Chattisgarh High Court

Chedilal Jaiswal vs State Of Chhattisgarh on 21 March, 2025

                                                                              2025:CGHC:13744

                                                                                                   AFR
                HIGH COURT OF CHHATTISGARH AT BILASPUR

                                    Order reserved on 07.01.2025
                                    Order delivered on 21.03.2025


                                          CRR No. 841 of 2018

Chedilal Jaiswal S/o Devi Prasad Jaiswal Aged About 54 Years Occupation Service,
Presently Posted As Assistant Commisioner, Tribal Welfare Department Koriya, R/o
Officers Colony, Baikunthpur, District Koriya Permanent R/o A-25 Songanga Colony,
Seepat Road District : Bilaspur, Chhattisgarh
                                                                  ---Applicant

                                                    versus

State Of Chhattisgarh Through The Station House Officer, Special Police
Establishment , Lok Ayukt Office Bilaspur District Bilaspur Chhattisgarh
                                                                       --- Respondent
                                     (Cause title is taken from the CIS)
------------------------------------------------------------------------------------------------------------------

For Applicant                                          : Shri Rajeev Shrivastava, Senior
                                                         Advocate with Ms Kajal Chandra,
                                                         Advocate
For Respondent/State                                   : Shri Jitendra Shrivastava, GA

------------------------------------------------------------------------------------------------------------------

Hon'ble Shri Justice Ravindra Kumar Agrawal CAV Order

1. This Criminal Revision is filed against the order dated 27.06.2018

passed by the learned Special Judge (Prevention of Corruption Act),

Balrampur at Ramanujganj in Special Criminal Case- 1 of 2017, whereby

the learned trial court has framed the charge against the applicant for the

offence under Section 13(2) of the Prevention of Corruption Act, 1988,

and Section 120-B of the IPC.

Crr 841 of 2018

2. The facts of the case are that the applicant is an accused in Crime

No. 114/1998 registered at Police Station Anti-Corruption

Bureau/Economic Offence Wing, (hereinafter called as "ACB/EOW")

Bilaspur unit, for the offence under Section 13(1)(d), 13(2) of the

Prevention of Corruption Act, 1988, and Section 120-B of the I.P.C. After

investigation, charge-sheet has been filed before the learned Trial Court

where the Special Criminal Case No. 01/2017 is pending for

consideration.

3. The allegation against the present applicant is that on 27-07-1996,

the applicant was posted as Chief Executive Officer, Janpad Panchayat,

Wadraf Nagar, District Surguja. There was a recruitment process

published by the State for Shiksha Karmi Grade-III at Janpad Panchayat,

Wadraf Nagar, in the year 1998, called as 'Chhattisgarh Panchayat

Shiksha Karmi (Recruitment and Conditions) Rules, 1998 (for short, 'the

Rules, 1998'). It is alleged that in the said recruitment process of Shiksha

Karmi Grade-III, irregularities have been committed by the authorities to

appoint their blue-eyed candidate by giving them the advantage without

there being any merit position, and they have been illegally selected for

extraneous consideration. The authorities have selected their relatives

also which is in violation of Section 40 (C) of the C.G. Panchayat Raj

Adhiniyam, 1993. Ineligible candidates have been selected by giving

them higher marks for their experience, there is manipulation in the

marks allotted in the interview, and they themselves appeared in the

interview committee in which their relatives are candidates and the Crr 841 of 2018

selection rules have not been followed and there is no fair selection

process by which the accused persons have committed the offence.

4. The Collector, Surguja, has constituted a four-member committee

for inquiry consisting of the Deputy Chief Executive Officer, Jila

Panchayat, Surguja, Sub Divisional Officer (Revenue), Wadraf Nagar,

District Surguja, Incharge Joint Director, Public Education, Surguja and

Assistant Commissioner, Tribal Development, Surguja. They inquired

about the allegation, found substance in the complaint, and submitted

their report that there are irregularities and illegalities in the selection

process of the Shiksha Karmi Grade-III. Thereafter, the Deputy

Superintendent of Police, ACB/EOW Bilaspur, registered the offence of

Crime No. 114/1998 at ACB/EOW, Bilaspur, and started the investigation

into the matter. During the investigation, it was found that the present

applicant, who was the then Chief Executive Officer, Janpad Panchayat,

Wadraf Nagar, along with other nine accused persons, who were

members of the Selection Committee, had not followed the fair selection

process; marks of the interview were given by only one person, in the list

of Schedule Castes category, for 3 posts, total 10 candidates were

shortlisted but the 11th name of Babulal was added; in the list of OBC

(female) Category, in place of Vimla Verma, Mala Patel, Kumud, and Ku.

