Madras High Court
A.Meenakshi Sundaram vs The Additional Superintendent Of ... on 1 August, 2014
Author: M. Venugopal
Bench: M. Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 01.08.2014 CORAM THE HONOURABLE Mr. JUSTICE M. VENUGOPAL Crl.R.C.No.168 of 2014 & M.P.No.1 of 2014 A.Meenakshi Sundaram ... Petitioner Vs The Additional Superintendent of Police, Special Police Establishment, Anti Corruption Branch, No.26, Haddows Road, Third Floor, Shastri Bhavan, Chennai 600 006. ... Respondent PRAYER: This Criminal Revision Petition is filed under Section 397 and 401 of the Code of Criminal Procedure praying to set aside the order dated 08.01.2014 passed by the Learned XIV Additional Special Judge for CBI Cases, City Civil Court, Chennai in Crl.M.P.No.812 of 2012 in C.C.No.35 of 2012. For Petitioner : Mr.V.S.Venkatesh For Respondent : Mr.N.Chandrasekaran Spl. P.P. For CBI ORDER
The Petitioner/A3 has projected the present Criminal Revision Petition as against the order dated 08.01.2014 in Crl.M.P.No.810 of 2012 in C.C.No.35 of 2012 passed by the Learned XIV Additional Special Judge for CBI cases, Chennai.
2. The Learned XIV Additional Special Judge for CBI cases, while passing the impugned order in Crl.M.P.No.810 of 2012 in C.C.No.35 of 2012 (filed by the Petitioner), on 08.01.2014, in paragraph 82, had observed the following;
On the strength of the above said well settled legal position, there is no hindrance or hardship to come to a right conclusion that, a prima facie case has been made out against the petitioner to frame the charges on the basis of the charges levelled by the prosecution. At this stage, this Court is required to consider only the police report filed u/s 173 Cr.P.C. If there is sufficient grounds for pursuing that the petitioner had committed offence, it can be said that, the prima facie case has been made out against the accused and there are sufficient ingredients are made out to frame charges against the petitioner for the alleged offence. On the facts and in the circumstances of the case and having regard to the legal position stated above there is no good or no valid grounds to discharge the petitioner u/s 239 of Cr.P.C.
and further, in paragraph 83, had come to a conclusion that the prima facie case was made out to frame charges against the Petitioner and Consequently, dismissed the petition.
Petitioner's Contentions:
3. According to the Learned Counsel for the Petitioner, the impugned order passed in M.P.No.810 of 2012 in C.C.No.35 of 2012 passed by the Learned XIV Additional Special Judge for CBI cases, City Civil Court, Chennai, is not sustainable either in law or on facts.
4. The Learned Counsel for the Petitioner contends that the trial Court had not taken into account, the judgments submitted to him at the time of arguments in a proper perspective and also, had not answered several legally sustainable questions of law relating to the main issues of the said discharge petition.
5. The Learned Counsel for the Petitioner submits that the Respondent/Prosecution in spite of having knowledge that there was an existing registered release deed even as per FIR and conveniently suppressed the fact and took into consideration only a draft release deed and attributed several allegations against the Petitioner based on a document against various Principles of Law.
6. Advancing his arguments, the Learned Counsel for the Petitioner contends that the Respondent/Prosecution, while alleging that the Petitioner/A3 had no means in the charge sheet had categorically admitted at page 18 of the counter that the house rent received by the Petitioner/Accused comes to Rs.10.90 lakhs approximately as per the income tax returns at the beginning of the check period till the construction of the Marriage Hall.
7. The Learned Counsel for the Petitioner proceeds to submit that the Respondent/Investigating Agency had not considered the source of funds of the petitioner as per the I.T.returns and the dismissal order passed in M.P.No.810 of 2012 in C.C.No.35 of 2012 also does not speak about the source and capacity of the Petitioner to construct the Marriage Hall as evidenced through various documents, which formed part of the documents filed and relied on by the Respondent.
8. The Learned Counsel for the Petitioner submits that the main grievance of the Petitioner was that though he had means and resources to construct a Marriage Hall and the same was explained to the Respondent as stated in detail at page 6, para 8 of the discharge petition, the Learned trial Judge had not considered the same and erroneously dismissed the discharge petition.
9. The Learned counsel for the Petitioner contends that the Learned trial Judge had not even considered the source of income through which the Petitioner had availed loans and repaid the same as spoken to by LW25 to LW27 and LW44, which would clearly establish about the source of repaying capacity of the Petitioner.
10. The Learned Counsel for the Petitioner submits that LW20, Income Tax Officer had admitted to the fact that the Petitioner had filed income tax returns and had also categorically spoken about the filing of returns including the construction of Marriage Hall by him in the year 2004-2005 and 2006 2007 at a cost of Rs.14,48,936/- and the constriction of Marriage Hall by him out of his own source of funds.
11. The Learned Counsel for the Petitioner contends that the Petitioner is not a public servant and he had not abetted commission of any offence as alleged by the Prosecution so as to attract the ingredients of Section 109 of Indian Penal Code.
12. The Learned Counsel for the Petitioner strenuously submits that the Investigation Officer had used the term 'Benami transaction' but his investigation does not disclose any flow of funds from the account of the public servant A1 to the Petitioner's account.
13. The Learned Counsel for the Petitioner brings it to the notice of this Court that the investigation officer in spite of knowing the fact that there was a family dispute between the Petitioner and his four brothers for partition had suppressed the said information. Further, Investigation Officer had resorted to claim refuge under the Respondent and instigated the Respondent to file the present case against them.
14. The Learned Counsel for the Petitioner contends that A1, A2 and A3 were the Respondents/Defendants in suit in O.S.No.17 of 2010 filed by LW66 and LW67 and two others on the file of the Principal District Court at Tuticorin and that the said suit ended in favour of the Petitioner on 08.01.2013. As a matter of fact, the suit properties possessed by the Petitioner/A3 as detailed in the plaint/ decree were given at para 20 of the 'Discharge petition', which shows that the Petitioner was possessing assets and means to generate funds on his own.
15. The Learned Counsel for the Petitioner submits that as per the documents available viz., Income Tax returns (listed document 38) plan/drawing with estimate of the Civil Engineer (Listed document 68), it is seen that the cost of construction of the Marriage Hall was only Rs.14.48 lakhs and not as per the tall claims made by the Respondent through LW51 (spoken through listed document No.42.)
16. The Learned Counsel for the petitioner contends that the petitioner apart from the Income derived through rent and agriculture had also sold several of his properties during the check period for putting up the construction of the Marriage hall as per the sale deeds which were produced by him to the Respondent but the same were not taken into account by the Respondent. Indeed, the details of the properties sold were mentioned at para 22 of the discharge petition.
17. The Learned Counsel for the petitioner submits that LD52 surrender of Lease deed, dated 18.12.2009, was a registered one and that, in the First Information Report, it was mentioned that the Petitioner, on 29.12.2009, executed a lease surrendering property to the four daughters stating his inability to manage the land due to his old age without mentioning the Marriage Hall, in the said document and further, he was not in a position to purchase the said land and construct a building on the same, since he is only agriculturist with limited means and thus, he had acted as benamidar for S.Arumugam.
