Rajasthan High Court - Jaipur
Alimuddin S/O Hazari Khan vs State Of Rajasthan (2023/Rjjp/004311) on 31 March, 2023
Author: Ashutosh Kumar
Bench: Ashutosh Kumar
[2023/RJJP/004311]
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Criminal Revision Petition No. 1513/2022
Alimuddin S/o Hazari Khan, Aged About 43 Years, R/o Gogor,
District Sawai Madhopur
----Petitioner
Versus
State Of Rajasthan, Represented Through Public Prosecutor
----Respondent Connected With S.B. Criminal Revision Petition No. 1797/2022 Irfan Khan Son Of Allanur, Aged About 24 Years, R/o Railway Colony Sawaimadhopur Rajasthan
----Petitioner Versus
1. State Of Rajasthan, Represented Through Public Prosecutor
2. Makhan Lal Meena Son Of Shri Gopi Lal Meena, Aged About 47 Years, R/o 50 Vivekanand Puram Ranthambhor District Sawaimadhopur
----Respondents For Petitioner(s) : Mr. A.K. Gupta, Senior Advocate with Mr. Saurabh Pratap Singh Chauhan, Ms. Savita Nathawat, Mr. Anoop Meena, Mr. Gaurav Sharma, Mr. Kapil Bhardwaj and Mr. Dushyant Singh Naruka For Respondent(s) : Mr. Suresh Kumar, PP (Downloaded on 11/11/2023 at 04:46:13 PM) [2023/RJJP/004311] (2 of 18) [CRLR-1513/2022] HON'BLE MR. JUSTICE ASHUTOSH KUMAR Order DATE OF RESERVED :: 02/02/2023 DATE OF PRONOUNCEMENT : : 31/03/2023 Reportable
1. These criminal revisions petitions have been filed against the order passed by the learned Special Judge, Prevention of Corruption Act, Bharatpur (hereinafter referred to as the 'trial Court') dated 21.07.2022 in Criminal Case No.11/2015: State vs. Kamlesh Kumar Jeliya and Ors., by which the learned trial Court has ordered to frame charges against the accused-petitioners for the offences under Sections 7, 13(1)(d), 13(2) of the Prevention of Corruption Act, 1988 (for short, 'the Act of 1988') and Section 120B IPC.
2. The relevant facts, in brief, are that the complainant Makkhan Lal Meena presented a report on 26.12.2014, which reads as under:
"lsokesa] Jheku~ iqfyl mi egkfujh{kd izFke] Hkz"Vkpkj fujks/kd C;wjks] t;iqj ¼jkt-½ fo"k; %& fj"or ekaxus ds laca/k esaA egksn;] mijksDr fo"k;kUrxZr fuosnu gS fd eS eD[ku yky ehuk fuoklh 50 foosdkuaniqje lokbZek/kksiqj dk jgus okyk gw¡ uxj ifj"kn lokbZek/kksiqj }kjk esa dkWef"kZ;y Ldhe psrd ikdZ ds lkeus ¼pkS/kjh uflZax gkse ds ikl ctfj;k nkSlk jksM+ ,d O;kolkf;d Hkq[k.M lkbZTk 89-6 X103-0=1024-27 oxZ xt dh fuykeh lqpuk fnukad 2&12&2013 dks izdkf"kr dh x;h Fkh ftl ij eSaus vekurk jkf"k tek djkus ds mijkUr fuykeh frFkh 18&2&13 dks lokZf/kd cksyh 6-51 djksM+ :i;s yxk;h Fkh tks uxj ifj"kn }kjk Lohdkj dh xbZ Fkh fnukad (Downloaded on 11/11/2023 at 04:46:13 PM) [2023/RJJP/004311] (3 of 18) [CRLR-1513/2022] 18&12&13 dks cSadks dh gM+rky gksus ij ls esus fnukad 19&12&13 dks cksyh dh 1@4 jkf"k 1-63 djksM+ tfj;s