the forged muster rolls. The applicant was working as Assistant to the District Commandant Home Guard, Gautam Buddha Nagar. The statement of co-accused Sailendra Kumar clearly mentions about the involvement of the applicant in the alleged misdeeds, wherein, he has clearly stated that half of the amount withdrawn against the forged muster rolls, was to be given to the applicant Satish Chand. Similar is the statement of co-accused Satyaveer Yadav, who was also working in the same office. It appears from the charge-sheet and the statements of witnesses that the complainant himself was involved in this incident and that forged muster rolls were being prepared in connivance with the applicant and co-accused persons. As per prosecution, an amount of Rs. 1,34,06,163/- was illegally withdrawn by adopting the above referred modus operandi.
13. Perusal of record shows that the trial court has considered entire facts and material on record and also considered the position of law and rejected the discharge application filed by the applicant. Considering the material on record and perusing the impugned order, it cannot be said that the impugned order is suffering from any material illegality or perversity. It is well settled that the inherent powers under Section 482 Cr.P.C. have to be exercised to give effect to any order or to prevent an abuse of process of any court or to secure ends of justice. The inherent powers under Section 482 Cr.P.C. are not to be exercised in a routine manner, rather such powers have to be exercised sparingly with circumspection and in rarest of the rare cases. In the instant matter, no such contingency could be shown. This application under Section 482 Cr.P.C. lacks merit and thus, liable to be dismissed.
14. The application under Section 482 Cr.P.C. is dismissed.
Order Date :- 26.9.2023 Suraj