Vikas Asthana vs State Of U.P. Thru. Prin. Secy. ...
2022 Latest Caselaw 4682 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 

 

 
A.F.R.
 
Reserved on: 23.05.2022
 
Delivered on: 31.05.2022
 

 

 

 

 

 

 
Court No. - 16
 

 
Case :- CRIMINAL REVISION No. - 494 of 2022
 
Revisionist :- Vikas Asthana
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And Another
 
Counsel for Revisionist :- Rajesh Chandra Mishra,Akhilesh Kumar Kalra
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Brij Raj Singh,J.

1. This criminal revision has been filed with a prayer to set aside the order dated 26.02.2022 passed by Additional Session Judge/Special Judge, Prevention of Corruption Act, 1988, Court No. 9, Lucknow in Criminal Case No. 957 of 2018 (State Vs. Vikas Asthana & Others) whereby the application for discharge filed by the revisionist has been rejected as well as to quash the order dated 06.04.2022 whereby the ourt below has framed the charges against the revisionist under Section 7/13 (1) (d) read with Section 13 (2) of the Prevention of Corruption Act, 1988, under Section 8/13 (1) (d) read with Section 13 (2) of the Prevention of Corruption Act, 1988, under Section 420 I.P.C. and under Section 120B I.P.C. arising out of Case Crime No. 264 of 2017, under Sections 7, 8, 13 (1) (d) and 13 (2) of the Prevention of Corruption Act, 1988 and Sections 410, 420, 120B, 34 I.P.C, PS Barhpura, District Etawah and discharge the revisionist-accuesd from all the charges.

2. Prior to discussing the present controversy, it is necessary to discuss the detail background of "discharge" enshrined under Criminal Procedure Code which would be also relevant to decide the present controversy.

3. Introductory Part:-

The provison of discharge is available to the accused to demonstrate before the court that after perusing the material and evidence, he has been maliciously charged. Under the Criminal Procedure Code, 1973, the Discharge Application is envisaged to provide remedy to the person who has been maliciously charged. If the allegations which have been made against him are false, this Code provides the provisions for filing a discharge application. If the evidence given before the Court is not sufficient to satisfy the offence and in the absence of any prima facie case against him, he is entitled to be discharged.

4. Division of Criminal Cases:-

There are two major classifications of criminal cases under the Code of Criminal Procedure that is:

(1) Cases instituted on the basis of a police report (Section 238-243).

(2) Cases instituted otherwise than on police report based on the complaint (Section 244-247).

There are four types of the trial procedures provided under CrPC:

1. Summary trials (Section 260-265),

2. Trial of summons cases by Magistrates (Section 251-259),

3. Trial of warrant cases by Magistrates (Section 238-250), and

4. Trial before a court of Sessions (Section 225-237).

The procedure of warrant cases is used for the trial of warrant cases by the Magistrates and the trial before the court of sessions whereas trial of summons cases by Magistrates and summary trials are tried in a summons case trial.

5. Summons Cases:-

Section 2 (w) of the CrPC defines ''Summons case' as a case that is related to an offence and it is also not a ''warrant case'. It includes those offences other than warrant cases i.e, those offences which are not punishable with death, life imprisonment, or imprisonment exceeding two years.

6. The Warrant Cases:-

Warrant case is defined under Section 2 (x) of the CrPC as a case of an offence which is punishable with death, life imprisonment, or imprisonment exceeding two years.

Discharge on the basis of a police report:-

The procedure of law is that the police after completing its investigation files the final charge sheet under Section 173 of the code. Trial against the accused begins by the concerned Court thereafter. However, Section 239 and 227 of CrPC, provide provisions that before the charges are framed against an Accused person, he can be discharged. However, in warrant cases only, these provisions can be used by the Accused.

7. Discharging in warrant case on a police report before Magistrate:-

It is procedure of law that the police, after completing its investigation, files the final charge sheet against the accused. Thereafter the accused has to face trial as the charges are framed against him, by the concerned Court. However, the Code of Criminal Procedure grants a procedure that states that the Accused person can be discharged before the charges are framed against him.