RTGS uxj ifj"kn esa tek djok nh Fkh blds ckn esa "ks"k 3@4 jkf"k esa ls 2-97 djksM+ fnukad 31&1&2014 dks tfj;s RTGS }kjk tek djok nh xbZ Fkh esjs }kjk fuykeh esa fy;s x;s O;olk;h Hkq[k.M ij MkW0 chuk pkS/kjh voS/k fuekZ.k iwoZ ls gh dCtk dj j[kk Fkk ftls rRdky gVkus ij "ks"k jkf"k tek djkus ds fy, es fnukad 19&2&14 o 9&4&14 dks uxj ifj"kn dks i= fy[ks ysfdu uxj ifj"kn }kjk Hkw[k.M ls vfrØe.k ugha gVk;k x;k blds ckn uxj ifj"kn }kjk fnukad 3&9&14 ds i= }kjk vfrØe.k gVk;s tkus dh lqpuk eq>s nh xbZ rFkk "ks"k jkf"k ds fujns"k tek djkus ds fy;s fn;s okLro Hkq[k.M ls iwjh rjg dCtk ugha gVok;k x;k Fkk blds ckn uxj ifj"kn lokbZek/kksiqj dh vksj ls ,d vfUre uksfVl fnukad 24&12&14 nsfud HkkLdj lepkj i= esa ist&16 ij izdkf"kr djok;k x;k dh "ks"k jkf"k 1]91]00000@& :i;s e; C;kt jkf"k 35]73083@& ,oa isuYVh jkf"k 13000 dqy :i;s 22686083@& :i;s lkr fnu esa ifj"kn esa tek djkos vU;rk iwoZ esa tek "kqnk jkf"k tCr dh tkdj Hkw[k.M iqu% fuykeh ds fy[kk x;k] bl ij eSaus uxj ifj"kn esa tkdj lEidZ fd;k rks uxj ifj"kn lHkk ifr deys"k tsfy;k vk;qDr iadt dqekj vius nyky iqfyl flikgh veqywnhu ds ek/;e ls fj"or ysdj dke djkus dh tkudkjh feyh vyeqnhu us eq> ls esjs dke ds fy;s dgk fd vxj le; dk cM+oknwaxk isyUVh o C;kt vkSj dCtk Hkh gVoknwaxk eSa bu fj"or [kksj tu izfrfu/kh] vk;qDr dks fj"or ugha nsuk pgkrk rFkk budks fj"or ysrs idM+okuk pgkrk gw¡ esjh deys"k tsfy;k vksj iadt dqekj eaxy ls futh jaft"k ;k m/kkj ysunsu ugha gS Jheku~ th dkjZokbZ djs] dkxtkr dh dksih lkFk gSA 26&12&2014 izkFkhZ] gLrk{kj eD[ku yky ehuk] 50 foosdkuaniwje] j.kFkEHkksj] lokbZek/kksiqj ¼jkt½"
3. On this report, an FIR No.461/2014 under Sections 7, 13(1)(d), 13(2) of the Act of 1988 and Section 120B IPC was registered and after investigation, charge-sheet against Kamlesh Kumar Jeliya, Alimuddin and Irfan Khan was submitted before the (Downloaded on 11/11/2023 at 04:46:13 PM) [2023/RJJP/004311] (4 of 18) [CRLR-1513/2022] learned trial Court for the offences punishable under Sections 7, 13(1)(d), 13(2) of the Act of 1988 and Section 120B IPC.
4. Learned trial Court after hearing the arguments passed the impugned order dated 21.07.2022 and framed the charges against the accused-petitioners for the offences punishable under Sections 7, 13(1)(d), 13(2) of the Act of 1988 and Section 120B IPC.
5. Aggrieved by this impugned order, these criminal revision petitions have been filed.
6. Mr. A. K. Gupta, learned Senior Counsel appearing for the petitioner- Alimuddin, contended that the petitioner was not having any right, interest and authority in the matter in dispute. The petitioner-Alimuddin is a constable in the Police Department and he has nothing to do with the Nagar Parishad, Sawaimadhopur. Therefore, he cannot be said to be a public servant in this matter.
