M S Suryanarayana Rao vs Cbi/Acb/Bangalore on 12 January, 2009

[Cites 14, Cited by 0]

Karnataka High Court

M S Suryanarayana Rao vs Cbi/Acb/Bangalore on 12 January, 2009

Bench: Jawad Rahim

 

IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 12"' DAY OF JANUARY, 2009
BEFORE  

THE HON'BLE MR. JUSTICE JAWAD E  _

CRL.R.P. NO. 452 OF 2OQ5--'»v--A4.:'::'~..   
CRL.R.P. NO. 8313 OE_2.fBO'5_ A   '

BETWEEN:    "  
IN CRL.R.P. N.O;"~452 OF._2'OQ5_,  

1 M S SURYANARAYANA,R;'\..Qv-_ 

S/O M v S N RA.O",AGED ,5.5'YEARS
THE THEN CHIEF' tv;ANA_C;rE,R _' ._   .
SBM, BANGAE_OR,E__BRAi\l_C::|, =  
R/O No.1; v2_ND;_'CROS.S,.,S«B'M;, COLONY,
MATHE._'KE'?;E,, B,ANGA'L'O R'E:54 " 

2  R _SUv5vBARAlVi'LJ "*«.___ , ,
"S/O LATE ~F{AJA_RA_O,AGED 62 YEARS
TH_E'THEN_ M«ANA'G_E'R; SBM, BANGALORE
BRANCH, R,/A""1"_N0~'L'39/3, 2ND MAIN

;' ~ TATA SILK' FARM, BASAVANAGUDI
'  ,B'A!\jGALO'R~E_:_4.'

A  --Y.K'PA.RTHASARATHY
E. IN .,.js=/.O' LATE K KRISHNAMURTHY
AGED57 YEARS
 THETHEN DY.MANAGER, SBM, BANGALORE
, BRANCH, C/O R JAGANNATHA RAO
'ADVOCATE, SATHYANARAYANAPET, SIDDIQUE
COLONY, 6TH CROSS, BELLARY
 PETITIONERS
(BY MR. M.V. DEVARAJU, SENIOR ADV. FOR M/S

 ff  ._.}v1.v.DEvRA3 ASSOCIATES, ADVS.)





AND:
1 CBI/ACB/BANGALORE
 RESRONDENT
(BY SRI ASHOK HARANAHALLI, ADV.) ' 

THIS PETITION IS FILED U/S.397 AND A4O1.S'CQR.'P,_CV.BY
THE ADVOCATE FOR THE PETITIONER PRAYING THAT _"f'H1'S

HON'BLE COURT MAY BE PLEASED TO....SET_'A.jSIDE 
ORDER DATED 2.3.2005 PASSED-BY T_HEM)'<Xi' AD__DL.",CCF. 
AND SJ., AND SPECIAL ILJDGE FOR CABI:,CAS"EAS,-._BAN_CGALQRE'~..,

IN SPECIAL CASE NO. 476/2OO2,°;ET'C.;I

BETWEEN:  'I   
CRL.R.P. NO}=§373_ OF 2005 '

1 M S SEETHA RAMA R._-5IO,_S/O' LATE M N SRINIVASA
RAO, AGED ABOUT .67'_ Y"gEARS,.R/A =NO.1204,
18TH MAIN,J P NAGARIII PH.ASE,.1BANGALORE-560 078
   " 1    PETITIONER
(BY MR's.::;SHIvAKtJM~AR; A'D.\2'.)..,.i
AND:    'V  ..   I

1  CENT'RAL..LBU.RE<AU.OE INVESTIGATION
'-.CBI ACB'B'ANG.AL-ORE REP BY ITS INSPECTOR
OF POLICE  _   "
 - -_    RESPONDENT
' ~ (BY SRI ASHOK HARANAHALLI, ADV.)

