NEUTRAL CITATION
R/SCR.A/12201/2021 ORDER DATED: 18/08/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 12201 of 2021
With
R/SPECIAL CRIMINAL APPLICATION NO. 12203 of 2021
With
R/SPECIAL CRIMINAL APPLICATION NO. 12206 of 2021
With
R/SPECIAL CRIMINAL APPLICATION NO. 12448 of 2021
With
R/SPECIAL CRIMINAL APPLICATION NO. 12457 of 2021
==========================================================
VINODKUMAR KANTILAL PATEL
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR RC KAKKAD(389) for the Applicant(s) No. 1
MR SOAHAM JOSHI, APP for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 18/08/2023
ORAL ORDER
1. There are total five applications, filed by one and same applicant, in which, the challenge is made to the orders impugned passed concurrently by both the Courts below, which are of the same date, identical but separate. The details of which are as under :
1.1 Special Criminal Application No.12201 of 2021 is filed under Article 227 of the Constitution of India and under Section 482 of the Code of Criminal Procedure, 1973, Page 1 of 33 Downloaded on : Sun Sep 17 01:40:54 IST 2023 NEUTRAL CITATION R/SCR.A/12201/2021 ORDER DATED: 18/08/2023 undefined challenging the impugned order dated 27.10.2021 passed by the learned Additional Sessions Judge, Vanthali, District :
Junagadh in Criminal Revision Application No.12 of 2021, whereby the learned Additional Sessions Judge being a Revisional Court has dismissed the revision and upheld the order dated 30.07.2021 passed by the learned trial Court -
Additional Chief Judicial Magistrate, Vanthali in Criminal Case No.286 of 2017, below Exh.64, dismissing the application for discharge. The said Criminal Case is arising from the FIR being C.R.-I No.51 of 2008.
1.2 Special Criminal Application No.12203 of 2021 is filed under Article 227 of the Constitution of India and under Section 482 of the Code of Criminal Procedure, 1973, challenging the impugned order dated 27.10.2021 passed by the learned Additional Sessions Judge, Vanthali, District :
Junagadh in Criminal Revision Application No.10 of 2021, whereby the learned Additional Sessions Judge being a Revisional Court has dismissed the revision and upheld the order dated 30.07.2021 passed by the learned trial Court -
Additional Chief Judicial Magistrate, Vanthali in Criminal Case No.284 of 2017, below Exh.63, dismissing the application for discharge. The said Criminal Case is arising from the FIR being C.R.-I No.47 of 2008.
Page 2 of 33 Downloaded on : Sun Sep 17 01:40:54 IST 2023NEUTRAL CITATION R/SCR.A/12201/2021 ORDER DATED: 18/08/2023 undefined 1.3 Special Criminal Application No.12206 of 2021 is filed under Article 227 of the Constitution of India and under Section 482 of the Code of Criminal Procedure, 1973, challenging the impugned order dated 27.10.2021 passed by the learned Additional Sessions Judge, Vanthali, District :
Junagadh in Criminal Revision Application No.11 of 2021, whereby the learned Additional Sessions Judge being a Revisional Court has dismissed the revision and upheld the order dated 30.07.2021 passed by the learned trial Court -
Additional Chief Judicial Magistrate, Vanthali in Criminal Case No.285 of 2017, below Exh.62, dismissing the application for discharge. The said Criminal Case is arising from the FIR being C.R.-I No.49 of 2008.
1.4 Special Criminal Application No.12448 of 2021 is filed under Article 227 of the Constitution of India and under Section 482 of the Code of Criminal Procedure, 1973, challenging the impugned order dated 27.10.2021 passed by the learned Additional Sessions Judge, Vanthali, District :
Junagadh in Criminal Revision Application No.13 of 2021, whereby the learned Additional Sessions Judge being a Revisional Court has dismissed the revision and upheld the order dated 30.07.2021 passed by the learned trial Court -
Additional Chief Judicial Magistrate, Vanthali in Criminal Case No.287 of 2017, below Exh.135, dismissing the Page 3 of 33 Downloaded on : Sun Sep 17 01:40:54 IST 2023 NEUTRAL CITATION R/SCR.A/12201/2021 ORDER DATED: 18/08/2023 undefined application for discharge. The said Criminal Case is arising from the FIR being C.R.-I No.34 of 2010.
