Allahabad High Court
Vinay Kumar Singh vs State Of U.P. And Another on 10 October, 2023
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on: 03.10.2023
Delivered on: 10.10.2023
Neutral Citation No. - 2023:AHC:194569
Court No. - 78
Case :- APPLICATION U/S 482 No. - 27469 of 2023
Applicant :- Vinay Kumar Singh
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Suraj Kumar Singh,Amit Kumar Srivastava
Counsel for Opposite Party :- G.A.
Hon'ble Raj Beer Singh,J.
1. Heard learned counsel for the applicant and learned A.G.A. for the State and perused the record.
2. This application under Section 482 CrPC has been filed for quashing of proceedings, including the order dated 03.04.2023 and order dated 16.06.2023, passed by the learned Special Judge (Prevention of Corruption Act)/Additional District and Session Judge, Court No. 2, Varanasi in Special Session Trial No. 26 of 2013 (State Vs. Vinay Kumar Singh), under Section 419, 420, 409 I.P.C. and Section 13(2) Prevention of Corruption Act, Police Station-Lalganj, District-Mirzapur. By impugned order dated 03.04.2023, the application filed by the applicant under Section 239 CrPC for discharge has been rejected and consequently the impugned charges dated 16.06.2023 were framed against the applicant.
3. Learned counsel for the applicant submitted that the applicant/accused is innocent and he has been falsely implicated in this case. Referring to facts of the matter, it was submitted that there is no credible evidence against the applicant. Earlier, discharge application of applicant/accused was rejected by the trial court vide order dated 01.02.2019. The applicant has challenged that order by filing Criminal Revision No. 841/2019, which was decided by this Court vide order dated 26.02.2019, whereby the order dated 01.02.2019, passed by the trial court, was set aside and the competent authority was directed to pass fresh order of sanction of prosecution, if required, of the revisionist in accordance with law and thereafter, trial shall proceed against the revisionist if the sanction is granted.
4. Learned counsel submitted that after the above stated order, the sanction for prosecution of the applicant accorded vide order dated 04.11.2020, passed by the competent authority, is invalid and against law. Referring to the order of sanction, it has been pointed out that the sanction has been accorded in pursuance to the order dated 02.11.2019, passed by the trial court, whereby, the prosecution agency was directed to get the prosecution sanction. Learned counsel submitted that the grant of sanction in compliance of the said order of the trial court, is wholly against the law. The court cannot direct that the sanction has to be granted or refused. Further, the impugned sanction clearly indicates that it has been granted in a routine manner without application of any judicial mind. The alleged sanction was granted by merely referring the averments of the first information report and no specific evidence was shown against the applicant in the said sanction order. It was also pointed out that in the charges framed against the applicant, he has been referred as truck driver, whereas, he was working as In-charge of godown and this fact further goes to show that sanction has been granted without application of judicial mind. Learned counsel has placed reliance upon the cases of Central Bureau of Investigation Vs. Ashok Kumar Aggarwal (2014) 14 Supreme Court Cases 295 and Mansukhlal Vithaldas Chauhan Vs. State of Gujarat (1997) 7 Supreme Court Cases 622 and submitted that in view of aforesaid facts and law, the impugned sanction is against law and thus the impugned order by which the discharge application of applicant has been rejected, is liable to be set aside and the applicant deserves to be discharged.
5. Learned A.G.A. has opposed the application and submitted that there is no illegality or perversity in the impugned order passed by the trial court. It was submitted that sanction has been accorded in accordance with law and there is no illegality or perversity in the impugned orders and the present application is liable to be dismissed.
6. I have considered the rival submissions and perused the record.
7. Provisions of section 239 CrPC provide that a direction for discharge can be made only for reasons to be recorded by the court where it considers the charge against the accused to be groundless. 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 offences alleged would justify the framing of charge against the accused in respect of that offence, and it is only in a case where the Magistrate considers the charge to be groundless, he is to discharge the accused after recording his reasons for doing so.
