Chattisgarh High Court
Chedilal Jaiswal vs State Of Chhattisgarh on 21 March, 2025
2025:CGHC:13744
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Order reserved on 07.01.2025
Order delivered on 21.03.2025
CRR No. 841 of 2018
Chedilal Jaiswal S/o Devi Prasad Jaiswal Aged About 54 Years Occupation Service,
Presently Posted As Assistant Commisioner, Tribal Welfare Department Koriya, R/o
Officers Colony, Baikunthpur, District Koriya Permanent R/o A-25 Songanga Colony,
Seepat Road District : Bilaspur, Chhattisgarh
---Applicant
versus
State Of Chhattisgarh Through The Station House Officer, Special Police
Establishment , Lok Ayukt Office Bilaspur District Bilaspur Chhattisgarh
--- Respondent
(Cause title is taken from the CIS)
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For Applicant : Shri Rajeev Shrivastava, Senior
Advocate with Ms Kajal Chandra,
Advocate
For Respondent/State : Shri Jitendra Shrivastava, GA
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Hon'ble Shri Justice Ravindra Kumar Agrawal CAV Order
1. This Criminal Revision is filed against the order dated 27.06.2018 passed by the learned Special Judge (Prevention of Corruption Act), Balrampur at Ramanujganj in Special Criminal Case- 1 of 2017, whereby the learned trial court has framed the charge against the applicant for the offence under Section 13(2) of the Prevention of Corruption Act, 1988, and Section 120-B of the IPC.
Crr 841 of 2018 2
2. The facts of the case are that the applicant is an accused in Crime No. 114/1998 registered at Police Station Anti-Corruption Bureau/Economic Offence Wing, (hereinafter called as "ACB/EOW") Bilaspur unit, for the offence under Section 13(1)(d), 13(2) of the Prevention of Corruption Act, 1988, and Section 120-B of the I.P.C. After investigation, charge-sheet has been filed before the learned Trial Court where the Special Criminal Case No. 01/2017 is pending for consideration.
3. The allegation against the present applicant is that on 27-07-1996, the applicant was posted as Chief Executive Officer, Janpad Panchayat, Wadraf Nagar, District Surguja. There was a recruitment process published by the State for Shiksha Karmi Grade-III at Janpad Panchayat, Wadraf Nagar, in the year 1998, called as 'Chhattisgarh Panchayat Shiksha Karmi (Recruitment and Conditions) Rules, 1998 (for short, 'the Rules, 1998'). It is alleged that in the said recruitment process of Shiksha Karmi Grade-III, irregularities have been committed by the authorities to appoint their blue-eyed candidate by giving them the advantage without there being any merit position, and they have been illegally selected for extraneous consideration. The authorities have selected their relatives also which is in violation of Section 40 (C) of the C.G. Panchayat Raj Adhiniyam, 1993. Ineligible candidates have been selected by giving them higher marks for their experience, there is manipulation in the marks allotted in the interview, and they themselves appeared in the interview committee in which their relatives are candidates and the Crr 841 of 2018 3 selection rules have not been followed and there is no fair selection process by which the accused persons have committed the offence.
4. The Collector, Surguja, has constituted a four-member committee for inquiry consisting of the Deputy Chief Executive Officer, Jila Panchayat, Surguja, Sub Divisional Officer (Revenue), Wadraf Nagar, District Surguja, Incharge Joint Director, Public Education, Surguja and Assistant Commissioner, Tribal Development, Surguja. They inquired about the allegation, found substance in the complaint, and submitted their report that there are irregularities and illegalities in the selection process of the Shiksha Karmi Grade-III. Thereafter, the Deputy Superintendent of Police, ACB/EOW Bilaspur, registered the offence of Crime No. 114/1998 at ACB/EOW, Bilaspur, and started the investigation into the matter. During the investigation, it was found that the present applicant, who was the then Chief Executive Officer, Janpad Panchayat, Wadraf Nagar, along with other nine accused persons, who were members of the Selection Committee, had not followed the fair selection process; marks of the interview were given by only one person, in the list of Schedule Castes category, for 3 posts, total 10 candidates were shortlisted but the 11th name of Babulal was added; in the list of OBC (female) Category, in place of Vimla Verma, Mala Patel, Kumud, and Ku. Archna, the names of four other candidates, namely Savitri, Anjali, Sangeeta and Savita were substituted. The candidate, Rajkumar Kushwaha, had only one year of experience, and he was allotted 17 marks in place of 9 marks in the OBC (male) category. Ku. Anju Tiwari, Crr 841 of 2018 4 Ku. Shashi Kiran, Lata Jaiswal, Shanti Jaiswal, Anil Kumar Verma, Ku. Shashibala, d/o LP Verma were relatives of members of the Selection committee, namely Siddhnath Tiwari, N.R. Bhagat, Chhedilal Jaiswal (present applicant) and Sitaram Kushwaha, and they got higher marks in the interview. After investigation, due permission for prosecution was obtained, and after completion of investigation, the final report has been filed against total of 10 accused persons before the learned Trial Court for the offence under Section 13(1)(d), and 13(2) of the Prevention of Corruption Act, 1988, and Section 120-B of the I.P.C.