18. The Learned Counsel for the Petitioner contends that the Investigation Officer of the Respondent had not taken into account the agricultural and rental income of the Petitioner and if those had been taken into account, then, it would have been a case of set off. Further, the Petitioner need not face the ordeal of trial. Moreover, when the Petitioner had filed his statutory Income Tax Returns before the authorities concerned, they do have value but unfortunately, the said returns were not taken into consideration by the investigating officer.
19. The Learned Counsel for the petitioner submits that in the year 2003 - 2004, the Marriage Hall was constructed and the value was Rupees Sixty lakhs and the Marriage hall had the approval of Electricity Board, Fire Service and other authorities and in fact, the Panchayat had approved the construction of Marriage Hall, plan and that, the drawing, estimate from Civil Engineer were also approved and a clearance certificate was issued by the authorities like Health and Fire Service Department. As a matter of fact, LD68 letter dated 30.05.2006, was addressed by the Director of Health Services to the President of Panchayat, Sekkarakkudi.
20. The Learned Counsel for the Petitioner contends that the Petitioner was the Panchayat Board President and the Marriage Hall constructed by him is in a small village. At this stage, the Learned Counsel for the Petitioner submits that the Petitioner had submitted his Income Tax Returns for the assessment year 2010-2011 and in the said returns, he had clearly mentioned about the sale of agricultural properties and in the Income tax returns for the year 2011-2012, he had detailed the lands sold. As such, the request of the Petitioner was only that the statutory documents do have legal sanctity but these documents were not taken into account by the Respondent.
21. The Learned Counsel for the Petitioner submits that the Petitioner had produced unimpeachable documents of sterling quality before the trial Court and there was no bar for considering the same by the trial Court at the time of passing of an order in the discharge petition. Also, this Court can consider the documents filed by the petitioner before this Court in the Criminal Revision petition.
22. The Learned Counsel for the Petitioner contends that the trial Court had not looked into the documents quoted by the Investigating Officer during the investigation at the time of adjudication of the discharge petition. Further, it is represented on behalf of the Petitioner that the Petitioner produced documents to show that the Respondent/Prosecution case is not properly founded and if the trial Court had taken into consideration of the documents produced by the Petitioner, then, there would not have been a case of miscarriage of justice.
23. The Learned Counsel for the Petitioner informs this Court that before the trial Court in C.C.No.35 of 2012 witnesses P.Ws.1 to 7 were examined, but none of witnesses had spoken about the Petitioner/A3. The Learned Counsel for the Petitioner submits that paragraphs 45 and 46 of the trial Court order in C.C.No.35 of 2012, do not relate to the present case on hand.
24. The Learned Counsel for the Petitioner cites the decision of the Hon'ble Supreme Court State of Orissa V. Debendra Nath Padhi reported in (2005) 1 Supreme Court Cases 568 and at special page 569 wherein, it is held as follows;
In the old Code of 1989 there was no provision similar to Section 227 of the new Code of 1973. Section 227 was incorporated in the 1973 Code with a view to save the accused from prolonged harassment which is a necessary concomitant of a protracted criminal trial. It is calculated to eliminate harassment to accused persons when the evidential materials gathered after investigation fall short of minimum legal requirements. If the evidence even if fully accepted cannot show that the accused committed the offence, the accused deserves to be discharged. In the old Code, the procedure as contained in Section 207 and 207-A was fairly lengthy. The aforesaid Sections 207 and 207-A have been omitted from the 1973 code and a new Section 209 enacted on the recommendation of the Law Com mission contained in its 41st Report. It was realised that the commitment inquiry under the old Code was resulting in inordinate delay and served no useful purpose. That inquiry has, therefore, been dispensed with in the 1973 Code with the object of expeditious disposal of cases. Instead of the committal Magistrate framing the charge, it is now to be framed by the Court of Session under Section 228 in case the accused is not discharged under Section 227. This change brought out in the 1973 Code is also required to be kept in view while determining the question. Under the 1973 Code, the evidence can be taken only after framing of charge. At the stage of framing of charge roving and fishing inquiry is impermissible. If the contention of the accused is accepted, there would be a mini-trial at the stage of framing of charge. That would defeat the object of the Code of Criminal Procedure.
The record of the case and documents submitted therewith as postulated in Section 227 relate to the case and the documents referred in Section 209 CrPC. That is the plain meaning of Section 227 read with Section 209 CrPC. The provision about hearing the submissions of the accused as postulated by Section 227 only means hearing the submissions of the accused on the record of the case as filed by the prosecution and documents submitted therewith and nothing more. The expression hearing the submissions of the accused cannot mean opportunity to file material to be granted to the accused and thereby changing the settled law. At the stage of framing of charge hearing the submissions of the accused has to be confined to the material produced by the police.
25. Further, in the aforesaid decision of the Hon'ble Supreme Court at page 570, it is held thus;
Section 91 CrPC does not confer any right on the accused to produce document in his possession to prove his defence. Section 91 presupposes that when the document is not produced process may be initiated to compel production thereof. Any document or other thing envisaged under the aforesaid provision can be ordered to be produced on finding that the same is 'necessary or desirable for the purpose of investigation, inquiry, trial or other proceedings under the Code'. The first and foremost requirement of the section is about the document being necessary or desirable. The necessity or desirability would have to be seen with reference to the stage when a prayer is made for the production. If any document is necessary or desirable for the defence of the accused, the question of invoking Section 91 at the initial stage of framing of a charge would not arise since defence of the accused is not relevant at that stage. When the section refers to investigation, inquiry, trial or other proceedings, it is to be borne in mind that under the section a police officer may move the court for summoning and production of a cdocument as may be necessary at any of the stages mentioned in the section. Insofar as the accused is concerned, his entitlement to seek order under Section 91 would ordinarily not come till the stage of defence. When the section talks of the document being necessary and desirable, it is implicit that necessity and desirability is to be examined considering the stage when such a prayer for summoning and production is made and the party who makes it, whether police or accused. If under Section 227, what is necessary and relevant is only the record produced in terms of Section 173 CrPC, the accused cannot at that stage invoke Section 91 to seek production of any document to show his innocence.
26. He also relies on the decision of the Hon'ble Supreme Court Rukmini Narvekar V. Vijaya Satardekar and others reported in (2008) 14 Supreme Court Cases 1 and at special page 3, wherein it is observed as follows;
It is well settled that a judgment of the Court has not to be treated as Euclid's formula. While it is true that ordinarily defence material cannot be looked into by the court while framing of the charge in view of Debendra Nath Padhi case, (2005) 1 SCC 568 there may be some very rare and exceptional cases where some defence material when shown to the trial court would convincingly demonstrate that the prosecution version is totally absurd or preposterous, and in such very rare cases the defence material can be looked into by the court at the time of framing of the charges or taking cognizance. It cannot be said as an absolute proposition that under no circumstances can the court look into the material produced by the defence at the time of framing of the charges, though this should be done in very rare cases i.e. Where the defence produces some material which convincingly demonstrates that the whole prosecution case is totally absurd or totally concocted.