Section 239 of the Code of Criminal Procedure states when accused shall be discharged.

Upon due consideration of the police reports and all the documents sent under Section 173, after hearing prosecution as well as accused, the Magistrate may consider the charge to be groundless against the accused and he can discharge the accused and also record his reasons for doing so.

The significant value of the materials on record cannot be looked into at the stage of framing of a charge by the Magistrate and the materials brought on record by the prosecution against the accused have to be trusted as true at that stage. The emerging judicial view is that the Court cannot initiate an in-depth inquiry into the evidence at this stage.

8. Important elements for Discharge:-

The Court will have to consider the Charge sheet and the Police Report submitted to it by the Police under Section 173, following are the essential elements:

- The Magistrate may, if he deems fit, examine the Accused.

- Thereafter the arguments of both the Prosecution and the Accused Parties and their versions would be heard versions.

- Grounds against the accused to be baseless- There should not be any evidence present against the accused. The Court also has to assure itself that there is no prima facie case against the accused.

If all the above conditions are fulfilled, then the Accused shall be discharged.

9. Whether the magistrate has to take cognizance of the material brought by the accused?

Under Section 239 of the code, the Magistrate has to give the prosecution and the accused a chance of being heard besides taking cognizance of the police report and the documents sent therewith. The Code makes it mandatory for the Court to give a hearing to the accused to determine whether it is essential to proceed to the next stage. It is a matter of the application of the judicial mind.

Nothing in the code restricts the scope of such an audience to oral arguments. If the accused produces any trustworthy material at that stage which might drastically affect even the very feasibility of the case, it would be very inappropriate to recommend that no such material shall be taken into consideration by the Court at that stage. The word ground includes the insufficiency of evidence to justify the charge.

10. When accused shall be discharged in Sessions trial:-

Section 227 of the Code defines that if the judge considers that there is no sufficient ground for proceeding against the accused, upon hearing the submissions of the prosecution and the accused in the behalf and consideration of the record of the case along with the documents submitted therewith, he shall discharge the accused and record his reasons also for so doing.

Only after considering allegations in the charge-sheet and the relevant case-law, the Discharge of an accused can be ordered.

11. Mandatory cases where Sessions Judge is bound to discharge:-

1. Where he is precluded from proceeding because of a prior judgment of High Court,

2. Where the prosecution is clearly barred by limitation,

3. Where the evidence produced is not sufficient,

4. Where there is no legal ground for proceeding against the accused, or

5. Where no sanction has been obtained.

12. Decision of Court for Sufficient ground:-

As per Section 227 of the Code, the magistrate should ensure that there is no sufficient ground for proceeding, it means that no prudent person can conclude that there are grounds or even a single ground to sustain the charge against the accused. If the Sessions Judge is certain that the trial would only be a futile exercise or complete waste of time, he has the authority to discharge the accused.

For the purpose of deciding whether the grounds are sufficient for proceeding against an accused, the Court determines the question whether the material on record, if it is un-rebutted, is sufficient to make the conviction possible. It postulates the exercise of the judicial mind to the facts of the case to decide whether a case has been made out by the prosecution for trial.

13. Judicial Scrutiny for prima facie case:-

It is only through the facts of each case through which the judge can determine if it is a prima-facie case and in this regard, it is neither possible nor desirable to formulate rules of universal application. However, if both of the views are possible and the Judge is convinced that the evidence presented before him gives rise to suspicion but not grave suspicion, he can discharge the accused. At this stage, he does not need to bother whether the trial will lead in conviction or not.

The test to be applied is whether the materials on record, if unrebutted, is sufficient to make conviction possible. The ground word used in the context is a ground for putting the accused on trial and not a ground for conviction. If the evidence produced is not sufficient for the judge to proceed against the accused, it may be a ground or that the prosecution is barred by limitation or as no sanction has been obtained, the accused cannot be proceeded with or due to a prior judgment of the High Court, he is precluded from holding the trial.