5. The learned trial court has framed charge against the applicant for the offence under Section 13(2) of the Prevention of Corruption Act, 1988 and Section 120-B of the I.P.C. vide order dated 27-06-2018, which is under challenge in the present Criminal Revision filed by the applicant.
6. Learned counsel for the applicant would submit that the applicant has falsely been implicated in the offence only on the basis of surmises and conjectures. There is no prima facie evidence against him in the entire charge-sheet to substantiate the alleged charge. Applicant being the then CEO, he passed the order and stayed the selection process. Thereafter, he was transferred from Wardraf Nagar. Against the present applicant, the allegation is that one Lata Jaiswal has been given appointment who is his relative, whereas, in her interview, the applicant was not a member of the interview board. The applicant was a member of the interview board of the SC/ST candidates, in which there is no Crr 841 of 2018 5 allegation of any irregularity or illegality. The appointment orders of the candidates have not been set aside by any forum. The charges are so general and vague, which has been framed against the applicant. The applicant was transferred to Wardraf Nagar on 27-07-1996 as CEO, Janpad Panchayat. On 18-05-1998, total 99 posts of Shiksha Karmi Grde-III were advertised in various disciplines. On 06-06-1998, Janpad Panchayat, Wadraf Nagar, passed a resolution to conduct interview of the candidates and a Selection Committee was formed. The applicant was also a member of the said committee. On 09-06-1998, the list of eligible candidates was prepared. On 23-06-1998 to 24-06-1998, interviews were held, and on 24-06-1998, interview for candidates of the SC/ST category was held. The applicant had taken part on 24-06-1998 in the interview of the SC/ST candidates. On 25-06-1998, interview of the OBC category candidates was conducted, and the applicant was not part of the said interview board. On 29-06-1998, interview for Unreserved Women category was held. On 25-07-1998, a tentative list of eligible candidates was prepared and published. The applicant, being the CEO of the Janpad Panchayat, called claims and objections in the tentative list of candidates from 25-07-1998 up to 31-07-1998.
7. He would also submit that on 31-07-1998, Jila Panchayat, Surguja, directed the Selection Committee not to issue the final selection list. On 31-07-1998, the applicant passed the order to stop the selection process until further orders. On 03-08-1998, the applicant was transferred to Janpad Panchayat, Lakhanpur on the post of CEO. On 03-08-1998 itself, Crr 841 of 2018 6 a report was submitted before the Collector by the Special committee, who inquired about the complaints. On 10-09-1998, based on the report submitted by the Special committee, Collector Surguja passed the order to reconduct the interview of 11 candidates, who were allegedly said to be relatives of members of the Selection committee. Thereafter, on 20-09-1998, CEO, Wadraf Nagar published the final selection list.
8. He would further submit that 'relative' has been defined in Section 69 of the CG Panchayat Raj Adhiniyam, 1993, in which candidate Lata Jaiswal does not come under the definition of 'relative' of the applicant. Further, wherein the applicant was not a member of the Selection Board, she appeared as a candidate. Rather, the applicant also had called the objection before the finalization of the selection list. it is not the case of the prosecution that the applicant has conducted the interview and extended the benefits of his position. The applicant has not given any sanction to the final selection list, and he was already transferred to another place.
9. He would also submit that even if the material available in the charge-sheet is taken as it is, no substantive charge has been found and framed. The person who has allegedly benefited from the applicant is still working, and their selection has been upheld. Section 40 of the CG Panchayat Raj Adhiniyam is not applicable to the case of the applicant. He is the Government Servant and not the office bearer of the Panchayat. In absence of proper charge, the applicant could not defend Crr 841 of 2018 7 himself. There are no ingredients of Section 13 (1) (a) to (e) in the charge-sheet, and therefore, the trial court has not framed any charge for the offence of Section 13(1) of the P.C. Act. The applicant has not selected any candidate, and therefore, the contents of the charge are not clear. He was not a member of the interview board, and when the final selection list was published, he was not there and already transferred. The ingredients of Section 120-B IPC are also not there in the entire charge-sheet.
10. Learned counsel for the applicant relied upon the judgments of "Vinubhai Ranchhodbhai Patel vs. Rajivbhai Dudabhai Patel" 2018 (7) SCC 743, "Santosh Kumari vs. State of J & K" 2011 (9) SCC 234, "Sushil Sethi vs. State of Arunachal Pradsh" 2020 (3) SCC 240, "Pepsi Foods Ltd. vs. Special Judicial Magistrate" 1998 (5) SCC 749, "D. Devaraja vs. Owasis Sabeer Hussain" 2020 (7) SCC 695, "State of Haryana vs.Bhajan Lal" 1992 Supp (1) SCC 335, "Marium Faisuddhin vs. State by Adugodi Police Station" 2023 SCC Online SC 58, and the order passed by the Hon'ble Division Bench of this Court in "Gurjindar Pal Singh vs. State of CG and others" Cr.M.P. No. 1488/2023, order dated 13-11-2024.