***

~-THIS'.",C*-Esrarm IS FILED U/S.397 CR.P.C BY THE

"ADvOCATfEfFOR THE PETITIONER PRAYING THAT THIS

H'ON'E'_:L'E-COURT MAY BE PLEASED TO REVISE THE ORDER
DT.2..3'.~_O5 PASSED IN SPL.C.C.NO.476/O2 ON THE FILE OF

 THE 'XXI ADDL. C.C. & S.J., AND SPL. JUDGE FOR CBI

I  CASES, B'LORE., ETC.,

THESE PETITIONS ARE COMING ON FOR ADMISSION

/THIS DAY THIS COURT MADE THE FOLLOWING: ~

V



ORDER

These two revisions under Section 397_the accused are directed against the order__pasSed"~lori4.,U2V,}'0--3§ﬂ'~-.,V 2005 by the xx: Addl. City cw &.,.4Szessior'rs";iu'd~gfe_'_:&1v$pl.C"

Judge for CB1 Cases, Bangalore.__"City 476/2002 rejecting the applicatilon_rnoved,_xby': accused 1, 3, 4 and 8 for discharge '.Adi:r.ecti'n..g_ frarhing of charge against them for vaAri_ou_s.., under the provisions 420, 471, 468 r/w Section of the Prevention of Corru ptiAo'nl'l'Act,_.VA:'«., ~.

2. VV.._i-leagrd-._ the-'«.!earned counsel Mr. Devaraju, for pe'ti~3t.io,nAer,,%_and""th.e...«learned standing counsel Sri Ashok ' hVa'ranahai!i_i,i.for_ respondent ~-- CB1. ' -.lA:''TAhe contextual facts to which reference needs to be made" as manifest from records reveal thus:

Accused 1 and 2 were working as Assistant Chief 'Managers, Accused No.3 was Chief Manager, accused No.4 §~Q'Z./ was the Manager and accused No.8 was working as Deputy Manager of State Bank of Mysore, Bangalore.

4. Accused No.6 - M/s Flora Interna.ti.o4ii»a:l'_h'Li;iﬁi'ted, Bangalore was a company floated by accus_eid..y:i\ie;_iS Aleem. It was incorporated undelritliev '"andf.__ 6 was represented by the Ma>naging"Di'r'ectorV.§e."..accu"sed'.l'l\io.S».if M.S.A. Aleem. Accused oneof its Directors. They.§c,.gspi_red_lg'wi,tVh'»g'Vvi'accused" No.1 to 4 to defraud the bank and that conspiracy accused i;i.S;ii.il~':Al'ee'rn."'a.n_df'a'ccused No.7 ~ Smt. Anuradha No.6 - M/s Flora Inter'n.ati*onaIV:"'L-in§ite4i§',..r' concocted certain documents purportiwng-._V%to. bVe._ol'._vacr:;Lised No.5 - M/s Flora International LVl'ii*ii:lte:_(:T to boost«.i.tS_.asset value and make it eligible for high ' .yg'ra,cle._vlo~aii_iricl_uding the over draft facilities. To achieve that "o.bj=ect assistance of accused 1 and 2 while others occu..py...s.e'nior position. They acted in the manner stated 2 above and succeeded in sanction of loan to the extent of VgRs.2.2 crores in favour of accused No.6 - M/s Flora 6 International Limited and released the same expeditiously at cutting short the regular procedure that are normally fotlowed.

5. Availing the said benefit the compe.ri%jpe;'fa'ui.ted.

Meanwhile, CBI acting on credibte inform'a:tionj=.co'ndru.cted.._V desecrate inquiry, which prim'a""'fa'cie'..éca;selfofVfraud': inf. financial matters relating to further. It is noticed, accus'e'd:"v-consoiredand the bank in the manner~..aforeisaidu,;':¢luiﬁxceptélixccuvsed No.5 -- M.S.A. Aleem, accus'ed."VI\lo.tSV:iV International Limited the other accused 'lathe' bank. The competent authoritysanction and upon grant of such sanction'FIR.wasaéwregisitéred and on receipt of the sanction o_r*der:_tiie" char'ge.._$.heet was fiied in Spl. Case No. 476/2002 ' ;a'g..ains«te.c,gi'i«!i.é:"the accused for the offence punishable under iesectianisiiagtg r/w Sections 420, 471, 468 r/w Section 13 (142) read with Section 13(2) of the Prevention of 2 ~ Corru otion Act.