8. Recently in case of State By Deputy Superintendent Of Police Vs R. Soundirarasu Etc. (criminal appeal No. 1452-1453 of 2022, decided on 5 September, 2022), it was observed by the Apex Court that Section 239 envisages a careful and objective consideration of the question whether the charge against the accused is groundless or whether there is ground for presuming that he has committed an offence. What Section 239 Cr.P.C. prescribes is not, therefore, an empty or routine formality. It is a valuable provision to the advantage of the accused, and its breach is not permissible under the law. But if the Judge, upon considering the record, including the examination, if any, and the hearing, is of the opinion that there is "ground for presuming" that the accused has committed the offence triable under the chapter of XIX Cr.P.C., he is required by Section 240 Cr.P.C. to frame in writing a charge against the accused. The order for the framing of the charge is also not an empty or routine formality. It is of a far-reaching nature, and it amounts to a decision that the accused is not entitled to discharge under Section 239 Cr.P.C., that there is, on the other hand, ground for presuming that he has committed an offence triable under Chapter XIX Cr.P.C. and that he should be called upon to plead guilty to it and be convicted and sentenced on that plea, or face the trial.
9. In Superintendent and Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja, AIR 1980 SC 52, the Court held that at this stage, even a very strong suspicion found upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, may justify the framing of charges against the accused in respect of the commission of that offence. However, the suspicion referred to by this Court must be founded upon the materials placed before the Magistrate which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged. The real test for determining whether the charge should be considered groundless under Section 239 of the CrPC is that whether the materials are such that even if unrebutted make out no case whatsoever, the accused should be discharged under Section 239 of the CrPC. The trial court will have to consider, whether the materials relied upon by the prosecution against the applicant herein for the purpose of framing of the charge, if unrebutted, make out any case at all.
10. In the case of State by Karnataka Lokayukta, Police Station, Bengaluru v. M.R. Hiremath, (2019) 7 SCC 515, the Court held in paragraph 25 as under:-
"25. The High Court ought to have been cognizant of the fact that the trial court was dealing with an application for discharge under the provisions of Section 239 CrPC. The parameters which govern the exercise of this jurisdiction have found expression in several decisions of this Court. It is a settled principle of law that at the stage of considering an application for discharge the court must proceed on the assumption that the material which has been brought on the record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary to constitute the offence."
In State of T.N. v. N. Suresh Rajan [State of T.N. v. N. Suresh Rajan, (2014) 11 SCC 709, adverting to the earlier decisions on the subject, this Court held: (SCC pp. 721-22, para 29) "29. ... At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the law does not permit a mini trial at this stage."
11. The ambit and scope of exercise of power under Sections 239 and 240 of the CrPC, are therefore fairly well settled. The obligation to discharge the accused under Section 239 Cr.P.C. arises when the Magistrate considers the charge against the accused to be "groundless". The Section mandates that the Magistrate shall discharge the accused recording reasons, if after (i) considering the police report and the documents sent with it under Section 173, (ii) examining the accused, if necessary, and (iii) giving the prosecution and the accused an opportunity of being heard, he considers the charge against the accused to be groundless, i.e., either there is no legal evidence or that the facts are such that no offence is made out at all. No detailed evaluation of the materials or meticulous consideration of the possible defences need be undertaken at this stage nor any exercise of weighing materials in golden scales is to be undertaken at this stage and the only consideration at the stage of Section 239/240 Cr.P.C. is as to whether the allegation/charge is groundless. This would not be the stage for weighing the pros and cons of all the implications of the materials, nor for sifting the materials placed by the prosecution- the exercise at this stage is to be confined to considering the police report and the documents to decide whether the allegations against the accused can be said to be "groundless".