11. Per contra, the learned counsel for the State vehemently opposed the submissions made by the learned counsel for the applicant and has submitted that being the Chief Executive Officer, Janpad Panchayat, Wadraf Nagar, he was the Ex-officio chairman of the Selection Crr 841 of 2018 8 Committee of Shiksha Karmi Grade-III. It is not the only allegation that he had appointed his relative Lata Jaiswal, there is other allegation that he had taken bribe to appoint other candidates and manipulated the documents. From the statement of Santosh Kumar and Lal Bahadur, it came into knowledge that the accused persons demanded bribe from them, and when they could not give the bribe amount, they have not been selected. From the statement of Pahluram Kushwah, it comes that the present applicant C.L. Jaiswal, was a member of the interview board, and all the questions were asked by him. He allotted the marks on the instructions of co-accused Sitaram Kushwah, who demanded bribe from him, and when he did not give the bribe amount, very less marks were allotted to him in the interview. Statement of Rammilan Prasad is there who stated that he had given bribe to the present applicant, and when he was not selected, he returned the entire amount to him. Statement of Jaishankar Prasad Upadhyay and Dukhteshwar Prasad are there who also stated about the tainted process of selection of Shiksha Karmi Grade-III. From the statement of Kansraj Singh, who was a member of Janpad Panchayat, Wadraf Nagar, and a member of the Selection Committee also, it comes that the present applicant has given the marks to the candidates on blank paper and obtained signatures of the interview board members on the said blank paper and later on it was filled up in the tabulation sheet by the clerk. He stated about the corruption that took place in the selection process and also stated that he made a complaint to the Collector. Statements of Haris Abdulla and Rajiv Prasad Gupta are Crr 841 of 2018 9 also there with the same effect. He would further submit that the learned trial court has framed the charge for the offence of Section 13(2) of the Prevention of Corruption Act, 1988, for criminal misconduct and in the charge-sheet, there is sufficient material which prima facie shows that the present applicant is guilty of the said offence. Further, there may not be any direct evidence of conspiracy or meeting of mind, but it can be inferred by the conduct of the accused also. Looking to the entire episode of the selection process and the position of the present applicant, the allegation levelled against him, and the statement of witnesses are evident that there is sufficient material available on record that the present applicant conspired with the other co-accused persons and committed the offence. It is further submitted by him that the learned trial court has ample power under Section 216 of the CrPC to amend the charge or to frame a new charge before passing the judgment. He would rely upon the judgment of "K. Ravi vs. State of Tamilnadu", 2024 SCC Online SC 2283.
12. Learned counsel for the state also submits that at the time of framing the charge, the trial court is not required to examine the evidence on record meticulously, and only to consider whether the prima facie evidence is there or not to proceed with the trial, irrespective of the fact that whether the outcome would be acquittal or conviction. He would also rely upon the judgments of "State (NCT of Delhi) vs. Shiv Charan Bansal and Others", 2020 (2) SCC 290, and "State of Gujarat vs. Dilipsinh Kishorsinh Rao", 2023 SCC Online SC 1294.
Crr 841 of 2018 10
13. I have heard learned counsel for the parties and perused the documents annexed with the petition.
14. At the stage of framing of charge, the court is not required to meticulously examine the evidence on record and not to conduct mini trial. The court would only consider whether prima facie material is there or not to proceed with the trial. The Hon'ble Supreme Court has laid down the principles in the case of State of M.P. vs. Deepak 2019 (13) SCC 62, wherein the Hon'ble Supreme Court has held that at the stage of framing of charge, the court has to consider the material only to find out if there is a ground for presuming that the accused had committed the offence. It is also held that the court is required to evaluate the material and documents on record to find out that if facts emerging therefrom are taken at their face value disclose the existence of all the ingredients constituting the alleged offence and at the stage of framing of charge, the court is not required to appreciate the evidence on record and consider the allegations on merits and to find out on the basis of evidence recorded is likely to be convicted or not. In the matter of Deepak (Supra), in its judgment, the Hon'ble Supreme Court has held that:-
16. It was also noted that at the stage of framing of charges, the Court has to consider the material only with a view to find out if there is a ground for "presuming" that the accused had committed the offence : ( Chitresh Kumar Chopra case [Chitresh Kumar Chopra v. State (NCT of Delhi), (2009) 16 SCC 605 : (2010) 3 SCC (Cri) 367] , SCC p. 613, para 25) Crr 841 of 2018 11 "25. 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, disclose the existence of all the ingredients constituting the alleged offence or offences. For this limited purpose, the court may sift the evidence as it cannot be expected even at the initial stage to accept as gospel truth all that the prosecution states. At this stage, the court has to consider the material only with a view to find out if there is ground for "presuming" that the accused has committed an offence and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction."