6. The accused, whose presence was secured by the learned Special Judge, proceeded to frame charge against them, but it was resisted by them,4,V.iii.ter_V_alia, contending that no case, much less, prima made out to even frame the charge.

7. On behalf of the ac;:used«3,"«4,4 la,whoxrarei'. petitioners in Crl. R. P. l\io.4s"2.,(2oo5 a>hdg'o.n«~ be.hallVf'~.of accused No.8, who is alg.§:"'v--.petitio-neraiin No. 873/2005, it was u.rge_§3 that the ViVnv._estigati'or'1"ifitself suffer from technical and-i.'l'egal:':'Vinfilﬁn'i'ti'e's. No thorough investig'at.i'o:r:;'.was«done--.Vbefo'rew--the charge sheet was laid. They:"'al|"ege'dV:t'iia't.:CB4l'i'In\.'.estigating Officer lack knowledge of Comba~.nytLaw.W_Acc~used No. 7 and 8 were baselessly "i;i'k.e.wise, it is also alleged that the acts ' .v.Va'ttributeri-to' accused No.3 and 4 were also baseless as the l' <ié'cision'to_ sanction of loan was a policy and routine decision in 'course' of banking transaction and had nothing to do with _oé"rsonal malice, personal favour and personal interest.

8. In this behaif they alieged that sanction of loan involves institutional decision, in as much as, papersgo up to the highest person in Office and the anﬁ;o'£ir'ixt'V:-,..i.:g_i1':1;h_Ven released. Therefore, singiing out accuse.d""a'»£-o;:3,a'nd';-4 mischievous attempt by the ves,ted,_-A-e[érn'e,nt.s.' . afleged that Chief Manager,»i'w._ho was sanctio'ni..ng.,_,a,ut3hoVrii:y,' has not been indicated in th'ew«_"i;harge"anditherefore, the action initiated againstﬁiem-i__wa--,s.vitiated.__

9. As pre~shipment, packing sanctioned by the bank it that the Investigating Officerh-.ha'd'_ the formalities of sanctioning these finainciaiv.fat;-i__iities*to the company. In this regard it wasﬁoointed out""t«h.at..«SanCti0n of such financiai benefit was pre--existing security with the bank.

Therefore,'.V~"i'acrilities granted were supported by securities, '.,_rega'rd..in'g.:_ which the bank had initiated recovery proceedings "{fbefo"re the Debt Recovery Tribunai. Hence, no criminality could be attributed in the process of sanction of these " facilities.

O / 03"'

10. Lastiy, it was alieged that in order to frame the charge it was incumbent upon the prosecution to make out from the facts collected by it, that it answers ingvredi.en.ts of the offence. Since the materiai coilected by indicates only fact of application lay. the company'. fact of sanctioning of loan, it does not:"--..re*'~,;I_'ea'i' ingred'i'enVts'ii'--ofiany if offence to frame charge. asA'accused,l\lAo._;1..,.a.n.d 2 are concerned they were the hig_hues_t_ 'o..pera.tio«na_l heads of the bank branch and we'ref,a_lso_ to sanction ioan facilities, whfiie'~a_ccuse"d'"i*lf;i,3"and 4. apsvffalso accused No.8 enjoy,,.----no"' aL§;.;t'ho'ri'r,a'ti've"position. Therefore, it is urged the made out from the material coliectedfffa cas'e__to..,fra..rne charge against accused No.3, 4 .....

' learned counsei for petitioners further co"nten_ded:"'that sanction order was not proper. Before "..sa_ncti'oning authority aii records relevant were not "'-._Vp'r'od«uced. Therefore, grant of sanction is not legal. In " v--*support of these contentions the learned counsel relied on ($9 several citations, which I shall refer to in the following paragraphs.