14. Whether the material which is produced by the accused can be looked into by the session's court?

In the case of Satish Mehra v. Delhi Administration and Another reported in (1996) 9 SCC 766, the Hon'ble Supreme Court held that if the accused produces any convincing material at the stage framing of charge which might drastically affect the very sustainability of the case, it is unfair to suggest that no such material should be considered into by the court at that stage.

It was held that the main motive of granting a chance to the accused of making submissions as envisaged in Section 227 of the CrPC, is to assist the court to determine whether it is required to proceed to conduct the trial. It was also observed that nothing in the Code limits the ambit of such hearing to oral arguments only and, therefore, the trial court can consider the material produced by the accused at the stage observed under Section 227 of the Code. However, the said judgement Satish Mehra (supra) decided by Hon'ble Supreme Court, has been turned down by Hon'ble Supreme Court in the case of State of Orissa Vs. Devendra Nath Padhi and it has been observed by Apex Court that at the time of framing charge or taking cognizance the accused has no right to produce any material. No provision in the code of criminal procedure 1973 grants to the accused any right to file any material or document at the stage of framing of charge.

15. The Judicial power of the Court at the time of considering the discharge application:-

The Magistrate cannot be assumed to be a post office to frame the charges at the instruction of the prosecution, and application of judicial mind to the facts of the case is necessary to determine whether a case has been made out by the prosecution for trial. In determining this fact, it is not mandatory to dive into the pros and cons of the matter by the court.

At the stage observed under Section 227, the Judge has to merely examine the evidence in order to determine whether or not the grounds are sufficient for proceeding against the accused. The nature of the evidence recorded by the police or the documents produced in which prima facie reveals that there is a suspicious situation against the accused so as to frame a charge against him before the court would be taken into account in order to find out the sufficiency of ground.

16. Discharge after Framing of Charge:-

If there are no sufficient grounds for proceeding against the accused, the accused has to be discharged, but if the Court is of the opinion after such consideration that there is ground for presuming that the accused has committed the offence which is exclusively triable by the Court of Session then the charge against the accused must be framed. Once the charges are framed, the accused is put to trial and thereafter either acquitted or convicted, but he cannot be discharged. Once charges are framed under Section 228 of the code, there is no back-gear for discharging the accused under Section 227 of the code. Discharge post framing of charge is not viewed in CrPC.

17. Discharge is not Acquittal:-

The discharge of an accused under Section 227 of CrPC, is not tantamount to the acquittal of an accused. Under Section 227 of the code, the accused is released on the ground of non-availability of the materials collected by the officeduring the investigation, the Court does not absolve the accused from all the charges at that stage. The discharge may be due to inept inquiry and investigation. The discharged person can again be charged subsequently after proper investigation and collection of relevant materials. The basic intention of the legislature is to prevent one's subjection to the judicial process without any foundation.

18. Review of a Discharge Order:-

Discharge Order does not lead to acquittal as no trial has taken place. Where the Magistrate had discharged some of the accused after recording the evidence let in by the prosecution, but if the fresh materials are found against the discharged accused, he can consider the offence as it is not the review of the discharge order, earlier passed by the Magistrate.

19. Discharge of the accused by Court of Sessions:-

In the case of Sanjay Gandhi vs Union of India reported in AIR 1978 SC 514, it was held that there is no such provision that permits the Magistrate to discharge the accused. Discharge order can be given only by a trial court and in respect of the offences exclusively triable by a court of session, the court of the Judicial Magistrate is not the trial Court.

20. Discharge of accused in Warrant Cases instituted on Complaint:-

Section 245 of CrPC: When accused shall be discharged;

1) If the Magistrate views that no case has been made out against the accused which, if unrebutted, would warrant his conviction, after taking all the evidence referred to in Section 244, for reasons to be recorded, the Magistrate shall discharge him

2) Nothing in this section can forbid a Magistrate from discharging the accused at any precedent stage of the case if he contemplates the charge to be groundless and the reasons shall be recorded by him.

Under Section 245(1), the Magistrate has to consider whether the evidence produced by the prosecution, if remains unrebutted, is sufficient to make conviction of the accused possible. If there is no convincing material on record against the accused, then the Magistrate shall proceed to discharge the accused under Section 245(1) CrPC.