7. It has also been contended that the petitioner-Alimuddin had business transaction with the complainant-Makkhan Lal Meena since long, which is clear from the material available on record. There is no evidence available on record to show that the petitioner made a demand of any money from the complainant.
8. It has been further argued by the learned counsel for the petitioner - Alimuddin, that in this case the complaint which was submitted by the complainant was itself disclosing commission of congnizable offence relating to provisions of the Act of 1988 but Investigating Agency started investigation in the name of a preliminary enquiry without registration of the FIR. It has been (Downloaded on 11/11/2023 at 04:46:13 PM) [2023/RJJP/004311] (5 of 18) [CRLR-1513/2022] averred that the preliminary inquiry was not at all required when the information discloses the commission of cognizable offences.
9. It has also been argued that the FIR itself indicates that the complainant himself abetted the crime and no one has raised any demand. It has also been argued that the petitioner-Alimuddin cannot be said to be a public servant because he was not an employee of the Nagar Parishad. Therefore, he cannot be prosecuted under the provisions of the Act of 1988 as a public servant.
10. It has also been argued that the learned trial Court in its impugned order has relied upon the judgment of Hon'ble Supreme Court rendered in the case of State of Rajasthan vs. Ashok Kumar Kashyap, reported in (2021) 11 SCC 191 wherein it has been held that at the stage of charge only prima facie case against the accused-persons is to be seen whereas, a three Judge Bench of Hon'ble Supreme Court in the case of State of Karnataka vs. L. Munishwamy and Ors., AIR 1977 SC 1489 has held that at the time framing of charges the Court has to determine whether there is sufficient ground to proceed against an accused. The Court has to determine the question whether the material available on the record, if unrebutted, is such on the basis of which a conviction can be said reasonably to be possible. Learned counsel has contended that at the time of framing of charges only prima facie is not to be seen but something more is required than a prima facie case for framing charges against the accused persons. Therefore, the learned trial Court should have relied on the judgment of State of Karnataka vs. (Downloaded on 11/11/2023 at 04:46:13 PM) [2023/RJJP/004311] (6 of 18) [CRLR-1513/2022] L. Munishwamy and Ors. (supra) which is a judgment of Larger Bench and should not have relied on a judgment of State of Rajasthan vs. Ashok Kumar Kashyap (supra).
11. It has also been contended that it is well settled law that demand and acceptance of the amount as illegal gratification is sine qua non for constituting an offence under the Act of 1988. In the present case, there is no demand by the petitioner- Alimuddin, therefore, in this case petitioner-Alimuddin cannot be held liable under the Act of 1988. It has also been argued that the provisions of Section 13(1)(d)(iii) of the Act of 1988 has also been referred to a Larger Bench of Hon'ble Supreme Court in the case of Dr. Manmohan Singh vs. Central Bureau of Investigation, Petition(s) for Special Leave to Appeal (Crl.) CRLMP No(s). 5056-5057/2015 decided on 01.04.2015. Therefore, till the decision of that Larger Bench, order of framing charge under Section 13(1)(d) passed by the learned trial Court is liable to be stayed.
12. It has also been argued that there is no material against the petitioner to frame a charge under Section 120B IPC. It has also been argued that the Court has to consider if the chances of an ultimate conviction are bleak, then no useful purpose would be served by allowing criminal prosecution to continue. The legal aspects of this case have been overlooked by the learned trial Court. In these circumstances, the impugned order of the learned trial Court is illegal and perverse which is liable to be quashed and set aside.