12. Per contra, the learned counse.i::"forég:"C'BIi.."i'~ir'.;é Ashok Haranahaili and his colleague »coyntend_itiri.-at 'the_j'sc'o_Vpée'e. of contest between the accused pllrostecution_:"'at:'t:he stage of framing of charge is--.v:e~ry narrow'. the court is required to considverngis ez:i's.eri~ce"~-.9? p'ri'"ma..favi§:ie case on the basis of the mat'e'ria__is In the instant case, the charge -is the documentary evidence pyrosecution has filed, is sufficiretitv ou't'*tovt§he deep root conspiracy in defraudying t'|:eVbVa"nl<V'a4nd:.:ehjbezzlement of the public money. It isfurtherconte.nde_d=th'at the learned Judge while deciding the .ch"arg.e..i's to be frame or not, has kept in mind ' d'ic.t:urriV«:o'f~-several decisions of the Apex Court, that no ilthhorouvghiil'jetialmination of the material at that stage, is jusltifiyed. .VxThe tentative analysis of material is required and learned Judge found that material requires charge to Vlgbe framed to put the accused to trial such an order is 0%'?:.:V discretionary order and fails out of the ambit of Section 397 Cr.P.C. to be revised.

13. Aiternativeiy, it was contended «y..th4at':"4sey'erai charges raised by the prosecution are su.p_p'orted_ii~fr'om' documentary evidence therefore," deici'in.ivn7g_ to 7. was not at aii justified. _M_eetingA:t--he a|gie'ga'tio'ns'=,of.ti"ie accused that the learned Spfecifpaii Judgehas."not?_uVnderstood the scope of Section decidi'ng'VVthe aspect, but proceeded to consider Ayitasiif h.e.:fwrajs.»id_ea|ing with a case under Section"'«~g..g2'27 counsei would conten'd"'tha:tj;pwhat"is'$equire'Ci'~un:der Section 239 Cr.P.C. is oniy fdisfcretioniffofip Magistrate to examine the accused, if,neces.sa'i~<y,'~but if materiai so found makes out pi.-':i_rna;g_...facyie casev-.--.--i.t'was not necessary that the iearned 'shouid have examined the accused.

Keeping in mind what is urged let us examine first" scope of inquiry that is now pending triai. 'Indisputabiy, it is a case reiating to fraud in a banking vftransaction. It is not in dispute that the accused No.6 was a &,Q2/ juristic person registered under the provisions of Companies Act and was represented as is provided under thefsagid Act by its Managing Director, namely, Accused..'.'_Al\|':o".iSj*stand accused No.7, who is a Director. No €i1J.§5S'tion..A_i.'lias been' raised by the accused before the learned"«_;iuidg.e A status. In other words, the juristicperson,'.a.ccus'ed'=*.I\lo.€3"a M/s Flora International Limituéd:is_undouotedlylllrelplresented by these two persons.'"Theyi.i'n_ authorised and submittedythe the for several cash credit faciliti_eS'.'jA;i..$'uprinissioin ofA«:s'u:c'li..d.ocuments and request for grant also not in dispute.

'It:list."further.inoticed that at relevant point of time acclusedv i\Vlo-.._3A'-: Satyanarayana Rao, was working .,y_Manua'ge-rmof State Bank of Mysore at Bangalore A No.4 -- T.R. Subbaramu was Manager and .'h»e"iwas.ir.9ij_rnrediate junior colleague of accused No.3. So far as a~~ccu;.sed No.1 - M.B. Seetharama Rao is concerned it is dispute that he was the Assistant General Manager. awhile accused No.2 - K.3agannathan was also Branch Manager. But he was also Assistant Chief Manager, at (ﬁ\Q'!/ relevant point of time he was also attending to the process of considering the sanction in normal course '4asi~_r'iig_htly pointed out by the learned counsel.

16. Granting of sanction:-'of"loa_n"._ is.;«'Cilwon_§3:a«s«' per i banking norms and procedure framed by".f'-.i:."». Fovilfov-riVn'g2 prescription of procedures 'a.nd_norms.'isgj"als'o not our concern at this juncture,_.Ever:r'i'f accept that according to the prescribed procedure applications for grant of financigii through various stages betaken as institutional decision, of applications credit worthiness' 51-7, E§ut.~_th'e ciuestion in a case like this is not . lA"ii=rhet'her'7:procedureswhave been followed. The question is =w.hether.iw.h'iiefprocessing the application in the manner so prescribed' the element of criminality in the conduct of .u""--._V:anyggof..these persons on whose decision the fate of the Lia-.pVp"li.cation rested. The prosecution has in this case urged id that the documents produced along with the application by as the accused No.6 were concocted. There was conspiracy of the accused so as to erase any impediment in the'.s2a»nction and to have smooth sailing. In that processgit.'..'iVs'._'__a'!.jigged with sinister design to suppress the tr.ii.e_"_ffacts' 'and*ltol";_ exaggerate financial status Of!' creditworthiness such concocted documentslvwmvyere filed to the knowledge of Accused No."1..to 4. V

