Allahabad High Court
Om Prakash Jaiswal & Anr. vs State Of U.P. & Anr. on 31 August, 2021
Equivalent citations: AIRONLINE 2021 ALL 2612
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 28 Case :- U/S 482/378/407 No. - 8150 of 2019 Applicant :- Om Prakash Jaiswal & Anr. Opposite Party :- State Of U.P. & Anr. Counsel for Applicant :- Pramod Kumar Shukla,Ashish Kumar Mishra,Rohit Kumar Singh Counsel for Opposite Party :- G.A.,A.S.G.,Anurag Kumar Singh & Case :- Criminal Revision No. - 1593 of 2019 Revisionist :- Satyendra Narayan Soni Opposite Party :- State Of U.P. & Anr. Counsel for Revisionist :- Prunendu Charvarty Counsel for Opposite Party :- G.A.,A.S.G.,Anurag Kumar Singh Hon'ble Mohd. Faiz Alam Khan,J.
Applicants- Om Prakash Jaiswal and M/s Shankar Cable Industries through its Proprietor Om Prakash Jaiswal has moved application under Section 482 Cr.P.C. No. 8150 of 2019 and revisionist Satyendra Narayan Soni has preferred Criminal Revision No. 1593 of 2019 with the prayer to quash the order dated 27.09.2019 passed by learned Special Judge Anti-Corruption C.B.I., (West), Lucknow in Criminal Case No. 400 / 2016, pertaining to FIR No. R.C. 0062014 A000027 dated 29.8.2014, Case No.1/2016, under Sections 120-B, 420 IPC and Section 13(2) read with 13(1)(d) P.C. Act, 1988, whereby the application for discharge of the applicants and revisionist has been rejected by the Special Judge by passing common order dated 27.09.2019, as well as to quash the entire proceedings of the instant case .
As the aforementioned application under Section 482 Cr.P.C. No. 8150 of 2019 and Criminal Revision No. 1593 of 2019 have been preferred against the same order dated 27.9.2019 passed by the Special Judge Anti corruption C.B.I., whereby the discharge application of the applicants no.1 and 2 of petition under Section 482 Cr.P.C. No. 8150 of 2019 and revisionist in Criminal Revision No. 1593 of 2019 have been rejected by passing common order dated 27.9.2019, for convenience and to avoid repetition of facts, law and discussion both cases i.e. petition under Section 482 Cr.P.C. No. 8150 of 2019 and Criminal Revision No. 1593 of 2019 are being disposed of by passing this common order.
In the judgment, now onwards applicants/ petitioners of 482 Cr.P.C. No. 8150 of 2019 will be called applicants and revisionist of Criminal Revision No. 1593 of 2019 will be called as revisionist.
Heard Shri Jyotindra Mishra, learned Senior Advocate assisted by Shri Pramod Kumar Shukla, learned counsel for the applicants in petition under Section 482 Cr.P.C. No. 8150 of 2019 and Shri Purnendu Chakarvarty in Crl. Revision No. 1593 of 2019 and Shri Anurag Kumar Singh, learned counsel appearing for C.B.I. as well as perused the record.
Learned Senior advocate submits that mere availability of some other remedy in the Code of Criminal Procedure will not circumcise the powers of this Court in entertaining an application under Section 482 Cr.P.C. when the abuse of the process of the Court is apparent on the face of record. Learned counsel in support of his submissions has relied on Sajjan Kumar Vs. Central Bureau of Investigation (2010)3 SCC (Cri) 1371 .
Learned Senior Advocate appearing for the applicants as well as Shri Purnendu Chakarvarty, learned counsel for the revisionist, while referring to the order dated 27.9.2019 passed by the Special Judge submits that the special court has not considered the submissions and grounds taken in discharge application by the applicants and revisionist in right perspective and without adverting to the material and evidence available on record has rejected the discharge application of the applicants and revisionist.
It is also submitted by them that the applicants in respect of a purchase order had supplied 65 Drums of of 2 Core PVC Insulated Railway Signaling power cable and the supply was made only after the inspection of officer of RDSO, Lucknow.
It is further submitted by Shri Jyotindra Mishra Ld. Senior Advocate and Shri Purenendu Chakarvarty that before the supply was made the cables were thoroughly inspected and after receiving the inspection certificate were dispatched on 18.1.2013 and 19.1.2013 and on 15.10.2013 a team of CBI Officers, Railway Vigilance and RDSO Officials alleged to have conducted a search operation and allegedly collected the samples of some cables supplied by the applicants, and other firm in their absence and got them tested in the lab of RDSO, Lucknow, which were allegedly failed in some parameters.
Highlighting the above factual matrix it is vehemently submitted by them that there are certain guidelines issued in the manual of signal engineering which provides the terms of storage and transportation of the cables by the Indian Railways but the cable supplied by the applicant firm was transported and kept against the guidelines issued in this regard and there is possibility that due to these reasons the quality of cables may be deteriorated by the efflux of time.
It is also submitted by them that the trial court had not taken care of this aspect of the matter that the cables supplied by the applicants were stored in open sky for 9 months and therefore the same has been deteriorated due to wear and tear caused by the weather.
It is also submitted by them that no complaint of any kind has ever been raised by the railways with regard to the alleged inferior quality of the cable supplied by the applicants and the whole quantity of cable supplied by the applicants has been consumed by them, therefore by any stretch of imagination it could not be said that the cable supplied by the applicants was of inferior quality.