15. In the matter of Manjit Singh Virdi vs. Hussain Mohammad Shattaf 2023 (7) SCC 633, the Hon'ble Supreme Court has held in para 12 of its judgment that:-
12. The law on the point has been summarised in a recent judgment of this Court in State of Rajasthan v. Ashok Kumar Kashyap [State of Rajasthan v.
Ashok Kumar Kashyap, (2021) 11 SCC 191 : (2022) 1 SCC (Cri) 286] . Relevant paras are extracted below : (SCC pp. 197-98, para 11) "11. ... 11.1. In P. Vijayan v. State of Kerala [P. Vijayan v. State of Kerala, (2010) 2 SCC 398 : (2010) 1 SCC (Cri) 1488] , this Court had an occasion to consider Section 227CrPC. 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 Crr 841 of 2018 12 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 228CrPC, 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.
11.2. In the recent decision of this Court in State of Karnataka v. M.R. Hiremath [State of Karnataka v. M.R. Hiremath, (2019) 7 SCC 515 :
(2019) 3 SCC (Cri) 109 : (2019) 2 SCC (L&S) 380] , one of us (D.Y. Chandrachud, J.) speaking for the Bench has observed and held in para 25 as under : (SCC p. 526) "25. The High Court [Hiremath v. State of Karnataka, 2017 SCC OnLine Kar 4970] ought to have been cognizant of the fact that the trial court was dealing with an application for discharge under the provisions of Section 239CrPC. 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 Crr 841 of 2018 13 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, (2014) 11 SCC 709 : (2014) 3 SCC (Cri) 529 : (2014) 2 SCC (L&S) 721] , adverting to the earlier decisions on the subject, this Court held : (N. Suresh Rajan case [State of T.N. v. N. Suresh Rajan, (2014) 11 SCC 709 : (2014) 3 SCC (Cri) 529 : (2014) 2 SCC (L&S) 721] , 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."
16. Further, in the matter of State by SP through the SPE, CBI vs. Uttamchand Bohra, 2022 (16) SCC 663, the Hon'ble Supreme Court has held in para 21 of its judgment that:-
21. In CBI v. K. Narayana Rao [CBI v. K. Narayana Rao, (2012) 9 SCC 512 : (2012) 4 SCC (Civ) 737 : (2012) 3 SCC (Cri) 1183] this Court, after Crr 841 of 2018 14 reviewing the previous decisions that dealt with the question of the applicable standard relating to discharge of accused in a criminal case, summarised the principles in the following terms : (SCC pp. 520-23, paras 12-14) "12. The first decision in Ramesh Singh [State of Bihar v. Ramesh Singh, (1977) 4 SCC 39 : 1977 SCC (Cri) 533] relates to interpretation of Sections 227 and 228 of the Code for the considerations as to discharge the accused or to proceed with trial.
Para 4 of the said judgment is pressed into service which reads as under : (SCC pp. 41-42) '4. Under Section 226 of the Code while opening the case for the prosecution the Prosecutor has got to describe the charge against the accused and state by what evidence he proposes to prove the guilt of the accused. Thereafter comes at the initial stage the duty of the Court to consider the record of the case and the documents submitted therewith and to hear the submissions of the accused and the prosecution in that behalf. The Judge has to pass thereafter an order either under Section 227 or Section 228 of the Code. If "the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing", as enjoined by Section 227. If, on the other hand, "the Judge is of opinion that there is ground for presuming that the accused has committed an offence which -- ... (b) is exclusively triable by the court, he shall frame in writing a charge against the accused", as provided in Section 228. Reading the two provisions together Crr 841 of 2018 15 in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of 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 Crr 841 of 2018 16 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.'
13. Discharge of the accused under Section 227 of the Code was extensively considered by this Court in P. Vijayan [P. Vijayan v. State of Kerala, (2010) 2 SCC 398 : (2010) 1 SCC (Cri) 1488] wherein it was held as under : (SCC pp. 401-402, paras 10-11) '10. ... 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. Further, the words "not sufficient ground for proceeding against the accused" clearly show that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the Crr 841 of 2018 17 facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, 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.
11. 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. In other words, the sufficiency of ground 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.'
14. While considering the very same provisions i.e. framing of charges and discharge of the accused, again in Sajjan Kumar [Sajjan Kumar v. CBI, (2010) 9 SCC 368 : (2010) 3 SCC (Cri) 1371] , this Court held thus : (SCC pp. 375-77, paras 19-21) '19. It is clear that 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 only for the purpose of deciding prima facie whether the court should proceed with the trial or not. If the evidence which the prosecution proposes to adduce proves the guilt of the accused even if fully accepted before it is challenged in cross-
Crr 841 of 2018 18 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.