18. It is thus'll'a:iA'I_agédgf:ii;a't::'&'Vajgr.used No.1 to 4 had conspired wiVth:;"a.ccus;;ed';' the Bank.

Hence, invoked. Undoubtedly, when,~c~ovn_s'pVi.racy;y.is cannot accept from the Conspiracy cannot be proved or it can also be proved from otiifercircgumstainces.» It is for this reason the court would ' ;.not.ai~ways~..expect the direct evidence relating to conspiracy. queAs'ti_oAr*rVVis whether conspiracy to cheat the bank is supp.ort.ed'by material collected. Does it show support to 2 icliargel for offence punishable under Sections 420 and 471 V§IPC. So far as these charges are concerned we have to consider the materials ocular statement of various witnesses at and documents on record make out prima facie case. The effect of these documents have been tested.

19. The prosecution contends that the vco'n1te*nt's'-.éof these documents are incorrect wThic.hA showing"figures,'_}'wh_ich'. are not true. It reveals acceptance boost the creditworthiness'fo.f:"'t.he the ioan by its Officers, w.it--ho'tit'ra.ising'"avnyttiuestion or inquiry into such Budge has refered to thel'civecisi;oVnVs'of in the case of STATE BY in 2001 CRL.L.J. 111 These' ":::o.f..} SUPERINTENDENT AND REM§'D{iB'F§'Ai'iCiEi5§'~:.:QF'::'§s:E:t3f§L" AFFAIRS, WEST BENGAL vs ANIL KVVUMVAR. AND OTHERS reported in 1979 VJ.39'O"'an._d....formed an opinion that examination of ' ,.e'ntigre__mTateé'ria_| meticulousiy for finding guilt or otherwise of not required. The learned Sessions Judge has .approached the issue keeping in mind the limited ambit iarrdg heid that as he was not required to inquire, but oniy to fconsider prima facie case he was satisfied that tentative opinion was sufficient.

20. The learned counsel has filed a memo___p|acing reliance on the decision as referred to above, iri"vviw.ic'hV he submits that iearned Speciat Judge had ignoiﬁad of the decision in the case of UNI£}N .oi= 1:$:to:'A'§.is §i?.A:Eu'i,,,LAt _ KUMAR SAMAL AND OTHERS repiortédin AI~Rf1.éj;'<.§ wherein the Apex Court "In exercising jurisdictifon:_uhder"Sectf0n 'A2'2"v7 the Judge which undef the ,or~'es:e;nt is' a. senior and experienced.cou:t'"cahnot n':e;Fe2'.v'as a Post Office a',;iLmocrthpfece"of prosecution, but has to c?3nsi'de_r"'th'e broa-dA'b:ot,»abfIit_ies of the case, the V,.to.ta[:;,of the.__:evfdehce5 and the documents :v,producec{ b_e3fore«.,:the_ court, any basic infirmities appearing' in':_i'the«.ca'se,..and so on. This however doues...not rneari,_tha;_t'i'into the pros and cons of the h " matter weigh the evidence as if he was 3COr?Cf!JC£'inQ' avfrial. "

it T-h--ough my attention was drawn to observations ot"4..the__r'Ape5< Court, extracted above, but it wiil be proper to .. rn_ai<e'=-reference to the eariier para of the same judgement ' ﬁhhwhtére the Apex Court held thus:

§s«é?« "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 uni'versa'i*---,g application. By and large however, if two viewsjar-e"«.Vg'A' equally possible and the Judge is satisﬁed -1- evidence produced before him while giving some suspicion but not grave-suspicion' again's'tj_ accused, he will be fully '-.witl_i'i'n..:'his»._right discharge the accused. '.'.> A 1 l

