Allahabad High Court
Avnish Kumar vs State Of U.P. And Another on 22 September, 2023
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:184757 Court No. - 78 Case :- CRIMINAL REVISION No. - 4316 of 2023 Revisionist :- Avnish Kumar Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Prabhakar Dwivedi,Vikram Bahadur Yadav Counsel for Opposite Party :- G.A. Hon'ble Raj Beer Singh,J.
1. Heard learned counsel for the revisionist, learned A.G.A for the State and perused the record.
2. The present criminal revision has been filed against the order dated 13.06.2023, passed by the learned Special Judge (Prevention of Corruption Act)/ (V.B.U.P.S.E.B.)/Additional Session Judge, Meerut, in Special Criminal Case No.01/05/2019 (State vs. Avnish Kumar and others), Case Crime No. 1125 of 2018, under Section 7 of Prevention of Corruption Act, P.S. Kotwali, District Baghpat, whereby, the application filed by the revisionist/accused under Section 227 Cr.P.C. for discharge, has been rejected.
3. Learned counsel for the revisionist submitted that the revisionist is innocent and he has been falsely implicated in this case. As per prosecution version, co-accused Praveen Kumar was working as clerk in the office of District Commandant Home Guard, Baghpat and that he was demanding bribe of Rs. 15,000/- from the de facto complainant and two home guard constables for payment of their duty allowances. On the complaint of de facto complainant made to anti corruption establishment, a trap team was constituted and on 07.09.2018 the de facto complainant has given the kickback amount of Rs. 15,000/- to the said co-accused Praveen Kumar, who has handed over the said amount to the revisionist, who was also working in the same office and the revisionist/accused was apprehended by the trap team, whereas, co-accused Praveen Kumar succeeded in running away. Learned counsel submitted that as per prosecution version, demand of illegal gratification was made by the co-accused Praveen Kumar and not by the revisionist and in the absence of any evidence of demand on the part of the revisionist, he cannot be prosecuted for offence under Section 7/13 Anti Corruption Act. In this connection, learned counsel has placed reliance upon case of M.R. Purushotham Vs. State of Karnataka IX (2014) SLT 200. Learned counsel submitted that in fact, the anti corruption officials were pressurizing the revisionist to tell the whereabouts of co-accused Praveen Kumar and as the revisionist has failed to do so, he was falsely implicated in this case. Referring to facts for the matter, it was submitted that no prima facie case is made out against the revisionist. The trial court has failed to appreciate the material in correct perspective and the impugned order is against the facts and law and thus, liable to be set aside. Referring to above stated facts, it was submitted that no prima facie case is made out against revisionist and thus, the impugned order is liable to be set aside and the revisionist is entitled for discharge.
4. Learned A.G.A. has opposed the revision and argued that there is evidence that the revisionist was working as clerk in the office of District Commandant Home Guard, Baghpat. The co-accused Praveen Kumar after taking the bribe amount from the de fact complainant, handed over the same to the revisionist and thus, the revisionist was hand in glove with the co-accused and he was aware of the entire facts and involved in the alleged incident. There is no illegality or perversity in the impugned order. It was submitted that the case law, cited by learned counsel for the revisionist, does not deal with the issue of framing charge and thus, the same is not applicable at this stage.
5. I have considered rival submissions and perused record.
6. It is trite that main consideration at the stage of framing of charge is the test of existence of a prima facie case, and at this stage, probative value of materials on record are not to be gone into. The provisions which deal with the question of framing of charge or discharge, relatable to a sessions trial case are contained in section 227 and 228 CrPC, which read as under:
"227. Discharge.--If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the 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.
228. Framing of charge.--(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which--
(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report;
(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.
(2) Where the Judge frames any charge under clause (b) of sub- section (1), the charge shall be read and explained to the accused, and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried."
7. In case of Onkar Nath Mishra and others Vs. State (NCT of Delhi) and another (2008) 2 SCC 561, it was held that at that stage the Court has to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged and it is not expected to go deep into the probative value of the material on record. The relevant observations made in the judgment are as follows:-
"11. It is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence".
8. Reiterating a similar view in Sheoraj Singh Ahlawat and others Vs. State of Uttar Pradesh and another AIR 2013 SC 52, it was observed that while framing charges court is required to evaluate materials and documents on record to decide whether facts emerging therefrom taken at their face value would disclose existence of ingredients constituting the alleged offence. At this stage, the court is not required to go deep into the probative value of the materials on record. It needs to evaluate whether there is a ground for presuming that the accused had committed the offence and it is not required to evaluate sufficiency of evidence to convict the accused. It was held that the court at this stage, cannot speculate into the truthfulness or falsity of the allegations and contradictions, inconsistencies in the statement of witnesses cannot be looked into at the stage of discharge.
9. The legal position with regard to the principles to be applied while considering a discharge, in the context of the provisions under Section 227of the Code was considered in Union of India Vs. Prafulla Kumar Samal and Another (1979) 3 SCC 4, wherein it was observed as follows:
"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 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 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."
10. In case of M.E. Shivalingamurthy Vs. Central Bureau of Investigation, Bengaluru (2020) 2 SCC 768, the legal principles governing the exercise of such power were stated as follows:
"Legal principles applicable in regard to an application seeking discharge 17, This is an area covered by a large body of case law. We refer to a recent judgment which has referred to the earlier decisions viz. P. Vijayan v. State of Kerala and discern the following principles:
17.1. If two views are possible and one of them gives rise to suspicion only as distinguished from grave suspicion, the trial Judge would be empowered to discharge the accused.