Archna, the names of four other candidates, namely Savitri, Anjali,

Sangeeta and Savita were substituted. The candidate, Rajkumar

Kushwaha, had only one year of experience, and he was allotted 17

marks in place of 9 marks in the OBC (male) category. Ku. Anju Tiwari, Crr 841 of 2018

Ku. Shashi Kiran, Lata Jaiswal, Shanti Jaiswal, Anil Kumar Verma, Ku.

Shashibala, d/o LP Verma were relatives of members of the Selection

committee, namely Siddhnath Tiwari, N.R. Bhagat, Chhedilal Jaiswal

(present applicant) and Sitaram Kushwaha, and they got higher marks in

the interview. After investigation, due permission for prosecution was

obtained, and after completion of investigation, the final report has been

filed against total of 10 accused persons before the learned Trial Court

for the offence under Section 13(1)(d), and 13(2) of the Prevention of

Corruption Act, 1988, and Section 120-B of the I.P.C.

5. The learned trial court has framed charge against the applicant for

the offence under Section 13(2) of the Prevention of Corruption Act, 1988

and Section 120-B of the I.P.C. vide order dated 27-06-2018, which is

under challenge in the present Criminal Revision filed by the applicant.

6. Learned counsel for the applicant would submit that the applicant

has falsely been implicated in the offence only on the basis of surmises

and conjectures. There is no prima facie evidence against him in the

entire charge-sheet to substantiate the alleged charge. Applicant being

the then CEO, he passed the order and stayed the selection process.

Thereafter, he was transferred from Wardraf Nagar. Against the present

applicant, the allegation is that one Lata Jaiswal has been given

appointment who is his relative, whereas, in her interview, the applicant

was not a member of the interview board. The applicant was a member

of the interview board of the SC/ST candidates, in which there is no Crr 841 of 2018

allegation of any irregularity or illegality. The appointment orders of the

candidates have not been set aside by any forum. The charges are so

general and vague, which has been framed against the applicant. The

applicant was transferred to Wardraf Nagar on 27-07-1996 as CEO,

Janpad Panchayat. On 18-05-1998, total 99 posts of Shiksha Karmi

Grde-III were advertised in various disciplines. On 06-06-1998, Janpad

Panchayat, Wadraf Nagar, passed a resolution to conduct interview of

the candidates and a Selection Committee was formed. The applicant

was also a member of the said committee. On 09-06-1998, the list of

eligible candidates was prepared. On 23-06-1998 to 24-06-1998,

interviews were held, and on 24-06-1998, interview for candidates of the

SC/ST category was held. The applicant had taken part on 24-06-1998

in the interview of the SC/ST candidates. On 25-06-1998, interview of

the OBC category candidates was conducted, and the applicant was not

part of the said interview board. On 29-06-1998, interview for

Unreserved Women category was held. On 25-07-1998, a tentative list of

eligible candidates was prepared and published. The applicant, being the

CEO of the Janpad Panchayat, called claims and objections in the

tentative list of candidates from 25-07-1998 up to 31-07-1998.

7. He would also submit that on 31-07-1998, Jila Panchayat, Surguja,

directed the Selection Committee not to issue the final selection list. On

31-07-1998, the applicant passed the order to stop the selection process

until further orders. On 03-08-1998, the applicant was transferred to

Janpad Panchayat, Lakhanpur on the post of CEO. On 03-08-1998 itself, Crr 841 of 2018

a report was submitted before the Collector by the Special committee,

who inquired about the complaints. On 10-09-1998, based on the report

submitted by the Special committee, Collector Surguja passed the order

to reconduct the interview of 11 candidates, who were allegedly said to

be relatives of members of the Selection committee. Thereafter, on

20-09-1998, CEO, Wadraf Nagar published the final selection list.