22. Therefore, it is sese:ni»that 'ea_ci1."cas'e' has to be considered on its merits anidmtoald_0.i"s-oywhatlislyy required to consider is prima facie caseffinl ttzeVV'in's~ta"_l.at case, it is seen documents on iproseciutiloh' hals.__fi§ed charge sheet, are not have not questioned the documents ~ "lma:d:e~-':4reference to it while seeking discharge. 21%.'. circumstances Apex Court in the case 'KAl§ili'il\TAKA vs L.MUl\iISWAMY AND OTHERS 1977 SC 3489 (relied on by the learned counsel 'for'; petitioner), observed thus:

"For the purpose of determining whether there is sufficient ground for proceedings against the accused the court possesses comparatively wider My discretion in the exercise of which it can determine the question whether the material on the record, if unrebutteol, is such on the basis of which conviction can be said reasonably to be possibie.« -. 5 .;. é

23. Therefore, the accusedilliiriiust ind-icat_e._th_a't'such ' material is not incriminatingpand to"do'-so instant case, none of the prosecution which cha§r§'e°lsheet are questioned by the st;:c'h.',j'V'~cir_cumstances, the learned 3udg,'e'had'to un-rebutted will it lead to coiivicti'Q.nV.'"*- .

' relied on by the learned counsel "for" in the case of STATE OF KAl;%,,i\lATAKA Vi/sii.tl<:lf:Av\ -'ALI @ BABUJAN reported in ILR 1988 .A 1l:7:S4,,,l:V'w.herein the learned Single Judge of this court H Section 227 observed thus:

. '''Section 227 of the Code of Criminal Procedure and principles Eaid down by Supreme Court, require that if the materiai collected by the investigating Agency create a very grave strong and serious suspicion about the complicity of the accused in the crime, (3.,.\7/ 18 then the court has to frame a charge and that if the materials collected by the investigating agency are.» not sufficient to create any strong suspicion the complicity of the accused in the crime, then court may discharge the accused personsf"-..: 'M

25. While the opinion oiitiieitnigdealrniéddasiﬁgiév[iji;g.{j'ge,_is based on the decision of tiieiapgexACourt.andA"':i.f;"'a~cc'eptabie' and even in the said,---- oVbser)..*ati:og_i1. the learned single Judge has opined that what Vfiyirstyenquiry about the comDiicitY 9l§f;:th_3 'instant case, the undisputed' were employees of the lltiifiey «'o'fFic.er§s who processed the loan applivcaytiloyn the same without testing authenticity.-Thiereforepif any crime is shown to have been un'ciou.b.tediy complicity of them is manifest.

' .-First: 'c.ond'iti:on_ is therefore, satisfied. A"l'he second condition would be whether such .. m_ate'ri~al creates strong suspicion. At the stage of framing "'t,_VVo~f--charge the court would only examine whether it creates

-*any strong suspicion of possibie invoivement of accused. C§;Qa/ What is required to see whether accused may have committed a crime. It is enough if the prosecuti'oh'e.couid show the accused might have committed Cr_i_if3'1E:.:-.'.g'_*I.'t:_Vi:S_.V:the genera! ruie on which material is assess.ed»..a:it..gtPe: timeof framing of the charge. The {earned 3udge4'has.'doh'e'soand I i' do not find any infirmity in .tr.eg_ordé'r__or' the eiearnievd adage.

27. However, at thisH4_i:"s,t:ag.e Eet" eﬁéiamine the ground urged by theI'e.ai'neLffgcsjguihhhsei»that the learned Judge shouid have been foliowedfSecti.Qri.é'2_3S5".Cr.P.C. Section 239 Cr.P.C. reagds, as€j'fo_iio.viis_: 1' "wHENivi'..4ccusEog'~~s_i-int; as DISCHARGAL-'D.-- If, upon police report and the documents' _serit" it under Section 173 and M ' " njaking'-such" examination, if any, of the accused as V it-he 'vi.Magistra'te"'thinks necessary and after giving » prosecution and the accused an opportunity of it "being heard, the Magistrate considers the charge a.gairiStV. the accused to be groundiess, he shall i .. discharge the accused, and record his reasons for so doing. "