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13. It has also been contended that a complaint was submitted by the petitioner-Alimuddin under Section 138 of the Negotiable Instruments Act, 1881 against the complainant- Makkhan Lal Meena in the Court of Additional Chief Judicial Magistrate, Gangapur City, which was registered as case no.26/2019 (156/2016)(790/2016). The complainant-Makkhan Lal Meena was convicted by the learned trial Court vide judgment dated 06.03.2019 and was sentenced to two years imprisonment and was also directed to deposit Rs.94 lacs as compensation. Against that judgment, complainant-Makkhan Lal Meena filed an appeal no.81/2022. In that appeal, a compromise was arrived at between the petitioner-Alimuddin and complainant Makkhan Lal Meena on 02.08.2022 and the appeal was disposed of in terms of said compromise on 13.08.2022 in National Lok Adalat. This shows that there were business relations between the complainant Makkhan Lal Meena and the petitioner-Alimuddin. In the above situation, it can very well be said that present petitioner-Alimuddin has been falsely implicated in this case. Therefore, the revision petition be allowed and the impugned order dated 21.07.2022 passed by the learned trial Court be quashed and set aside.
14. Mr. Dushyant Singh Naruka, learned counsel appearing for the petitioner - Irfan Khan submitted that there is no specific role of the petitioner - Irfan Khan in the matter, as neither is he the owner of the land nor he has any dispute with anyone.
15. Learned counsel also submitted that no recovery has been made from the petitioner - Irfan Khan on his instance and (Downloaded on 11/11/2023 at 04:46:13 PM) [2023/RJJP/004311] (8 of 18) [CRLR-1513/2022] there is no material to show that the petitioner made a demand of money from the complainant in connection with any official work.
16. It has also been argued that no prima facie case has been made out against the petitioner - Irfan Khan and the proceedings under the Act of 1988 initiated against him is totally illegal and deserves to be set aside.
17. Learned counsel further argued that petitioner - Irfan Khan did not know the other accused persons and has no connection with the alleged offence.
18. Learned counsel for the petitioner also argued that the petitioner is not a public servant and was not discharging his duties as a public servant. The matter relates to the Nagar Parishad, Sawai Madhopur and he is purely a civilian in connection with the facts related to his case and thus, the provisions of the Act of 1988 are not applicable upon him.
19. It has also been contended that the petitioner - Irfan Khan has falsely been implicated in this case due to political vendetta.
20. It has been prayed that the revision petitions be allowed and the petitioners be discharged from all the offences.
21. Learned counsel for both the petitioners have relied upon the following judgments:
1. Central Bureau of Investigation (CBI) vs. Thommandru Hannah Vijayalakshmi, reported in AIR 2021 SC 5041.
2. Ramesh Balkrishna Kulkarni vs. State of Maharashtra, reported in AIR 1985 SC 1655.(Downloaded on 11/11/2023 at 04:46:13 PM)
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3. Rukmini Narvekar vs. Vijaya Satardekar and Ors., reported in AIR 2009 SC 1013.
4. State of Karnataka vs. L. Munishwamy and Ors., reported in AIR 1977 SC 1489.
5. Century Spinning & Manufacturing Co. Ltd. vs. The State of Maharashtra, reported in AIR 1972 SC 545.
6. State of Rajasthan vs. Ashok Kumar Kashyap, reported in (2021) 11 SCC 191.
7. Mattulal vs. Radhey Lal, reported in AIR 1974 SC 1596.
8. K.S. Panduranga vs. State of Karnataka, reported in AIR 2013 SC 2164.
9. B. Jayraj vs. State of Andhra Pradesh, reported in (2014) 13 SCC 15.
10. Ashok Kumar Yadav vs. The State of Rajasthan, reported in S.B. Criminal Appeal No.179/2018, decided on 18.05.2022.
11. State of Punjab vs. Madan Mohan Lal Verma, reported in AIR 2013 SC 3368.
12. C. Sukumaran vs. State of Kerala, reported in (2015) 11 SCC 314.
13. Union of India vs. Prafulla Kumar Samal and Anr., reported in AIR 1979 SC 366.
14. Dilawar Babu Kirane vs. State of Maharashtra, reported in AIR 2002 SC 564.
15. Yogesh @ Sachin Jagdish vs. State of Maharashtra, reported in AIR 2008 SC 2991.
16. Sarabjit Singh & Anr. vs. State of Punjab, reported in AIR 2009 SC 2792.
17. Official Liquidator vs. Dayanand and Ors., reported in (2008) 10 SCC 1.
18. Dr. Manmohan Singh vs. Central Bureau of Investigation, Petition(s) for Special Leave to Appeal (Crl.)..... CRLMP No(s). 5056-5057/2015 decided on 01.04.2015.