8. He would further submit that 'relative' has been defined in Section

69 of the CG Panchayat Raj Adhiniyam, 1993, in which candidate Lata

Jaiswal does not come under the definition of 'relative' of the applicant.

Further, wherein the applicant was not a member of the Selection Board,

she appeared as a candidate. Rather, the applicant also had called the

objection before the finalization of the selection list. it is not the case of

the prosecution that the applicant has conducted the interview and

extended the benefits of his position. The applicant has not given any

sanction to the final selection list, and he was already transferred to

another place.

9. He would also submit that even if the material available in the

charge-sheet is taken as it is, no substantive charge has been found and

framed. The person who has allegedly benefited from the applicant is still

working, and their selection has been upheld. Section 40 of the CG

Panchayat Raj Adhiniyam is not applicable to the case of the applicant.

He is the Government Servant and not the office bearer of the

Panchayat. In absence of proper charge, the applicant could not defend Crr 841 of 2018

himself. There are no ingredients of Section 13 (1) (a) to (e) in the

charge-sheet, and therefore, the trial court has not framed any charge for

the offence of Section 13(1) of the P.C. Act. The applicant has not

selected any candidate, and therefore, the contents of the charge are not

clear. He was not a member of the interview board, and when the final

selection list was published, he was not there and already transferred.

The ingredients of Section 120-B IPC are also not there in the entire

charge-sheet.

10. Learned counsel for the applicant relied upon the judgments of

"Vinubhai Ranchhodbhai Patel vs. Rajivbhai Dudabhai Patel" 2018

(7) SCC 743, "Santosh Kumari vs. State of J & K" 2011 (9) SCC 234,

"Sushil Sethi vs. State of Arunachal Pradsh" 2020 (3) SCC 240,

"Pepsi Foods Ltd. vs. Special Judicial Magistrate" 1998 (5) SCC 749,

"D. Devaraja vs. Owasis Sabeer Hussain" 2020 (7) SCC 695, "State

of Haryana vs.Bhajan Lal" 1992 Supp (1) SCC 335, "Marium

Faisuddhin vs. State by Adugodi Police Station" 2023 SCC Online

SC 58, and the order passed by the Hon'ble Division Bench of this Court

in "Gurjindar Pal Singh vs. State of CG and others" Cr.M.P. No.

1488/2023, order dated 13-11-2024.

11. Per contra, the learned counsel for the State vehemently opposed

the submissions made by the learned counsel for the applicant and has

submitted that being the Chief Executive Officer, Janpad Panchayat,

Wadraf Nagar, he was the Ex-officio chairman of the Selection Crr 841 of 2018

Committee of Shiksha Karmi Grade-III. It is not the only allegation that

he had appointed his relative Lata Jaiswal, there is other allegation that

he had taken bribe to appoint other candidates and manipulated the

documents. From the statement of Santosh Kumar and Lal Bahadur, it

came into knowledge that the accused persons demanded bribe from

them, and when they could not give the bribe amount, they have not

been selected. From the statement of Pahluram Kushwah, it comes that

the present applicant C.L. Jaiswal, was a member of the interview board,

and all the questions were asked by him. He allotted the marks on the

instructions of co-accused Sitaram Kushwah, who demanded bribe from

him, and when he did not give the bribe amount, very less marks were

allotted to him in the interview. Statement of Rammilan Prasad is there

who stated that he had given bribe to the present applicant, and when he

was not selected, he returned the entire amount to him. Statement of

Jaishankar Prasad Upadhyay and Dukhteshwar Prasad are there who

also stated about the tainted process of selection of Shiksha Karmi

Grade-III. From the statement of Kansraj Singh, who was a member of

Janpad Panchayat, Wadraf Nagar, and a member of the Selection

Committee also, it comes that the present applicant has given the marks

to the candidates on blank paper and obtained signatures of the interview

board members on the said blank paper and later on it was filled up in the

tabulation sheet by the clerk. He stated about the corruption that took

place in the selection process and also stated that he made a complaint

to the Collector. Statements of Haris Abdulla and Rajiv Prasad Gupta are Crr 841 of 2018