20. A Magistrate enquiring into a case under Section 209CrPC is not to act as a mere post office and has to come to a conclusion whether the case before him is fit for commitment of the accused to the Court of Session. He is entitled to sift and weigh the materials on record, but only for seeing whether there is sufficient evidence for commitment, and not whether there is sufficient evidence for conviction. If there is no prima facie evidence or the evidence is totally unworthy of credit, it is the duty of the Magistrate to discharge the accused, on the other hand, if there is some evidence on which the conviction may reasonably be based, he must commit the case. It is also clear that in exercising jurisdiction under Section 227CrPC, the Magistrate 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.
Exercise of jurisdiction under Sections 227 and 228CrPC
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 question of framing the charges under Section 227CrPC 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.
Crr 841 of 2018 19
(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 disclose 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 Crr 841 of 2018 20 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.' "
17. The Hon'ble Supreme Court has further held in its judgment in the case of State of Gujarat vs. Dilipsinh Kishorsinh Rao, 2023 SCC Online SC 1294, that:-
10. It is settled principle of law that at the stage of considering an application for discharge the court must proceed on an assumption that the material which has been brought on record by the prosecution is true and evaluate said material in order to determine whether the facts emerging from the material taken on its face value, disclose the existence of the ingredients necessary of the offence alleged.
11. This Court in State of T.N. v. N. Suresh Rajan [State of T.N. v. N. Suresh Rajan, (2014) 11 SCC 709 : (2014) 3 SCC (Cri) 529 : (2014) 2 SCC (L&S) 721] adverting to the earlier propositions of law laid down on this subject has held : (SCC pp. 721-22, para 29) "29. We have bestowed our consideration to the rival submissions and the submissions made by Mr Ranjit Kumar commend us. True it is that at the time of consideration of the applications for discharge, the court cannot act as a mouthpiece of the prosecution or act as a post office and may sift evidence in order to find out whether or not the allegations made are groundless so as to pass an order of Crr 841 of 2018 21 discharge. It is trite that at the stage of consideration of an application for discharge, the court has to proceed with an assumption that the materials brought on record by the prosecution are true and evaluate the said materials and documents with a view to find out whether the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. 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."
12. The defence of the accused is not to be looked into at the stage when the accused seeks to be discharged. The expression "the record of the case" used in Section 227CrPC is to be understood as the documents and 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. The submission of the accused is to be confined to the material produced by the investigating agency.
13. The primary consideration at the stage of framing of charge is the test of existence of a prima facie case, and at this stage, the probative value of materials on record need not be gone into. This Court by referring to its earlier decisions in State of Maharashtra v. Som Nath Thapa [State of Crr 841 of 2018 22 Maharashtra v. Som Nath Thapa, (1996) 4 SCC 659 : 1996 SCC (Cri) 820] and State of M.P. v. Mohanlal Soni [State of M.P. v. Mohanlal Soni, (2000) 6 SCC 338 : 2000 SCC (Cri) 1110] has held the nature of evaluation to be made by the court at the stage of framing of the charge is to test the existence of prima facie case. It is also held at the stage of framing of charge, the court has to form a presumptive opinion to the existence of factual ingredients constituting the offence alleged and it is not expected to go deep into probative value of the material on record and to check whether the material on record would certainly lead to conviction at the conclusion of trial.
18. In the matter of State (NCT of Delhi) vs. Shiv Charan Bansal and Others, 2020 (2) SCC 290, the Hon'ble Supreme Court has held that at the stage of framing of charge, the trial court is not required to conduct a meticulous appreciation of evidence or a roving inquiry into the same and has the power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case is made out against the accused to proceed with the trial.
19. In view of the above principles, on examining the material available in the charge-sheet, which is filed along with the petition, it prima facie gives sufficient material that the present applicant, being the Chief Executive Officer, Janpad Panchayat, Wadraf Nagar, gets himself involved in the selection process which was enquired by a team of four members constituted by the Collector who found the irregularities and illegalities committed in the selection process and submitted its report to that effect. From the statements of the witnesses Santosh Kumar, Lal Crr 841 of 2018 23 Bahadur, Pahluram Kushwah, Rammilan Prasad, Jaishankar Prasad Upadhyay, Dukhteshwar Prasad and Kansraj Singh, there is sufficient prima facie material to frame charge and to proceed with the trial of the case which supported by the enquiry report of the committee. There are allegations against the present applicant that he committed the offence of criminal misconduct while he was posted as Chief Executive Officer, Janpad Panchayat, Wadraf Nagar. Criminal misconduct, as defined under Section 13(1) of the Prevention of Corruption Act, 1988, clearly spells out the act of the present applicant and the other co-accused persons from the material available in the charge-sheet and statement of the aforementioned witnesses. Various documents and registers have been seized and handwriting of the persons have also been examined.