27. Also, in the aforesaid decision at page 4 & 5, it is observed and laid down as follows;
There is no scope for the accused to produce any evidence in support of the submissions made on his behalf at the stage of framing of charge and only such materials as are indicated in Section 227 CrPC can be taken into consideration by the Magistrate at this stage. However, in a proceeding taken therefrom under Section 482 CrPC the court is free to consider material that may be produced on behalf of the accused to arrive at a decision whether the charge as framed could be maintained. This appears to be the intention of the legislature in wording Sections 227 and 228 the way in which they have been worded and as explained in Debendra Nath Padhi case by the larger Bench therein to which the very same question had been referred.
28. The Learned Counsel for the Petitioner seeks in aid of the decision of the Hon'ble Supreme Court State of Madhya Pradesh V. Sheetla Sahai and others reported in (2009) 8 Supreme Court Cases 617 and at special page 621, whereby and whereunder, the Hon'ble Supreme Court has observed and held as under;
The probative value of the material on record, has not been gone into. The materials have been accepted as true at the stage of framing of charges. At this stage even a defence of an accused cannot be considered. But, where the entire materials collected during investigation have been placed before the court as part of the charge-sheet, the court at the time of framing of the charge cannot confine itself to the materials upon which the prosecution intended to rely ignoring the other materials which were in favour of the accused. Whether the materials on record, even when given face value and taken to be correct in their entirety, disclose commission of an offence or not, should be the basis for the court for proceeding further, is a question which must be determined having regard to the entirety of materials brought on record by the prosecution and not on a part of it. If such a construction was made, sub-section (5) of Section 173 of the Code of Criminal Procedure would become meaningless.
29. The Learned Counsel for the Petitioner invites the attention of this Court to the decision of the Hon'ble Supreme Court Harshendra Kumar D. V. Rebatilata Koley and others reported in (2011) 1 Supreme Court Cases (Cri) 1139, and at special pages 1140 & 1141, wherein it is held as follows;
It is not the law that in a criminal case where trial is yet to take place and the matter is at the stage of issuance of summons or taking cognizance, materials relied upon by the accused which are in the nature of public documents or the materials which are beyond suspicion or doubt, in no circumstance, can be looked into by the High Court in exercise of its jurisdiction under Section 482 or for that matter in exercise of revisional jurisdiction under Section 397 of the Code. It is fairly settled now that while exercising inherent jurisdiction under Section 482 or revisional jurisdiction under Section 397 of the Code in a case where complaint is sought to be quashed, it is not proper for the High Court to consider the defence of the accused or embark upon an enquiry in respect of merits of the accusations. However, in an appropriate case, if on the face of the documents - which are beyond suspicion or doubt - placed by the accused, the accusations against him cannot stand, it would be travesty of justice if accused is relegated to trial and he is asked to prove his defence before the trial court. In such a matter, for promotion of justice or to prevent injustice or abuse of process, the High Court may look into the materials which have significant bearing on the matter at prima facie stage.
Criminal prosecution is a serious matter; it affects the liberty of a person. No greater damage can be done to the reputation of a person than dragging him in a criminal case. The High Court fell into grave error in not taking into consideration the uncontroverted documents relating to the appellant's resignation from the post of Director of the Company. Had these documents been considered by the High Court, it would have been apparent that the appellant has resigned much before the cheques were issued by the Company.
30. The Learned Counsel for the petitioner relies on the decision of the Hon'ble Supreme Court State of M.P. V. Mohanlal Soni reported in (2000) 6 Supreme Court Cases 338, and at special page 339, whereby and whereunder, it is observed and held thus:
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. If the court is satisfied that a prima facie case is made out for proceedings further then a charge has to be framed. Per contra, if the evidence which the prosecution proposes to produce to prove the guilt of the accused, even if fully accepted before it is challenged by cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the particular offence, then the charge can be quashed.
In the normal course the documents in question in the present case could not have been prepared in anticipation that the respondent would have to face such charges on a future date. The documents being the orders of assessment or returns filed with the Income Tax Authorities on their face value supported the case of the respondent. There was no bar to consider the material on record in the case on hand, which was collected during the course of investigation and produced before the Court.
31. The Learned Counsel for the Petitioner cites the decision Ananda Bezbaruah V. Union of India reported in 1994 CRI.L.J.12, wherein it is held as follows;
It is not mere acquisition of property that constitutes an offence, under the provisions of the Act but its failure to satisfactorily account for makes the possession offending.
Thus where accused was charged with the offence of having resources and property disproportionate to his income and trial Court failed to consider and evaluate the income-tax return which clearly established that the property included in the assets of accused and shown to be disproportionate is the wife's property bought from her own resources and should have been excluded from assets of the accused and the income which should have been taken as savings was taken as expenditure thereby overlooking the actual savings and expenditure, which if calculated, showed that income of accused was proportionate to his source of income, inclusion of property of wife, without evaluating the materials on record, which a satisfactorily accounted for the assets disproportionate to income, do not establish the ingredients of the offence and order of framing of charge in such circumstances is liable to be quashed.
32. The Learned Counsel for the Petitioner relies the decision of the Hon'ble Supreme Court Krishnanand V. The State of Madhya Prades reported in (1977) 1 Supreme Court Cases 816, and at special pages 830 and 831, wherein in paragraph 26, it is inter alia observed as follows;
26. . . . . . . It is well settled that the burden of showing that a particular transaction is benami and the appellant owner is not the real owner always rests on the person asserting it to be so and this burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of benami is the intention of the parties and not unoften, such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of the serious onus that rests on him, nor justify the acceptance of mere conjectures or surmises as a substitute for proof. (Vide Jayadaya, Poddar V. Mst. Sibi Hazra1) (1. (1974) 2 SCR 90: (1974) 1 SCC 3 ). It is not enough merely to show circumstances which might create suspicion, because the court cannot decide on the basis of suspicion. It has to act on legal grounds established by evidence. . . . . . . .
33. Apart from the above, the Learned Counsel for the Petitioner cites the following the decisions:
(i) In the decision K.Govardhan V. State reported in 2001 (1) ALT (Crl) 468 (AP), it is observed and held as follows;
Merely because the ostensible owner of assets, do not have any known sources of income it can't be taken as a conclusive circumstance to hold that those assets were held for the benefit of the accused.