also there with the same effect. He would further submit that the learned

trial court has framed the charge for the offence of Section 13(2) of the

Prevention of Corruption Act, 1988, for criminal misconduct and in the

charge-sheet, there is sufficient material which prima facie shows that the

present applicant is guilty of the said offence. Further, there may not be

any direct evidence of conspiracy or meeting of mind, but it can be

inferred by the conduct of the accused also. Looking to the entire episode

of the selection process and the position of the present applicant, the

allegation levelled against him, and the statement of witnesses are

evident that there is sufficient material available on record that the

present applicant conspired with the other co-accused persons and

committed the offence. It is further submitted by him that the learned trial

court has ample power under Section 216 of the CrPC to amend the

charge or to frame a new charge before passing the judgment. He would

rely upon the judgment of "K. Ravi vs. State of Tamilnadu", 2024 SCC

Online SC 2283.

12. Learned counsel for the state also submits that at the time of

framing the charge, the trial court is not required to examine the evidence

on record meticulously, and only to consider whether the prima facie

evidence is there or not to proceed with the trial, irrespective of the fact

that whether the outcome would be acquittal or conviction. He would also

rely upon the judgments of "State (NCT of Delhi) vs. Shiv Charan

Bansal and Others", 2020 (2) SCC 290, and "State of Gujarat vs.

Dilipsinh Kishorsinh Rao", 2023 SCC Online SC 1294.

Crr 841 of 2018

13. I have heard learned counsel for the parties and perused the

documents annexed with the petition.

14. At the stage of framing of charge, the court is not required to

meticulously examine the evidence on record and not to conduct mini

trial. The court would only consider whether prima facie material is there

or not to proceed with the trial. The Hon'ble Supreme Court has laid

down the principles in the case of State of M.P. vs. Deepak 2019 (13)

SCC 62, wherein the Hon'ble Supreme Court has held that at the stage of

framing of charge, the court has to consider the material only to find out if

there is a ground for presuming that the accused had committed the

offence. It is also held that the court is required to evaluate the material

and documents on record to find out that if facts emerging therefrom are

taken at their face value disclose the existence of all the ingredients

constituting the alleged offence and at the stage of framing of charge, the

court is not required to appreciate the evidence on record and consider

the allegations on merits and to find out on the basis of evidence

recorded is likely to be convicted or not. In the matter of Deepak (Supra),

in its judgment, the Hon'ble Supreme Court has held that:-

16. It was also noted that at the stage of framing of charges, the Court has

to consider the material only with a view to find out if there is a ground for

"presuming" that the accused had committed the offence : ( Chitresh Kumar

Chopra case [Chitresh Kumar Chopra v. State (NCT of Delhi), (2009) 16

SCC 605 : (2010) 3 SCC (Cri) 367] , SCC p. 613, para 25) Crr 841 of 2018

"25. It is trite that at the stage of framing of charge, the court is

required to evaluate the material and documents on record with a

view to finding out if the facts emerging therefrom, taken at their face

value, disclose the existence of all the ingredients constituting the

alleged offence or offences. For this limited purpose, the court may

sift the evidence as it cannot be expected even at the initial stage to

accept as gospel truth all that the prosecution states. At this stage,

the court has to consider the material only with a view to find out if

there is ground for "presuming" that the accused has committed an

offence and not for the purpose of arriving at the conclusion that it is

not likely to lead to a conviction."

15. In the matter of Manjit Singh Virdi vs. Hussain Mohammad

Shattaf 2023 (7) SCC 633, the Hon'ble Supreme Court has held in para

12 of its judgment that:-

12. The law on the point has been summarised in a recent judgment of this

Court in State of Rajasthan v. Ashok Kumar Kashyap [State of Rajasthan v.

Ashok Kumar Kashyap, (2021) 11 SCC 191 : (2022) 1 SCC (Cri) 286] .

