Manoj Kumar vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 19319 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2023:AHC-LKO:49783
 

 
(Reserved on 05.07.2023)
 
(Delivered on 27.7.2023)
 

 
Court No. - 27
 

 
Case :- CRIMINAL REVISION No. - 329 of 2023
 

 
Revisionist :- Manoj Kumar
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home, Lko. And 2 Others
 
Counsel for Revisionist :- Ashish Kumar Pathak
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Brij Raj Singh,J.

1. Heard Mrs. Bulbul Godiyal learned Senior Advocate assisted by Sri Ashish Kumar Pathak, learned counsel for the revisionist, Sri Rajesh Kumar Singh, learned AGA-I and perused records.

2. This criminal revision under Section 397/401 CrPC has been filed challenging the order dated 24.2.2023 passed by Additional District and Sessions Judge/Special Judge, Prevention of Corruption Act, Court No.6, Lucknow in Crl. Case No.463 of 2021 (State. Vs. Manoj Kumar) arising out of Case Crime No.1 of 2020 under Section 7 of Prevention of corruption Act, PS, U.P. Vigilance Establishment, Lucknow Sector, Lucknow. By the said order, dated 24.2.2023 the application of the revisionist under Section 239 CrPC for discharge of the charges has been rejected.

3. The Special Judge Prevention of Corruption Act, Court No.6, Lucknow had passed order dated 4.5.2023 rejecting the discharge application of the revisionist. The revisionist challenged the said order dated 4.5.2023 by filing Crl. Revision No.415 of 2022 (Manoj Kumar. Vs. State of U.P. and others.) before this Court. This Court passed order on 25.5.2022 and the matter was remanded back to the Court below to decide the case afresh by recording reason. In pursuance of the order of this Court dated 25.5.2022, the revisionist filed discharge application on 16.7.2022 on various grounds praying to discharge him. The Court below passed the order dated 24.2.2023 which is under challenge in the present revision.

4. The Court below while exercising power under Section 227 CrPC has discussed the matter on record which is mentioned in the order dated 24.2.2023. The paragraph-15, 16, 18, 18, 19, 20, 21 of the said order dated 24.2.2023, indicate that the Court below has discussed the evidences on record. The relevant paragraph-15, 16, 17, 18, 19, 20 and 21 of the said order dated 24.2.2023 are quoted below:-

^^15- izLrqr izdj.k esa Hkh U;k;ky; dk er gS fd dsl Mk;jh ds ipkZ la0&2 rFkk 3 , o 5 fnuakfdr 16&07&2020 17&07&2020 ds ifj'khyu ls ;g Li"V gksrk gS fd foospd }kjk mDr dsl Mk;fj;ksa esa foospuk ds dze esa vkosnd@vfHk;qDr ds fo:} i;kZIr lk{; ik;s tkus ds leqfpr izek.k fn;s gSA lkFk gh bl ckr dk Hkh Li"V vadu fd;k gS fd mDr izek.kksa ls vkosnd@vfHk;qDr izFke n`"V;k nks"kfl) gksrk gSA

16- dsl Mk;jh ds ipkZ la0 5 esa miyC/k c;ku f'kdk;rdrkZ vjfoUn dqekj }kjk Li"V :i ls vkosnd@vfHk;qDr dh lafyIrrk ds lEcU/k esa izFke n`"V;k lk{; miyC/k djk;s gS vkSj muds }kjk VªSi Vhe dh dk;Zokgh esa 'kkfey gksus o LorU= lkf{k;ksa }kjk VSi ds nkSjku vfHk;qDr dks fxj¶rkj fd;s tkus dh ckr dgh x;h gSA

17- blds vfrfjDr dsl Mk;jh ds ipkZ la0&6 esa of.kZr LorU= lk{kh eks0 glu ds lk{; ds ifj'khyu ls Hkh Li"V gS fd mDr lk{kh }kjk u dsoy VªSi dk;Zogh esa fgLlk fy;k x;k] cfYd vfHk;qDr dks jaxsgkFk ?kwl ysrs fxjQrkj fd;k x;k gSA izLrqr LorU= lk{kh dk vkosnd ls fdlh izdkj dksbZ oSeuL; ;k 'k=qrk ugha gS] vr% bl lk{kh ds vkosnd dks fdlh izdkj ls bl izdj.k esa feF;k Qalkus dk iz'u fudydj ugha vkrk gSA