It is further submitted by them that the equipments which were used for testing of the cables prior to it supply to the railways by the RDSO officials for pre supply inspection were of the applicants and the testing of samples alleged to have been conducted by the CBI in the lab of RDSO, Lucknow and therefore minor differences in the parameters are bound to take place in the testing result values and the same could not attract criminal consequences.
It is also submitted by them that experts who were given the charge of evaluating the quality of the cable supplied by the applicants were not qualified enough to assess the defect and the parameters which have been mentioned in the charge sheet filed by the Central Bureau of Investigation are such which in any case could not attract any criminal liability.
It is further submitted by them that after the supply of the cable no communication with regard to the alleged inferior quality of the cable was ever made by the railways and the other suppliers who supplied the inferior quality of the cables and whose cables were also failed in the test have not been prosecuted and it is only the applicants who have been targeted.
It is further submitted by them that RTI answers procured by the revisionist placed at page 367 and 375 of the paper book of the criminal Revision No. 1593 of 2019 would reveal that it is admitted to the railways that all the cables supplied by Ms/ Shankar Cable Industries( applicants) have been consumed by the railways in different projects.
Learned Senior Counsel for the applicants as well as learned counsel for revisionist has relied on following case laws:-
(I) State of Rajasthan Vs. Fatehkaran Mehdu (2017)3 Supreme Court Cases 198.
(II) Sajjan Kumar Vs. Central Bureau of Investigation (2010)3 SCC (Cri) 1371.
(III) Sanjay Kumar Rai Vs. State of U.P. and another, Criminal Appeal No. 472 of 2021 dated 7.5.2021 passed by Hon?ble Supreme Court.
Shri Anurag Kumar Singh Learned counsel for Central Bureau of Investigation submits that the submissions of learned Senior Counsel appearing for the applicants and learned counsel appearing for revisionist are against the factual position of the case and the cable which was supplied by the applicants has been found to be of inferior quality in the testing done at RDSO Lab and the experts were also of the opinion that the inferior quality of the cable could not be a result of in adequate storage or due to the cable stored in an open place.
It is also submitted that the samples of the cables were taken in the presence of the RDSO Officers and railway vigilance officials and as the cable supplied by the applicants has been found to be of inferior quality and has failed in vital parameters, thus the first information report was lodged against the applicants/Revisionist and during the course of investigation it is revealed that on 11.1.2013 and 12.1.10213 the two core cable supplied by the applicants was tested by revisionist Shri S.N. Soni, J.E. R.D.S.O. and the check test was performed by Shri Silas Minz, the then Deputy Director, RDSO, on 13.1.2013 at the premises of applicants at Gorakhpur. However, it is revealed that revisionist Shri S.N. Soni who alleged to have conducted the test on 13.1.2013 did not get his tour program approved and has not booked any ticket for that purpose. Similarly Shri Silas Minz also did not get his tour programme approved and has also not claimed any T.A. nor had booked any ticket, which shows that both these officers had in fact had not gone to Gorakhpur for the purpose of pre-inspection of the cables and as per the report of the experts there is huge difference in the quality of the cable (two core) assessed before and after the supply and this deterioration could not be the result of improper storage or due to wear and tear. The experts have also doubted the pre-supply inspection report and the Investigating Officer has found that in furtherance of a conspiracy, by supplying inferior quality cable to the railways the applicants have caused heavy monetary loss to the railways and the same has been done in connivance with the above mentioned officers of the R.D.S.O., Lucknow and thus no illegality has been committed by the Special Judge while rejecting the applications of the revisionist and applicants as there was sufficient material available for the purpose of framing charge against the applicants and revisionist.
Learned counsel for the CBI has relied on the following case laws:-
(I) Rakesh Bhajan Lal and others Vs. State of U.P. and another 2009 SCC OnLine All 1759.
(II) Sanghi Brothers (Indore) Private Limited Vs. Sanjay Choudhary and others (2008)10 Supreme Court Cases 681.
(III) Akbar Hussain Vs. State of Jammu and Kashmir and another (2018) 16 Supreme Court Cases 85.
(IV) Raman Bhuraria vs. CBI (2016)92 ACC page 253.
(V) Tulsi Ram ETC vs. State of U.P. AIR 1963 Supreme Court page no. 666.
(VI) Criminal Revision No. 98/15, Dated 20.2.2015 Having heard learned counsel for the parties and having perused the record, it is evident that so far as the maintainability of proceeding under 482 Crpc and 397 /401 Crpc is concerned, suffice is to quote the following paragraphs from Madhu Limaye vs. The State of Maharashtra (31.10.1977 - SC) : MANU/SC/0103/1977;
"9. At the outset the following principles may be noticed in relation to the exercise of the inherent power of the High Court which have been" followed ordinarily and generally, almost invariably, barring a few exceptions:
(1) That the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party ;
(2) That it should be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice;
(3) That it should not be exercised as against the express bar of law engrafted in any other provision of the Code.
10. In most of the cases decided during several decades the inherent power of the High Court has been invoked for the quashing of a criminal proceeding on one ground or the other. Sometimes the revisional jurisdiction of the High Court has also been resorted to for the same kind of relief by challenging the order taking cognizance or issuing processes or framing charge on the grounds that the Court had no jurisdiction to take cognizance and proceed with the trial, that the issuance of process was wholly illegal or void, or that no charge could be framed as no offence was made out on the allegations made or the evidence adduced in Court. In the background aforesaid we proceed to examine as to what is the correct position of law after the introduction of a provision like Sub- section (2) of Section 397 in the 1973 Code.
