Chattisgarh High Court

Anil Tuteja vs State Of Chhattisgarh on 26 October, 2021

                                   1

                                                                    AFR

            HIGH COURT OF CHHATTISGARH, BILASPUR

                          CRR No. 480 of 2021

                (Judgment/Order reserved on 08.10.2021)

                        (Delivered on 26.10.2021)

   1. Anil Tuteja S/o Late Shri H. L. Tuteja Aged About 58 Years R/o
      Near Zonal Office, State Bank of India, Baran Bazar, P. S. Civil
      Lines, Raipur Chhattisgarh Currently posted as Director of
      Industries to Government of Chhattigarh

   2. Alok Shukla S/o Late Shri T. C. Shukla Aged About 61 Years
      R/o C-1/4 Officers Colony Devendra Nagar, Raipur Chhattisgarh
      currently posted at Principal Secretary, Department of
      Parliamentary Affairs, Government of Chhattisgarh, and also
      holding an Additional Charge of Principal Secretary in School
      Education Department along with Additional Charge of
      Chairman of Board of Secondary Education Chairman of
      Professional Examinations Board and Principal Secretary,
      Technical Education Department.                --- Petitioners

                               Versus

      State of Chhattisgarh through Station House Officer, Police
      Station Economic Offiences Wing/Anti Corruption Bureau, Civil
      Lines,                  Raipur                  Chhattisgarh
                                                 --- Respondent

For the Petitioner : Mr. Avi Singh, Advocate with Mr. Harsh Wardhan Parganiha & Mr. Ayush Bhatia, Advocates.

For the Respondent : Mr. Sudeep Agrawal, Deputy Advocate General

Hon'ble Shri Justice Goutam Bhaduri

C.A.V. JUDGMENT/ORDER

1. The challenge in this revision petition is two fold. One is to the

order dated 24.06.2021 passed by the Special Judge (PC Act),

Raipur in Special Criminal Case No.794/2015 whereby the

applications filed u/s 227 of the Cr.P.C., to discharge the

petitioners is dismissed. Another challenge is to the order

dated 30.06.2021 passed in the aforesaid Criminal Case,

whereby the learned Special Judge has framed charges against

the petitioners under the Prevention of Corruption Act and IPC.

2. Brief facts of the case are that pursuant to the FIR lodged on

12.02.2015, the charge sheet was initially filed against 16

accused wherein these applicants were not arrayed. Though the

initial sanction order was given by the State Government to

prosecute the applicants but awaiting the sanction, they being in

service of Indian Administrative Services on 04.7.2016 sanction

was granted by the Central Government of India to prosecute

the applicants. Thus supplementary charge sheet was filed

against the present applicants pursuant to such sanction given

by the Government of India. In between the intervening period of

time from the initial filing of charge sheet against 16 accused

and filing of the supplementary charge-sheet as against the

present applicants, as many as 153 witnesses were examined

by the prosecution. Thereafter, when the applicants entered

their appearance, charges were framed against applicant Anil

Tuteja u/s 120-B, 420, 409 read with section 34 of IPC and

section 11, 13(1), 13(1)(a) & 13(1)(d) read with section 13(2) of

the Prevention of Corruption Act 1988 and as against applicant

No.2 Alok Shukla, charges u/s 120-B of IPC & sections 13(1)(a),

13(1)(d) read with section 13(2) of the P.C. Act were framed.

While the initial charge sheet based on FIR was filed, it was

stated against the applicants that supplementary final

report/charge sheet would be submitted in the trial Court after

getting sanction for the prosecution from the Competent

Authority. The applicants after putting their appearance, filed an

application before trial Court to discharge them. The said

application for discharge was dismissed and consequently the

charges were framed. As a chronological sequence, on

24.06.2021 application to discharge the applicants was

dismissed and by subsequent order dated 30.06.2021 charges

have been framed against the applicants. Being aggrieved by

both the orders, the instant revision petition is filed.

3. Learned counsel for the applicants would submit that the initial

FIR was registered in the month of June 2015 wherein both the

applicants were not named. It is contended that no search or

seizure was ever made from the applicants. It is further

contended that in order to get the necessary sanction, the

documents collected by the prosecution in its entirety were not

placed before the authorities. It is further submitted that no

explanation has been given why the supplementary charge-

sheet has been filed after a long lapse of time. Counsel would

submit that initially when the final charge sheet was filed in the

month of June 2015 against 16 accused, these applicants were

not arrayed for want of sanction to prosecute by Central

Government. Subsequently, with the lapse of time, as the trial

against other persons continued, 153 witnesses were examined

and nothing substantial has been stated by the prosecution

witnesses which could have been used against the present

applicants as the allegation of conspiracy has been made,

which would otherwise inculpate these applicants but no proof or

statement supporting the evidence of prosecution is made.