Relevant paras are extracted below : (SCC pp. 197-98, para 11)

"11. ... 11.1. In P. Vijayan v. State of Kerala [P. Vijayan v. State of

Kerala, (2010) 2 SCC 398 : (2010) 1 SCC (Cri) 1488] , this Court had

an occasion to consider Section 227CrPC. What is required to be

considered at the time of framing of the charge and/or considering

the discharge application has been considered elaborately in the said

decision. It is observed and held that at the stage of Section 227, the

Judge has merely to sift the evidence in order to find out whether or

not there is sufficient ground for proceeding against the accused. It is

observed that in other words, the sufficiency of grounds would take Crr 841 of 2018

within its fold the nature of the evidence recorded by the police or the

documents produced before the court which ex facie disclose that

there are suspicious circumstances against the accused so as to

frame a charge against him. It is further observed that if the Judge

comes to a conclusion that there is sufficient ground to proceed, he

will frame a charge under Section 228CrPC, if not, he will discharge

the accused. It is further observed that while exercising its judicial

mind to the facts of the case in order to determine whether a case for

trial has been made out by the prosecution, it is not necessary for the

court to enter into the pros and cons of the matter or into a weighing

and balancing of evidence and probabilities which is really the

function of the court, after the trial starts.

11.2. In the recent decision of this Court in State of Karnataka v. M.R.

Hiremath [State of Karnataka v. M.R. Hiremath, (2019) 7 SCC 515 :

(2019) 3 SCC (Cri) 109 : (2019) 2 SCC (L&S) 380] , one of us (D.Y.

Chandrachud, J.) speaking for the Bench has observed and held in

para 25 as under : (SCC p. 526)

"25. The High Court [Hiremath v. State of Karnataka, 2017

SCC OnLine Kar 4970] ought to have been cognizant of the

fact that the trial court was dealing with an application for

discharge under the provisions of Section 239CrPC. The

parameters which govern the exercise of this jurisdiction have

found expression in several decisions of this Court. It is a

settled principle of law that at the stage of considering an

application for discharge the court must proceed on the

assumption that the material which has been brought on the

record by the prosecution is true and evaluate the material in

order to determine whether the facts emerging from the Crr 841 of 2018

material, taken on its face value, disclose the existence of the

ingredients necessary to constitute the offence. In State of T.N.

v. N. Suresh Rajan [State of T.N. v. N. Suresh Rajan, (2014) 11

SCC 709 : (2014) 3 SCC (Cri) 529 : (2014) 2 SCC (L&S) 721] ,

adverting to the earlier decisions on the subject, this Court held

: (N. Suresh Rajan case [State of T.N. v. N. Suresh Rajan,

(2014) 11 SCC 709 : (2014) 3 SCC (Cri) 529 : (2014) 2 SCC

(L&S) 721] , SCC pp. 721-22, para 29)

"29. ... At this stage, probative value of the materials

has to be gone into and the court is not expected to go

deep into the matter and hold that the materials would

not warrant a conviction. In our opinion, what needs to

be considered is whether there is a ground for

presuming that the offence has been committed and not

whether a ground for convicting the accused has been

made out. To put it differently, if the court thinks that the

accused might have committed the offence on the basis

of the materials on record on its probative value, it can

frame the charge; though for conviction, the court has to

come to the conclusion that the accused has committed

the offence. The law does not permit a mini trial at this

stage."

16. Further, in the matter of State by SP through the SPE, CBI vs.

Uttamchand Bohra, 2022 (16) SCC 663, the Hon'ble Supreme Court

has held in para 21 of its judgment that:-

21. In CBI v. K. Narayana Rao [CBI v. K. Narayana Rao, (2012) 9 SCC 512

: (2012) 4 SCC (Civ) 737 : (2012) 3 SCC (Cri) 1183] this Court, after Crr 841 of 2018

reviewing the previous decisions that dealt with the question of the

applicable standard relating to discharge of accused in a criminal case,

summarised the principles in the following terms : (SCC pp. 520-23, paras

12-14)

"12. The first decision in Ramesh Singh [State of Bihar v. Ramesh

Singh, (1977) 4 SCC 39 : 1977 SCC (Cri) 533] relates to

interpretation of Sections 227 and 228 of the Code for the

considerations as to discharge the accused or to proceed with trial.