(ii) In the decision of the Hon'ble Supreme Court State of Andhra Pradesh V. J.Satyanarayana reported in JT 2000 (10) SC 430 and at special page 432 in paragraph 7, it is observed and held thus;
7. Evidence was led by the respondent in support of the above pleas. The prosecution itself placed on record, Ex.P-17 an income-tax return filed by the wife of the respondent for the previous year. It was produced from proper quarters and proved by ITO, PW-8. Income tax return, Ex.P-17 had been filed by the wife on 2nd of January, 1986, admittedly much before date of raid and even before registration of the case. The evidence regarding loans which were claimed to have been received by wife was led through DW-15 and DW-25 who stood the scrutiny of cross-examination well. Loans received by the wife from the lenders had found reflection in the accounts of those lenders with their accounts also prepared much earlier to the date of raid. It was argued before the High Court that Ex.P-17, income -tax return of the wife should not be relied upon and that it was an after-thought, brought into existence to save the respondent. The High Court rightly rejected it. We fail to understand how the income-tax return Ex.P-17, filed by the wife on 2nd of January, 1986 could be labelled as an after-though when it had been filed much prior to even the registration of the case against the respondent by the ACB. Not only was that return filed but the assessment had also been completed. The receipt of various loans which had been shown by the wife in the return, thus, stood accepted by the income-tax authorities. The evidence led by the prosecution itself by filing of income-tax return of the wife coupled with the evidence of defence witnesses clearly goes to establish that the house in Anand Nagar Colony was an asset belonging to the wife of the respondent and not to the respondent himself. The High Court, therefore, rightly arrived at the conclusion that the said house could not be treated as an asset of the respondent by correct appreciation of evidence and proper application of law to the facts of the case. We are satisfied that the finding recorded by the High Court to the effect that the house in Anand Nagar Colony was an asset of the wife of the respondent and not of the respondent is correct and proper and suffers from no infirmity at all. Once we arrive at that finding, the conclusion becomes irresistible that an order of acquittal of the respondent recorded by the High Court is well merited. It suffers from no illegality, let alone perversity. We consequently, do not find any reason to interfere with the well-merited order of acquittal. This appeal, therefore, fails and is dismissed.
(iii) In the decision of the Hon'ble Supreme Court Dilawar Balu Kurane V. State of Maharashtra reported in 2002 Supreme Court Cases (Cri) 310, and at special page 311, it is held as follows;
In exercising powers under Section 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section 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; 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; by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him gave rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused, and in exercising jurisdiction under Section 227 CrPC, the Judge 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 but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
(iv) In the decision of the Hon'ble Supreme Court Niranjan Singh Karam Singh Punjabi, V. Jitendra Bhimraj Bijja and others reported in AIR 1990 Supreme Court 1962, it is held as under:
It seems well settled that at the Ss.227-228 stage i.e., 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 disclose the existence of all the ingredients constituting the alleged offence. The Court may 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.
(v) In the decision of the Hon'ble Supreme Court M.Narayanan Nambiar V. State of Kerala reported in AIR 1963 SC 1116, it is observed that the desired object of the Prevention of Corruption Act, is not only to prevent corruption among the public servants, but also to prevent the harassment of the honest among them. Therefore, while it is not permissible to allow a public servant to escape on the mere premise that it was not within his powers to do favour to the person from whom illegal gratification was sought, it should be remembered, at the same time, that the Court is duty bound to see that the machinery under the Prevention of Corruption Act is not misused to harass an honest public servant, by or at the instance of persons against whom he takes action in the course of his official duties.
(vi) In the decision of the Hon'ble Supreme Court District Superintendent of Police, Chennai V. K.Inbasagaran reported in (2006) 282 ITR 435 (SC) and at special page 444, it is among other things observed as follows;
. . . . . In view of the explanation given by the husband and when it has been substantiated by the evidence of the wife, the other witnesses who have been produced on behalf of the accused coupled with the fact that the entire money has been treated in the hands of the wife and she has owned it and she has been assessed by the Income-tax Dedpartment, it will not be proper to hold the accused guilty under the Prevention of Corruption Act as his explanation appears to be plausible and justifiable. . . . . . Respondent's Submissions:
34.In response, the Learned Special Public Prosecutor for the Respondent/Complainant submits that the present Criminal Revision Petition filed by the Petitioner/A3 before this Court is not legally maintainable because of the simple reason that before the Learned XIV Additional Special Judge for CBI cases, City Civil Court, Chennai, the trial in C.C.No.35 of 2012 had commenced and as such, it should reach its logical conclusion in the manner known to law and in accordance with law.
35. The Learned Counsel for the Respondent brings it to the notice of this Court that before the trial Court witnesses PWs1 to 7 were examined. Also, it is represented before this Court that PW4 was examined in Chief but was not cross-examined.
36. According to the Learned Counsel for the Respondent, the ingredients of Section 239 Cr.P.C are applicable to warrant cases and in fact, the ingredients of Section 240 Cr.P.C speaks of 'Framing of Charge'. Moreover, it is represented on behalf of the Respondent that in C.C.No.35 of 2012 on the file of the trial Court, charges were framed against the accused A1 to A6 (including the Petitioner/A3) on 14.03.2014.
37. At this stage, the Learned Counsel for the Respondent proceeds to submit that the ingredients of 242 Cr.P.C speaks of 'Evidence for Prosecution'. It is to be noted that Section 243 of Cr.P.C speaks of 'evidence for defence'.
38. To lend support to the contention that in a warrant case, after framing of charge there cannot be a discharge, the Learned Counsel for the Respondent cites the decision of the Hon'ble Supreme Court Ratilal Bhanji Mithani V. State of Maharashtra and others reported in 1979 Supreme Court Cases (Cri) 405 and at special page 406, whereby and whereunder, it is observed and held as follows;
In a warrant case instituted otherwise than on a police report, 'discharge' or 'acquittal' of accused are distinct concepts applicable to different stages of the proceedings in Court. The legal effect and incidents of 'discharge' and 'acquittal' are also different. An order of discharge in a warrant case instituted on complaint, can be made only after the process has been issued and before the charge is framed. Section 253(1) shows that as a general rule there can be no order of discharge unless the evidence of all the prosecution witnesses has been taken and the Magistrate considers for reasons to be recorded, in the light of the evidence, that no case has been made out. Sub-section (2) which authorises the Magistrate to discharge the accused at any previous stage of the case if he considers the charge to be groundless, is an exception to that rule. A discharge without considering the evidence taken is illegal.
Once a charge is framed in a warrant case, instituted either on complaint or a police report, the Magistrate has no power under the Code to discharge the accused, and thereafter, he can either acquit or convict the accused unless he decides to proceed under Section 349 and 562 of the Code of 1892 (which correspond to Sections 325 and 360 of the Code of 1973).
So that if after framing charge the Magistrate whimsically, without appraising the evidence and without permitting the prosecution to produce all its evidence, 'discharges' the accused, such an acquittal, without trial, even if clothed as 'discharge', will be illegal. This is precisely what has happened in the instant case.