Section 245(2) CrPC empowers the Magistrate to discharge the accused at any precedent stage of the case which means even before such evidence is led. However, the Magistrate has to come to the conclusion that the charge is groundless in order to discharge an accused under Section 245(2) CrPC. The Magistrate can take this decision even prior to the appearance of the accused before the Court or the evidence which is taken under Section 244 CrPC. The words ''At any previous stage of the case' written in Section 245(2) CrPC. brings clarity to this position.

21. What is the previous stage?

The previous stage in the context means that any stage prior to the evidence of the prosecution, under Section 244(1) of the code, is completed. Such stages would lie under Section 200 Cr.P.C. to Section 204 CrPC.

22. Discharge in Summons Case:-

Whether the magistrate is empowered to drop proceedings and discharge an accused in a Summons case which is instituted on a complaint has the power?

Section 251 of the CrPC states:

The substance of accusation to be stated- In a summons case, When the accused appears or is brought before the Magistrate, he should be made aware of the particulars of the offence of which he is accused, and the question shall be asked to him whether he pleads guilty or has any defence to make, but it shall not be obligatory to frame a formal charge. On a bare reading ofSection 251 CrPC, it becomes clear that there is no particular power to discharge or drop proceedings granted to the Magistrate in a Summons Trial.

23. Brief facts of the case:-

The revisionist filed application before the Court below to discharge him from the charges in Case No. 0264 of 2017, under Sections 7, 8, 13 (1) (d) and 13 (2) of the Prevention of Corruption Act, 1988 and Sections 410, 420, 120B, 34 I.P.C, PS Barhpura, District Etawah.

In the application it is stated that provision of Section 120B I.P.C. and Section 34 I.P.C., both cannot stand simultaneously and charge sheet is vitiated. It is further stated in the application that C.O. V. S Veer Kumar arrested the revisionist first and thereafter, the first information report was lodged and made entry in G.D. The proceeding was done on the information given by unknown informant who was not made eye witness of the recovery. It has further been submitted in the application that accused alongwith other co-accused were doing their public duty, therefore, the offence under Sections 419 and 420 I.P.C. is not made out. It has further been submitted in the application that applicant was posted as Passenger Tax Officer in Farrukhabad and he was assigned the duties by the office and in pursuance of the order passed by the department, he was checking at the check post village Udi, District Etawah. As a public officer he was performing his duties and Rs 9,500/- recovered by the police but the said amount was belonging to revisionist. The total recovery of Rs.20,290/- has been shown against all the 7 accused persons which is not a case of trap. The procedure of Section 212 Cr.P.C. has not been followed and the recovery has been said to be illegal.

24. The prosecution had opposed the application for discharge and after hearing both the parties, the impugned orders dated 26.02.2022 and 06.04.2022 have been passed by the Court below.

25. Heard Sri Akhilesh Kumar Kalra, learned counsel for the revisionist and Sri Anurag Verma, learned A.G.A. for the State.

Sri Akhilesh Kumar Kalra has argued that Sections 7, 13 of the Prevention of Corruption Act, 1988 and Section 120 B I.P.C. are not made out. He has also invited attention towards the paper which is part of case diary as contained Annexure-8 and argued that the said paper indicates that the revisionist was posted as Passenger Tax Officer at the relevant place and he has not committed offence. Sri Akhilesh Kumar Kalra has also invited attention towards challan which was done by the revisionist in his official duty as contained in Annexure-10 and has argued that he was doing his official duty but has been falsely implicated in the present case. It has been argued by counsel for the revisionist that A.R.T.O. had entrusted duty on 1st Ocober, 2017 by which the revisionist was directed to check the Udi check post situated at District Etawah and thus, he was doing his official duty but police has implicated him falsely. Sri Akhilesh kumar Kalra, learned counsel for the revisionist has placed reliance on the following judgements reported by Hon'ble Supreme Court:-

(i) Rekha Jain Vs. State of Karnataka and Another; 2022 SCC online SC 585 (ii) Sanjay Kumar Rai Vs. State of Uttar Pradesh and Another; 2021 SCC Online SC 367 (iii) N. Vijay Kumar Vs. State of Tamil Nadu; (2021) 3 SCC 687; (iv) Central Bureau of Investigation, Hyderabad Vs. K. Narayana Rao; (2012) 9 SCC 512 (v) Archana Rana Vs. State of Uttar Pradesh and Another; (2021) 3 SCC 751.

