Laxmi Lal Patel vs State Of Rajasthan on 8 December, 2022

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Rajasthan High Court - Jodhpur

Laxmi Lal Patel vs State Of Rajasthan on 8 December, 2022

1. The instant revision petition has been filed by the petitioner under Section 397 r/w Section 401 Cr.P.C. against the order dated 03.08.2022 passed by the learned Special Judge (Prevention of Corruption Act), No.2, Udaipur in Sessions Case No.194/2019 whereby an order framing charge has been passed against the petitioner under Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act and under Sections 420, 467, 468, 471 & 120-B of the IPC.

2. Learned counsel for the petitioners submit that the impugned order is not sustainable in the eyes of law on the sole count that the learned Court below has not applied its mind to see whether the elements essential to constitute the alleged offences are present or not in the charge sheet filed by the prosecution. Learned counsel further submit that to inflict a charge upon an accused under Section 420 of IPC, prima facie there must, at the least, be an iota of evidence to prove the dishonest intention of the accused persons to induce the complainant party to believe certain things and the complainant-state should have acted under the influence of that inducement and thus, incurred huge loss. The inducement must be dishonest as envisaged under Section 415 of the IPC. The term 'forgery' and the act of 'making a false (Downloaded on 26/12/2022 at 08:14:07 PM) (3 of 17) [CRLR-1356/2022] document' are defined under Sections 463 & 464 of the IPC respectively but there is no whisper in the entire charge sheet which could show that any documents were prepared falsely or any forgery was committed. He, thus, submits that Sections 420, 467 & 468 of the IPC can not be invoked in these cases because of the absence of the requisite ingredients. Since no forged documents were used as genuine ones, therefore, Section 471 IPC is also not applicable in these matters. For invocation of Sections 13(1)(d) & 13(2) of Prevention of Corruption Act cases, it is further submitted that the contract was issued by the Government to the concerned contractor to construct the road through BOT mode for constructing a 15 kilometers long road. The road was completed and the technical sanction was granted on 14.03.2001. The road was prepared within time and no defect was found in the construction of the road uptil the length of 11 kilometers, however, for the rest of the 4 kilometers, it was stated that the design was not perfect. He, thus, submits that if the design was not perfect then the entire condition of the 15 kilometers long road must have been dilapidated but that is not the case of prosecution. To book an accused for commission of an offence is a different thing but when the trial court proceeds to frame charge, then, it is imperative upon the trial Court to consider the record of the case and the documents submitted therewith and after hearing the submissions of the parties, the learned Judge has to form an opinion as to whether there are reasonable grounds for presuming that the accused had committed the offence alleged.

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3. It is further submitted that a bare perusal of the impugned order available on record does not reflect that the trial court considered the above-mentioned aspects, therefore, the impugned order is not sustainable in the eyes of law and thus, the same deserves to be quashed and set aside because a public servant who acted in good faith should not be forced to face the rigour of trial on groundless accusations. The inspection of the road was made after 2 years of its completion and in the meantime, due to heavy rain fall and other climatic changes, the condition of the road for 2 to 3 kilometers may have deteriorated but for that no liability can be fastened upon the petitioners. Learned counsel for the petitioners drew the attention of this Court towards the site inspection memo prepared by the investigating agency on 19.08.2004 on the questioned area wherein it is specifically mentioned by the Investigating Officer that there were trenches on both sides of the roads which were found filled with water throughout the year.

4. Shri M.A Siddiqui, learned AAG, submits that the report prepared by Dinesh Chandra Katara, General Manager, stated that the said committee inspected the site, prepared a report, noted the defects and deficiency and on the basis of the said report and some complaints, an incisive probe was made by the agency and thereafter, certain complications came to light that revealed the involvement of the petitioners in the commission of crime. He further submits that at the stage of framing of charge, the Court has to only see whether a prima facie case against the petitioners is made out or not and meticulous appreciation of evidence is not warranted by law at this stage.

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5. Heard learned counsel for the petitioners as well as learned AAG and perused the material available on record.