39. The Learned Counsel for the Respondent submits that at the stage of framing of charges, probative value of the materials on record cannot be gone into by a trial Court and in this regard, he relies on the decision of the Hon'ble Supreme Court State of Maharashtra Etc. Etc., V. Som Nath Thapa, Etc. Etc., reported in AIR 1996 Supreme Court 1744 and at special page 1749, in paragraphs 24, 25, 28 to 32, wherein it is observed and held thus;
24. The aforesaid decisions, weighty as they are, lead us to conclude that to establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has not to establish that a particular unlawful use was intended, so long as the goods or service in question could not be put to any lawful use. Finally, when the ultimate offence consists of a chain of actions, it would not be necessary for the prosecution to establish, to bring home the charge of conspiracy, that each of the conspirators had the knowledge of what the collaborator would do so, so long as it is known that the collaborator would put the goods or service to an unlawful use.
When can charge be framed ?
25. This legal question is not as knotty as the first one. This is for the reason that there are clinching decisions of this Court on this aspect of the matter.
28.Before adverting to what was stated in Antulay's case, (AIR 1986 SC 2045), let the view expressed in State of Karnataka vs. L. Muniswamy), (1977) 3 SCR 113: (AIR 1977 SC 1489), be noted. Therein, Chandrachud, J. (as he then was) speaking for a three Judge Bench stated at page 119 (of SCR) : (at pp.1493-94 of AIR), that at the stage of framing charge the Court has to apply its mind to the question whether or not there is any ground for presuming the commission of the offence by the accused. As framing of charge affects a person's liberty substantially, need for proper consideration of material warranting such order was emphasised.
29. What was stated in this regard in Stree Atyachar Virodhi Parishad's case, (1989) 1 SCC 715), which was quoted with approval in paragraph 78 of State of West Bengal vs. Mohd. Khalid, 1995 (1)SCC 684 : (1995 AIR SCW 559), is that what the Court has to see, while considering the question of framing the charge, is whether the material brought on record would reasonably connect the accused with the crime. No more is required to be inquired into.
30. In Antulay's case, (AIR 1986 nSC 2045), Bhagwati, C.J., opined, after noting the difference in the language of the three pairs of section, that despite the difference there is no scope for doubt that at the stage at which the Court is required to consider the question of framing of charge, the test of "prima facie" case has to be applied. According to Shri Jethmalani, a prima facie case can be said to have been made out when the evidence, unless rebutted, would make the accused liable to conviction. In our view, better and clearer statement of law would be that if there is ground for presuming that the accused has committed the offence, a court can justifiably say that a prima facie case against him exists, and so, frame charge against him for committing that offence".
31. Let us note the meaning of the word "presume". In Black's Law Dictionary, it has been defined to mean "to believe or accept upon probable evidence". (Emphasis ours). In Shorter Oxford English Dictionary it has been mentioned that in law "presume" means "to take as proved until evidence to the contrary is forthcoming" , Stroud's Legal Dictionary has quoted in this context a certain judgment according to which "A presumption is a probable consequence drawn from facts (either certain or proved by direct testimony) as to the truth of a fact alleged." (Emphasis supplied). In Law Lexicon by P. Ramanath Aiyer the same quotation finds place at page 1007 of 1987 edition.
32. The aforesaid shows that 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 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.
40. The Learned Counsel for the Respondent cites the decision of the Hon'ble Supreme Court Shoraj Singh Ahlawat and Ors. V. State of U.P. And another reported in AIR 2013 Supreme Court 52 and at special pages 55, 56 and 57, whereby and whereunder in paragraphs 10 to 14, it is observed as follows;
10. The case at hand being a warrant case is governed by Section 239 of the Cr.P.C. for purposes of determining whether the accused or any one of them deserved to be discharged. Section 239 is as under:
239. When accused shall be discharged.
If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.
11. A plain reading of the above would show that the Court trying the case can direct discharge only for reasons to be recorded by it and only if it considers the charge against the accused to be groundless. Section 240 of the Code provides for framing of a charge if, upon consideration of the police report and the documents sent therewith and making such examination, if any, of the accused as the Magistrate thinks necessary, the Magistrate is of the opinion that there is ground for presuming that the accused has committed an offence triable under Chapter XIX, which such Magistrate is competent to try and which can be adequately punished by him. The ambit of Section 239 Cr.P.C. and the approach to be adopted by the Court while exercising the powers vested in it under the said provision fell for consideration of this Court in Onkar Nath Mishra and Ors. v. State (NCT of Delhi) and Anr. (2008) 2 SCC 561. (AIR 2008 SC (Supp) 204 : 2008 AUR SCW 96). That too was a case in which a complaint under Sections 498-A and 406 read with Section 34 of the I.P.C. was filed against the husband and parents-in-law of the complainant-wife. The Magistrate had in that case discharged the accused under Section 239 of the Cr.P.C, holding that the charge was groundless. The complainant questioned that order before the Revisional Court which directed the trial Court to frame charges against the accused persons. The High Court having affirmed that order, the matter was brought up to this Court. This Court partly allowed the appeal qua the parents-in-law while dismissing the same qua the husband. This Court explained the legal position and the approach to be adopted by the Court at the stage of framing of charges or directing discharge in the following words:
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. (emphasis supplied)
12. Support for the above view was drawn by this Court from earlier decisions rendered in State of Karnataka v. L. Muniswamy 1977 Cri.LJ 1125: (AIR 1977 SC 1489), State of Maharashtra & Ors. v. Som Nath Thapa and Ors. 1996 Cri.LJ 2448: (AIR 1996 SC 1744: 1996 Cri LJ 1977) and State of M.P. v. Mohanlal Soni 2000 Cri.LJ 3504: (AIR 2000 SC 2583 : 2000 AIR SCW 2674). In Som Nath's case (supra) the legal position was summed up as under:
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 supplied)
13. So also in Mohanlal's case (supra) this Court referred to several previous decisions and held that the judicial opinion regarding the approach to be adopted for framing of charge is that such charges should be framed if the Court prima facie finds that there is sufficient ground for proceeding against the accused. The Court is not required to appreciate evidence as if to determine whether the material produced was sufficient to convict the accused. The following passage from the decision in Mohanlal's case (supra) is in this regard apposite:
8. The crystallized 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.
14. In State of Orissa v. Debendra Nath Pandhi (2005) 1 SCC 568 (air 2005 sc 359 : 2004 air scw 6813), this Court was considering whether the trial Court can at the time of framing of charges consider material filed by the accused. The question was answered in the negative by this Court in the following words:
18. We are unable to accept the aforesaid contention. The reliance on Articles 14 and 21 is misplaced...Further, at the stage of framing of charge roving and fishing inquiry is impermissible. If the contention of the accused is accepted, there would be a mini trial at the stage of framing of charge. That would defeat the object of the Code. It is well-settled that at the stage of framing of charge the defence of the accused cannot be put forth. The acceptance of the contention of the learned counsel for the accused would mean permitting the accused to adduce his defence at the stage of framing of charge and for examination thereof at that stage which is against the criminal jurisprudence. By way of illustration, it may be noted that the plea of alibi taken by the accused may have to be examined at the stage of framing of charge if the contention of the accused is accepted despite the well settled proposition that it is for the accused to lead evidence at the trial to sustain such a plea. The accused would be entitled to produce materials and documents in proof of such a plea at the stage of framing of the charge, in case we accept the contention put forth on behalf of the accused. That has never been the intention of the law well settled for over one hundred years now. It is in this light that the provision about hearing the submissions of the accused as postulated by Section 227 is to be understood. It only means hearing the submissions of the accused on the record of the case as filed by the prosecution and documents submitted therewith and nothing more. The expression 'hearing the submissions of the accused' cannot mean opportunity to file material to be granted to the accused and thereby changing the settled law. At the state of framing of charge hearing the submissions of the accused has to be confined to the material produced by the police...