11. As pointed out in Amar Nath's case (supra) the purpose of putting a bar on the power of revision in relation to any interlocutory order passed in an appeal, inquiry, trial or other proceeding is to bring about expeditious disposal of the cases finally. More often than not, the revisional power of the High Court was resorted to in relation to interlocutory orders delaying the final disposal of the proceedings. The Legislature in its wisdom decided to check this delay by introducing Sub-section (2), in Section 397. On the one hand, a bar has been put in the way of the High Court (as also of the Sessions Judge) for exercise of the revisional power in relation to any interlocutory order, on the other, the power has been conferred in almost the same terms as it was in the 1898 Code.
On a plain reading of Section 482, however, it would follow that nothing in the Code, which would include Sub-section (2) of Section 397 also, "shall be deemed to limit or affect the inherent powers of the High Court". But, if we were to say that the said bar is not to operate in the exercise of the inherent power at all, it will be setting at naught one of the limitations imposed upon the exercise of the revisional powers.
In such a situation, what is the harmonious way out ? In our opinion, a happy solution of this problem would be to say that the bar provided in Sub-section (2) of Section 397 operates only in exercise of the revisional power of the High Court, meaning thereby that the High Court will have no power of revision in relation to any interlocutory order. Then in accordance with one of the other principles enunciated above, the inherent power will come into play, there being no other provision in the Code for the redress of the grievance of the aggrieved party. But then, if the order assailed is purely of an interlocutory character which could be corrected in exercise of the revisional power of the High Court under the 1898 Code, the High Court will refuse to exercise its inherent power.But in case the impugned order clearly brings about a situation which is an abuse of the process of the Court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in Section 397(2) can limit or affect the exercise of the inherent power by the High Court. But such cases would be few and far between.
The High Court must exercise the inherent power very sparingly.
One such case would be the desirability of the quashing of a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction.
The answer is obvious that the bar will not operate to prevent the abuse of the process of the Court and/or to secure the ends of justice. The label of the petition filed by an aggrieved party is immaterial. The High Court can examine the matter in an appropriate case under its inherent powers."
Following paragraphs of Sanjay Kumar Rai vs. State of Uttar Pradesh and Ors. (07.05.2021 - SC) : MANU/SC/0346/2021 are also relevent ;
"15. The correct position of law as laid down in Madhu Limaye (supra), thus, is that orders framing charges or refusing discharge are neither interlocutory nor final in nature and are therefore not affected by the bar of Section 397(2) of Code of Criminal Procedure. That apart, this Court in the above-cited cases has unequivocally acknowledged that the High Court is imbued with inherent jurisdiction to prevent abuse of process or to secure ends of justice having regard to the facts and circumstance of individual cases. As a caveat it may be stated that the High Court, while exercising its afore-stated jurisdiction ought to be circumspect. The discretion vested in the High Court is to be invoked carefully and judiciously for effective and timely administration of criminal justice system. This Court, nonetheless, does not recommend a complete hands off approach. Albeit, there should be interference, may be, in exceptional cases, failing which there is likelihood of serious prejudice to the rights of a citizen. For example, when the contents of a complaint or the other purported material on record is a brazen attempt to persecute an innocent person, it becomes imperative upon the Court to prevent the abuse of process of law."
Thus without entering into the academic question of maintainability of the petitions , keeping in view the aforesaid law, I intend to proceed to decide the lis on merits.
The case of the prosecution in nut shell is that on receipt of a reliable information joint surprise check was conducted by a team of Central Bureau of Investigation, Railways Vigilance and RDSO Official on 15.10.2013 at Gaghra Ghat, Choaka Ghat Section of N.E.R., Lucknow Division and also at the store of senior section Engineer (S.S.D.)/ Signal / CON/NER Aishbagh, Lucknow.
The FIR was lodged and after investigation the charge sheet was filed against revisionist Satyendra Narayan Soni, Silas Minz and applicants- Om Prakash Jaiswal and Ms/ Shankar Cable through its proprietor. It is stated in the charge sheet that in pursuance of the purchase order dated 28.9.2012 issued by the Chief Material Manager, N.E.R. Gorakhpur Ms Shankar Cable Industries has supplied (65 Drums) of 2 Core PVC Insulated Railway Signaling power cable and the supply was made on the basis of inspection certificate issued by RDSO, Lucknow. Subsequently on the basis of further demand 7 Drums out of 65 drums were provided to the SSE Aishbagh vide issue note dated 6.9.2013. On 15.10.2013 a surprise check was conducted by the CBI along with the officers of Railways and RDSO Vigilance and samples of the cables supplied by the applicants as well as by the other firm were collected in the presence of the railway officials as well as RDSO Officers and the samples so collected were forwarded to RDSO, Lucknow Lab for its testing and quality analysis and as per the summary of test results the first sample of 2 Core Cable was found failed in six parameters and sample of six Core 1.5 Sq. m.m., Railway signaling cable was found failed in 4 parameters while first sample of 12 Core x 1.5 sq. m.m. Railway signaling cable was found failed in 8 parameters. Thereafter 2nd and 3rd out of above types were tested by signal lab of RDSO, Lucknow and they were also found failed in 6 parameters.