20. From perusal of the charge memo, this court finds that there is sufficient description in the charge memo of the offence of conspiracy and criminal misconduct and allegation against the present applicant that he, being the member of the Selection Committee, had selected the ineligible candidate and has committed the offence in violation of Rules of CG Panchayat Shiksha Karmi (recruitment and service condition) Rules. The allegation against the applicant requires evidence for which the charge has been framed, and the learned trial court proceeded with the trial. Although the applicant was transferred from Wadraf Nagar to Lakhanpur on 03-08-1998, his role in the selection process and his position prior to his transfer, and the allegation against him clearly makes him liable to face the trial.
Crr 841 of 2018 24
21. In the matter of K. Ravi (supra), the Hon'ble Supreme Court, in para 11 and 12 of its judgment has held that:
"11. It is trite to say that Section 216 is an enabling provision which enables the court to alter or add to any charge at any time before judgment is pronounced, and if any alternation or addition to a charge is made, the court has to follow the procedure as contained therein. Section 216 does not give any right to the Accused to file a fresh application seeking his discharge after the charge is framed by the court, more particularly when his application seeking discharge Under Section 227 has already been dismissed. Unfortunately, such applications are being filed in the trial courts sometimes in ignorance of law and sometimes deliberately to delay the proceedings. Once such applications though untenable are filed, the trial courts have no alternative but to decide them, and then again such orders would be challenged before the higher courts, and the whole criminal trial would get derailed. Suffice it to say that such practice is highly deplorable, and if followed, should be dealt with sternly by the courts.
12. So far as the facts of the present case are concerned, as stated hereinabove the Respondent No. 2 had miserably failed to get himself discharged from the case in the first round of litigation, when he had filed the application Under Section 227 Code of Criminal Procedure, still however he filed another vexatious application seeking modification of charge Under Section 216 of Code of Criminal Procedure to derail the criminal proceedings. The said Application also having been dismissed by the Sessions Court, the order was challenged before the High Court by filing Revision Application Under Section 397 Code of Criminal Procedure. The High Court, on an absolutely extraneous consideration and in utter disregard of the settled legal position, allowed the Revision Application filed by the Respondent No. 2, though legally untenable, and set aside the Crr 841 of 2018 25 charge framed by the Sessions Court against the Respondent No. 2. The said order being ex facie illegal, untenable and dehors the material on record, the same deserves to be set aside."
22. It is settled legal position that at the stage of framing of charge, the trial judge has to examine the evidence placed by the prosecution in order to prima facie satisfy as to whether or not the evidence is sufficient to proceed with trial against the accused. The nature of the evidence collected during the investigation or the documents produced with it, in which prima facie it reveals that there are suspicious circumstances against the accused, would suffice to frame the charge, and they proceed with the trial. If there is no sufficient ground for proceeding against the accused, necessarily the accused would be discharged, but if the court is of the opinion after considering the material available in the charge-sheet, then the charge has to be framed. It is also settled that at the time of framing the charge, the accused has no right to produce any material and to call upon the court to examine the same. The defence of the accused is not to be looked into at the stage of framing of the charge. The primary consideration at the stage of framing of charge is the test of the existence of a prima facie case, and at this stage, the probative value of the material on record need not be gone into.
23. So far as the conspiracy is concerned, the Hon'ble Supreme Court has held in para 168 to 180 that to establish the offence, it is not required to be of a single agreement. Each conspirator plays his separate part, Crr 841 of 2018 26 and he may not know all its secrets. It is difficult to establish a conspiracy by direct evidence.
24. In the case of "State of Karnataka vs. J. Jayalalitha" 2017 (6) SCC 263, the Hon'ble Supreme Court has held that:-
168. While dwelling on the concept of conspiracy, this Court in Mohd.
Husain Umar Kochra v. K.S. Dalipsinghji [Mohd. Husain Umar Kochra v. K.S. Dalipsinghji, (1969) 3 SCC 429 : 1970 SCC (Cri) 99] (SCC pp. 435-36, para 15) held that in conspiracy, agreement is the gist of the offence and a common design and common intention in furtherance of the common scheme is necessary. Each conspirator plays his separate part in one integrated and united effort to achieve the common purpose. It was enounced that conspiracy may develop in successive stages and new techniques may be invented and new means may be devised, and a general conspiracy may be a sum up of separate conspiracies having a similar general purpose, the essential elements being collaboration, connivance, jointness in severalty and coordination. (emphasis supplied)
169.Noor Mohammad Mohd. Yusuf Momin [Noor Mohammad Mohd. Yusuf Momin v. State of Maharashtra, (1970) 1 SCC 696 : 1970 SCC (Cri) 274] (SCC pp. 699-700, para 7), encountered a fact situation witnessing a clash between the neighbours on a very trivial incident of a cow blocking a passage. Murderous assaults followed in which the appellant along with 4/5 associates were involved. The appellant along with others were found guilty under Sections 302/34 IPC. This Court held that participation is the gravamen of common intention but under Section 109, abetment can be attracted even if the abettor is not present. Qua conspiracy, it was Crr 841 of 2018 27 exposited that it postulates an agreement between two or more persons to do or cause to be done an illegal act or an act which is not illegal by illegal means. It was elucidated that conspiracy is of wider amplitude than abetment though there is a close association between the two. It was ruled that conspiracy can be proved by circumstantial evidence and proof thereof is largely inferential, founded on facts and this is because of the difficulty in securing direct evidence of criminal conspiracy. It was explicated that once a reasonable ground is shown to suggest that two or more persons have conspired, then anything done by one of them in reference to their common intention becomes relevant in proving the conspiracy and the offences committed pursuant thereto.