Therefore, there is no iota of evidence against the applicants. It

is further submitted that the court cannot frame the charges

without looking into the admissibility of the evidence. It is

contended that the part of documents in the charge sheet, are

the loose documents of diary filed by the prosecution, so they

could not have been considered in absence of entire production

of documents. It is further stated that the trial Court relied on the

disclosure statement of few of the accused, but no recovery of

any nature was made from these applicants. It was reiterated

that since the prosecution case is based on the loose pages of

diary, even the date and time of those papers would show that it

was prior to the joining the duty to the post by the applicants. It

is stated that the applicants are inculpated only on the basis of

recovery of money and documents seized from one Shiv

Shankar Bhatt. He would further submit that the particulars of

charges, the time, the period and particulars have not been

mentioned and general allegations are made that a loss of

amount to the tune of Rs.1,12,99,555/- was sustained by the

state.

4. It is further contended that the final report reflects that though

certain pen-drives were seized but it has not been made the part

of charge sheet. He would submit that the trial Court virtually

refused to look into the records of charge sheet and thereby fell

into error. It is stated that one Arvind Singh Dhruv, Steno-

Typist, from whom the alleged pen-drive was recovered has not

supported the case of prosecution. Likewise Jeet Ram Yadav,

Senior Assistant, who was a witness has turned hostile. Further

G.H. Trinath Reddy, Assistant, has not supported the

prosecution version. It is stated that only Girish Sharma, P.A.,

has supported the case of prosecution from whom a laptop was

seized from his office room but in his statement nothing has

been attributed to these applicants. Naming further witnesses, it

is stated that the other witnesses have also not supported the

case of prosecution, therefore, the applicants cannot be made to

suffer only on presumption.

5. It is further contended that the Special Judge did not apply her

mind to the material placed in the charge sheet inasmuch as the

admissibility of the document for framing of charges is required

to be seen. Reliance is placed on a case law reported in (2018)

16 SCC 299 (Asian Resurfacing Road Agency Private

Limited Versus Central Bureau of Investigation) to contend

that it is an appropriate case where this Court can exercise the

jurisdiction to consider the challenge against an order framing

charge and grant stay. It is further submitted that the trial Court

erred in law in dismissing application of discharge as no

admissible evidence/documents are on record supporting the

case of prosecution qua the applicants herein. Reliance is

placed reliance Dipakbhai v. Union of India, (2019) 16 SCC

547 to contend that the allegations must be supported by some

material which may be translated into admissible evidence at

trial. It is further contended that the Special Judge also erred in

law in not disclosing any of the documents which are part of the

charge sheet and have been relied by the prosecution so as to

dismiss the application of discharge.

6. Learned counsel for the applicants would further submit that the

charges as have been framed are based on inadmissible

evidence and the Special Judge wrongly concluded that the

admissibility of evidence is not required to be considered at the

stage of discharge which runs counter to the law laid down by

the Supreme Court in CBI Vs. V.C. Shukla, AIR 1998 SC 1406.

Further referring to Common Cause v. Union of India

(Sahara-Birla Diaries) (2017) 11 SCC 731 learned counsel

would submit that only on the basis of few pages of case diary,

the investigation of the charge sheet cannot stand as

fundamentally the loose papers without the entirety of the case

diary cannot be accepted in evidence. He would further submit

that the charge sheet is based on the statement of the other co-

accused which cannot be accepted as a evidence, therefore, the

application rejecting the discharge was wrongly dismissed.

7. It is further submitted that inculpatory evidence of other co-

accused is made the basis for framing charge which is

inadmissible in evidence and the transcripts of other electronic

evidence which form the basis of the charge-sheet are not

supported by the 65-B Certificate as required under the Indian

Evidence Act. It is stated that such nature of electronic

evidence would be inadmissible in view of the law laid down in

Anvar v. PK Basheer (2014) 10 SCC 473 and Arjun Panditrao

v. kailash (2020) 7 SCC 1. He further submitted that the

testimonies of 153 witnesses were recorded who have not

supported the case of prosecution prior to the applicants were

being charged but the applicants have been charged with the

same charges of conspiracy, therefore, the deposition of

examined witnesses will have the same value as it carries for

the other accused and 161 CrPC statement of these accused

would loose its efficacy since they have been examined before

the Court. Consequently the application to discharge the

accused should have been allowed and the charges against the

petitioners cannot be framed.