XX XX XX XX
23. As a result of aforesaid discussion, in our view, clearly the law is that at the time of framing charge or taking cognizance the acc used has no rigtht to produce any material. . . (Emphasis supplied)
41. The Learned Counsel for the Respondent relies on the order of this Court, dated 09.02.2010, in Criminal Revision Case No.583 of 2007 between K.Selvam V. State by Inspector of Police, Special Police Establishment, Central Bureau of Investigation, Anti Corruption Branch, Chennai 600 006, (RC No.24(A)/2001, whereby and whereunder in paragraphs 12 and 13, it is observed as follows;
12. Now reverting back to the question of power of the learned trial Judge to discharge the accused, I have to state the following. As held by the Honourable Supreme Court in Ratilal Bhanji Mithani's case reported in 1979 Supreme Court Cases (Crl.) 405 that after framing of charges, the question of discharge of an accused does not arise, is the view consistently taken by the Honourable Supreme Court in several judgments. Before the said judgment as well as after, the law stands well settled that when once charges have been framed, the question of discharging an accused does not arise at all. In paragraph 34 of the said judgment, the Honourable Supreme Court has stated as follows:
"34. It is thus manifest that in abruptly deleting the charges and 'discharging' the accused, the Magistrate was acting neither in accordance with the observation or directions of Gokhale, J., nor in accordance with law."
The said view has been followed in Bharat Parikh Vs. Central Bureau of Investigation and another reported in (2008) 3 Supreme Court Cases (Crl) 609 wherein in paragraph 17 of the judgment, the Honourable Supreme Court has held as follows:
"... The question of discharge by the learned Magistrate after framing of charge does not, therefore, arise, notwithstanding the submissions advanced with regard to denial of natural justice and a fair and speedy trial as contemplated under Article 21 of the Constitution, which have no application whatsoever to the facts of this case."
13. I do not want to burden this judgment by citing many more judgments on this aspect. It would be suffice to say that it has been well settled by the Honourable Apex Court that after framing of charges, the trial Court has got no power at all to discharge the accused.
42. The Learned Counsel for the Respondent contends that in the Surrender of Lease Deed, dated 18.12.2009 (LD-52), there is no mention of construction of marriage hall by the Petitioner/A3 in favour of A4, A5 and A6 and further that, the Gift Settlement dated 22.12.2004 was executed by A2 to and in favour of A4, A5 and A6 and by means of Lease Deed dated 23.12.2004, they had given it in favour of Petitioner/A3.
43. In so far as the 'plea of Benami' is concerned, it is the submission of the Learned Counsel for the Respondent that it is a matter for evidence. The Learned Counsel for the Respondent submits that LW49 Immanuel (VAO) in his statement, on perusal of the Adangal Register etc., had mentioned about the details of crop raised in the Survey numbers wise, and further, he handed over a copy of Adangal for the properties of the Petitioner/A3 and A2 in Sekkarakudi 1 Village for the Fasli 1419.
44. The Learned Counsel for the Respondent further proceeds to state that LW49 (VAO) in his statement had also stated that during Fasli year 1419, i.e. during 2010, the harvest was not good in Sekkarakudi Village etc. Also, the Learned Counsel for the Respondent refers to the statement of LW46 (Velammal) (wife of Petitioner/A3), wherein she had stated that she does not have any idea about the source of money for her husband nor any idea about how it was spent by him and further stated that, she lives separately and her husband lives separately in different places and are not in contact with each other.
45. The Learned Counsel for the Respondent refers to the statement of LW66 (S.Murugan) and curtains that the said witness in his statement had stated in regard to the AVM Kalyana Mandapam locality at Sekkarakudi Village to the effect that about 25 cents of land upon which the Kalyana Mandapam was built and purchased by their mother about 20 years back, and later some 6 more cents was purchased by their sister Valliammal. Moreover, the construction work for the Kalyana Mandapam commenced in the year 2004 and was completed in the year 2006 and that, till date, the Village panchayat had not given clearance for the mandapam nor any tax was levied for the same. Also that, the marriage hall was constructed by Arumugam under the supervision of their elder brother Meenakshi Sundaram and the said Mandapam was named AVM to denote Arumugam, Valliammal and Meenakshi Sundaram. Importantly, LW66 had stated that his brother Meenatchi Sundaram, viz., the Petitioner/A3 does not have the means or sources for constructing such Kalyana Mandapam or the house in their village etc.,
46. The Learned Counsel for the Respondent refers to the statement of LW67 (S.Arumugam) and submits that, he had also inter alia stated that the Petitioner/A3 (Meenakshi Sundaram) does not have the means or sources for constructing such Kalyana Mandapam or the house in their village.
47. The Learned Counsel for the Respondent refers to the statement of LW53 S.S.K.Shanmugam, (Ex-President), Sekkarakudi, Karungulam Panchayat Union and contends that, he had stated that S.Meenakshi Sundaram (Petitioner/A3) had submitted an application dated 02.03.2006 along with copy of the plan of the building, copy of the patta book, copy of the F.M.B plan and copy of the estimate cost of the building etc., Also, the said witness had further stated that necessary approvals were given to the S.Meenatchi Sundaram (Petitioner/A3) for running the AVM Mahal.
48. The Learned Counsel for the Respondent submits that no evidence was brought forth by the Petitioner/A3 to the effect that their high returns from the agricultural. Also, it is the stand of the Respondent that the cases of hand loans given by those listed as witnesses in the case and in fact, LW25 to LW27 are based in Chennai and known to the Petitioner/A3 only through A1. Furthermore, it is pleaded on behalf of the Respondent that if the Petitioner was in fact a man of means, it is not clear as to why he did not have funds to construct the building himself and was considered to take hand loans to an extent of Rs.7.75 lakhs out of his claimed cost of construction of Rs.14.48 lakhs as stated in the petition itself. Also, it is the stand of the Respondent that the investigation carried out does not prove the genuineness of the huge amounts of income purported to have been claimed by the Petitioner and there is evidence of having received these incomes from the individuals concerned.
49. The Learned Counsel for the Respondent contends that during the investigation, it was found out that the claim of the source of funds for the Petitioner as reflected in the I.T. Returns was found to be not genuine. Further, the act of A1 of getting the property first transferred in the name of children from that of his wife, and later, transferring the land to the name of the Petitioner, the very next day, with an ostensible intention of constructing a marriage hall in the said land, since A1 could not construct the same while it remained in the family members names, is indicative of a 'Benami transaction'.