28. From reading of this provision it is clear that if upon considering the police report and the docu:fne»n'ts_V_sent with it under Section 173 and making such e)_&airiih;a'tie,i3;_,"«i_f any, of the accused as the Magistrate thi_ni<3.--4.:if'ieceis:sary after giving the prosecution and the :accIus'e,d.:éain--opfio_rtu;:hiAty S' of being heard, the Magistrate shaVii"'cons.i'dV'§~r :}::h.ar'-get» against the accused to be grovuntdvlesggs, he discharge the accused and record iiurther, this provision makes it Magistrate to discharge _'pr'ovi.s'io*n"iédoes not deal with framing under Section 240 Cr.P.CI_l iiii Section 239 Cr.P.C. the Magistrate" opinion that material is not sufficient a'r.dx'fo"r purpose the Magistrate may eX'a"min°fé' thegaccused and forms such an opinion. it 2S9'.u7§_S.ection 227 of Cr.P.C., deals with session trial andéhhrseads thus:

S' * "If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the 3 37/

2| prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing."

30. Section 239 Cr.P.C. refers to of Magistrate, whereas Sections 227 Cr.P.C__.1"r.efe.rsVito"

powers of Sessions Judge. ProvisionsioﬁvS'ection_.: 2?;7T,:'C'rV.PV.'C. '4 appiies to session trial and,.rSectio'h,l239 'appiiesite, the trial to be conducted by thi'e.V,TiV'iagistratef'S

31. Under scheme of Corruption Act, Section 5 envisages thAe,_pl'roce_c_lVufre --'a~ri'c1~l.Ip:o_wer of the learned Special -.3ud,g'e..f»_The'"-ilgearhed Special Judge may take cognizahncei without the accused being comggnwvitted t'o~.._hiVm for triai and in trying the accused follow procedure prescribed by Code of ,Cri.minai"_'Proc'edure for trial of warrant cases by Magistrate. There"Eoe no doubt that this provision certainly enables "the_ learned Special Judge, though of a ranking of Sessions "Judge, to follow the procedure for trial of warrant cases by it l"'Magistrate under Section 239 Cr.P.C. &;i§}2/ 22

32. In the instant case, no doubt the case has been tried as warrant case and procedure to be foilgoweyd:u§by"'the Magistrate, in that case must becomes app|i'cabie...V.: provisions of Section 239 Cr.P.C:.-;"'wou.|d and ST not Section 227 Cr.P.C. The '..iA§~.whet.lhe.rl:"by passing impugned order has skipped any of the stvaygwes thathas'-prescribed"for"'conduct of trial of warrant between two provisions is Magistrate may examine :i.i:§r1Cl.'3r Section 227 Cr.P.C. the |ea,.rned.ATSpeci:ai,; J.udi_ie-.ha's"tca~~hear the prosecution. "Thus,_éit~j.'i's :_ti1e:"a'ccused who could have availed this opvportuénity and submitted to the learned Special Judge

- =,..i:hVa't" wanted tollliexamine themselves to establish that fr}-l.a:ced by the prosecution is not sufficient to frame .,ti1'e.Vl'.7~v'charge. Therefore, there cannot be any that learned Special Judge has not considered the rmate.rial on record. On the other hand, the material on ...redcord has been considered by the trial Judge.

34. Therefore, whiie accepting the contention of the iearned counsel for accused that provisions of Sec'ti,oI1.,_239 Cr.P.C. appiy, I hoid that iearned Speci_e."::§'_|:""'Jud:-giei committed no error in proceeding to rejectedpthefrirequeist,.'u"'-.. when accused themseives to"'Ve-x_amii'Aie themsefves. A if i it if .

35. Lastly, it must regards sanction is concerned,:._._noth;i_Vng,V--'is outtto show that sanction, on the__basisof..vvh.ic'h.ﬂch'argevsihgeiet has been filed, as suffers vitiates the entire sanction. 'H V 'tangle I do not find any infirmity'..Vin in directing framing of charge ,agai.ns.t,_'ti1'e accused. In the result, the grounds not_merithacceptance and therefore, it is rejected. *--Th.;e_ is confirmed. Both these revisions are disptosevd 'ofsini the above terms.

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Karnataka High Court