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19. Madhavrao Jiwaji Rao Scindia vs. Sambhajirao Chandroji Rao Angre, reported in AIR 1988 SC 709.
22. On the other hand, learned Public Prosecutor has opposed the criminal revision petitions and argued that there is ample evidence against the petitioners in the charge-sheet. Learned trial Court after examining each and every aspect of the case has ordered to frame charges against the petitioners. Therefore, there is no merit in these revision petitions and the same are liable to be dismissed.
23. Heard learned counsel for the parties and perused the material available on record.
24. A perusal of the record reveals that- a memo of transcription of demand of bribe recorded in a digital voice recorder is available on record. The statements of witnesses recorded under Section 161 of the CrPC are also there in support the case of the prosecution. Upon investigation, it was found that Rs. 20 lakhs were demanded from the complainant, and Rs. 15 lakhs were received on 27/12/14. The money was concealed in two cars parked at the official residence of Kamlesh Jeliya, and was recovered during the investigation. The accused persons, including the petitioners Alimuddin and Irrfan, were subjected to the Sodium Carbonate test, which came out positive. Therefore, the trial court relied on all the aforementioned evidence, as well as other evidence available on record, to find a prima facie case and proceeded to frame charges by passing the impugned order. (Downloaded on 11/11/2023 at 04:46:13 PM) [2023/RJJP/004311] (11 of 18) [CRLR-1513/2022]
25. In the case of Asian Resurfacing of Road Agency Pvt. Ltd and Anr. Vs. Central Bureau of Investigation AIR 2018 SC 2039, three Judge Bench of the Hon'ble Supreme Court observed as under:
"31. We have already quoted the judicial experience as noted in the earlier judgments in Para 9 above that trial of corruption cases is not permitted to proceed on account of challenge to the order of charge before the High Courts. Once stay is granted, disposal of a petition before the High Court takes long time. Consideration of the challenge against an order of framing charge may not require meticulous examination of voluminous material which may be in the nature of a mini trial. Still, the Court is at times called upon to do so inspite of law being clear that at the stage of charge the Court has only to see as to whether material on record reasonably connects the accused with the crime. Constitution Bench of this Court in Hardeep Singh v. State of Punjab observed : 25. (2014) 3 SCC 92 : (AIR 2014 SC 1400, Para 93).
100. However, there is a series of cases wherein this Court while dealing with the provisions of Sections 227, 228, 239, 240, 241, 242 and 245 CrPC, has consistently held that the court at the stage of framing of the charge has to apply its mind to the question whether or not there is any ground for presuming the commission of an offence by the accused. The court has to see as to whether the material brought on record reasonably connect the accused with the offence. Nothing more is required to be enquired into. While dealing with the aforesaid provisions, the test of prima facie case is to be applied. The court has to find out whether the (Downloaded on 11/11/2023 at 04:46:13 PM) [2023/RJJP/004311] (12 of 18) [CRLR-1513/2022] materials offered by the prosecution to be adduced as evidence are sufficient for the court to proceed against the accused further. (Vide State of Karnataka v. L. Muniswamy [(1977) 2 SCC 699] :
(AIR 1977 SC 1489) All India Bank Officers' Confederation v. Union of India [(1989) 4 SCC 90] : (AIR 1989 SC 2045) Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia [(1989) 1 SCC 715] State of M. P. v. Krishna Chandra Saksena [(1996) 11 SCC 439] and State of M. P. v. Mohanlal Soni [(2000) 6 SCC 338] : (AIR 2000 SC 2583).
