Madhya Pradesh High Court
Satish Kumar Dubey vs The State Of Madhya Pradesh Thr on 23 March, 2018
1
THE HIGH COURT OF MADHYA PRADESH
M.Cr.C. No. 10680/2018
(Satish Kumar Dubey Vs. State of M.P. )
Gwalior, dated :23.03.2018
Shri Jitendra Kumar Sharma, Advocate for the petitioner.
Shri Rohit Mishra, Special Public Prosecutor for the
respondent/Lokayukt Organization.
1. Inherent powers of this Court are invoked u/S 482 Cr.P.C. to assail the interlocutory order passed on 05.03.2018 by which interalia, an application u/S 91 Cr.P.C. preferred by the petitioner who is one of the accused in S.T. No. 7/2017 (Special ST) pending before the Special Judge (Prevention of Corruption Act), Shivpuri has been disallowed at the stage where charges are to be framed on the next date of hearing.
2. Learned counsel for the petitioner relying upon the decisions of the Apex Court in the case of Rukmini Narvekar Vs. Vijaya Satardekar & Others reported in 2008(14)SCC 1 para 19-33 and also Harshendra Kumar D. Vs. Rebatilata Koley & Others reported in 2011(3) SCC 351 contends that the application u/S 91 Cr.P.C. was preferred by the petitioner to bring on record certain uncontroverted public documents which could have brought truth to the fore thereby assisting the Court to render justice and also help the petitioner to be discharged. Relying upon the above verdicts of the Apex Court, it is submitted that though the defence of the accused is not supposed to be considered for framing of charge, but the Apex Court has left a small window open for the accused to bring forth uncontroverted documents which are of unimpeachable probative value to prevent a long drawn trial by discharging the accused who has been wrongly implicated.
3. The petitioner is an accused in the above said sessions 2 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No. 10680/2018 (Satish Kumar Dubey Vs. State of M.P. ) trial where the offence punishable u/S 13(1)(d) and 13(2) of Prevention of Corruption Act is alleged, for the misdemeanor committed as Chief Municipal Officer, Nagar Panchayat Picchore, Distt. Shivpuri. Though the chargsheet is not on record, but the documents submitted by the petitioner vide document bearing No. 2613/2018 interalia alleged that the petitioner in his capacity as Officiating CMO of the said Nagar Panchayat during his tenure from 30.08.1997 to 24.01.1998 handed over possession of 21 shops which were auctioned out, to the shopkeepers in an unlawful manner without ensuring documentation in that regard and thereafter no remedial and curative action was taken by the petitioner against the said unauthorized occupants, resulting in financial loss to the Nagar Panchayat.
4. The petitioner has stated that if the document which he seeks to bring forth by way of Section 91 Cr.P.C application, are produced then the falsity of the prosecution case would be revealed.
5. On the other hand, learned counsel for the respondent relying upon the Division Bench decision of this Court in Cr.R. No. 306/2016 rendered on 07.09.2017 submitted that no interference at this stage, especially by invoking Section 91 Cr.P.C. can be made as the trial Court is not supposed to consider the defence of the accused before commencement of trial.
6. There is no quarrel in regard to the law as settled by the Apex Court that ordinarily, the defence ought not to be considered at the stage of framing of charge.The only material 3 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No. 10680/2018 (Satish Kumar Dubey Vs. State of M.P. ) which can be taken into account by the trial Court is the prosecution case presented by way of chargsheet. The small window left open by the Apex Court for defence to be considered at this stage relates to uncontroverted and unimpeachable evidence permissible in exceptional cases where denial of relief would occasion failure of justice and irrepairable prejudice to the accused. In the present case, the petitioner has brought forth certain documents which do not deny the fact that the petitioner had wrongfully allowed possession of auctioned shops to be taken by shopkeepers without proper documentation and thereafter petitioner failed to take remedial steps to reverse the situation.