12. Keeping in view the aforesaid position of law, in the instant case it may be seen that by impugned order dated 03.04.2023, the discharge application filed by the applicant under Section 239 CrPC has been rejected by the trial court. The main contention of learned counsel for the applicant in this connection is that the order of sanction of prosecution of applicant, passed by the competent authority, is invalid and against law. Earlier, the sanction order granted by the competent authority was set aside by this Court and the competent authority was directed to pass fresh order on sanction of prosecution and thereafter, the trial court has also directed for grant of sanction and thus, the sanction of prosecution is invalid and that the sanction was passed in a routine manner without perusing the material and without application of mind. Learned counsel has referred case of CBI Vs. Ashok Kumar Aggarwal (supra), wherein, the Hon'ble Apex Court has dealt with the issue of grant and validity of sanction. In para Nos. 13, 14 and 15 of the said judgement, Hon'ble Apex Court held as under:
"13. The prosecution has to satisfy the court that at the time of sending the matter for grant of sanction by the competent authority, adequate material for such grant was made available to the said authority. This may also be evident from the sanction order, in case it is extremely comprehensive, as all the facts and circumstances of the case may be spelt out in the sanction order. However, in every individual case, the court has to find out whether there has been an application of mind on the part of the sanctioning authority concerned on the material placed before it. It is so necessary for the reason that there is an obligation on the sanctioning authority to discharge its duty to give or withhold sanction only after having full knowledge of the material facts of the case. Grant of sanction is not a mere formality. Therefore, the provisions in regard to the sanction must be observed with complete strictness keeping in mind the public interest and the protection available to the accused against whom the sanction is sought.
14. It is to be kept in mind that sanction lifts the bar for prosecution. Therefore, it is not an acrimonious exercise but a solemn and sacrosanct act which affords protection to the government servant against frivolous prosecution. Further, it is a weapon to discourage vexatious prosecution and is a safeguard for the innocent, though not a shield for the guilty.
15. Consideration of the material implies application of mind. Therefore, the order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. In every individual case, the prosecution has to establish and satisfy the court by leading evidence that those facts were placed before the sanctioning authority and the authority had applied its mind on the same. If the sanction order on its face indicates that all relevant material i.e. FIR, disclosure statements, recovery memos, draft charge sheet and other materials on record were placed before the sanctioning authority and if it is further discernible from the recital of the sanction order that the sanctioning authority perused all the material, an inference may be drawn that the sanction had been granted in accordance with law. This becomes necessary in case the court is to examine the validity of the order of sanction inter-alia on the ground that the order suffers from the vice of total non-application of mind. (Vide: Gokulchand Dwarkadas Morarka v. King, AlR 1949 PC 82; Jaswant Singh v. State of Punjab, AIR 1958 SC 124; Mohd. Iqbal Ahmed v. State of A.P., AIR 1979 SC 677; State through Anti- Corruption Bureau, Govt. of Maharashtra v. Krishanchand Khushalchand Jagtiani, AIR 1996 SC 1910; State of Punjab v. Mohd. Iqbal Bhatti, (2009) 17 SCC 92; Satyavir Singh Rathi, ACP v. State, AIR 2011 SC 1748; and State of Maharashtra v. Mahesh G. Jain, (2013) 8 SCC 119)."
13. In case of Mansukhlal Vithaldas Chauhan Vs. State of Gujarat (supra), after making reference to some earlier cases, Hon'ble Apex Court held as under:
"19. Since the validity of "Sanction" depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows, that the sanctioning authority has to apply its own independent mind for the generation of genuie satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon it to take decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction, the order will be had for the reason that the discretion of the authority "not to sanction" was taken away and it was compelled to act mechanically to sanction the prosecution."
14. From the above referred case laws, it is apparent that while according sanction for prosecution, it is necessary that sanctioning authority must apply its own independent mind to arrive at the satisfaction whether prosecution has to be sanctioned or not. The discretion to grant or not to grant sanction vests absolutely in the sanctioning authority and its discretion should not have been affected by any extraneous consideration. If the sanctioning authority was unable to apply its independent mind, the order of sanction will be bad in law. Grant of sanction is not a mere formality and the provisions, in regard to sanction, must be observed with complete strictness, keeping in mind the public interest and the protection available to the accused against whom the sanction is sought. Consideration of matter implies application of mind and therefore, the order of sanction must ex facie disclose that the sanctioning authority has considered the evidence and material placed before it. The prosecution has to establish and satisfy the court by leading evidence that those were placed before the sanctioning authority and the authority had applied its mind on the same.