26. Sri Anurag Verma, learned A.G.A. has made submission that order passed by the court below is justified and there is sufficient evidence and material against the revisionist. The court below has recorded finding after considering the evidences and material collected by the police and the discharge application has rightly been dismissed. He has further submitted that once there was sufficient material available before the court below, there is no option left except to frame charges and the court under the revisional jurisdiction has limited jurisdiction to see the legality and perversity of the order. He has further submitted that court in revisional jurisdiction cannot exercise power of the appellate court and evidences cannot be weight and appreciated, collected by the police and he has placed reliance of the several following judgements pronounced by the Hon'ble Apex Court :-

(i) State of Rajasthan Vs Fatekh Karan Medhu; (2017) 3 SCC 198 (ii) State Represented By Deputy Superintendent of Police, Vigilance And Anti-Corruption, Tamil Nadu Vs. J. Doraiswamy And Others (2019) 4 Supreme Court Cases 149 (iii) Srilekha Sentil Kumar Vs. Deputy Superintendent Of Police, Central Bureau OF Investigation, ACB, Chennai; (2019) 7 SCC 82 (iv) State By Karnataka Lokayukta, Police Station, Bengaluru Vs. M. R. Hiremath; (2019) 7 SCC 515 (v) M. E. Shivalingamurthy Vs. Central Bureau of Investigation, Bengaluru; (2020) 2 SCC 768

27. Sri Akhilesh Kumar Kalra has submitted that provision of 7/13 (1) (d) read with Section 13 (2) of the Prevention of Corruption Act, 1988, under Section 8/13 (1) (d) read with Section 13 (2) of the Prevention of Corruption Act, 1988 is not attracted in the present case. After looking into the material on record, it is evident that revisionist was standing at barriers situated at Village Udi, District Etawah and he was illegally receiving money from the trucks by using barriers and upon the raid made by C.O. he was was arrested. Thus, Section 7/13 (1) (d) read with Section 13 (2) of the Prevention of Corruption Act, 1988, under Section 8/13 (1) (d) read with Section 13 (2) of the Prevention of Corruption Act, 1988 is made out. Similarly conspiracy was made by accused/revisionist alongwith co-accused Constable Laxmikant, Constable Shobhit Kumar, Constable Rajnesh, Rampratap, Umesh Chandra and Janved Singh and illegal money was obtained by stopping the truck, all the accused had conspired by making plan and illegal money was received by them. Thus, Section 420 I.P.C. is made out against all the accused. Section 120B I.P.C. is also made out for the reason that accused/revisionist and all the other co-accused had made conspiracy and committed offence which is a penal offence under Section 120B I.P.C. Paragraph Nos.10 and 11 of the judgement Rekha Jain (supra) will not be applicable in the present case. In the case of Rekha Jain (supra) there was no allegation whatsoever to the effect that accused Rekha Jain induced the complainant to part with the gold jewellery. In the absence of allegation of inducement Rekha Jain was not liable to be prosecuted but in the present case, the specific allegation has been levelled against the accused and co-accused who made conspiracy to receive illegal money by stopping trucks at the barrier. The said case Rekha Jain will not be applicable in the present case.

28. Counsel for the revisionist has placed the judgement of Sanjay Kumar Rai (supra) which is regarding the maintainbility of the revision. There is no doubt that under the revisional jurisdiction, the court is not merely a post office. After looking the entire evidences, if the court comes to the conclusion that no charge is made out, the Court can discharge. Thus, there is no claimer on the point of maintainbility. The case Archana Rana (supra) has been relied by the counsel for the revisionist. Paragraph Nos. 7 and 8 of the said judgement has been placed before me in which it is observed that even if averments made in the complaint are taken on their face, they do not constitute the ingredients necessary for the offence under Sections 419, 420 I.P.C. In the present case the material evidences collected by the Investigating Officer indicates that offence is made out under Sections 420 and 120-B I.P.C.