6. A perusal of the impugned order does not reflect as to how offences under Sections 420, 467, 468 & 471 of the IPC are made out or can be invoked against the petitioners as there is no mention, not even a whiff in this regard. Though the learned court below has made a mention of the submissions made at the bar but the same have not been discussed and appreciated. It is true that at the stage of framing of charge threadbare discussion of the material collected during the course of the investigation is not required but at the same time it is expected from the trial Judge to form an opinion as to whether there are reasonable grounds to presume that the accused should be tried for the offences alleged. It is imperative upon the trial Court to see as to whether the ingredients essential to constitute alleged offences are present or not in the fact situation of the case. Having minutely gone through the entire material available on record, this Court is of the considered view that the learned Court below has not paid heed to the afore-discussed aspects which are necessary to consider before framing the charge against the accused in any criminal proceeding. There seems no justification to allow the commencement of trial against the accused-petitioners for the alleged offences, elements of which are not available on record, and if available, reference of the same should be made in the order but the same is not reflecting from the order impugned.

7. In some cases where commission of crime is alleged, there is a dispute of civil nature in reality and in order to mount pressure on the opposite party, proceedings in the guise of a criminal case (Downloaded on 26/12/2022 at 08:14:07 PM) (6 of 17) [CRLR-1356/2022] are initiated without there actually being any components of the alleged offences present on record.

8. Before beginning with the discussion on Sections 467, 468 and 471, it is necessary to have a look at the definition of 'forgery' provided under Section 463. The elements of forgery as stipulated in Section 463 are:

i) making of a false document or part of it or making of a false electronic record or part of it;

ii) such making of document or record is done with the intention to:

a) cause damage to public/ injury to any person

b) to support any claim or title

c) to cause nay person to part with property

d) to enter into any express/implied contract

iii) or such making of document is done with the intent to commit fraud or that fraud may be committed.

9. Similarly, the meaning of the phrase 'making of a false document' as used in Section 463 has also been expounded in Section 464 which is as follows:

464. Making a false document.--A person is said to make a false documentor false electronic record ---

First--Who dishonestly or fraudulently -

(a) makes, signs, seals or executes a document or part of a document;

(b) makes or transmits any electronic record or part of any electronic record;

(c) affixes any digital signature on any electronic record;

(d) makes any mark denoting the execution of a document or the authenticity of the electronic signature, with the intention of causing it to be believed that such document or a part of document, electronic record or digital signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person (Downloaded on 26/12/2022 at 08:14:07 PM) (7 of 17) [CRLR-1356/2022] by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly--Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with digital signature either by himself or by any other person, whether such person be living or dead at the time of such alternation; or Thirdly--Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his digital signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration.

10. It is manifested from a plain reading of the afore-mentioned sections that for the purpose of imposing punishment for offences under Sections 467, 468 and 471 of IPC, the condition required to be fulfilled is commission of forgery and the condition requisite for commission of forgery is making of a false document. It cannot be understood from the material available on record as to which facts or circumstances pertain to any act that can fall under the definition of forgery and making of a false document as discussed above. Thus, it cannot be inferred that a prima facie case under Sections 467, 468 and 471 IPC is made out against the accused from the record and documents placed on record and from the perusal of the order impugned.

11. Moving on to the provision of Section 420 IPC that pertains to the offence of cheating and dishonestly inducing delivery of property, it is pertinent to note the essential ingredients of cheating. A dishonest intention is required with which any person deceives the other person and induces him/her/them to deliver any property to any person or induces the said person to make, (Downloaded on 26/12/2022 at 08:14:08 PM) (8 of 17) [CRLR-1356/2022] alter or destroy the whole or any part of a valuable security. It can also be anything which is signed or sealed and which is capable of conversion into a valuable security. The ingredients of cheating have been elaborately discussed in Md. Ibrahim and Ors. Vs. State of Bihar and Ors. reported in (2009) 8 SCC 751. The relevant portion of the afore-said judgment has been reproduced below:

"13. Let us now examine whether the ingredients of an offence of cheating are made out. The essential ingredients of the offence of "cheating" are as follows: (i) deception of a person either by making a false or misleading representation or by dishonest concealment or by any other act or omission; (ii) fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) such act or omission causing or is likely to cause damage or harm to that person in body, mind, reputation or property. To constitute an offence under Section 420, there should not only be cheating, but as a consequence of such cheating, the accused should have dishonestly induced the person deceived (i) to deliver any property to any person, or (ii) to make, alter or destroy wholly or in part a valuable security (or anything signed or sealed and which is capable of being converted into a valuable security)."