50. The Learned Counsel for the Respondent submits that there is no indication of the Petitioner/A3 having been in possession/ purchase/sale of the properties in the I.T. Returns filed by him.
51. The Learned Counsel for the Respondent contends that as per the I.T. Returns, the house rent received by the Petitioner/A3 comes to Rs.10.90 lakhs approximately at the beginning of the check period till the construction of the 'AVM Mahal'. This includes income from buildings which underwent modification during check period and which was valued by CPWD during investigation.
52. The Learned Counsel for the Respondent contends that to support the charges levelled against the Petitioner/A3, the Respondent relies on the documents D42, D44, D45, D46, D49 to D56, D65, D67, D68 and witnesses LW25 to LW27, LW42 to LW44, LW46 to LW49 and LW52 and since the charge has been framed against the Petitioner/A3 and as on date, the trial in C.C.No.35 of 2012 on the file of the trial Court is in progress where witnesses have been examined. At this stage, the present Criminal Revision Petition filed by him is not maintainable.
Petitioner's Reply Submissions:
53. By way of reply, the Learned Counsel for the Petitioner submits that the Petitioner has approached this Court under Section 397 and Section 401 of Cr.P.C and as such, there is no question of seeking relief under Section 482 of Cr.P.C.
54. This Court has heard the Learned Counsel for the Petitioner/ A3 and the Learned Special Public Prosecutor for the Respondent/ Complainant and noticed their contentions.
55. At the outset, it is to be pointed out that the ingredients of Section 239 Cr.P.C are applicable to warrant cases. In fact, the documents referred to in Section 239 of Cr.P.C include the statement of witnesses recorded under Section 161 of Criminal Procedure Code. The ' Hearing' visualised under Section 239 of Cr.P.C refers to oral hearing or granting 'Audience'. At the stage of under Section 239 / 240 of Cr.P.C. it is the duty of a Court of Law to see whether the allegations/charges are groundless or otherwise. It cannot be gainsaid that an obligation to discharge an accused under Section 239 of Cr.P.C arises, when a Court of Law considers the charge against an accused to be a groundless one.
56. It is to be noted that the word 'groundless' means without basis or foundation. Also that, when there is prima facie material to frame charge against an accused, then, the charge cannot be said to be a groundless one and an accused cannot be discharged under Section 239 of Cr.P.C. A Court of Law in an exercise under Section 239 of Cr.P.C is to consider the police report and the documents to determine whether the allegations/averments against the accused are 'groundless' or whether there is scope for presuming that the accused has committed an offence. The word 'consider' literally means due application of mind in the considered opinion of this Court. It cannot be lost sight of that the presumption therein is a rebuttal one by the accused for which he should be provided with an opportunity to take part in the trial proceedings.
57. It is to be borne in mind that the standard of proof requires at the final stage is not required before taking a decision to frame charge or discharge the accused. The term 'legal evidence' is not an appropriate one, when a Court of Law is to make up its mind to frame charge or discharge an accused and the materials placed, then, it will not have the status of evidence. In fact, even the accused cannot be discharged under Section 239 Cr.P.C, on prosecution failure to produce the record under Section 161 (3) of Cr.P.C in original.
58. In this connection, this Court pertinently points out that at the stage of Section 239 of Cr.P.C viz., framing of charge against the accused, it is not permissible for a Court of Law to weigh the pros and cons of all the implication of materials, not for shifting the materials produced by the prosecution.
59. As far as the present case is concerned, this Court, on going through the impugned order dated 08.01.2014 in Crl.M.P.No.810 of 2012 in C.C.No.35 of 2012 passed by the trial Court finds that it had come to the resultant conclusion that by conjoint reading of documents viz., entire complaint, materials collected and mentioned that in the form of charge sheet, etc., that it could not be presumed that there was no legal and acceptable evidence in support of prosecution. Further, the trial Court opined that the question of alleged mala fides and bias projected by the Petitioner could be gone into and adjudicated only during the course of trial based on the materials adduced in the matter.
60. At this point of time, this Court points out that at the stage of framing charge, a Court of Law should not enter upon a process of evaluating the evidence by deciding its worth or credibility, as per decision Sanjeet Ranjan and another V. State of Jharkhand reported in 2004 Crl.L.J at page 1043, 1049 (Jhar).
61. One cannot brush aside an important fact that if there is a strong suspicion in the mind of a Court of Law to think that there is a ground for presuming that an accused has committed an offence, then, it is not open to the Court to opine that there is no sufficient ground for proceeding against an accused.
62. In so far as the contents of paragraphs 45 and 46 of the impugned order dated 08.01.2014 in C.C.No.35 of 2012 passed by the trial Court, on perusal of the same, this Court opines that they do not relate to the fact of the present case before this Court. Obviously, an inadvertent error had crept in this regard and the trial Court in future is to be more careful and to act with caution and circumspection.
63. It is to be pointed out by this Court that on behalf of the Respondent/Complainant an emphatic plea is taken before this Court that the investigating officer of the Respondent as well as the trial Court had not taken into account, the documents produced by the Petitioner, which have legal sanctity, this Court is of the considered view that at the time of framing of charge/discharge by a Court of Law against an accused, an exercise of evaluating the materials in golden scales is not to be ventured into in a meticulous fashion.
64. In fact, framing of charge against the accused, a Court of Law can decide the issue whether the material on record is such on the basis of which an conviction can be said to be reasonably possible. At the time of framing of charges, the probative value of the material on record, cannot be gone into by a Court of Law and the material brought by the prosecution has to be accepted as true at that stage as per decision of Hon'ble Supreme Court Soma Chakravarthy V. State 2007 Crl.L.J page 3257 and at special page 3261. Even a meticulous consideration of evidence is not to be taken into account in regard to the evidence produced on the side of the prosecution at the time of framing of charge in the considered opinion of this Court.
65.In law, after framing of charge, there cannot be a discharge but only an acquittal based on a finding of not guilty turning on the merits of the case. In short, at the time of framing of charge, it is enough, if the material on records supports triable issues. In fact, a Court of Law at the time of framing of charge is not required to evaluate every material placed before it by the police along with the charge sheet. As such, the resultant position is that an indepth appreciation of evidence at the time of framing of charge is not permissible in the eye of law, as opined by this Court.
66. In fact, the view taken by the trial Court while passing the impugned order in Criminal M.P.No.810 of 2012 in C.C.No.35 of 2012 to the effect that prima facie case was made out against the Petitioner to frame the charge on the basis of accusation levelled by the Respondent/Complainant cannot be found fault with, in the considered opinion of this Court. Also that, it cannot be said that the prosecution is a false, frivolous or vexatious one which is by means of an abuse of the process of law.