29. Sri Akhilesh Kalra has relied on the para-22, 23, 24 and 30 of judgement of Central Bureau of Investigation, Hyderabad (supra). The ingredients of offence of criminal conspiracy are that there should be an agreement between the persons who are alleged to conspire even if some acts are proved to have been committed, it must be clear that they were so committed in pursuance of an agreement made between the accused persons who were charges to the alleged conspiracy. In the present case, I have seen that all the seven accused including the revisionist have conspired to receive illegal money by stopping the truck and all of them committed offence and recovery was made to that effect. Since, there was sufficient material, therefore, the court framed the charges and there was no option left to court while considering the evidences collected by the Investigating Officer.

30. The next judgement cited by Sri Akhilesh Kumar Kalra, learned counsel for the revisionist, N. Vijay Kumar (supra) is not applicable in the present controversy for the reason that accused was convicted and sentenced was imposed for the offence committed under the Prevention of Corruption Act. Against the judgement, appeal was preferred before the High Court which too was dismissed on 15.09.2020. It is thus clear that said case is arising out of the judgement of trial court and this is discharge application which has been dismissed and the aforesaid judgement relied by counsel for the revisionist is not applicable in the present case.

31. Per contra, Sri Anurag Verma, learned A.G.A. has cited the judgement of State of Rajasthan (supra). Paragraph nos. 26, 27, 28 and 29 of the said judgement are quoted below:-

"26. The scope of interference and exercise of jurisdiction under Section 397 CrPC has been time and again explained by this Court. Further, the scope of interference under Section 397 CrPC at a stage, when charge had been framed, is also well settled. At the stage of framing of a charge, the court is concerned not with the proof of the allegation rather it has to focus on the material and form an opinion whether there is strong suspicion that the accused has committed an offence, which if put to trial, could prove his guilt. The framing of charge is not a stage, at which stage final test of guilt is to be applied. Thus, to hold that at the stage of framing the charge, the court should form an opinion that the accused is certainly guilty of committing an offence, is to hold something which is neither permissible nor is in consonance with the scheme of the Code of Criminal Procedure.

27. Now, reverting to the limit of the scope of jurisdiction under Section 397 CrPC, which vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept in the proceeding.

28. It is useful to refer to the judgment of this Court in Amit Kapoor v. Ramesh Chander [Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 : (2012) 4 SCC (Civ) 687 : (2013) 1 SCC (Cri) 986] , where scope of Section 397 CrPC has been succinctly considered and explained. Paras 12 and 13 are as follows : (SCC p. 475)

"12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error and it may not be appropriate for the court to scrutinise the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits.

13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much advanced stage in the proceedings under CrPC."

29. The Court in para 27 has recorded its conclusion and laid down principles to be considered for exercise of jurisdiction under Section 397 particularly in the context of quashing of charge framed under Section 228 CrPC. Paras 27, 27.1, 27.2, 27.3, 27.9 and 27.13 are extracted as follows : (Amit Kapoor case [Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 : (2012) 4 SCC (Civ) 687 : (2013) 1 SCC (Cri) 986] , SCC pp. 482-83)

"27. Having discussed the scope of jurisdiction under these two provisions i.e. Section 397 and Section 482 of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but is inherently impossible to state with precision such principles. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be:

27.1.Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.

27.2.The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.

27.3.The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.

27.9.Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the Court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.

27.13.Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie."

32. Sri Anurag Verma further cited the judgement of State Represented By Deputy Superintendent of Police, Vigilance And Anti-Corruption, Tamil Nadu (supra). Paragraph nos. 11, 13, 14 and 15 of the aforesaid judgement are relevant and the same are quoted below:-

"11. We find that the High Court acted like an appellate court than as a revisionary court as if it was hearing the appeal against the final verdict of the Special Court.

13. In our view, such approach of the High Court while deciding the discharge applications of the respondents (accused) is not legally correct and, therefore, it cannot be upheld.