1.5 Special Criminal Application No.12457 of 2021 is filed under Article 227 of the Constitution of India and under Section 482 of the Code of Criminal Procedure, 1973, challenging the impugned order dated 27.10.2021 passed by the learned Additional Sessions Judge, Vanthali, District :
Junagadh in Criminal Revision Application No.9 of 2021, whereby the learned Additional Sessions Judge being a Revisional Court has dismissed the revision and upheld the order dated 30.07.2021 passed by the learned trial Court -
Additional Chief Judicial Magistrate, Vanthali in Criminal Case No.283 of 2017, below Exh.62, dismissing the application for discharge. The said Criminal Case is arising from the FIR being C.R.-I No.44 of 2008.
1.6 It is noted that the FIRs, from which the respective criminal cases have been culminated, are similar in nature and are almost under the same Sections i.e. under Sections 407, 420, 465, 467, 468, 471, 472, 474, 419, 201, 114 and 120(B) of the Indian Penal Code.
2. The brief facts of all the cases in nutshell are as under :
Page 4 of 33 Downloaded on : Sun Sep 17 01:40:54 IST 2023NEUTRAL CITATION R/SCR.A/12201/2021 ORDER DATED: 18/08/2023 undefined 2.1 That, accused No.1 - Anil Thakkar, who is not a legal commission agent, is doing miscellaneous commission work of selling cotton bales, by holding his forged name as 'Anil Sharma', through accused No.2 - Satish Prabhudas, contacted the complainant and giving trust to sell cotton bales to Nitin Mills (Rajasthan), Alps Mills (Haridwar), Gujarat Ambuja Mills (Dalpura), etc., and calling for 2196 number cotton bales worth Rs.2,78,16,607/- during the period between January, 2008 to August, 2008 from Ashish Cotton, Manavadar, through the transport company of other accused viz., Mohammed Tarik Gulam Maiyuddin and not supplying the said cotton bales to the concerned mills and selling the sale bales at Ahmedabad etc., without bills illegally and paying Rs.1,93,59,060/- towards the same to the complainant and not pay Rs.83,57,544/- of the remaining 604 cotton bales to the complainant and thereby committed cheating with the complainant. Further, by giving assurance to the complainant to pay the said outstanding amount, said accused - Anil Thakkar had given cheques of the closed bank account, by putting forged signature. There are other accused also. The applicant is named in the supplementary charge-sheet.
2.2 The applicant has preferred discharge application before the learned trail Court as noted above, wherein the Page 5 of 33 Downloaded on : Sun Sep 17 01:40:54 IST 2023 NEUTRAL CITATION R/SCR.A/12201/2021 ORDER DATED: 18/08/2023 undefined learned trial Court has rejected the same.
2.3 Being aggrieved, the applicant has preferred revision application before the learned revisional Court, as noted above, which is also dismissed by the learned revisional Court.
2.4 Both the learned Courts below have concurrently given findings against the applicant.
2.5 Hence, these applications by the applicant.
3. Heard learned advocates.
4.1 Learned advocate Mr.R.C. Kakkad for the applicant has submitted that when the FIR is filed, the applicant was not named in the FIR. He has submitted that even at the time of charge-sheet, he was not named, but the applicant is named as accused while filing the supplementary charge-sheet by the investigating officer. He has submitted that the applicant has therefore filed an application under Section 239 of the Code of Criminal Procedure, 1973 for discharge in Criminal Case No.286 of 2017. The learned trial Court has rejected the said application vide order dated 30.07.2021.