67. At this stage, this Court aptly points out the decision of the Hon'ble Supreme Court V.C.Shukla V. State through C.B.I, AIR 1980 Supreme Court 962 and at special page 963, whereby and whereunder it is observed and held as follows;
The word 'interlocutory order' (Criminal Case No.1 of 1979, D/- 17.09.1979 (Spl.Court, Delhi).( In this case, the Judges of the Supreme Court differ in their views. The majority view is taken by S.M.Fazal Ali, D.A.Desai and A.P.Sen, JJ, and the minority by P.N.Shinghal, J. -Ed) used in S. 397 (2) of the Code relates to various stages of the trial, namely, appeal, inquiry, trial or any other proceeding. The object seems to be to cut down the delays in stages through which a criminal case passes before it culminates in an acquittal, discharge or conviction. Having regard to the very large ambit and range of the Code, the expression 'interlocutory order'would have to be given a broad meaning so as to achieve the object of the Act without disturbing or interfering with the fairness of the trial. The term ; interlocutory order' used in the Code of Criminal Procedure has to be given a very liberal construction in favour of the accused in order to ensure complete fairness of the trial because the bar contained in S.397 (3) of the Code would apply to a variety of cases coming up before the courts not only being offences under the Penal Code but under numerous Acts. The revisional power of the High Court or the Sessions Judge could be attracted if the order was not purely interlocutory but intermediate or quasi final. The same, however, could not be said of the Special Courts Act which was meant to cover only specified number of crimes and criminals and the objective attained was quickest despatch and speediest disposal. AIR 1977 SC 2185; AIR 1978 SC 47; AIR 1949 FC 1; AIR 1977 SC 1489; AIR 1977 SC 403 and AIR 1972 SC 545, Expld.
The dominant purpose of the Act is to achieve not only speedy determination but a determination with the utmost despatch. Therefore, the provisions of the Act must be interpreted so as to eliminate all possible avenues of delay or means of adopting dilatory tactics by plugging every possible loophole in the Act through which the disposal of the case may be delayed. It was for this purpose that a non obstante clause was put in S.11 of the Act so as to bar appeals against any interlocutory order whether it is of an intermediate nature or is quasi final. AIR 1979 SC 478, Foll.
As the non obstante clause expressly excludes the provisions of the Code of Criminal Procedure, Courts cannot call into aid the provisions of S.397 (2) of the Code which would amount to frustrating the very object which S.11 seeks to advance. The absence of revision is more than compensated by giving the accused a right of an appeal against any judgment or order of the Special Judge as of right and open on facts and law. The trial is held by a sitting High Court Judge who also would have the power of revision if he was sitting in a High Court. Therefore, it would not be in keeping with the dignity, decorum and status of the Special Judge to provide for an appeal even against such an order which he is supposed to pass with full application of mind and due deliberation.
The non obstante clause would have the effect of overriding and excluding the provisions of the Code. Therefore, Courts should exclude the statute concerned from consideration, in the instant case 'The Code' and should construe the words used according to their natural and ordinary meaning instead of referring to the statute which is sought to be excluded. AIR 1952 SC 369, Applied.
In order to construe the term 'interlocutory' it has to be construed in contradistinction to or in contrast with a final order. In other words, the words 'not a final order' must necessarily mean an interlocutory order or an intermediate order. Thus, the expression 'interlocutory order' is to be understood and taken to mean converse of the term 'final order'.
An interlocutory order merely decides some point or matter essential to the progress of the suit or collateral to the issues sought but not a final decision or judgment on the matter in issue. An intermediate order is one which is made between the commencement of an action and the entry of the judgment. An order framing of the charge being an intermediate order falls squarely within the ordinary and natural meaning of the term 'interlocutory order' as used in S.11 (1) of the Act.
The order of framing the charges is purely an interlocutory order as it does not terminate the proceedings but the trial goes on until it culminates in acquittal or conviction. It is true that if the Special Court would have refused to discharge the accused and framed charges against him, then the order would be interlocutory because the trial would still be alive.
68.It is to be pointed out that in cases under the Prevention of of Corruption Act, 1988, there can be no stay of trials. In appropriate cases, the proceedings under Section 482 Cr.P.C can be resorted to. It is to be remembered that even if a petition under section 482 of Cr.P.C is entertained by a Court of Law, there can be no stay of trials under the Prevention of Corruption Act, 1988.
69.In this regard, one is to bear in mind that sub-section 3 of section 19 of the Prevention of Corruption Act, 1988, consists of 3 clauses. For all the 3 clauses, the controlling non-obstante words are mentioned in the commencement portion, as opined by this Court. In reality, the prohibition is contained in clause (c) sub-section 3 of section 19 of the Act.
70.On a careful consideration of respective contentions and also this Court, taking note of an overall assessment of the facts and circumstances of the present case in an integral manner, comes to an irresistible conclusion that after framing of 'charge', there cannot be a discharge and further, this Court opines that at the time of framing of charge, a Court of Law is to look into the records of the case (including the documents filed by the prosecution under Section 173 Cr.P.C) and oral hearing of an accused but nothing beyond that. Moreover, in the present case on hand, in C.C.No.35 of 2012 on the file of the trial Court, admittedly, witnesses P.Ws.1 to 7 were examined in full (barring P.W.4 was examined in chief but not cross examined). As on date, the main case is in Part-Heard stage. In view of the admitted position that in the present case, necessary charges were framed against the Petitioner/A3 and other accused and when the main case in C.C.No.35 of 2012 on the file of the trial Court is pending at Part-Heard stage, this Court holds that the trial of the main case should reach its logical conclusion. Viewed in that perspective, this Court opines that although the Petitioner/A3 had filed Cr.M.P.No.810 of 2012 on 16.10.2012 before the trial Court prior to framing of charges, on 14.03.2014, he cannot seek a plea of discharge and his only remedy is to take part in the trial proceedings of the main case because of the simple reason that trial of the main case had commenced and to proceed further in the manner known to law and in accordance with law. Looking at from that angle, the Revision Petition fails.
71. In the result, the Revision Petition is dismissed. Consequently, connected miscellaneous petition is closed. The impugned order passed by the trial Court in Cr.M.P.No.810 of 2012 in C.C.No.35 of 2012 dated 08.01.2014 is affirmed by this Court for the reasons assigned in this Revision. Liberty is granted to the Petitioner to raise all factual and legal pleas and also to produce relevant documents before the trial Court in C.C. No.35 of 2012 and to seek appropriate remedy if he so desires / advised, in the manner known to law. Since the main C.C.No.35 of 2012 is pending on the file of the trial Court at Part- Heard stage, this Court directs the trial Court to complete the trial of main case as expeditiously as possible.
01.08.2014
Index : Yes/No
Internet : Yes/No
sms
To
1. The Additional Superintendent of Police,
Special Police Establishment,
Anti Corruption Branch,
No.26, Haddows Road,
Third Floor, Shastri Bhavan,
Chennai 600 006.
2. The Learned XIV Additional Special Judge
for CBI Cases, City Civil Court, Chennai.
M. VENUGOPAL,J.,
sms
Pre-delivery order in
Crl.R.C.No.168 of 2014
&
M.P.No.1 of 2014
01.08.2014