Madhya Pradesh High Court
Ramesh Sharma vs The State Of Madhya Pradesh on 18 May, 2018
THE HIGH COURT OF MADHYA PRADESH
1
Criminal Revision No. 2311/2018
Ramesh Sharma Vs. State of M.P.
Gwalior, 18/05/2018
Shri R.K. Sharma, learned Senior Counsel with Shri
V.K. Agrawal, learned counsel for the petitioner.
Shri Rohit Mishra, learned counsel for the
respondent/Lokayukta.
With the consent of learned counsel for the parties, the matter is finally heard.
Petitioner challenges the order dated 02/05/2018 passed by the Special Judge, Prevention of Corruption Act, 1988; whereby, objections raised by the petitioner in form of under Section 227 of the Code of Criminal Procedure, 1973, for discharge from the proceedings have been dismissed and the matter is posted for recording of prosecution evidence.
The charges levelled against the petitioner under Section 7, 13(1)(d), 13(2) of the Act of 1988 are in the following terms:-
"izFke& Qfj;knh ns'kjktflag ds ftyk tsy fHk.M ls fjgkbZ fnukad 12&09&16 ls ,d ekg i'pkr~ rFkk fnukad 08&12&16 dks] vkids ftyk tsy ifjlj fHk.M fLFkr 'kkldh; vkokl ij] Qfj;knh ns'kjktflag ds }kjk tsy esa dkVh xbZ ltk dk lnkpkj ckor~ pfj= izek.ki= tkjh djus ds fy;s] ftyk tsy fHk.M eas mi&tsy v/kh{kd ds THE HIGH COURT OF MADHYA PRADESH 2 Criminal Revision No. 2311/2018 Ramesh Sharma Vs. State of M.P. in ij inLFk gksdj ,d yksd lsod dh gSfl;r ls] vkius Qfj;knh ns'kjktflag ls] vius inh; dk;Z ds oS/k ikfjJfed ls fHkUu] voS/k ifjrks"k.k dh ekWx dh tkdj og vijk/k fd;k gS tks Hkz"Vkpkj fuokj.k vf/kfu;e ¼la{ksi esa ek= Þvf/kfu;eß½ dh /kkjk&7 ds vUrxZr ,d n.Muh; vijk/k gS vkSj bl U;k;ky; ds laKku ds Hkhrj gSA f}rh;& fnukad 16&12&16 dks] fnu ds 13%30 cts] tsy ifjlj fHk.M vkids 'kkldh; vkokl ds ckgj] mi&tsy v/kh{kd ds in ij inLFk gksdj] ,d yksd lsod dh gSlh;r ls] Hkz"V ;k voS/k lk/kuksa ls vius fy;s ;k fdlh vU; O;fDr ds fy;s] vius in dk nq:i;ksx djrs gq;s] mDr pfj= izek.ki= tkjh dk;kZFkZ] vkius Qfj;knh ns'kjktflag ls 2500 :i;s ¼ nks gtkj ikWp lkS :i;s ½ dh fj'or jkf'k vfHkizkIr dh tkdj og vijk/k fd;k gS tks Þvf/kfu;eß dh /kkjk 13¼1½¼Mh½ lgifBr /kkjk&13¼2½ ds vUrxZr ,d n.Muh; vijk/k gS vkSj bl U;k;ky; ds laKku ds Hkhrj gSA"
The prosecution story borne out from the record reveals that on a complaint by one Deshraj Singh Tomar on 08/12/2016 with Lokayukta Police at Gwalior that for issuing a Character Certificate regarding his jail sentence, the petitioner had demanded Rs. 3,000/-. Voice recorder was issued to him and the transcript was prepared on 15/12/2016. A trap was arranged on 16/12/2016. The complainant along with tainted notes THE HIGH COURT OF MADHYA PRADESH 3 Criminal Revision No. 2311/2018 Ramesh Sharma Vs. State of M.P. and the application under RTI entered in the dwelling house at Jail campus, Bhind and gave the application and tainted money to the petitioner in his house. Complainant came out of the house of the petitioner and gave signal to trap party. The petitioner was nabbed, the hand were washed with Phenolphthalein, panchanama was prepared, offence was registered. Charge sheet was filed wherein charges (supra) were framed. The petitioner sought discharge on the following grounds:-
"(a) There is no application for RTI.