During the course of investigation it was also found that the accused Silas Minz and revisionist accused S.N. Soni had not conducted the pre supply testing and has given report without visiting the firm of the applicants. During the course of investigation the statement of technical experts e.g. Shri M.P. Singh, Senior Provisional Signal Tel. Com. Engineer (Works) N.E.R., Lucknow, Sarvada Nand Pandey, Senior Section Engineer (Signal) complainant, NER Lucknow, and Dr. Gauthama, Associate Professor IIT, Kanpur, Dr. Pradeep Maji, Assistant Professor IIT, Rurki and Shri Modit Anand, Joint Director Signal Lab RDSO, Lucknow and others were recorded by the Investigating Officer who had specifically stated that the reading recorded by the accused RDSO Officials (accused persons) pertaining to pre inspection of the cables are unlikely to be the result of a genuine laboratory test and difference in parameters found in the sample report prepared by RDSO Lab in respect of failed parameters with regard to 2 Core cable supplied by the applicants, vis a vis pre inspection parameters, could not be the result of environmental effect or due to man handling in transportation.
It is also stated in the charge sheet that all the cables supplied by the applicants and other company were kept in similar conditions and therefore Investigating Officer had concluded that the applicants had conspired with accused revisionist Satyendra Narayan Soni, J.E. RDSO, Lucknow , accused Silas Minz., Deputy Director to cheat railways by supplying the sub standard cable , who have also issued certificate of pretesting without actually testing the cable at the premises of Shankar Cable Industries at Gorakhpur and in furtherance of the criminal conspiracy had caused a huge monetary loss to the railways and monetary gain to the accused persons.
Perusal of the order of the subordinate court would also reveal that Special Judge was of the view that the allegation as has been levelled in the charge sheet filed by the CBI could only be tested during the course of trial having regard to the quality of evidence which will be produced by the prosecution. The trial court was also of the view that as to whether proper samples have been collected at the time of inspection is the subject matter of evidence. It is also opined by the Special Judge that during the course of investigation the opinion of the experts has also been recorded wherein it is revealed that the quality of cables supplied by applicants, as is evident by the parameters recorded in the lab, could not be deteriorated due to improper storage of the cables or due to man handling during transportation. The Special Judge also opined that the fact as to whether the inspection certificates were issued by the co-accused persons revisionist Shri S.N. Soni and Silas Minz after testing the cable or as claimed by the prosecution without visiting the site of the applicants could only be determined after full fledged trial and also that at the stage of framing of charge only a prima facie case is to be seen and the charge could also be framed even on the basis of strong suspicion founded upon the material presented before the court and thus discharge application moved on behalf of the applicants was dismissed.
Keeping in view the submissions of learned Counsel for the applicants and revisionist that the Court below has materially erred in rejecting their applications of discharge which has also occasioned failure of justice, the facts of the instant case are required to be seen in the background of various submissions made by learned Counsel for the applicants/ revisionist in the backdrop of settled law on this point. It is fruitful at this stage to recall the settled law on the subject.
In State of Bihar v. Ramesh Singh MANU/SC/0139/1977 : 1977CriLJ1606 , considering the scope of Sections 227 and 228 of the Code, it was held as under :-
"...the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and Judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction.
Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not.
If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial.
An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if. on the other hand, it is so at the initial stage of making an order under Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section 227."
Hon?ble Supreme Court in the case of State of Supt. And Remembrancer of Legal Affairs, West Bengal Vs. Anil Kumar Bhunja and others (1979) 4 SCC 274 has held as under:-
?18. It may be remembered that the case was at the stage of framing charges; the prosecution evidence had not yet commenced. The Magistrate had therefore, to consider the above question on a general consideration of the materials placed! before him by the investigating police officer. At this stage, as was pointed out by this Court in State of Bihar v. Ramesh Singh MANU/SC/0139/1977 : 1977Cri LJ 1606, the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of Section 227 or 228 of the CrPC, 1973. At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as the existence of the factual ingredients constituting the offence alleged; may justify the framing of charge against the accused in respect of the commission of the offence.?
Hon?ble Supreme Court in the case of Union of India (UOI) vs. Prafulla Kumar Samal and Ors. (06.11.1978 - SC) : MANU/SC/0414/1978 held as under:-
"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."
Hon'ble Supreme Court in the case of R.S. Nayak v. A.R. Antulay MANU/SC/0198/1986(para 44) : (1986) 2 SCC 716. opined as follows:
?44...The Code contemplates discharge of the accused by the Court of Sessions under Section 227 in a case triable by it; cases instituted upon a police report are covered by Section 239 and cases instituted otherwise than on police report are dealt with in Section 245. The three sections contain some what different provisions in regard to discharge of the accused. Under Section 227, the trial Judge is required to discharge the accused if he 'considers that there is not sufficient ground for proceeding against the accused.' Obligation to discharge the accused under Section 239 arises when "the Magistrate considers the charge against the accused to be groundless." The power to discharge is exercisable under Section 245(1) when "the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction." It is a fact that Sections 227 and 239 provide for discharge being ordered before the recording of evidence and the consideration as to whether charge has to be framed or not is required to be made on the basis of the record of the case, including documents and oral hearing of the accused and the prosecution or the police report, the documents sent along with it and examination of the accused and after affording an opportunity to the two parties to be heard. The stage for discharge under Section 245, on the other hand, is reached only after the evidence referred to in Section 244 has been taken.