15. Keeping in view the aforesaid legal position, in the instant matter, it may be seen that while deciding the criminal revision filed by the applicant/accused against the rejection of discharge application, this Court has set aside the order passed by the trial court, by which discharge application was rejected, and the competent authority was directed by this Court to pass fresh order of sanction of prosecution, if required, in accordance with law. It appears that by order dated 02.11.2019, the trial court has also directed the investigating agency to obtain the prosecution sanction in accordance with rules. Thereafter, impugned sanction order dated 04.11.2020 was passed. It is apparent that the competent authority, while granting the sanction, has taken into consideration the order dated 26.02.2019 passed by this Court. The trial court has merely directed the investigating agency to obtain the sanction in accordance with rules. No direction was issued by the trial court to the competent authority to grant or to refuse the sanction. Considering the facts of the matter and nature of accusations, the trial court did not exceed its jurisdiction by merely asking the investigating agency to obtain sanction as per rules. Further, the sanction order does not reflect that while granting sanction, its discretion has been affected in any manner by the observations of the trial court. On perusal of order of sanction, it is apparent that the sanctioning authority has considered the relevant facts and material placed before it and applied its mind, while according the sanction for prosecution of applicant.
16. In view of aforesaid facts, it cannot be said that the grant of sanction for prosecution of applicant is suffering from any material illegality or perversity or non-application of mind. The sanction order in question fulfils the criteria and guidelines laid down in cases of CBI Vs. Ashok Kumar Aggarwal (supra) and Mansukhlal Vithaldas Chauhan Vs. State of Gujarat (supra), which have been relied upon by the learned counsel for the applicant. It is apparent from the perusal of sanction order that the sanctioning authority has considered the material pertaining to the case and applied its mind and was satisfied that a case for prosecution of applicant- Vinay Kumar Singh, the then Office Assistant, Grade-II / In-charge of godown, under Sections 409, 419, 420 IPC and Section 13(2) P. C. Act and for violation of Uttar Pradesh Foodgrains Procurement and Regulation of Trade Order, 1982, is made out and accordingly, the sanction was granted.
17. Perusal of record shows that while deciding the discharge application filed by the applicant, the trial court has considered all the relevant facts and material on record and the discharge application was rejected. So far, this contention is concerned that in the charge framed against the applicant, the applicant was mentioned as truck driver, it may be observed that in the impugned order dated 03.04.2023, by which the discharge application of the applicant has been rejected, it has clearly been mentioned by the trial court that at the relevant time, applicant was working as In-charge of the go-down of U.P. State Agro Industrial Corporation Limited, Rateha Chauraha, Mirzapur thus, said error can not termed as a substantial factor. Thus, merely because in the charges framed against the applicant, before the name of applicant, word "driver" has erupted, it cannot be said that the impugned order, by which the discharge application of applicant was rejected, is suffering from material illegality or perversity. As stated earlier, in the impugned order, by which the discharge application of the applicant has been rejected, the applicant has been correctly described as In-charge of the Go-down in question and thus, mere clerical error in charges framed against the applicant, is of no consequence.
18. It is apparent from perusal of impugned order dated 03.04.2023 that the trial court has considered the entire material and found that a prima facie case is made out against the applicant under Section 409, 419, 420 IPC and Section 13(2) Prevention of Corruption Act and the discharge application under Section 239 CrPC was rejected. In consequence of the said order, charges have been framed against the applicant on 16.06.2023 and once the order dated 03.04.2023 is being upheld, charges framed on 16.06.2023 are also liable to be upheld.
19. In view of aforesaid, it is apparent that the instant application under Section 482 CrPC has no substance and thus, liable to be dismissed.
20. The application under Section 482 CrPC is dismissed.
Order Date :-10.10.2023 Suraj