Page 6 of 33 Downloaded on : Sun Sep 17 01:40:54 IST 2023NEUTRAL CITATION R/SCR.A/12201/2021 ORDER DATED: 18/08/2023 undefined 4.2 He has submitted that being aggrieved by it, the applicant has preferred Revision Application No.12 of 2012 before the learned Revisional Court, which is also dismissed without appreciating the fact that bunch of documents which is produced by the applicant. He has submitted that neither the learned revisional Court nor the learned trial Court has even taken note of those documents while deciding such application. The applicant has relied upon such documents in support of his submissions for discharging the applicant from the alleged offence and has submitted that it is the duty of the learned Courts below to examine such documents and to give findings by considering the same.
4.3 He has relied upon the decision of the Hon'ble Apex Court in the case of Sanjay Kumar Rai versus State of Uttar Pradesh and Another reported in 2021 SCC OnLine SC 367, more particularly paragraphs 13, 14 and 16 to 19 thereof. He has submitted that both the Courts below have committed a gross error when the applicant is wrongly implicated in the alleged offense at the belated stage of the investigation on the basis of the fact that the applicant initially had business transactions with the main accused. He has submitted that both the Courts below have not correctly exercised the powers vested with them either under Section 237 or 397 of the Code of Criminal Procedure, 1973. He has Page 7 of 33 Downloaded on : Sun Sep 17 01:40:54 IST 2023 NEUTRAL CITATION R/SCR.A/12201/2021 ORDER DATED: 18/08/2023 undefined submitted that all these applications may be allowed by quashing and setting aside the impugned orders or by remanding the matters back to the learned Revisional Court for fresh consideration, by exercising the powers under Article 226 of the Constitution of India.
4.4 Except the above, no other submissions are canvassed by the learned advocate for the applicant.
5.1 Per contra, learned APP Mr.Soaham Joshi for the State has drawn my attention towards the findings given by both the learned Courts below, whereby both the learned Courts below have considered the aspect that there is sufficient material, by which, prima facie case is made out against the applicant and for which, a trial may be faced. He has also drawn my attention to some observations made by this Hon'ble Court in Criminal Misc. Application for quashing No.8427 of 2015 whereby this Hon'ble Court has also made some observations and therefore, he has submitted that both the Courts below have concurrently found that there is no case made out to discharge the applicant.
5.2 He has submitted that no interference is required by this Court by interfering in the concurrent findings of both the learned Courts below as both the Courts below have Page 8 of 33 Downloaded on : Sun Sep 17 01:40:54 IST 2023 NEUTRAL CITATION R/SCR.A/12201/2021 ORDER DATED: 18/08/2023 undefined also noted that the documents produced by the present applicant along with the discharge application can be considered at the time of trial and therefore, no prejudice will cause to the rights of the present applicant as from the papers of charge-sheet, there is sufficient material against the present applicant and therefore, he prays to dismiss these applications, as prima facie case is made out against the applicant. He has submitted that this Court may not exercise the powers under Articles 226/227 or under Section 482 of the Code in favour of the applicant at this stage, which should be exercised very sparingly in favour of the accused.
6.1 I have heard rival submissions made by learned advocates for the respective parties. I have perused the documents on record, including the compilation submitted by the learned advocate for the applicant. It is true that name of the present applicant was not initially in the FIR, but, subsequently, during the course of investigation, his name is cropped up and by way of supplementary charge-sheet, the applicant is shown as an accused in the commission of offence.