Notwithstanding this difference in the position there is no scope for doubt that the stage at which the magistrate is required to consider the question of framing of charge under Section 245(1) is a preliminary one and the test of "prima facie" case has to be applied. In spite of the difference in the language of the three sections, the legal position is that if the Trial Court is satisfied that a prima facie case is made out, charge has to be framed.?
Hon'ble Supreme Court in the case of State- Anti Corruption Bureau, Hyderabad and another Vs. P. Suryaprakasam reported in 1999 Supreme Court Cases (Cri) 373 has held as under:
?5. ...........we are constrained to say that the settled law is just the reverse of what the High Court has observed in the above- quoted passage as would be evident from even a cursory reading of Sections 239 and 240Cr.P.C.,which admittedly govern the case of therespondent.According to the above sections, at the time of framing of a charge what the trial court is required to, and can, consider are only the police report referred to under Section 173 Cr.P.C. and the documents sent with it. The only right the accused has at that stage is of being heard and nothing beyond that.......?
Hon?ble Supreme Court in the case of State of Orissa Vs. Debendra Nath Padhi (2005) 1 SCC 568 has held as under:
?6. At the stage of framing charge, the trial court is required to consider whether there are sufficient grounds to proceed against the accused. Section 227 of the Code provides for the eventuality when the accused shall be discharged. If not discharged, the charge against the accused is required to be framed under Section 228. ..
7. Similarly, in respect of warrant cases triable by Magistrates, instituted on a police report, Sections 239 and 240 of the Code are the relevant statutory provisions. Section 239 requires the Magistrate, to consider 'the police report and the documents sent with it under Section 173' and, if necessary, examine the accused and after giving accused an opportunity of being heard, if the Magistrate considers the charge against the accused to be groundless, the accused is liable to be discharged by recording reasons thereof.
8. What is to the meaning of the expression 'the record of the case' as used in Section 227 of the Code. Though the word 'case' is not defined in the Code but Section 209 throws light on the interpretation to be placed on the said word. Section 209 which deals with the commitment of case to Court of Session when offence is triable exclusively by it, inter alia, provides that when it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall commit 'the case' to the Court of Session and send to that court 'the record of the case' and the document and articles, if any, which are to be produced in evidence and notify the Public Prosecutor of the commitment of the case to the Court of Session. It is evident that 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. That is the plain meaning of Section 227 read with Section 209 of the Code, No provision in the Code grants to the accused any right to file any material or document at the stage of framing of charge. That right is granted only at the stage of the trial.
9. Further, the scheme of the Code when examined in the light of the provisions of the old code of 1898, makes the position more clear. In the old code, there was no provision similar to Section 227. Section 227 was incorporated in the 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 Sections 207 and 207(a) was fairly lengthy. Section 207, inter alia, provided that the Magistrate, where the case is exclusively triable by a Court of Session in any proceedings instituted on a police report, shall follow the procedure specified in Section 207(a). Under Section 207(a) in any proceeding instituted on a police report the Magistrate was required to hold inquiry in terms provided under Sub-section (1), to take evidence as provided in Sub-section (4), the accused could cross-examine and the prosecution could re- examine the witnesses as provided in Sub-section (5), discharge the accused if in the opinion of the Magistrate the evidence and documents disclosed no grounds for committing him for trial, as provided in Sub-section (6) and to commit the accused for trial after framing of charge as provided in Sub-section (7), summon the witnesses of the accused to appear before the court to which he has been committed as provided in Sub-section (11) and send the record of the inquiry and any weapon or other thing which is to be produced in evidence, to the21 Court of Session as provided in Sub-section (14). The aforesaid Sections 207 and 207(a) have been omitted from the Code and a new Section 209 enacted on the recommendation of the Law Commission 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 Code with the object of expeditious disposal of cases. Instead of committal Magistrate framing the charge, it is now to be framed by Court of Session under Section 228 in case the accused is not discharged under Section 227. This change brought out in the code is also required to be kept in view while determining the question. Under the Code, the evidence can be taken only after framing of charge.?
Thereafter Honble Apex Court by referring to the ratio laid down in State of Bihar v. Ramesh Singh MANU/SC/0139/1977:1977CriLJ1606, State of Delhi v. Gyan Devi and Ors.MANU/SC/0649/2000 , State of Madhya Pradesh v. S.B. Johari and Ors. MANU/SC/0025/2000 Maharashtra v. Priya :Sharan Maharaj MANU/SC/1146/1997: 1997CriLJ2248 Corruption Bureau, Hyderabad 2000CriLJ944 and State of and Ors. State Anti- and Anr. v. P. Suryaprakasam 1999 SCC (Crl.) 373 wherein the Supreme Court reiterated that at the stage of framing of charge the trial court is not to examine and assess in detail the materials placed on record by the prosecution nor is it for the court to consider the sufficiency of the materials to establish the offence alleged against the accused persons and also held that the charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted, can not show that the accused committed the particular offence. In that case, there would be no sufficient ground for proceeding with the trial and at the stage of framing of charge there can only be limited evaluation of materials and documents on record and sifting of evidence to prima facie find out whether sufficient ground exists or not for the purpose of proceeding further with the trial, have so held with reference to materials and documents produced by the prosecution and not the accused. The above mentioned decisions proceed on the basis of settled legal position that the material as produced by the prosecution alone is to be considered and not the one produced by the accused. The latter aspect relating to the accused though has not been specifically stated, yet it is implicit in the decisions. It seems to have not been specifically so stated as it was taken to be well settled proposition. This aspect, however, has been adverted to in where considering the scope of Sections 239 and 240 of the Code it was held that at the time of framing of charge, what the trial court is required to, and can consider are only the police report referred to under Section 173 of the Code and the documents sent with it. The only right the accused has at that stage is of being heard and nothing beyond that. The Supreme Court further held that judgment of the High Court quashing the proceedings by looking into the documents filed by the accused in support of his claim that no case was made out against him even before the trial had commenced was reversed by the Supreme Court.