It cannot be said from the scrutiny of the documents available on record that there are ingredients of cheating present in the present factual matrix of the case. If the material is available on record, then the reference of the same must be reflected in order impugned.

12. The charges are proposed to be framed on the relevant material available on record. It is not to be seen that whether the evidence produced on record is sufficient to record conviction or not, thus, probative value of defence is not required to be seen (Downloaded on 26/12/2022 at 08:14:08 PM) (9 of 17) [CRLR-1356/2022] but at the very least, application of mind to see the sufficiency of material on record is required so as to put the accused to face the rigour of trial. Neither the evidence is required to be discussed in detail nor is the same required to be appreciated.

13. The stage of framing of charge is a very significant step in a criminal case and it is the duty of the court to frame a charge against the accused in accordance with the statutory terms stipulated in Section 228 of CrPC. Section 227 of the Code provides that if it is the consideration of the judge, post careful weighing of the record of the case and the documents submitted therewith and after hearing the submissions of the prosecution as well as the accused on this count, that there is lack of adequacy in the grounds on the basis of which the proceedings can move forward against the accused, then the judge shall discharge the accused and record his reasons for said discharge.

14. The provision under Section 228 begins with the phrase 'after such consideration and hearing as aforesaid' which means that similar to the consideration and hearing done before discharging an accused under Section 227, before framing a charge as well, the judge is required to hear the contentions proffered by both the sides as well as consider the record of the case as well as the documents submitted therewith. It is further laid down under Section 228 that after such consideration and hearing, if the judge has formed an opinion that there is ground for 'presuming' that the accused has committed an offence, then the judge shall frame the charge. The judge shall frame the (Downloaded on 26/12/2022 at 08:14:08 PM) (10 of 17) [CRLR-1356/2022] charge in writing if the offence is exclusively triable by Court of Session and if the case is not exclusively triable by Court of Session, then the judge may frame the charge and order the transfer of the case for trial to the appropriate Magisterial Court.

15. Another mandatory requirement as per Section 228 is that if the judge framed the charge for offence exclusively triable by him/ her/them, then the charge shall not just be read but explained to the accused and the accused shall be questioned whether he pleads guilty or claims to be tried. Thus, the language of the aforesaid provisions makes it luculent that the step of framing of charge is a vital role to be played by the judge after due application of mind and not just a mere solemnity to be done on behalf of a Sessions judge as he is not supposed to be a simpleton onlooker. The intention of the legislature is also evident in the words that it has chosen to use purposefully. For instance, the word 'presuming' used in Section 228 has not just been strewn randomly but it conveys a specific meaning as it is a well- entrenched rule of statutory interpretation that there is an objective attributable to employing the use of any word or phrase in the language of a statute.

16. Framing of charge is a determinative action taken by the judge as subject to the decision of framing of the charge against an accused or discharging an accused of the charges leveled against him, two outcomes are generated; either the prosecution (State or complainant) gets a point to moot, i.e. to challenge the order of discharge or the accused is made to face the trial. If the (Downloaded on 26/12/2022 at 08:14:08 PM) (11 of 17) [CRLR-1356/2022] charges are framed without there being even a scruple of the ingredients or circumstances required to constitute an offence under the Sections alleged against the accused, then the accused is made to face the rigour of the trial which may prove to be deleterious to him as he may finally be acquitted of the charges so framed against him. The word 'presuming' must be read ejusdem generis to the opinion of a judge that there is a ground; the ground to form the opinion on the basis of the record of the case and the documents submitted therewith that an individual has committed an offence and thus, he shall be accused with the charge under that offence. To a slight extent, if a plea of defence is raised that the criminal proceedings are barred by any other statutory provision, then it needs to be considered and a provisional opinion needs to formed. Thus, it can safely be inferred that the process of framing of charge is an exercise that requires solemn consideration on the point of forming a tentative opinion whether there are ingredients and facts which are enough to constitute the offence for which charge is being framed against the accused or not.