101. In Dilawar Balu Kurane v. State of Maharashtra [(2002) 2 SCC 135] (AIR 2000 SC 2583) this Court while dealing with the provisions of Sections 227 and 228 CrPC, placed a very heavy reliance on the earlier judgment of this Court in Union of India v. Prafulla Kumar Samal [(1979) 3 SCC 4] : (AIR 1979 SC 366) and held that while considering the question of framing the charges, the court may weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out and whether the materials placed before the court disclose grave suspicion against the accused which has not been properly explained. In such an eventuality, the court is justified in framing the charges and proceeding with the trial. The court has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court but the court should not make a roving enquiry into the pros and cons of the matter and weigh evidence as if it is conducting a trial.
102. In Suresh v. State of Maharashtra [(2001) 3 SCC 703] : (AIR 2001 SC 1375) this Court after taking note of the earlier judgments in Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj (Downloaded on 11/11/2023 at 04:46:13 PM) [2023/RJJP/004311] (13 of 18) [CRLR-1513/2022] Bijjaya [(1990) 4 SCC 76] : (AIR 1990 SC 1962) and State of Maharashtra v. Priya Sharan Maharaj [(1997) 4 SCC 393] : (AIR 1997 SC 2041) held as under: (Suresh case, SCC p. 707, para 9). "9. ... at the stage of Sections 227 and 228 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 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 the gospel truth even if it is opposed to common sense or the broad probabilities of the case. Therefore, at the stage of framing of the charge the court has to consider the material with a view to find out if there is ground **for Presuming that the accused has committed the offence** or that there is not sufficient ground for proceeding against him and** not for the purpose of arriving at the conslusion that it is not likely to lead to a conviction* *(Priya Sharan Case, SCC p. 397, para 8)" : (Emphasis in original).
103. Similarly in State of Bihar v. Ramesh Singh [(1977) 4 SCC 39] : (AIR 1977 SC 2018) while dealing with the issue, this Court held : (SCC p. 42, para 4).
"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 the offence, then there will be no sufficient ground for proceeding with the trial."
32. If contrary to the above law, at the stage of charge, the High Court adopts the approach of (Downloaded on 11/11/2023 at 04:46:13 PM) [2023/RJJP/004311] (14 of 18) [CRLR-1513/2022] weighing probabilities and reappreciate the material, it may be certainly a time consuming exercise. The legislative policy of expeditious final disposal of the trial is thus, hampered. Thus, even while reiterating the view that there is no bar to jurisdiction of the High Court to consider a challenge against an order of framing charge in exceptional situation for correcting a patent error of lack of jurisdiction, exercise of such jurisdiction has to be limited to rarest of rare cases."
26. Further, three Judge Bench of the Hon'ble Supreme Court in the case of Bhawna Bai v. Ghanshyam and Ors. reported in AIR 2020 SC 554 observed as under:
"16. ...For framing the charges under Section 228 Cr.P.C., the judge is not required to record detailed reasons. As pointed out earlier, at the stage of framing the charge, the court is not required to hold an elaborate enquiry; only prima facie case is to be seen. As held in Knati Bhadra Shah and another v. State of West Bengal (2000) 1 SCC 722 : (AIR 2000 SC 522), while exercising power under Section 228 Cr.P.C., the judge is not required record his reasons for framing the charges against the accused."
27. Three Judge Bench of the Hon'ble Supreme Court in the case of Radhey Shyam & Ors. v Kunj Behari & Ors. reported in AIR 1990 SC 121 has observed with regards to exercising of power under Section 482 CrPC vis-à-vis quashing of order of framing of charge as under:
"8. ...In so far as the High Court's view that "in the interest of justice, it is the duty of the Court under (Downloaded on 11/11/2023 at 04:46:13 PM) [2023/RJJP/004311] (15 of 18) [CRLR-1513/2022] S. 482, Cr. P. C. to go into the merits of the evidence and appreciate correctly the documents and the statements filed by the police", we may only refer to Mohd. Akbar Dar v. State of Jammu and Kashmir. 1981 Supp SCC 80: (AIR 1981 SC 1548), where it has been pointed out that at the stage of framing of charges, meticulous consideration of evidence and materials by Court is not required."