6.2 Thereafter, the applicant has filed an application for discharge in Criminal Case No.286 of 2017 whereby the trial Court has considered the application by observing that Page 9 of 33 Downloaded on : Sun Sep 17 01:40:54 IST 2023 NEUTRAL CITATION R/SCR.A/12201/2021 ORDER DATED: 18/08/2023 undefined there is sufficient material by way of some documents as well as statement of the complainant as well as the some of the witnesses which clearly reveals the participation of the present applicant in the alleged offence and therefore, it cannot be said that the trial Court has not considered the material available on record while deciding the application for discharge and prima facie, it is found that sufficient material to connect the present applicant with the offence as alleged in the FIR and revisional Court has also considered the same. Therefore, in my opinion, the trial Court has rightly observed in the impugned orders that the documents which are produced by the applicant, along with the application for discharge, can be considered at appropriate stage during the course of the trial, as prima facie, sufficient material are on record in the form of charge-sheet. The Revisional Court has also considered the submissions made at the boar and by giving cogent and convincing reasons for rejecting the revision application filed under Section 397 of the Code and more particularly, the revisional Court has discussed the role of the present applicant in the alleged offence from the material available on record and also has given proper reasons in brief in paragraph 9 of the impugned order and therefore, considering the same, this Court finds that bot the Courts below have concurrently found that there is sufficient material available on record inf the form of charge-sheet.
Page 10 of 33 Downloaded on : Sun Sep 17 01:40:54 IST 2023NEUTRAL CITATION R/SCR.A/12201/2021 ORDER DATED: 18/08/2023 undefined 6.3 The relevant paragraphs of the decision of the Hon'ble Apex Court in the case of Sanjay Kumar Rai (supra) are reproduced as under :
" 13. At the outset, we may note that the High Court has dismissed the Criminal Revision on the ground of lack of jurisdiction under Section 397 of Cr.P.C. The High Court did not examine the issue in detail to find out whether the continuation of proceedings will amount to abuse of process of law in this case. The impugned order cites the decision of this Court in Asian Resurfacing (supra) wherein it was noted as under :
"...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 CrPC or Article 227 of the Constitution. However, the said jurisdiction is to be exercised consistent with the legislative Page 11 of 33 Downloaded on : Sun Sep 17 01:40:54 IST 2023 NEUTRAL CITATION R/SCR.A/12201/2021 ORDER DATED: 18/08/2023 undefined 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."
14. It appears to us that while limiting the scope of a criminal revision to jurisdictional errors alone, the High Court apparently underappreciated the Judgment in Asian Resurfacing (supra). We say so at least for two reasons. First, the material facts in the above cited case dealt with a challenge to the charges framed under the Prevention of Corruption Act, 1988 ("POCA").
The cited judgment itself enlightens that not only is POCA a special legislation, but also contains a specific bar under Section 19 against routine exercise of revisional jurisdiction. Second, This Court in Asian Resurfacing (Supra) while expressing concern regarding the need to tackle rampant pendency and delays in our criminal law Page 12 of 33 Downloaded on : Sun Sep 17 01:40:54 IST 2023 NEUTRAL CITATION R/SCR.A/12201/2021 ORDER DATED: 18/08/2023 undefined system, followed the ratio laid down in an earlier decision in Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551 as can be seen from the following extract :
"27. Thus, even though in dealing with different situations, seemingly conflicting observations may have been made while holding that the order framing charge was interlocutory order and was not liable to be interfered with under Section 397(2) or even under Section 482 CrPC, the principle laid down in Madhu Limaye [Madhu Limaye v.
State of Maharashtra, (1977) 4
SCC 551: 1978 SCC (Cri) 10]
still holds the field. Order
framing charge may not be held
to be purely an interlocutory
order and can in a given
situation be interfered with under Section 397(2) CrPC or 482 CrPC or Article 227 of the Constitution which is a constitutional provision but the power of the High Court Page 13 of 33 Downloaded on : Sun Sep 17 01:40:54 IST 2023 NEUTRAL CITATION R/SCR.A/12201/2021 ORDER DATED: 18/08/2023 undefined to interfere with an order framing charge and to grant stay is to be exercised only in a exceptional situation."