17. It is needless to state that it is not expected from the court to form an opinion regarding the guilt of the accused at the stage of framing of charge. It is imperative to consider the evidence presented by the prosecution at this stage as presumption is a feeble phenomenon which would cover in its orbit, cases where there is insufficiency of evidence or some lacuna which can be thought of getting covered during the course of trial. At the step of charge-framing, it is not of the essence to be thorough with the (Downloaded on 26/12/2022 at 08:14:08 PM) (12 of 17) [CRLR-1356/2022] examination of evidence or material available on record or hearing of the arguments to the extent that there should be detailed, lexical deliberation of each of the ingredients of the offence supported by precise facts. It is sufficient if there is substantial conformity to the statutory stipulations of the relevant Sections for which charge is being framed.

18. What a marrow is to the bones, charge is to the procedure of a criminal proceeding. The metaphoric use of the word 'marrow' is apt to denote that a charge, if framed against an accused, it is a formal accusation which sets the statutory stage for the offences that the accused will be prosecuted for and he would have to defend during the trial.

19. In addition to the germination of a right of the accused to have the charges framed against him after consideration of the material available on record and hearing the arguments of the parties, there is a fundamental right of the accused to life and personal liberty which is threatened if charges are framed without due application of mind and a certain required amount of consideration, thus, legitimate reasons have to be assigned before compelling an individual to face the trial. The word required has been deliberately used herein above to express due caution that the intent of law as well as this Court is not to imply that a mini trial be conducted at the stage of framing of charge. It is obvious that at the step, where charge is being framed, the court is not supposed to delve so deep into the matter so as to propel conduct of a full-fledged trial. A balance needs to be struck (Downloaded on 26/12/2022 at 08:14:08 PM) (13 of 17) [CRLR-1356/2022] between framing charge without non-application of mind or due consideration and conducting a miniature trial before the actual one. If the matter is examined in too much detail or with excessive precision, exercised without there being any need for the same at the stage of charge-framing, then it will defeat the purpose of having a trial. There should not be a roving inquiry though existence of ingredients sufficient enough to draw a presumption in favour of commission of crime is required.

20. While discussing the concept of charge, the judgment delivered by Hon'ble the Supreme Court in State of Orissa Vs. Debendra Nath Padhi, reported in AIR 2005 SC 359 cannot go undiscussed. In this judgment, a Division Bench of three judges overruled Satish Mehra Vs. Delhi Administration and Anr. [(1996) 9 SCC 766] and it was held that the accused does not have a right to produce any material or document in evidence to prove his defence at the stage of framing of charge and the same is granted only at the stage of trial. It was also opined that the submissions of the accused made on the record of the case are considered only with respect to the evidence and documents submitted therewith by the prosecution. In addition, it was observed that there cannot be two trials; one prior to framing of charge and one pursuant to framing of charge. In Satish Mehra (supra), it was held, contrary to Padhi (supra), that if the accused is able to produce clinching and unimpeachable evidence that can prove to be fatal to the very survival of the case of the prosecution at the stage of framing of charge, then it would be unjust and unfair to not look into it before passing the order of (Downloaded on 26/12/2022 at 08:14:08 PM) (14 of 17) [CRLR-1356/2022] framing of charge. It was further observed that the time of the court is also saved by considering such evidence of sterling worth at the stage of framing of charge as the trial court is able to decide whether to proceed further and frame the charge and continue with the trial or discharge the accused on the basis of incontrovertible evidence shaking the very foundation on the basis of which the case of the prosecution stands. This court is not concerned with the observation regarding admissibility of evidence produced by accused at the stage of charge-framing in the present matter but the two afore-mentioned judicial pronouncements of the Apex Court are imperative in establishing the fact that it is indeed vital to consider the evidence and documents available on record supplied by the prosecution as well as the arguments advanced by the counsel appearing for the parties, that is, it is vital to apply one's mind to the extent of finding substantial evidence to support framing of charge of offences alleged against an accused.