17.2. The trial Judge is not a mere post office to frame the charge at the instance of the prosecution.
17.3. The Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding. Evidence would consist of the statements recorded by the police or the documents produced before the Court.
17.4. 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 offence, then, there will be no sufficient ground for proceeding with the trial".
17.5. It is open to the accused to explain away the materials giving rise to the grave suspicion.
17.6. The court has to consider the broad probabilities, 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, would not entitle the court to make a roving inquiry into the pros and cons.
17.7. At the time of framing of the charges, the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution, has to be accepted as true.
17.8. There must exist some materials for entertaining the strong suspicion which can form the basis for drawing up a charge and refusing to discharge the accused.
18, The defence of the accused is not to be looked into at the stage when the accused seeks to be discharged under Section 227 CrPC (see State of J&K v. Sudershan Chakkar10). The expression, "the record of the case", used in Section 227 CrPC, is to be understood as the documents and the articles, if any, produced by the prosecution. The Code does not give any right to the accused to produce any document at the stage of framing of the charge. At the stage of framing of the charge, the submission of the accused is to be confined to the material produced by the police (see State of Orissa v. Debendra Nath Padhi11)."
11. Thus, it is the consistent judicial view that at the stage of framing charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused.
12. In the instant matter, perusal of record shows that the trial court has considered the entire material and observed that the alleged bribe amount was given to the revisionist at instance of co-accused Praveen Kumar and that fact has clearly been mentioned in the recovery memo as well as in the statements of witnesses and that there is sufficient evidence to show the involvement of the revisionist in the matter. Thus, it is apparent that on the basis of material on record, the trial court has found that there is material on record to show the involvement of the revisionist. The case of M.R. Purushotham (supra) does not deal with the issue of discharge or framing of charge. In that matter, the High Court has convicted the appellant by reversing the judgement of acquittal, passed by the trial court, and on the basis of evidence, Hon'ble Apex Court found that there was no evidence to prove the demand on the part of the revisionist. In the instant matter, the evidence is yet to be led before the trial court and various factual aspects are involved. Recently in case of P. Sarangapani (D) through LRS. Paka Saroja Vs. State of Andhra Pradesh [Criminal Appeal No. 2173 of 2011], decided on 21.09.2023, the Hon'ble Apex referring to the provisions of Section 20 of P.C. Act, held that once the undue advantage i.e. any gratification whatever, other than the legal remuneration, is proved to have been accepted by the accused, the Court is entitled to raise the presumption under Section 20 of P.C. Act that he has accepted the undue advantage as a motive or reward under Section 7 of P.C. Act for performing or to cause performance of a public duty improperly or dishonestly. No doubt, such presumption is rebuttable. Thus, insofar as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 of P.C. Act mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. In the instant case there is allegation and evidence to show that alleged illegal gratification in the tune of Rs. 15,000/ was accepted by the accused / revisionist, though at instance of the co-accused. As stated above, the trial court has observed that there is material on record to show the involvement of revisionist in the incident. As noticed above, at this stage, the matter has to be evaluated for a limited purpose to consider whether the facts emerges from the material disclose ingredients of the offence alleged. At this stage, the court cannot speculate into the truthfulness and falsity of allegations and contradictions even the grave suspicion is to frame charges. It appears that the trial court has considered the entire facts and position of law in correct perspective. Perusal of impugned order shows that the trial court has considered the evidence of the matter collected during investigation. In view of allegations made in the first information report and the material collected during investigation, it can not be said that no case at all is made out against the revisionist. Here, it would be pertinent to mention that the jurisdiction in revision is very limited. In Munna Devi v. State of Rajasthan & Anr., (2001) 9 SCC 631, the Court held as under:-
"3.....The revision power under the Code of Criminal Procedure cannot be exercised in a routine and casual manner. While exercising such powers the High Court has no authority to appreciate the evidence in the manner as the trial and the appellate courts are required to do. Revisional powers could be exercised only when it is shown that there is a legal bar against the continuance of the criminal proceedings or the framing of charge or the facts as stated in the first information report even if they are taken at the face value and accepted in their entirety do not constitute the offence for which the accused has been charged."
13. Thus, the revisional power cannot be exercised in a casual or mechanical manner. It can only be exercised to correct manifest error of law or procedure which would occasion injustice, if it is not corrected. The revisional power cannot be equated with appellate power. A revisional court cannot undertake meticulous examination of the material on record as it is undertaken by the trial court or the appellate court. This power can only be exercised if there is any legal bar to the continuance of the proceedings or if the facts as stated in the charge-sheet are taken to be true on their face value and accepted in their entirety, do not constitute the offence for which the accused has been charged. It is conferred to check grave error of law or procedure. In Asian Resurfacing of Road Agency Pvt. Ltd. v. Central Bureau of Investigation, (2018) 16 SCC 299, it was held that interference in the order framing charges or refusing to discharge is called for in the rarest of rare case only to correct the patent error of jurisdiction. In the instant matter, no such patent error of jurisdiction could be shown.
14. In view of aforesaid, it is apparent that there is no such material illegality, perversity or error of jurisdiction in the impugned order so as to require any interference by this Court in the revision. The revision is dismissed.
Order Date :- 22.9.2023 Suraj