It was thus concluded that at Sections 227 and 228 stage the court is required to evaluate the material and documents on record with a view to find 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.
Hon?ble Supreme Court in the case of Sajjan Kumar Vs. Central Bureau of Investigation (2010) 9 SCC 368 has held as under:
"Exercise of jurisdiction under Sections 227 & 228 of Cr.P.C.
On consideration of the authorities about the scope of Section 227 and 228 of the Code, the following principles emerge:
(i) The Judge while considering the question of framing the charges under Section 227 of the Cr.P.C. 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. The test to determine prima facie case would depend upon the facts of each case.
(ii) 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.
(iii) The Court 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, any basic infirmities etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
(iv) If on the basis of the material on record, the Court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.
(v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the Court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.
(vi) At the stage of Sections 227 and 228, the Court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value discloses the existence of all the ingredients constituting the alleged offence. 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.
(vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal.?
In the case of Asim Sharif Vs. National Investigation Agency, MANU/SC/0863/2019 : (2019) 7 SCC 149, the Supreme Court has again reiterated the principle that while considering the application for discharge, the court has power to sift and weigh the evidence only for limited purpose to find out whether or not prima facie case exists against the accused. If the material placed before this Court raises strong suspicion against the accused, the Court is wholly justified in framing of the charge.
Hon?ble Supreme Court in Tarun Jit Tejpal Vs. State of Goa and other: MANU/SC/1121/2019 held as under;-
"9.2. In the subsequent decision in the case of (State by the Inspector of Police, Chennai v. S. Selvi and Ors. MANU/SC/1663/2017) this Court has summarised the principles while framing of the charge at the stage of Section 227/228 of the Code of Criminal Procedure. This Court has observed and held in paragraph 6 and 7 as under:
6. It is well settled by this Court in a catena of judgments including Union of India v. Prafulla Kumar Samal [Union of India v. Prafulla Kumar Samal, MANU/SC/0414/1978 : (1979) 3 SCC 4 : 1979 SCC (Cri.) 609], Dilawar Balu Kurane v. State of Maharashtra [Dilawar Balu Kurane v. State of Maharashtra, MANU/SC/0005/2002 : (2002) 2 SCC 135: 2002 SCC (Cri.) 310], Sajjan Kumar v. CBI [Sajjan Kumar v. CBI, MANU/SC/0741/2010 : (2010) 9 SCC 368: (2010) 3 SCC (Cri.) 1371], State v. A. Arun Kumar [State v. A. Arun Kumar, MANU/SC/1174/2014 : (2015) 2 SCC 417: (2015) 2 SCC (Cri.) 96: (2015) 1 SCC (L&S) 505], Sonu Gupta v. Deepak Gupta [Sonu Gupta v. Deepak Gupta, MANU/SC/0127/2015 : (2015) 3 SCC 424: (2015) 2 SCC (Cri.) 265], State of Orissa v. Debendra Nath Padhi [State of Orissa v. Debendra Nath Padhi, MANU/SC/0077/2003 : (2003) 2 SCC 711: 2003 SCC (Cri.) 688], Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya [Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya, MANU/SC/0337/1990 : (1990) 4 SCC 76: 1991 SCC (Cri.) 47] and Supt. & Remembrancer of Legal Affairs v. Anil Kumar Bhunja [Supt. & Remembrancer of Legal Affairs v. Anil Kumar Bhunja, MANU/SC/0266/1979 : (1979) 4 SCC 274: 1979 SCC (Cri.) 1038] that the Judge while considering the question of framing charge Under Section 227 of the Code in sessions cases (which is akin to Section 239 Code of Criminal Procedure pertaining to warrant cases) 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 material placed before the court discloses grave suspicion against the Accused which has not been properly explained, the court will be fully justified in framing the charge; by and large 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 rights to discharge the Accused. 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 statements 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 materials as if he was conducting a trial."
In State of Rajasthan vs. Ashok Kumar Kashyap, MANU/SC/0275/2021 Hon?ble Supreme Court observed as under:-
"9.1. In the case of P. Vijayan (supra), this Court had an occasion to consider Section 227 of the Code of Criminal Procedure. What is required to be considered at the time of framing of the charge and/or considering the discharge application has been considered elaborately in the said decision. It is observed and held that at the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the Accused. It is observed that in other words, the sufficiency of grounds would take within its fold the nature of the evidence recorded by the police or the documents produced before the Court which ex facie disclose that there are suspicious circumstances against the Accused so as to frame a charge against him. It is further observed that if the Judge comes to a conclusion that there is sufficient ground to proceed, he will frame a charge Under Section 228 Code of Criminal Procedure, if not, he will discharge the Accused. It is further observed that while exercising its judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution, it is not necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the court, after the trial starts.