(emphasis supplied)
170. In Saju v. State of Kerala [Saju v. State of Kerala, (2001) 1 SCC 378 :
2001 SCC (Cri) 160] (SCC p. 383, para 7), it was propounded that to attract Section 120-B IPC, it is to be proved that all the accused had the intention and they had agreed to commit the crime. It was assumed that conspiracy is hatched in private and in secrecy, for which direct evidence would not be readily available. It was ruled that it is not necessary that each member to a conspiracy must know all the details of all the conspiracy.
(emphasis supplied)
171. This Court recalled its observations in Yash Pal Mittal v. State of Punjab [Yash Pal Mittal v. State of Punjab, (1977) 4 SCC 540 : 1978 SCC (Cri) 5] (SCC p. 543, para 9) that there may be so many devices and techniques adopted to achieve the common goal of the conspiracy, and there may be division of performances in the chain of actions with one object to achieve the real end, of which every collaborator need not be aware but in which each one of them would be interested. There must be a Crr 841 of 2018 28 unity of object or purpose but there may be plurality of means, sometimes even unknown to one another, amongst the conspirators. The only relevant factor is that all means adopted and illegal acts done must be to fulfil the object of the conspiracy. Even if some steps are resorted to by one or two of the conspirators without the knowledge of the others, it will not affect the culpability of those others when they are associated with the object of the conspiracy.
172. It was noted that as an exception to the settled position of law, an act or action of one of the accused cannot be used as evidence against another, Section 10 of the Evidence Act provided otherwise. To attract the applicability of Section 10, the Court must have reasonable ground to believe that two or more persons had conspired together for committing an offence and then the evidence of action or statement made by one of the accused could be used as evidence against the other. (emphasis supplied)
173. In Ram Narayan Popli v. CBI [Ram Narayan Popli v. CBI, (2003) 3 SCC 641 : 2003 SCC (Cri) 869] , the executives of Maruti Udyog Ltd. were charged with criminal conspiracy to siphon off its funds in favour of A-5 and were prosecuted under Sections 13(1)(c) and 13(2) of the 1988 Act along with Sections 120-B, 420, 409, 467 and 471 IPC. This Court reiterated (SCC pp. 778-79, paras 342 & 343) that the essence of a criminal conspiracy, is unlawful combination and ordinarily the offence is complete when the combination is framed and that the law making conspiracy a crime, is designed to curb the immoderate power to do mischief which is gained by combination of the means. It was held that the offence of criminal conspiracy has its foundation in an agreement to commit an offence. A conspiracy consists not merely in the intention of two or more but in the agreement of two or more to do an unlawful act by unlawful Crr 841 of 2018 29 means. The agreement which is the quintessence of criminal conspiracy can be proved either by direct or by circumstantial evidence or by both and it is a matter of common experience that direct evidence to prove conspiracy is rarely available.
174. The following excerpt from Halsbury's Laws of England, 4th Edn., Vol. 11, p. 44, para 58 was relied upon : (Ram Narayan case [Ram Narayan Popli v. CBI, (2003) 3 SCC 641 : 2003 SCC (Cri) 869] , SCC p. 779, para
344) "344. ... '58. Meaning of conspiracy.-- ... The conspiracy arises and the offence is committed as soon as the agreement is made; and the offence continues to be committed so long as the combination persists, that is, until the conspiratorial agreement is terminated by completion of its performance or by abandonment or frustration or however, it may be. The actus reus in a conspiracy is the agreement to execute the illegal conduct, not the execution of it. It is not enough that two or more persons pursued the same unlawful object at the same time or at the same place. It is necessary to show the meeting of minds, a consensus to effect an unlawful purpose. It is not, however, necessary that each conspirator should have been in communication with each other.' "
(emphasis supplied)
175. Reference was made to R. v. Murphy [R. v. Murphy, (1837) 8 Car & P 297 : 173 ER 502] , where Coleridge, J., was of the view (ER p. 508) that although common design is the root of the charge, it is not necessary to prove that these two parties had come together and actually agreed in terms to have the common design and to pursue it by common means and so to carry it into execution, as in many cases of established conspiracy, there are no ways of proving any such thing. If it is found that these two Crr 841 of 2018 30 persons pursued by their acts, the same object, often by the same means, one performing one part of an act and the other another part of the same act so as to complete it, with a view to attain the object which they are pursuing, you will be at liberty to draw the conclusion that they have been engaged in a conspiracy to effect that object.