8. Per contra, learned State Counsel would submit that as many as

153 witnesses have been examined prior to filing of

supplementary charge sheet against these applicants and after

the applicants have been charge-sheeted, 52 witnesses have

already been examined. Referring to the statement of Girish

Sharma P.W.142 learned State Counsel would submit that

sufficient positive evidence has been deposed by Girish Sharma

against these applicants. Therefore, on the basis of sole

testimony of Girish Sharma, the applicants can be convicted.

Referring to the contents of supplementary charge sheet, he

would submit that certain voice transcriptions in between Shiv

Shankar Bhat, Arvind Dhruv and Girish Sharma are part of the

charge sheet which shows that huge amounts were transferred

in between as part of corruption and conspiracy and the

applicants were the beneficiaries. It is contended that Girish

Sharma, the witness, has supported these facts, therefore, at

this stage, the applicants neither can be discharged nor the

order framing the charges against the applicants can be said to

be bad in law.

9. Heard learned counsel for the parties and also perused the

documents on record. In the instant petition the challenge is to

the charge-sheet submitted before the Court of Special Judge,

Raipur and thereafter when the applicants entered their

appearance, charges were framed against the applicant Anil

Tuteja u/s 120-B, 420, 409 read with section 34 of IPC and

sections 11, 13(1), 13(1)(a) and 13(1)(d) read with section 13(2)j

of th PC Act, 1988 and as against applicant No.2 Ahok Shukla,

charges u/s 120-B of IPC and Sections 13(1)(a), 13(1)(d) read

with section 13(2) of the P.C. Act were framed. The primary

contention of the applicants is that the dismissal of discharge

application and the charges framed against them are illegal.

10. The Supreme Court in M.E. Shivalingam Murthy Vs. Central

Bureau of Investigation, Bengaluru (2020) 2 SCC 768 has

laid down the Legal Principles applicable in regard to an

application seeking discharge. Paras 17 & 18 are relevant

quoted here-in-below :

"17. This is an area covered by a large body of case law. We refer to a recent judgment which has referred to the earlier decisions viz. P. Vijayan v. State of Kerala (2010) 2 SCC 398 and discern the following principles :

17.1 If two views are possible and one of them give rise to suspicion only as distinguished from grave suspicion, the trial Judge would be empowered to discharge the accused.

17.2. The trial Judge is not a mere post office to frame the charge at the instance of the prosecution.

17.3. The Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding. Evidence would consist of the statements recorded by the police or the documents produced before the Court.

17.4. If the evidence, which the Prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross examination or rebutted by the defence evidence, if any, "cannot show that the accused committed offence, then, there will be no sufficient ground for proceeding with the trial".

17.5. It is open to the accused to explain away the materials giving rise to the grave suspicion.

17.6 The court has to consider the broad probabilities, 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, would not entitle the court to make a roving inquiry into the pros and cons.

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 (1995) 4 SCC 181 : 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 (2005) 1 SCC 568 : AIR 2005 SC 359)".

11. In view of the aforesaid legal principles set out by the Supreme

Court when the submissions of the applicants are examined, it

reflects that when there are two possible views and one of them

gives rise to suspicion only, the trial Judge would be empowered

to discharge the accused but when a grave suspicion comes to

fore, no discharge can be made. In the instant case, prima facie

reading the statement of witnesses along-with the documents

raises a grave suspicion. While examination of charge sheet

shows that there are sufficient grounds to proceed, which

include the statement recorded by the Police and the documents

produced before the Court. At this stage, the documents which

are produced by the prosecution are not required to be

examined on the admissibility and the Court has to consider the

broad probabilities, the total effect of the evidence and

documents produced before the Court. This would not entitle

the Court to make roving enquiry into pros and cons. It is

settled principle that at the time of framing of 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. The documents produced by the prosecution

shows that there exist some materials which can form the basis

of drawing up a charge and refusing to discharge the accused.

The Supreme Court has laid down that the defence of the

accused is not to be looked into at the stage when the accused

seeks to be discharged u/s 227 of CrPC. It has been further laid

down that the "record of the case" used in section 227 of CrPC

is to be understood as the document and the article produced

by the prosecution.

12. Likewise in State of Bihar Vs. Ramesh Singh, AIR 1977 S.C.

2018, the Supreme Court held that at the beginning and the

initial stage of the trial, the truth, veracity and effect of the

evidence which the Prosecutor proposes to adduce are not to be

meticulously judged. Nor is any weight to be attached to the

probable defence of the accused. It is further held that it is not

obligatory for the judge at that stage of the trial to consider in

any detail and weigh in a sensitive balance whether the facts, if

proved, would be incompatible with the innocence of the

accused or not. The Court further held that the standard of test

and judgment which is to be finally applied before recording a

finding regarding the guilt or otherwise of the accused is not

exactly to be applied at the stage of deciding the matter under

section 227 or Section 228 of the Code. At that stage the Court

is not to see whether there is sufficient ground for conviction of

the accused or whether the trial is sure to end in his conviction.