7. This Court is of the considered view that even if documents which learned counsel for the petitioner has brought forth and which are claimed to be uncontroverted are taken into account, the petitioner cannot explain the above said illegal conduct of handing over possession of the auctioned shops to the shopkeepers without documentation and thereafter taking no remedial steps for rectifying the malady. 7.1 It is further to be seen that the prosecution at this stage has to stand on its own legs for the purpose of framing of charge. If the prosecution case is strong enough to satisfy the basic requirements of strong suspicion required for framing of charge, then charge would be framed but if the evidence collected by prosecution falls short of the said minimum requirement, then the petitioner would be benefited by a discharge.
7.2 The Apex Court decision in the case of Rukmini (supra) 4 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No. 10680/2018 (Satish Kumar Dubey Vs. State of M.P. ) relied by the petitioner has no application to the facts and circumstances attending the present case as the said case did not relate to the provisions of Sec 91 Cr.P.C. 7.3 As regards the other case of Harshendra Kumar(supra), it is seen that the same is related to quashment of proceedings initiated by the trial Court for offences punishable u/S 138 Negotiable Instrument Act and the Apex Court was required to decide the question as to whether the defence of the accused could be considered while deciding the tenability of the complaint challenged by invoking the revisional jurisdiction u/S 397 read with Sec 401 Cr.P.C. The Apex Court did not go into the scope, ambit and sweep of Sec 91 Cr.P.C. and therefore the said decision also is of no avail to the petitioner. 7.4 At this juncture, this Court may profitably refer to the decision in the case of State of Orrisa Vs. Debendra Nath Pardi reported in 2005(1) SCC 568 rendered by three Judges Bench of the Apex Court thereby over ruling its earlier decision in the case of Satish Mehra Vs. Delhi Admin reported in 1996(9) SCC 766 to the extent the said case of Satish Mehra(supra) held that trial Court has powers to consider even material which the accused may produce at the stage of framing of charge. The said decision in the case of Debendra Nath Padhi (supra) categorically held that the accused is not permitted to adduce any evidence at the stage of framing of charge which is evident from perusal of para 23 and 27. For ready reference and convenience, the same are reproduced below:
23. As a result of the aforesaid discussion, in our view, clearly the law is that at the time of framing of charge or 5 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No. 10680/2018 (Satish Kumar Dubey Vs. State of M.P. ) taking cognizance the accused has no right to produce any material. Satish Mehra case holding that the trial Court has powers to consider even materials which the accused may produce at the stage of Section 227 of the Code has not been correctly decided.
27. In so far as Section 91 is concerned, it was rightly held that the width of the powers of that section was unlimited but there were inbuilt, inherent limitations as to the stage or point of time of its exercise, commensurate with the nature of proceedings as also the compulsions of necessity and desirability, to fulfil the task or achieve the object. Before the trial Court the stage was to find out whether there was sufficient ground for proceeding to the next stage against the accused. The application filed by the accused under Section 91 of the Code for summoning and production of document was dismissed and order was upheld by the High Court and this Court. But observations were made in para 6 to the effect that if the accused could produce any reliable material even at that stage which might totally affect even the very sustainability of the case, a refusal to look into the material so produced may result in injustice, apart from averting an exercise in futility at the expense of valuable judicial/public time, these observations are clearly obiter dicta and in any case of no consequence in view of the conclusion reached by us hereinbefore. Further observations cannot be understood to mean that the accused has a right to produce any document the stage of framing of charge having regard to the clear mandate of Sections 227 and 228 in the Chapter 18 and Section 239 and 240 in Chapter 19.
8. In view of the above discussion, this Court is of the 6 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No. 10680/2018 (Satish Kumar Dubey Vs. State of M.P. ) considered view that no interference is called for in the well reasoned order passed by the learned Trial Judge in rejecting the application u/S 91 Cr.P.C.
9. No case of failure of justice is made out and therefore no occasion arises for invoking the inherent powers of this Court u/S 482 Cr.P.C.
10. Consequently, present petition deserves to be and is hereby rejected.
(Sheel Nagu) (S.A. Dharmadhikari)
Judge Judge
23/03/2018 23/03/2018
sh/-
Digitally signed by SEHAR HASEEN
Date: 2018.03.26 18:22:48 +05'30'