(b) There cannot be any demand.
(c) There is no reason for making any demand because the alleged document cannot be provided under RTI.
(d) The person who has made the complaint is having such background of making false complaint and committing forgery.
(e) In such circumstances the complete allegations are false as the basis of complaint itself is not established prima facie."
Vide application under Section 227 Code of Criminal Procedure in the form of written submissions.
THE HIGH COURT OF MADHYA PRADESH 4 Criminal Revision No. 2311/2018 Ramesh Sharma Vs. State of M.P. The trial Court after hearing the parties declined to discharge the petitioner of the charges vide impugned order; on the findings:-
"mHk;i{k dh lquokbZ dj ekeys ds vfHkys[k vkSj mlds lkFk fn;s x;s nLrkostksa ij fopkj dj ysus ds mijkar esjh ;g jk; gS fd ,slh ?kksj 'kadk djus ds vk/kkj gS fd vkjksih jes'k dqekj us Hkz"Vkpkj fuokj.k vf/kfu;e ¼la{ksi esa ek= Þvf/kfu;eß½ dh /kkjk&7 rFkk 13¼1½¼Mh½ lgifBr /kkjk&13¼2½ ds vUrxZr n.Muh; vijk/k dkfjr fd;kA vr% vkjksih jes'k dqekj ds fo:) mDr /kkjkvksa ds vUrxZr vkjksii= dh fojpuk fd;s tkus dk vkns'k nsrk gwWA vkjksih vkt U;k;ky; esa mifLFkr gSA vr% mlds fo:) vkjksii= dh fojpuk dh tkdj vkjksi mls i<+dj lquk;s o le>k;s tkus ij mlus vijk/k djuk vLohdkj dj fopkj.k pkgkA vr% vkjksih ds 'kCnksa esa mldh Iyh fyfic) dh xbZA blh izØe ij /kkjk 294 n0iz0la0 ds vUrxZr vfHk;kstu dh vksj ls izLrqr nLrkostksa dh lR;rk ds laca/k esa vkjksih ls vis{kk fd;s tkus ij mlus leLr nLrkostksa dh lR;rk ls bUdkj fd;kA ,0Mh0ih0vks0 Jh bUnzs'k dqekj iz/kku us O;Dr fd;k fd bl U;k;ky; esa fu;qDr ,0Mh0ih0vks0 Jh veksy flag rksej vodk'k ij gSa vr% lk{; lwph is'k djus ds fy;s 3 fnol dk le; fn;s tkus dk fuosnu fd;k ftlds laca/k esa fo}ku cpko vf/koDrk Jh jkds'k ikjk'kj us ?kksj vkifRr fd;k vkSj crk;k fd vkjksih dks >waBk Qalk;k x;k gS blfy;s lk{; lwph is'k djus ds fy;s bruk yEck le; u THE HIGH COURT OF MADHYA PRADESH 5 Criminal Revision No. 2311/2018 Ramesh Sharma Vs. State of M.P. fn;s tkus dk fuosnu fd;kA vfHkys[k ns[kkA vfHkys[k esa vfHk;kstu dh vksj ls 17 lkf{k;ksa dh lk{;
lwph is'k dh xbZ gSA vr% ;g izdj.k vfHk;kstu lk{; gsrq fuEukuqlkj fu;r fd;k tkrk gS& fnukad 22&05&18 ns'kjktflag] O;k[;krk jktsUnz dqekj tSu fnukad 23&05&18 O;k[;krk nhid 'kekZ] vkseizdk'k ik.Ms; mi&tsy v/kh{kd fnukad 24&05&18 lat; ik.Ms; tsy mi&egkfujh{k] fujh{kd vrqy flag fnukad 25&05&18 fujh{kd Jherh 'kSytk xqIrk] ujsUnz izrki flag tsy v/kh{kd izdj.k vfHk;kstu lk{; gsrq fnukad 22&05&18 dks is'k gksA"
Challenging the order, the petitioner reiterates the submissions made before the trial Court. It is contended that the trial Court cursorily had dismissed the application for discharge from the prosecution without adverting to the merits of the contentions. It is accordingly urged that the impugned order be set aside and the matter be remitted to the trial Court for reconsideration.