(emphasis supplied)
16. The correct position of law as laid down in Madhu Limaye (supra), thus, is that orders framing charges or refusing discharge are neither interlocutory nor final in nature and are therefore not affected by the bar of Section 397 (2) of CrPC. That apart, this Court in the above cited cases has unequivocally acknowledged that the High Court is imbued with inherent jurisdiction to prevent abuse of process or to secure ends of justice having regard to the facts and circumstance of individual cases. As a caveat it may be stated that the High Court, while exercising its aforestated jurisdiction ought to be circumspect. The discretion vested in the High Court is to be invoked carefully and judiciously for effective and timely administration of criminal justice system.
This Court, nonetheless, does not recommend a complete hands off approach. Albeit, there should be interference, may be, in Page 14 of 33 Downloaded on : Sun Sep 17 01:40:54 IST 2023 NEUTRAL CITATION R/SCR.A/12201/2021 ORDER DATED: 18/08/2023 undefined exceptional cases, failing which there is likelihood of serious prejudice to the rights of a citizen. For example, when the contents of a complaint or the other purported material on record is a brazen attempt to persecute an innocent person, it becomes imperative upon the Court to prevent the abuse of process of law.
17. Further, it is well settled that the trial court while considering the discharge application is not to act as a mere post office. The Court has to sift through the evidence in order to find out whether there are sufficient grounds to try the suspect. The court has to consider the broad probabilities, total effect of evidence and documents produced and the basic infirmities appearing in the case and so on. [Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4]. Likewise, the Court has sufficient discretion to order further investigation in appropriate cases, if need be.
18. This brings us to the present case wherein the High Court has not gone into the merits of the case and did not analyze Page 15 of 33 Downloaded on : Sun Sep 17 01:40:54 IST 2023 NEUTRAL CITATION R/SCR.A/12201/2021 ORDER DATED: 18/08/2023 undefined the case in light of the settled law referred to above.
19. The High Court has committed jurisdictional error by not entertaining the revision petition on merits and overlooking the fact that 'discharge' is a valuable right provided to the accused. In line with the fact that the High Court and the court below have not examined the fairness of criminal investigation in this case and other related aspects concerning improvement of witness statements, it is necessary for the High Court to reconsider the entire matter and decide the revision petition afresh. Accordingly, we set aside the impugned order dated 28.11.2018 and remand the case back to the High Court for its reconsideration in accordance with law."
6.4 From paragraph : 13 above, it clearly suggests that this Court has to examine the propriety and legality of the order impugned that means the order passed by the learned trial Court as well as by the learned revisional Court and the Court does not require to reappreciate the material available on record. It is true that the learned advocate for Page 16 of 33 Downloaded on : Sun Sep 17 01:40:54 IST 2023 NEUTRAL CITATION R/SCR.A/12201/2021 ORDER DATED: 18/08/2023 undefined the applicant has produced compilation which is produced before the learned revisional Court below and this Court also, however, this Court is of the opinion that both the Courts below have considered the available material by way of charge-sheet papers and prima facie it was revealed during the investigation that the applicant has also participated to some extent in the commission of offence as alleged and from record, it transpires that the investigating agency has carried out investigation in fair and proper manner and therefore, it would not be appropriate to exercise the powers under Section 239 of the Code by the learned trial Court and under Section 397 of the Code by the learned revisional Court by considering the judgment passed by the learned trial Court, as there is sufficient material available against the present applicant by way of papers of charge-sheet to proceed with the proceedings of the criminal trial.
6.5 At this stage, it is relevant to reproduce Sections 239 and 397 of the Code, which are as under :
"239. When accused shall be discharged.--If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks Page 17 of 33 Downloaded on : Sun Sep 17 01:40:54 IST 2023 NEUTRAL CITATION R/SCR.A/12201/2021 ORDER DATED: 18/08/2023 undefined necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing."
"397. Calling for records to exercise powers of revision.--(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself; to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling, for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement that he be released on bail or on his own bond pending the examination of the record.