13. The Supreme Court in Kanti Bhadra Shah and another

Versus State of West Bengal (2000) 1 SCC 722 observed that

if there is no legal requirement that the trial court should write an

order showing the reasons for framing a charge. The judgment

observed that why should the already burdened trial courts be

further burdened with such an extra work. The time has

reached to adopt all possible measures to expedite the court

procedures and to chalk out measures to avert all roadblocks

causing avoidable delays. The Court further observed that if a

Magistrate is to write detailed orders at different stages merely

because the counsel would address arguments at all stages, the

snail-placed progress of proceedings in trial courts would further

be slowed down.

14. In Munna Devi Versus state of Rajasthan AIR 2002 SC 107

the Supreme Court held that 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 FIR 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. The Supreme Court further held that It was premature

for the High Court to say that the material placed before the trial

court was insufficient for framing of charges.

15. In State of Maharashtra Vs. Salman Salim Khan & Anr. AIR

2004 SC 1189 Paragraph the Supreme Court held that though

it is open to a High Court entertaining a petition under section

482 of the Code to quash charges framed by the trial Court,

same cannot be done by weighing the correctness or sufficiency

of evidence. In a case praying for quashing of the charge, the

principle to be adopted by the High Court should be that if the

entire evidence produced by the prosecution is to be believed,

would it constitute an offence or not. The Court held that the

truthfulness, the sufficiency and acceptability of the material

produced at the time of framing of charge can be done only at

the stage of trial.

16. Recently in Bhawna Bai Versus Ghanshyam and others

(2020) 2 SCC 217 (Para 13) the Supreme Court held that the

circumstances alleged by the prosecution indicate that there are

sufficient grounds for proceeding against the accused, then, in

such a case, at the time of framing the charges, only prima

facie case is to be seen; whether the case is beyond reasonable

doubt, is not to be seen at this stage. It further held that at the

stage of framing the charge, the court has to see if there is

sufficient ground for proceeding against the accused. While

evaluating the materials, strict standard of proof is not required;

only prima facie case against the accused is to be seen.

Referring to the earlier decisions, the Supreme Court reiterated

that for framing of charges under Section 228 CrPC, the Court is

not required to hold elaborate enquiry and is not required to

record detailed reasons, but only prima facie case is to be seen.

Paragraphs 16 & 17 are also relevant and quoted below:

"16 - After referring to Amit Kapoor v. Ramesh Chander (2012) 9 SCC 460 in Dinesh Tiwari Vs. State of U.P. (2014) 13 SCC 137 the Supreme Court held that for framing charge under section 228 CrPC the Judge is not required to record detailed reasons as to why such charge is framed. On perusal of the record and hearing the parties, if the judge is of the opinion that there is sufficient ground for presuming that the accused has committed the offence triable by the Court of Session, he shall frame the charge against the accused for such offence.

17 .......... For framing the charges under Section 228 CrPC the Judge is not required to record detailed reasons. As pointed out earlier, at the stage of framing the charge, the Court is not required to hold an elaborate enquiry, only prima facie case is to be

seen. As held in Kanti Bhadra Shah Versus State of W.B. (2000) 1 SCC 722 while exercising the power under Section 228 CrPC the Judge is not required to record his reasons for framing the charges against the accused..............."

(Emphasis Supplied)

17. While applying the aforesaid principles, it is clear that at the

stage of framing of charge, the Court is not required to

meticulously weigh the evidence and the prima-facie view of the

matter is to be taken into consideration. If the criminal Court, on

consideration of the material on record finds that a prima facie

case is made out and grave suspicion exists about the

involvement of the accused in the crime alleged, it is expected to

frame the charge and put the accused on trial. As such, at the

initial stage of trial, the truth, veracity and effect of the evidence

which the prosecutor proposes to adduce are not required to be

meticulously judged, all that is required is, that the Court must

be satisfied that with the material available, a prima facie case is

made out for the accused to stand trial. Apart from the aforesaid

finding, when the submission of the applicants is considered that

153 witnesses have been examined and no one has deposed

against the applicants, therefore, the charges cannot be framed,

I do not also find any substance in such submission. The

applicants on one hand have contended that because of the

reason that conspiracy charges are levelled against the

applicants, the deposition of 153 witnesses who were examined

did not support the prosecution case, would be applicable.