21. A strong suspicion in certain cases with regard to presence of ingredients required to compose commission of an offence is enough; finding of infallible or fool-proof evidence to constitute an offence is suggested neither by the spirit nor by the letter of law.

22. In Union of India (UOI) vs. Prafulla Kumar Samal and Ors., reported in (1979) 3 SCC 4, Hon'ble the Supreme Court propounded certain principles on the subject of charge. The relevant paragraph of the afore-said judgment is as follows: (Downloaded on 26/12/2022 at 08:14:08 PM)

(15 of 17) [CRLR-1356/2022] "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 largo 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 Judge 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."

23. The Apex Court has supplied authority to this legal premise through a plethora of judgments. The recent imprimatur of Hon'ble the Supreme Court of the aforesaid aspect can be found in Ghulam Hassan Beigh Vs. Mohammad Maqbool Magrey & Ors. [Criminal Appeal No. 1041 of 2022 (Arising out of S.L.P. (Criminal) No. 4599 of 2021)], wherein Hon'ble the Apex Court has held that as the trial court only considered the medical evidence on record, more particularly only the post-mortem report of the deceased, for the purpose of framing of charge against the accused and not the entire evidence, thus, the trial court was not correct in its approach and the matter was remanded back. It was further held that a mere endorsement of the charge sheet submitted by the investigating agency without applying its mind or (Downloaded on 26/12/2022 at 08:14:08 PM) (16 of 17) [CRLR-1356/2022] recording any reasons in support of its opinion is non-fulfillment of its duty by the trial court and the same is not countenanced by law.

24. This Court is of the opinion that the phrase 'formal application of mind' has a wide meaning which is to be construed parallel to the stage at which the trial is going on at the moment. For instance, 'formal application of mind' at the stage of trial would include to see, to observe, to ponder, to appreciate the material available on record minutely, with a fine-tooth comb, consider the arguments advanced before the dias and then reach on a legitimate conclusion. 'Formal application of mind' at the stage of taking cognizance of an offence would be limited to the purpose of proceeding further in the matter; 'formal application of mind' at the stage of framing of charge would include dealing with those things in the order, which are at the very least, necessary to constitute the offence alleged. There needs to be a presumption with regard to sufficient grounds for want of frame of charge and not the sufficiency of evidence for the purpose of recording conviction.

25. The charges are proposed to be framed on the relevant material available on record. It is not to be seen that whether the evidence produced on record is sufficient to record conviction or not, thus, probative value of defence is not required to be seen but at the very least, application of mind to see the sufficiency of material on record is required so as to put the accused to face the rigour of trial. Neither the evidence is required to be discussed in (Downloaded on 26/12/2022 at 08:14:08 PM) (17 of 17) [CRLR-1356/2022] detail nor is the same required to be appreciated. In view of the point of law discussed above, this Court is of the firm opinion that the matter is required to be remanded back to the learned trial court for apt consideration of the material brought by the prosecution.

26. Accordingly, all the four petitions being S.B. Criminal Revision Petition bearing No. 1356/2022, 1096/2022, 1097/2022 and 1155/2022 succeed and the same are allowed. The impugned order dated 03.08.2022 passed by the learned Special Judge (Prevention of Corruption Act), No.2 Udaipur in Sessions Case No.194/2019 is hereby quashed and set aside. The matter is remanded back to the learned trial Court with the direction to pass an appropriate order strictly in accordance with the mandate of law envisaged under Sections 227 & 228 of the CrPC which must be a speaking order, without being influenced by the earlier order passed by it and the order passed by this Court herein.

It is to be made clear, in unambiguous terms, that the observations made herein above shall not influence the trial judge in any manner whatsoever so as to adversely affect the rights of either of the parties.

The misc petitions are disposed of. Stay petitions are also disposed of.

(FARJAND ALI),J 23-Anshul/-

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Rajasthan High Court - Jodhpur