Explanation.--All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be Page 18 of 33 Downloaded on : Sun Sep 17 01:40:54 IST 2023 NEUTRAL CITATION R/SCR.A/12201/2021 ORDER DATED: 18/08/2023 undefined deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of section 398.
(2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.
(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them."
7. At this stage, it would be fruitful to refer to the decision of the Hon'ble Apex Court in the case of State of Tamil Nadu versus R. Soundirarasu reported in (2023) 6 SCC 768, more particularly paragraphs 56, 57, 59, 53, 54 and 75 to 80 thereof, which are as under :
" 56. The nature of evaluation to be made by the court at the stage of framing of charge came up for consideration of this Court in Omkar Nath Mishra and others v.Page 19 of 33 Downloaded on : Sun Sep 17 01:40:54 IST 2023
NEUTRAL CITATION R/SCR.A/12201/2021 ORDER DATED: 18/08/2023 undefined State (NCT of Delhi) and another, (2008) 2 SCC 561, and referring to its earlier decisions in the State of Maharashtra v. Som Nath Thapa, (1996) 4 SCC 659, and the State of M.P. v. Mohanlal Soni, (2000) 6 SCC 338, 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 materials 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 Page 20 of 33 Downloaded on : Sun Sep 17 01:40:54 IST 2023 NEUTRAL CITATION R/SCR.A/12201/2021 ORDER DATED: 18/08/2023 undefined 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.
57. Then again in the case of Som Nath Thapa (supra), a three- Judge Bench of this Court, after noting the three pairs of Sections i.e. (i) Sections 227 and 228 resply in so far as the sessions trial is concerned;
(ii) Sections 239 and 240 resply relatable to the trial of warrant cases; and (iii) Sections 245(1) and (2) qua the trial of summons cases, which dealt with the question of framing of charge or discharge, stated thus: (SCC p. 671, para 32).
Page 21 of 33 Downloaded on : Sun Sep 17 01:40:54 IST 2023NEUTRAL CITATION R/SCR.A/12201/2021 ORDER DATED: 18/08/2023 undefined "32...if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of a charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage."
59. Reiterating a similar view in Sheoraj Singh Ahlawat and others v. State of Uttar Pradesh and another, (2013) 11 SCC 476, it was observed by this Court that while framing charges the court is required to evaluate the materials and documents on Page 22 of 33 Downloaded on : Sun Sep 17 01:40:54 IST 2023 NEUTRAL CITATION R/SCR.A/12201/2021 ORDER DATED: 18/08/2023 undefined record to decide whether the 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.
53. The aforestated Sections indicate that the CrPC contemplates discharge of the accused by the Court of Sessions under Section 227 in a case triable by it, cases instituted upon a police report are covered by Section 239 and cases instituted otherwise than on a police report are dealt with in Section 245. The three Sections contain somewhat different provisions in regard to discharge of the accused. As per Section 227, Page 23 of 33 Downloaded on : Sun Sep 17 01:40:54 IST 2023 NEUTRAL CITATION R/SCR.A/12201/2021 ORDER DATED: 18/08/2023 undefined the trial judge is required to discharge the accused if the Judge considers that there is not sufficient ground for proceeding against the accused. The obligation to discharge the accused under Section 239 arises when the Magistrate considers the charge against the accused to be groundless. The power to discharge under Section 245(1) is exercisable when the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted would warrant his conviction.
54. Sections 227 and 239 respectively provide for discharge being made before the recording of evidence and the consideration as to whether the charge has to be framed or not is required to be made on the basis of the record of the case, including the documents and oral hearing of the accused and the prosecution or the police report, the documents sent along with it and examination of the accused and after affording an opportunity to the parties to be heard. On the other hand, the stage for discharge under Section 245 is reached only after the evidence referred to in Section 244 Page 24 of 33 Downloaded on : Sun Sep 17 01:40:54 IST 2023 NEUTRAL CITATION R/SCR.A/12201/2021 ORDER DATED: 18/08/2023 undefined has been taken.