(emphasis supplied)
176. The overwhelming judicial opinion thus is that a conspiracy can be proved by circumstantial evidence as mostly having regard to the nature of the offending act, no direct evidence can be expected.
177. In Firozuddin Basheeruddin v. State of Kerala [Firozuddin Basheeruddin v. State of Kerala, (2001) 7 SCC 596 : 2001 SCC (Cri) 1341] (SCC pp. 607-08, paras 26 & 27), it was ruled that loosened standards prevail in a conspiracy trial regarding admissibility of evidence. Contrary to the usual rule, in conspiracy prosecution, any declaration by one conspirator, made in furtherance of a conspiracy and during its pendency, is admissible against each co-conspirator. Despite the unreliability of hearsay evidence, it is admissible in conspiracy prosecutions. It was observed that thus the conspirators are liable on an agency theory for statements of co-conspirators just as they are for the overt acts and crimes committed in their confederates. (emphasis supplied)
178. In Mir Nagvi Askari v. CBI [Mir Nagvi Askari v. CBI, (2009) 15 SCC 643 : (2010) 2 SCC (Cri) 718] (SCC pp. 665-66, para 62), it was enounced that courts in deciding on the existence or otherwise, of an offence of conspiracy must bear in mind that it is hatched in secrecy and that it is difficult, if not impossible, to obtain direct evidence to establish the same. The manner and circumstances in which the offences have been committed and the accused persons had taken part are relevant. To prove that the propounders had expressly agreed to commit the illegal act or had Crr 841 of 2018 31 caused it to be done, may be proved by adducing circumstantial evidence and/or by necessary implications. (emphasis supplied)
179. The following extract from Russell on Crimes, 12th Edn., Vol. 1 was quoted with approval : (Mir Nagvi case [Mir Nagvi Askari v. CBI, (2009) 15 SCC 643 : (2010) 2 SCC (Cri) 718] , SCC p. 666, para 63) "63. ... 'The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se, enough.' " (emphasis in original)
180. It recalled its conclusions in Kehar Singh v. State (Delhi Admn.) [Kehar Singh v. State (Delhi Admn.), (1988) 3 SCC 609 : 1988 SCC (Cri) 711] , that to establish the offence of criminal conspiracy, it is not required that a single agreement should be entered into by all the conspirators at one time. Each conspirator plays his separate part in one integrated and united effort to achieve the common purpose. Each one is aware that he has a part to play in a general conspiracy though he may not know all its secrets or means by which the common purpose is to be accomplished. On the touchstone of the above adumbrated legal postulations, the evidence on records would have to be assayed to derive the deduction as logically permissible. (emphasis supplied)
25. In view of the aforementioned legal position and the facts of the case, it is clear that the submissions made by the applicant that he was not there at the time when the final selection list was published and on 03-08-1998, he was transferred, Lata Jaiswal does not come under the Crr 841 of 2018 32 definition of the relative of the applicant, the applicant was not the member of the interview board of his relative and he has not obtained any extraneous consideration and has not conspired with other accused persons are the matter of evidence and the allegation levelled against the applicant is to be adjudicated after recording evidence of the witnesses. There is prima facie material against the applicant available in the charge sheet to frame the charge and to proceed with the trial of the case.
26. The judgment cited by learned counsel for the applicant i.e. of Vinubhai Ranchhodbhai (supra) relates to proper framing of charge but in the present case, the ingredients of the charge is found sufficient and clear, therefore, it is not applicable to the facts of the present case. The judgment of Sushil Sethi (supra) is also not applicable to the present case as the facts and issues involved in that case is different than the present case. In Pepsi Foods Ltd. (supra), it is held by the Hon'ble Supreme Court that the accused can be discharged at any stage of trial if the trial court considers the charge to be groundless, but it is also not the case herein. In the present case, there are sufficient grounds to frame a charge. In the case of D. Devaraja (supra), the judgment on the point of sanction of prosecution, although the issue of discharge has also been considered, but sufficient prima facie material is there in the present charge sheet against the applicant. The other judgments are also on the different footing but on the same point that if, there is no sufficient prima facie evidence to proceed with the trial of the case, therefore, no benefit can be extended to the applicant from the judgments of Owasis Sabeer Crr 841 of 2018 33 Hussain, Bhajan Lal, Marium Faisuddhin and Gurjindar Pal Singh (supra).
27. This court, therefore, is of the considered opinion that the learned trial court has rightly framed the charge against the applicant, and there is sufficient prima facie material available in the charge-sheet to frame the charge and to proceed with the trial of the case. There is no ground to quash the charge framed by the learned trial court and no illegality or irregularity is found warranting interference in the impugned order of framing charge against the applicant as such Criminal revision deserves to be and hereby dismissed.
28. Interim order, if any, stands vacated.
29. A copy of this order be forwarded to the learned trial court for information and further proceedings in the case.
Sd/-
(Ravindra Kumar Agrawal) JUDGE padma