Para 4 of the said judgment is pressed into service which reads as

under : (SCC pp. 41-42)

'4. Under Section 226 of the Code while opening the case for

the prosecution the Prosecutor has got to describe the charge

against the accused and state by what evidence he proposes

to prove the guilt of the accused. Thereafter comes at the

initial stage the duty of the Court to consider the record of the

case and the documents submitted therewith and to hear the

submissions of the accused and the prosecution in that behalf.

The Judge has to pass thereafter an order either under

Section 227 or Section 228 of the Code. If "the Judge

considers that there is no sufficient ground for proceeding

against the accused, he shall discharge the accused and

record his reasons for so doing", as enjoined by Section 227.

If, on the other hand, "the Judge is of opinion that there is

ground for presuming that the accused has committed an

offence which -- ... (b) is exclusively triable by the court, he

shall frame in writing a charge against the accused", as

provided in Section 228. Reading the two provisions together Crr 841 of 2018

in juxtaposition, as they have got to be, it would be clear that

at the beginning and the initial stage of the trial the truth,

veracity and effect of the evidence which the Prosecutor

proposes to adduce are not to be meticulously judged. Nor is

any weight to be attached to the probable defence of the

accused. It is not obligatory for the Judge at that stage of the

trial to consider in any detail and weigh in a sensitive balance

whether the facts, if proved, would be incompatible with the

innocence of the accused or not. The standard of test and

judgment which is to be finally applied before recording a

finding regarding the guilt or otherwise of the accused is not

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

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

Court is not to see whether there is sufficient ground for

conviction of the accused or whether the trial is sure to end in

his conviction. Strong suspicion against the accused, if the

matter remains in the region of suspicion, cannot take the

place of proof of his guilt at the conclusion of the trial. But at

the initial stage if there is a strong suspicion which leads the

Court to think that there is ground for presuming that the

accused has committed an offence then it is not open to the

Court to say that there is no sufficient ground for proceeding

against the accused. The presumption of the guilt of the

accused which is to be drawn at the initial stage is not in the

sense of the law governing the trial of criminal cases in France

where the accused is presumed to be guilty unless the

contrary is proved. But it is only for the purpose of deciding

prima facie whether the Court should proceed with the trial or Crr 841 of 2018

not. If the evidence which the Prosecutor proposes to adduce

to prove the guilt of the accused even if fully accepted before it

is challenged in cross-examination or rebutted by the defence

evidence, if any, cannot show that the accused committed the

offence, then there will be no sufficient ground for proceeding

with the trial. An exhaustive list of the circumstances to

indicate as to what will lead to one conclusion or the other is

neither possible nor advisable. We may just illustrate the

difference of the law by one more example. If the scales of

pan as to the guilt or innocence of the accused are something

like even, at the conclusion of the trial, then, on the theory of

benefit of doubt the case is to end in his acquittal. But if, on

the other hand, it is so at the initial stage of making an order

under Section 227 or Section 228, then in such a situation

ordinarily and generally the order which will have to be made

will be one under Section 228 and not under Section 227.'

13. Discharge of the accused under Section 227 of the Code was

extensively considered by this Court in P. Vijayan [P. Vijayan v. State

of Kerala, (2010) 2 SCC 398 : (2010) 1 SCC (Cri) 1488] wherein it

was held as under : (SCC pp. 401-402, paras 10-11)

'10. ... If two views are possible and one of them gives rise to

suspicion only, as distinguished from grave suspicion, the trial

Judge will be empowered to discharge the accused and at this

stage he is not to see whether the trial will end in conviction or

acquittal. Further, the words "not sufficient ground for

proceeding against the accused" clearly show that the Judge

is not a mere post office to frame the charge at the behest of

the prosecution, but has to exercise his judicial mind to the Crr 841 of 2018

facts of the case in order to determine whether a case for trial

has been made out by the prosecution. In assessing this fact,

it is not necessary for the court to enter into the pros and cons

of the matter or into a weighing and balancing of evidence and

probabilities which is really the function of the court, after the

trial starts.