18- blh izdkj dsl Mk;jh ds ipkZ ua0 9 esa of.kZr LorU= lk{kh iq"dj 'kqDyk ofj"B lgk;d] i'kqikyu foHkkx ds c;kuksa ds ifj'khyu ls Hkh ;g Li"V gS fd mDr lk{kh }kjk Hkh f'kdk;rdrkZ dks vkosnd@vfHk;qDr dks ?kwl nsrs gq, ns[kk x;k o mls jaxsgkFkks idM+k x;kA ;g lk{kh Hkh iw.kZ :i ls LorU= lk{kh gS o bl lk{kh dk fdlh izdkj dk dksbZ oSeuL; vFkok 'k=qrk vkosnd ls ugha gS vkSj u gh ;g lk{kh rFkkdfFkr Hkz"Vkpkj fuokj.k foHkkx dk deZpkjh gSA fu;ekuqlkj bl lk{kh dks ek= ofj"B vf/kdkfj;ksa@ Mh0 ,e0 dh laLrqfr ij VªSi Vhe dk lnL; cuk;k x;k Fkk] ftlds dze esa bl lk{kh }kjk VªSi Vhe dh dk;Zokgh esa fgLlk ysdj VªSi dk;Zokgh ds fu;eksa ds vuq:i vkosnd dks ?kVukLFky ls fxjQrkj fd;k gSA

19- izFke n`"V;k vkosnd }kjk vius ikl ls dh x;h cjkenxh vkSj VªSi Vhe }kjk dh x;h fxjQrkjh ds lanHkZ esa dksbZ Hkh cpko lk{; ugha fn;k gSA

20- bl izdj.k esa ;g Hkh lqlaxr gS fd ;g dk;Zokgh Hkz"Vkpkj fuokj.k vf/kfu;e ds rgr ek= vk; ls vf/kd lEifRr j[kus dh ugha gS] cfYd vkosnd dks dbZ LorU= lkf{k;ksa ds lkFk ,d lkoZtfud ?kVuLFky ij fj'or ysrs jaxsgkFkks fxjQrkj fd;k x;k gSA

21- vius cpko esa vfHk;qDr }kjk ftl lh0 lh0 Vh0 oh0 QqVst dh ckr dh x;h gS] mls ;fn lk{; dh Js.kh esa j[kk Hkh tk;s rks og ek= cpko lk{; ;k lQkbZ lk{; ds :i esa fopkj.k ds nkSjku vius cpko esa fd;s tkus okyk dFku gS] blls izdj.k ds izFke n`"V;k izk:i ij dksbZ izHkko ugha iM+rk gSA izFke n`"V;k vfHk;qDr dks bl Lrj Hkz"Vkpkj ds vijk/k esa nks"kh ekuus gsrq ftu ckrksa dks vfHk;kstu }kjk fl} fd;k tkuk pkfg, Fkk] rkfd vfHk;qDr dk fopkj.k fd;k tk lds] os lHkh rF; orZeku esa vfHk;kstu }kjk tqVk;s x;s izi=ksa] fo'ks"kdj dsl Mk;jh ij miyC/k gSA^^

5. Learned counsel for the revisionist has relied on the judgment in the case of P. Vijayan. Vs. State of Kerala and another, (2010) 2 SCC 398, emphasising paragraphs-10 11 and 12 and 13 which are quoted below:-

"10. Before considering the merits of the claim of both the parties, it is useful to refer Section 227of the Code of Criminal Procedure, 1973, which reads as under:-

"227. Discharge.--If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing."

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 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.

12. The scope of Section 227 of the Code was considered by this Court in the case of State of Bihar vs. Ramesh Singh (1977) 4 SCC 39, wherein this Court observed as follows:- (SCC pp. 41-42, para 4)

"4.... ... 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 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."