9.2. In the recent decision of this Court in the case of M.R. Hiremath (supra), one of us (Justice D.Y. Chandrachud) speaking for the Bench has observed and 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 Code of Criminal Procedure. 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, MANU/SC/0011/2014 : (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 offence. The law does not permit a mini trial at this stage."
Having heard learned counsel for the applicants as well as the revisionist, it is evident that the applicants as well as the revisionist is aggrieved by the order of the Special Judge whereby their application for discharge has been rejected on the score that Special Jduge has not taken care of this fact that cable which was supplied to the railways was first tested by the officials of the RDSO, at the premises of the company and thereafter supply was made and the testing of the samples by the CBI has been done in the lab of RDSO Lucknow and the difference of values found in the testing report is within permissible limits and it is normal that the test results of two different labs on different equipments may differ with each other even if performed by the same persons. The parties are also aggrieved that Special Judge has not considered that simply by not buying any ticket or not sending any tour program or by not claiming TA it could not be inferred or presumed that the revisionist S.N.Soni and co-accused Silas Minz has not inspected the cable at the site of the supplier company and thus the trial court has materially erred in not considering this aspect of the matter.The applicants and revisionist are also aggrieved that the Special Judge has also not considered that difference of values/ parameters in the pre- supply report and the testing report of the RDSO Lab wherein the samples allegedly collected by the CBI were tested is very negligible and thus in any case the criminal liability is not attracted as the difference in parameters may be the result of wear and tear occurred due to inappropriate storage or due to the placing of cables under open sky or also due to poor transportation.
It is also hammered that the experts whose statements were recorded by the Investigating Officer are not having any expertize in the field and therefore their evidence was not sufficient to frame charge against the revisionist and the applicants. The applicants and revisionist are also aggrieved that the railways has never made any complaint about the alleged poor quality of cable and the whole supply of cable has been consumed by them and it could not be believed that the cable was of poor quality and also that the biasness of the investigating agency towards the applicants company is apparent as despite the samples of other company S.P.M. were also found failed in vital parameters but that company was neither charge sheeted nor the testing results of the cables supplied by that company were made part of the charge sheet.
It is not in dispute that ordinarily for the purpose of framing charge the material submitted by the investigating agency is to be taken into consideration and it is not a stage where defense of the accused persons will be taken into consideration or minute scrutiny of the material/evidence is done as is required for assessing the guilt of the accused persons. The charge sheet contains the fact that on the joint surprise check conducted by a team of CBI officials, railways vigilance and RDSO officials on 15.10.2013 at Ghaghra Ghat and Choaka Ghat Section of N.E.R. Division, Lucknow and at the Store Senior Section Engineer Signal, Aishbagh, Lucknow three samples each of 6 Core 1.5 Sq. m.m., PVC Insulated Railway Signaling Cable, 12 Core x 1.5 Sq. m.m. PVC, Insulated Railway Signaling Cable and 2 Core x 25 Sq. m.m. PVC Insulated Railway Signaling power cable were collected from the above sites and were sent by the CBI for quality analysis at the signal lab of RDSO, Lucknow. As per the sample test report given by the signal lab RDSO, Lucknow these cables were found failed in certain vital parameters and did not meet standards specifications.
It is also found during the investigation that 65 drums of 2 Core x 25 Sq. m.m. of PVC Insulated Power Cable was supplied by Ms. Shankar Cable Industries (applicants) of 482 Cr.P.C. This supply was made on the basis of inspection certificate issued by the RDSO, Lucknow vide demand note dated 5.9.2013. 7 Drums out of these 65 Drums were sent from SSE Aishbagh, Lucknow to SSE Gorakhpur. As per the results of the RDSO lab the 2 Core x 25 Sq. m.m. Railway Signaling Power Cable was found failed in 6 parameters. Perusal of the summary of test results which has been made part of the charge sheet would reflect that 2nd & 3rd samples of 2 Core x 25 Sq. m.m. Power Cable supplied by the applicants were also found failed in 6 parameters.
It is also a case of prosecution that as per the established procedure the supplier company used to send a call letter to RDSO for inspection and approval of the manufactured material. The test is done by the RDSO Inspector as per a sampling plan and thereafter a test check is required to be done by an officer of RDSO on the cable and inspection certificate is issued by the RDSO. It is also evident that acceptance test was done with regard to the 2 Core x 25 Sq. m.m. Cable at the site of the applicants by Shri S.N. Soni (revisionist) who was the J.E. of RDSO at that point of time on 11.1.2013 to 12.1.2013 and the test check was conducted by Silas Minz, Deputy Director on 13.10.2013.