Respondent on its turn opposes the petitioner.
It is urged that the trial Court having framed the THE HIGH COURT OF MADHYA PRADESH 6 Criminal Revision No. 2311/2018 Ramesh Sharma Vs. State of M.P. charges on the basis of cogent material documents on record was within its right in rejecting petitioner's application for discharge.
Considered the rival submissions.
As regard to framing of charges and quashing of the charges, the law is well settled.
In Union of India Vs. Prafulla Kumar Samal and another [(1979) 3 SCC 4], it is held:-
"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 THE HIGH COURT OF MADHYA PRADESH 7 Criminal Revision No. 2311/2018 Ramesh Sharma Vs. State of M.P. 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 large 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 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 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."
THE HIGH COURT OF MADHYA PRADESH 8 Criminal Revision No. 2311/2018 Ramesh Sharma Vs. State of M.P. In Dilawar Balu Kurane Vs. State of Maharashtra [(2002) 2 SCC 135], it is held:-
"12. Now the next question is whether a prima facie case has been made out against the appellant. In exercising powers under Section 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the court will be fully justified in framing a charge and proceeding with the trial; by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused, and in exercising jurisdiction under Section 227 of the Code of Criminal Procedure, the Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to THE HIGH COURT OF MADHYA PRADESH 9 Criminal Revision No. 2311/2018 Ramesh Sharma Vs. State of M.P. consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial [See Prafulla Kumar Samal (supra)].
14. We have perused the records and we agree with the above views expressed by the High Court. We find that in the alleged trap no police agency was involved; the FIR was lodged after seven days; no incriminating articles were found in the possession of the accused and statements of witnesses were recorded by the police after ten months of the occurrence. We are, therefore, of the opinion that not to speak of grave suspicion against the accused, in fact the prosecution has not been able to throw any suspicion. We, therefore, hold that no prima facie case was made against the appellant.
In Sajjan Kumar Vs. Central Bureau of Investigation [(2010) 9 SCC 368], it is held:-
"21. On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge:-
(i) The Judge while considering the THE HIGH COURT OF MADHYA PRADESH 10 Criminal Revision No. 2311/2018 Ramesh Sharma Vs. State of M.P. question of framing the charges under Section 227 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 THE HIGH COURT OF MADHYA PRADESH 11 Criminal Revision No. 2311/2018 Ramesh Sharma Vs. State of M.P. 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 THE HIGH COURT OF MADHYA PRADESH 12 Criminal Revision No. 2311/2018 Ramesh Sharma Vs. State of M.P. 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 State through Central Bureau of Investigation Vs. Dr. Anup Kumar Srivastava [AIR 2017 SC 3698], it is held:-
"23.... The legal position is well-settled 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. At the stage of charge the court is to examine the materials only with a view to be satisfied that a prima facie case of commission of offence alleged has been made out against the accused persons. It is also well settled that when the petition is filed by the accused under Section 482 of the Code seeking for the THE HIGH COURT OF MADHYA PRADESH 13 Criminal Revision No. 2311/2018 Ramesh Sharma Vs. State of M.P. quashing of charge framed against him the court should not interfere with the order unless there are strong reasons to hold that in the interest of justice and to avoid abuse of the process of the court a charge framed against the accused needs to be quashed. Such an order can be passed only in exceptional cases and on rare occasions. The court is required to consider the "record of the case" and documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. Once the facts and ingredients of the section exists, then the court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. This presumption is not a presumption of law as such. The satisfaction of the court in relation to the existence of constituents of an offence and the facts leading to that offence is a sine qua non for exercise of such jurisdiction. It may even be weaker than a prima facie case."
In the case at hand, the material document on THE HIGH COURT OF MADHYA PRADESH 14 Criminal Revision No. 2311/2018 Ramesh Sharma Vs. State of M.P. record when scrutinized justify the impugned order and the charges framed against the petitioner as would warrant an indulgence.
Consequently, Criminal Revision fails and is dismissed.
(Sanjay Yadav) (Ashok Kumar Joshi)
Judge Judge
shubh*
Digitally signed by SHUBHANKAR MISHRA
Date: 2018.05.21 15:00:45 +05'30'