14. In our view, consideration of the record for discharge purpose is one thing and the consideration of the record while deciding the appeal by the appellate court is another thing.

15. While considering the case of discharge sought immediately after the charge-sheet is filed, the court cannot become an appellate court and start appreciating the evidence by finding out inconsistency in the statements of the witnesses as was done by the High Court in the impugned order [State v. J. Doraiswamy, 2016 SCC OnLine Mad 17955] running in 19 pages. It is not legally permissible."

33. Sri Anurag Verma has also shown the judgement of Srilekha Sentil Kumar (supra). Paragraph no. 9 of the said judgement is quoted below:-

"9.In other words, we are of the view that the issues urged by the appellant and the same having been refuted by the respondent are such that they can be decided more appropriately and properly during trial after evidence is adduced by the parties rather than at the time of deciding the application made under Section 239 CrPC."

34. Sri Anurag Verma has further relied the judgement of State By Karnataka Lokayukta, Police Station, Bengaluru (supra). Paragraph no. 25 of the said judgement is quoted below:-

"25. The High Court ought to have been cognizant of the fact that the trial court was dealing with an application for discharge under the provisions of Section 239 CrPC. 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 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 : (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."

35. Pragraph Nos. 17.7, 17.8, 18, 28 and 29 of the judgement of M. E. Shivalingamurthy (supra) has been relied by Sri Anurag Verma, learned A.G.A. and the aforesaid paragraphs are quoted below:-

"17.7.At the time of framing of the charges, the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution, has to be accepted as true.

17.8.There must exist some materials for entertaining the strong suspicion which can form the basis for drawing up a charge and refusing to discharge the accused.

18. The defence of the accused is not to be looked into at the stage when the accused seeks to be discharged under Section 227 CrPC (see State of J&K v. Sudershan Chakkar [State of J&K v. Sudershan Chakkar, (1995) 4 SCC 181 : 1995 SCC (Cri) 664 : AIR 1995 SC 1954] ). The expression, "the record of the case", used in Section 227 CrPC, is to be understood as the documents and the articles, if any, produced by the prosecution. The Code does not give any right to the accused to produce any document at the stage of framing of the charge. At the stage of framing of the charge, the submission of the accused is to be confined to the material produced by the police (see State of Orissa v. Debendra Nath Padhi [State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568 : 2005 SCC (Cri) 415 : AIR 2005 SC 359] ).

28. It is here that again it becomes necessary that we remind ourselves of the contours of the jurisdiction under Section 227 CrPC. The principle established is to take the materials produced by the prosecution, both in the form of oral statements and also documentary material, and act upon it without it been subjected to questioning through cross-examination and everything assumed in favour of the prosecution, if a scenario emerges where no offence, as alleged, is made out against the accused, it, undoubtedly, would enure to the benefit of the accused warranting the trial court to discharge the accused.

29.It is not open to the accused to rely on the material by way of defence and persuade the court to discharge him."

36. The arguments advanced by Sri Anurag Verma has force, it is true that probative value of the material on record cannot be gone into and the material brought on record by the prosecution has to be accepted as true. The material available on record goes to show prima facie the case against the accused, therefore, he cannot be discharged. The court does not give any right to accused to produce any document at the stage of framing of charges.

37. In my opinion, the court cannot become an appellate court and appreciation of evidence by finding inconsistency in the evidences cannot become ground for discharging the accused. It is well settled proposition that power of quashing the criminal proceeding at the time of framing of charge should be exercised very sparingly with circumspection and in the rarest of rare cases. I have to apply the test as to whether uncontroverted allegations as made from the record and evidence prima facie established the offence or not.

38. In view of the aforesaid discussion, I do not find any infirmity, illegality, perversity in the orders dated 26.02.2022 and 06.04.2022; thus, the revision being devoid of merit is dismissed.

39. No order as to costs.

40. However, it is made clear that the observations made above will not influence the trial in any manner and revisionist is at liberty to seek any remedy available to him under the law.

Order Date:- 31.05.2022

A.K.T.

(Brij Raj Singh, J.)