During the investigation it was also found that Shri Silas Minz did not get his tour program approved and did not claim TA for his visit to Gorakhpur for conducting these tests and also did not book any ticket on his metal pass to visit M/s Shankar Cable Industries for the purpose of checking the cable and there is no proof that they actually visited Gorakhpur, where M/s. Shankar Cable Industries is situated, while with regard to Shri S.N. Soni (revisionist) it was found that though he got his tour program approved but travelled without booking a ticket, thus according to the Investigating Officer of Central Bureau of Investigation this suggests that both these officials have not visited the site of M/s. Shankar Cable Industries and prepared the report without pre-inspecting the cables meant to be supplied to the Railways. Certain experts of the subject, namely, Shri M.P. Singh, Senior Divisional Signal and Telecom Engineer (Works), NER, Lucknow, Sarvadanand Pandey, Senior Section Engineer (Signal), NER, Lucknow, Dr. Gouthama, Associate Professor, IIT,Kanpur, Dr. Pradeep Maji, Assistant Professor, IIT, Roorkee and Sh. Mudit Anand, Joint Director, Signal Lab, RDSO etc. have been examined on the aspect of degradation in the quality of cable due to storage conditions and their statements under Section 161 Cr.P.C. have stated to be recorded by the Investigating Officer. Experts viz. S/Sh. M.P. Singh, Sarvadanand Pandey, Dr. Gouthama and Dr. Pradeep Maji, have confirmed that there is a significant difference between the standard specifications as compared to the readings obtained during sample test as well as between the acceptance test readings given by accused RDSO officials compared with sample test readings in respect of failed parameters of 2 core x 25 Sq. mm Cable supplied by the applicants and this cannot happen due to environmental effect or improper transportation or man handling. The experts from IIT have also confirmed that the readings recorded by the accused RDSO official during Acceptance Test/ Pre-supply inspection are unlikely to be the result of a genuine laboratory test as the readings of acceptance report are unbelievably close to the standard specifications.
Thus the quantum of values between the Pre-supply test result and the test conducted by the CBI at RDSO Lab., Lucknow were found differred in vital parameters pertaining to 2 core power cable supplied by the applicants M/s Shankar Cable Industries, Gorakhpur. The truthfulness of the statements of these experts and other evidence collected during investigation could only be tested during the trial when they will be produced as witnesses. The procedure of collection of samples and testing of cables at RDSO, Lucknow or at the site of M/s Shankar Cable Industries at Gorakhpur could also be questioned and established during the trial and also that sub standard values are not the result of poor storage conditions and are due to wear and tear from weather could also be established when the prosecution will produce its witnesses before the trial court. The accused persons could also question the prosecution witnesses about the authenticity of the values of lab report of the RDSO, Lucknow. The burden to prove all the facts necessary to establish the guilt of the accused persons is definitely on the prosecution during trial. The fact that the test check report prepared by the accused RDSO officials was genuine and was given after inspecting the cable, could also be established during the course of trial by the revisionist and whether the defects of the cables(if any) were known to M/s Shankar Cable Industries from before the supply and also that whether there was a conspiracy between the accused persons to cheat the Railways are all facts which could only be established during the course of trial and the accused persons could impeach the prosecution witnesses in order to show that the case of the prosecution is not achieving the required standard i.e. proof beyond reasonable doubt, but at this stage i.e. the stage of framing of charges, it could not be said that there is no sufficient material on the basis of which charges against accused could be framed. All the submissions made by learned Senior Counsel, Shri Jyotindra Mishra, appearing for the applicants in petition under Section 482 Cr.P.C. No. 8150 of 2019 and Shri Purnendu Chakravarty in the Criminal Revision No. 1593 of 2019 are pertaining to the factual aspect of the case and the veracity of claims and counter claims by the applicants/ revisionist and the Central Bureau of Investigation could only be tested during the trial but at this stage it is not a case where the proceedings should have been culminated by discharging the accused persons. I have gone through the whole record and have perused the material within the permissible limits as required for the purpose of framing of charge, including the material/ documents, which have been relied on by learned counsels for the parties but I am not inclined to accept the submission that there are no sufficient grounds in this case to proceed further. Culmination of trial at the stage of framing of charge, requires very strong and cogent grounds and inherent weaknesses in the version of prosecution apparent on the face to demonstrate that trial will either result in failure of justice or will be a futile exercise or will operate as engines of oppression or no ingredients of alleged penal offences are existing. Law leans in favour of trial unless there are strong, compelling and substantial grounds to culminate the same. Needless to say that the falsehood or the truthfulness of the allegations can only be tested in the trial. The trial of a criminal case is nothing but a journey to unearth the truth and this course can only be disrupted when some strong, compelling grounds and material is available, which uproots the prosecution from its roots and nothing is left for the prosecution. Unfortunately that is not a case here. Further discussion of the facts of the case may effect the fate of trial and suffice is to say that material available before the Special Judge was sufficient enough, on the basis of which charges under appropriate sections could be framed against accused persons. The case laws relied on by applicants and revisionist are also not helpful to them for the reasons mentioned herein before.
Thus in the considered opinion of this Court keeping in view all the facts, circumstances and evidence, as well as the law placed above, no illegality appears to have been committed by the Special Judge by rejecting the prayer of the applicants/ revisionist of their discharge and resultantly the revision as well as application under Section 482 Cr.P.C. moved by the applicants Om Prakash Jaiswal and M/s Shankar Cables Industries through its Proprietor and revisionist Shri S. N. Soni is liable to be dismissed and dismissed accordingly.
Trial court is directed to proceed with the trial and conclude the same strictly in accordance with law, with expedition.
The observations made herein above are made only for the purpose of disposal of these cases and the same shall not be construed as opinion of this Court on merits of the case.
A copy of this judgment be placed on record of the Criminal Revision No. 1593 of 2019.
Order Date :- 31.8.2021 Muk