75. The ambit and scope of exercise of power under Sections 239 and 240 of the CrPC, are therefore fairly well settled. The obligation to discharge the accused under Section 239 arises when the Magistrate considers the charge against the accused to be "groundless". The Section mandates that the Magistrate shall discharge the accused recording reasons, if after (i) considering the police report and the documents sent with it under Section 173, (ii) examining the accused, if necessary, and (iii) giving the prosecution and the accused an opportunity of being heard, he considers the charge against the accused to be groundless, i.e., either there is no legal evidence or that the facts are such that no offence is made out at all. No detailed evaluation of the materials or meticulous consideration of the possible defences need be undertaken at this stage nor any exercise of weighing materials in golden scales is to be undertaken at this stage - the only consideration at the stage of Section 239/240 is as to whether the allegation/charge is groundless.
Page 25 of 33 Downloaded on : Sun Sep 17 01:40:54 IST 2023 NEUTRAL CITATION R/SCR.A/12201/2021 ORDER DATED: 18/08/2023 undefined 76. This would not be the stage for weighing the pros and cons of all
implications of the materials, nor for sifting the materials placed by prosecution- the exercise at this stage is to be confined to considering police report and the documents to decide whether the allegations against accused can be said to be groundless.
77. The word "ground" according to the Black's Law Dictionary connotes foundation or basis, and in the context of prosecution in a criminal case, it would be held to mean the basis for charging the accused or foundation for the admissibility of evidence. Seen in the context, the word "groundless" would connote no basis or foundation in evidence. The test which may, therefore, be applied for determining whether the charge should be considered groundless is that where the materials are such that even if unrebutted, would make out no case whatsoever.
SCOPE OF EXERCISE OF REVISIONAL POWER AT THE STAGE OF CHARGE
78. In Munna Devi v. State of Rajasthan Page 26 of 33 Downloaded on : Sun Sep 17 01:40:54 IST 2023 NEUTRAL CITATION R/SCR.A/12201/2021 ORDER DATED: 18/08/2023 undefined & Anr., (2001) 9 SCC 631, this 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."
79. Thus, the revisional power cannot be exercised in a casual or mechanical manner. It can only be exercised to correct manifest Page 27 of 33 Downloaded on : Sun Sep 17 01:40:54 IST 2023 NEUTRAL CITATION R/SCR.A/12201/2021 ORDER DATED: 18/08/2023 undefined 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.
80. This Court in Asian Resurfacing of Road Agency Pvt. Ltd. v. Central Bureau of Investigation, (2018) 16 SCC 299, has 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."
8. It would also be fruitful to refer to the decision of the Hon'ble Apex Court in the case of Kanchan Kumar versus State of Bihar reported in (2022) 9 SCC 577, more Page 28 of 33 Downloaded on : Sun Sep 17 01:40:54 IST 2023 NEUTRAL CITATION R/SCR.A/12201/2021 ORDER DATED: 18/08/2023 undefined particularly paragraphs 15, 20 to 22 thereof, which are as under :
"15. Summarising the principles on discharge under Section 227 of the Cr.P.C, in Dipakbhai Jagdishchandra Patel v. State of Gujarat, (2019) 16 SCC 547 this Court recapitulated :
"23. At the stage of framing the
charge in accordance with the
principles which have been laid down by this Court, what the court is expected to do is, it does not act as a mere post office. The court must indeed sift the material before it.
The material to be sifted would be the material which is produced and relied upon by the prosecution. The sifting is not to be meticulous in the sense that the court dons the mantle of the trial Judge hearing arguments after the entire evidence has been adduced after a full-fledged trial and the question is not whether the prosecution has made out the case for the conviction of the accused. All that is required is, the court must be satisfied that with the materials Page 29 of 33 Downloaded on : Sun Sep 17 01:40:54 IST 2023 NEUTRAL CITATION R/SCR.A/12201/2021 ORDER DATED: 18/08/2023 undefined available, a case is made out for the accused to stand trial. A strong suspicion suffices. However, a strong suspicion must be founded on some material. The material must be such as can be translated into evidence at the stage of trial. The strong suspicion cannot be the pure subjective satisfaction based on the moral notions of the Judge that here is a case where it is possible that the accused has committed the offence. Strong suspicion must be the suspicion which is premised on some material which commends itself to the court as sufficient to entertain the prima facie view that the accused has committed the offence."