This Court has thus held that whereas strong suspicion may not take the place of the proof at the trial stage, yet it may be sufficient for the satisfaction of the Trial Judge in order to frame a charge against the accused.

13. In a subsequent decision i.e. in Union of India vs. Prafulla Kumar Samal, (1979) 3 SCC 4, this Court after adverting to the conditions enumerated in Section 227of the Code and other decisions of this Court, enunciated the following principles:- (SCC p.9. para 10).

"(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.

(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.

(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.

(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a Post Office or a 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 appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."

6. Learned Senior Advocate Mrs. Bulbul Godiyal has submitted that in pursuance of the remand order, the Court below has not discussed the entire evidence on record and the order is without application of mind. She has further submitted that the revisionist has taken specific stand that CCTV footage indicates that the revisionist was not involved in taking bribe.

7. I have considered the submissions made by the learned counsel for the revisionist Smt. Bulbul Godiyal assisted by Sri Ashish Kumar Pathak, and Sri Rajesh Kumar Singh learned AGA-I.

8. The impugned order indicates that the complainant Arvind Kumar Saxena was associated in trapping team. The act of taking bribe has been stated and same is part of chargesheet. Parcha No.6 of the case diary indicates that Mohd. Hasan was member of the trapping team and he had caught the revisionist red handed while he was accepting bribe. Parcha No.9 of the case diary further indicates that independent witness Pushkar Shukla Senior Assistant Veterinary Department had also stated that he had seen the revisionist taking bribe who was caught red handed. All the independent witnesses have no enmity with the revisionist and their statements have been recorded by the police which are part of the case diary. The material evidence collected by the Investigating Officer are sufficient to proceed against the revisionist. The Court cannot weigh the evidence at the moment. The argument that CCTV footage does not indicate that the revisionist was taking bribe, is also not sustainable because, prima facie, much evidence has been collected by the Investigating Officer which is sufficient to proceed against the revisionist.

9. The issue of discharge has been discussed in the case of State of Rajasthan. Vs. Fatekh Karan Medhu, 2017) 3 SCC 198. The relevant paragraphs- 26, 27, 28 and 29 of the said judgment 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."

10. While considering the case of discharge, the Court cannot become the appellate Court and will not appreciate the evidence by finding out inconsistency in the investigation. It is relevant to cite the case of State Represented By Deputy Superintendent of Police, Vigilance And Anti-Corruption, Tamil Nadu Vs. J. Doraiswamy And Others (2019) 4 Supreme Court Cases 149. The relevant paragraphs-11, 13, 14 and 15 of the said judgment 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."

11. Similarly, another judgment in the case of Srilekha Sentil Kumar. Vs. Deputy Superintendent of Poice, Central Bureau of Investigation, ACB, Chennai, (2019) 7 SCC, 82, is worth to be seen. Paragraph-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."

12. Hon'ble Supreme Court in the case of State By Karnataka Lokayukta, Police Station, Bengaluru. Vs. M. R. Hiremanth, (2019 7 SCC 515 has held that while considering the case of discharge, the Court must proceed on the assumption that the material which has been brought on record, is true and evaluate the material in order to determine as to whether the fact emerging from the material taken on its face value discloses the existence of ingredients necessary to constitute the offence. The relevant paragraph-25 and 29 of the said judgment are 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."

13. Similarly, the judgment of Hon'ble Supreme Court in the case of M. E. Shivalingamurth. Vs. Central Burteau of Investigation,Bengaluru, (2020) 2 SCC 768, is also worth to be seen and paragraph-17.7, 17.8, 18, 28 and 29 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."

14. 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 available from the record and evidence prima facie make out the offence or not. The evidence collected by the Investigating Officer discloses the offence.

15. In view of the aforesaid discussion, I do not find any infirmity, illegality or perversity in the order dated 24.02.2023 passed by the Court below.

16. Accordingly, the revision is devoid of merit and is hereby dismissed. 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.

17. Office is directed to communicate this order to the Court below.

No order as to costs.

Order Date :- 27.7.2023

Rajneesh JR-PS)