11. At the stage of Section 227, the Judge has merely to sift

the evidence in order to find out whether or not there is

sufficient ground for proceeding against the accused. In other

words, the sufficiency of ground would take within its fold the

nature of the evidence recorded by the police or the

documents produced before the court which ex facie disclose

that there are suspicious circumstances against the accused

so as to frame a charge against him.'

14. While considering the very same provisions i.e. framing of

charges and discharge of the accused, again in Sajjan Kumar [Sajjan

Kumar v. CBI, (2010) 9 SCC 368 : (2010) 3 SCC (Cri) 1371] , this

Court held thus : (SCC pp. 375-77, paras 19-21)

'19. It is clear that at the initial stage, if there is a strong

suspicion which leads the court to think that there is ground for

presuming that the accused has committed an offence, then it

is not open to the court to say that there is no sufficient ground

for proceeding against the accused. The presumption of the

guilt of the accused which is to be drawn at the initial stage is

only for the purpose of deciding prima facie whether the court

should proceed with the trial or not. If the evidence which the

prosecution proposes to adduce proves the guilt of the

accused even if fully accepted before it is challenged in cross-

Crr 841 of 2018

examination or rebutted by the defence evidence, if any,

cannot show that the accused committed the offence, then

there will be no sufficient ground for proceeding with the trial.

20. A Magistrate enquiring into a case under Section 209CrPC

is not to act as a mere post office and has to come to a

conclusion whether the case before him is fit for commitment

of the accused to the Court of Session. He is entitled to sift

and weigh the materials on record, but only for seeing whether

there is sufficient evidence for commitment, and not whether

there is sufficient evidence for conviction. If there is no prima

facie evidence or the evidence is totally unworthy of credit, it is

the duty of the Magistrate to discharge the accused, on the

other hand, if there is some evidence on which the conviction

may reasonably be based, he must commit the case. It is also

clear that in exercising jurisdiction under Section 227CrPC, the

Magistrate should not make a roving enquiry into the pros and

cons of the matter and weigh the evidence as if he was

conducting a trial.

Exercise of jurisdiction under Sections 227 and 228CrPC

21. On consideration of the authorities about the scope of

Sections 227 and 228 of the Code, the following principles

emerge:

(i) The Judge while considering the question of framing the

charges under Section 227CrPC has the undoubted power to

sift and weigh the evidence for the limited purpose of finding

out whether or not a prima facie case against the accused has

been made out. The test to determine prima facie case would

depend upon the facts of each case.

Crr 841 of 2018

(ii) Where the materials placed before the court disclose grave

suspicion against the accused which has not been properly

explained, the court will be fully justified in framing a charge

and proceeding with the trial.

(iii) The court cannot act merely as a post office or a

mouthpiece of the prosecution but has to consider the broad

probabilities of the case, the total effect of the evidence and

the documents produced before the court, any basic

infirmities, etc. However, at this stage, there cannot be a

roving enquiry into the pros and cons of the matter and weigh

the evidence as if he was conducting a trial.

(iv) If on the basis of the material on record, the court could

form an opinion that the accused might have committed

offence, it can frame the charge, though for conviction the

conclusion is required to be proved beyond reasonable doubt

that the accused has committed the offence.

(v) At the time of framing of the charges, the probative value of

the material on record cannot be gone into but before framing

a charge the court must apply its judicial mind on the material

placed on record and must be satisfied that the commission of

offence by the accused was possible.

(vi) At the stage of Sections 227 and 228, the court is required

to evaluate the material and documents on record with a view

to find out if the facts emerging therefrom taken at their face

value disclose the existence of all the ingredients constituting

the alleged offence. For this limited purpose, sift the evidence

as it cannot be expected even at that initial stage to accept all Crr 841 of 2018

that the prosecution states as gospel truth even if it is opposed

to common sense or the broad probabilities of the case.