(emphasis supplied)
20. The three heads of expenditure discussed hereinabove must be excluded from Appellant's total alleged expenditure during the check period. First, the Appellant's actual balance amount reflected in the Bank Passbook, i.e., Rs. 11,998, as against the purported account balance of Rs. 55,000, must be taken into account. Further, the second and third amounts, as indicated Page 30 of 33 Downloaded on : Sun Sep 17 01:40:54 IST 2023 NEUTRAL CITATION R/SCR.A/12201/2021 ORDER DATED: 18/08/2023 undefined above, must be excluded from Appellant's total expenditure mentioned in the charge- sheet. Accordingly, the total expenditure comes only to Rs. 2,69,355, and not Rs. 5,24,386, which is based on certain mistakes that we have indicated hereinabove. It is this expenditure of Rs. 2,69,355 which is to be contrasted with the income of Rs. 3,01,561 during the check-period. These facts clearly demonstrate that there is no prima facie case made out by the prosecution and therefore the Appellant was entitled to be discharged.
21. The conclusions that we have drawn are based on materials placed before us, which are part of the case record. This is the same record that was available with the Special Judge (Vigilance) when the application under Section 227 of the Cr.P.C. was taken up. Despite that, the Special Judge (Vigilance) dismissed the discharge application on the simple ground that a roving inquiry is not permitted at the stage of discharge. What we have undertaken is not a roving inquiry, but a simple and necessary inquiry for a proper adjudication of Page 31 of 33 Downloaded on : Sun Sep 17 01:40:54 IST 2023 NEUTRAL CITATION R/SCR.A/12201/2021 ORDER DATED: 18/08/2023 undefined an application for discharge. The Special Judge (Vigilance) was bound to conduct a similar inquiry for coming to a conclusion that a prima facie case is made out for the Appellant to stand trial. Unfortunately, the High Court committed the same mistake as that of the Special Judge (Vigilance).
22. Apart from the above analysis, we would note with great distress that the allegation relating to Appellant's disproportionate income in the period between 1974 and 1988 was levelled in an FIR filed twelve years after the said period concluded. The charge-sheet came to be filed seven years after the registration of the FIR. The application for discharge came to be dismissed on 28.03.2016, almost after a decade of filing of the charge sheet. The dismissal was affirmed by the High Court seven months thereafter, i.e., on 05.10.2016. Finally, and most unfortunately, the present SLP has been pending before this Court for the last six years. In the meanwhile, the Appellant superannuated from service in 2010, but had no option except to contest the case. He is now 72 years. Continuation Page 32 of 33 Downloaded on : Sun Sep 17 01:40:54 IST 2023 NEUTRAL CITATION R/SCR.A/12201/2021 ORDER DATED: 18/08/2023 undefined of the prosecution, apart from the illegality as indicated hereinabove, would also be unjust."
9. In view of above settled position of law which is applied in the facts of the present case and considering the totality of the facts and circumstances of the case, without discussing such evidence in detail, which is available on record by way of charge-sheet which is required to be tested at trial, and considering the concurrent findings of both the Courts below, which is supported by the specific reasons given in the impugned orders, which I found neither improper nor perverse nor illegal and therefore, there is no reason to interfere in the findings given by both the learned Courts below. The present applications therefore need to be dismissed and are dismissed accordingly. Notice is discharged.
(SANDEEP N. BHATT,J) M.H. DAVE Page 33 of 33 Downloaded on : Sun Sep 17 01:40:54 IST 2023