28. Further, Three Judge Bench of the Hon'ble Supreme Court in the case of Asian Resurfacing of Road Agency Pvt. Ltd (supra), with regard to power of the High Court to quash the order of framing of charges, has held as under:
"35. Thus, we declare the law to be that order framing charge is not purely an interlocutory order nor a final order. Jurisdiction of the High Court is not barred irrespective of the label of a petition, be it under Sections 397 or 482 Cr.P.C. or Article 227 of the Constitution. However, the said jurisdiction is to be exercised consistent with the legislative policy to ensure expeditious disposal of a trial without the same being in any manner hampered. Thus considered, the challenge to an order of charge should be entertained in a rarest of rare case only to correct a patent error of jurisdiction and not to reappreciate the matter."
29. So far as the contention of the learned counsel with regard to looking into the defence theory of the petitioners at the time of framing of charge is concerned, while placing reliance on the case of Rukmini Narvekar vs. Vijaya Satardekar and Ors. reported in AIR 2009 SC 1013, it has been argued that though at (Downloaded on 11/11/2023 at 04:46:13 PM) [2023/RJJP/004311] (16 of 18) [CRLR-1513/2022] the stage of Section 228 CrPC the proposed defence cannot be looked into by the trial court, but can be very well be looked into under Section 482 CrPC. But, Hon'ble Apex Court in the case of Amit Kapoor vs Ramesh Chander & Ors.
MANU/SC/0706/2012 para 19 (12) and (13):
"...(12) In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed with by the prosecution.
(13) Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie..."
30. Thus, the following principles can be culled out from the abovementioned discussion based on the various pronouncements of the Hon'ble Supreme Court:
i. At the stage of framing of charge, the Court has only to see as to whether material on record reasonably connects the accused with the crime. Nothing more is required to be enquired into. [Asian Resurfacing of Road Agency (supra)] ii. Consideration of the challenge against an order of framing charge may not require meticulous (Downloaded on 11/11/2023 at 04:46:13 PM) [2023/RJJP/004311] (17 of 18) [CRLR-1513/2022] examination of voluminous material which may be in the nature of a mini trial. [Asian Resurfacing of Road Agency (supra)] iii. At the stage of framing the charge, the court is not required to hold an elaborate enquiry; only prima facie case is to be seen. [Bhawna Bai (supra)] iv. The challenge to an order of charge should be entertained in a rarest of rare case only to correct a patent error of jurisdiction and not to reappreciate the matter." [(Asian Resurfacing of Road Agency (supra)]
31. It has also been an important argument on behalf of the petitioner that, as per the judgment of the Hon'ble Supreme Court in the case of Central Bureau of Investigation (CBI) vs. Thommandru Hannah Vijayalakshmi, reported in AIR 2021 SC 5041, in cases where FIR itself discloses a cognizable offence, then in that circumstance conducting of a preliminary enquiry is not mandatory. The above cited judgment of the Hon'ble apex court only stipulates that conducting of a preliminary enquiry before registration of FIR is not mandatory. It nowhere stipulates that if an enquiry has been conducted, it would vitiate the investigation. Rather The hon'ble Supreme Court in the case of Lalita Kumari Vs. Government of U. P. & Ors. Reported in AIR 2014 SC 187 has clearly held that in some cases, including corruption cases, before registration of FIR, a preliminary enquiry may be conducted by the investigating agency. The relevant paragraph is quoted as under:
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111. In view of the aforesaid discussion, we hold:
(i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation. (ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not. (iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.
(iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence. (v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. (vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under: (a) Matrimonial disputes/ family disputes
(b) Commercial offences (c) Medical negligence cases (d) Corruption cases (e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.
32. Therefore, in light of the above discussions, this court finds that both the criminal revision petition lack merit and hence are liable to be dismissed.
33. In the result, both the petitions stand dismissed. Stay applications also stand dismissed.
(ASHUTOSH KUMAR),J MADAN/Reserved (Downloaded on 11/11/2023 at 04:46:13 PM) Powered by TCPDF (www.tcpdf.org)