(vii) If two views are possible and one of them gives rise to

suspicion only, as distinguished from grave suspicion, the trial

Judge will be empowered to discharge the accused and at this

stage, he is not to see whether the trial will end in conviction or

acquittal.' "

17. The Hon'ble Supreme Court has further held in its judgment in the

case of State of Gujarat vs. Dilipsinh Kishorsinh Rao, 2023 SCC

Online SC 1294, that:-

10. It is settled principle of law that at the stage of considering an

application for discharge the court must proceed on an assumption that the

material which has been brought on record by the prosecution is true and

evaluate said material in order to determine whether the facts emerging

from the material taken on its face value, disclose the existence of the

ingredients necessary of the offence alleged.

11. This Court in State of T.N. v. N. Suresh Rajan [State of T.N. v. N.

Suresh Rajan, (2014) 11 SCC 709 : (2014) 3 SCC (Cri) 529 : (2014) 2 SCC

(L&S) 721] adverting to the earlier propositions of law laid down on this

subject has held : (SCC pp. 721-22, para 29)

"29. We have bestowed our consideration to the rival submissions

and the submissions made by Mr Ranjit Kumar commend us. True it

is that at the time of consideration of the applications for discharge,

the court cannot act as a mouthpiece of the prosecution or act as a

post office and may sift evidence in order to find out whether or not

the allegations made are groundless so as to pass an order of Crr 841 of 2018

discharge. It is trite that at the stage of consideration of an application

for discharge, the court has to proceed with an assumption that the

materials brought on record by the prosecution are true and evaluate

the said materials and documents with a view to find out whether the

facts emerging therefrom taken at their face value disclose the

existence of all the ingredients constituting the alleged offence. At

this stage, probative value of the materials has to be gone into and

the court is not expected to go deep into the matter and hold that the

materials would not warrant a conviction. In our opinion, what needs

to be considered is whether there is a ground for presuming that the

offence has been committed and not whether a ground for convicting

the accused has been made out. To put it differently, if the court

thinks that the accused might have committed the offence on the

basis of the materials on record on its probative value, it can frame

the charge; though for conviction, the court has to come to the

conclusion that the accused has committed the offence. The law

does not permit a mini trial at this stage."

12. The defence of the accused is not to be looked into at the stage when

the accused seeks to be discharged. The expression "the record of the

case" used in Section 227CrPC is to be understood as the documents and

articles, if any, produced by the prosecution. The Code does not give any

right to the accused to produce any document at the stage of framing of the

charge. The submission of the accused is to be confined to the material

produced by the investigating agency.

13. The primary consideration at the stage of framing of charge is the test

of existence of a prima facie case, and at this stage, the probative value of

materials on record need not be gone into. This Court by referring to its

earlier decisions in State of Maharashtra v. Som Nath Thapa [State of Crr 841 of 2018

Maharashtra v. Som Nath Thapa, (1996) 4 SCC 659 : 1996 SCC (Cri) 820]

and State of M.P. v. Mohanlal Soni [State of M.P. v. Mohanlal Soni, (2000)

6 SCC 338 : 2000 SCC (Cri) 1110] has held the nature of evaluation to be

made by the court at the stage of framing of the charge is to test the

existence of prima facie case. It is also held at the stage of framing of

charge, the court has to form a presumptive opinion to the existence of

factual ingredients constituting the offence alleged and it is not expected to

go deep into probative value of the material on record and to check

whether the material on record would certainly lead to conviction at the

conclusion of trial.

18. In the matter of State (NCT of Delhi) vs. Shiv Charan Bansal and

Others, 2020 (2) SCC 290, the Hon'ble Supreme Court has held that at

the stage of framing of charge, the trial court is not required to conduct a

meticulous appreciation of evidence or a roving inquiry into the same and

has the power to sift and weigh the evidence for the limited purpose of

finding out whether or not a prima facie case is made out against the

accused to proceed with the trial.

19. In view of the above principles, on examining the material available

in the charge-sheet, which is filed along with the petition, it prima facie

gives sufficient material that the present applicant, being the Chief

Executive Officer, Janpad Panchayat, Wadraf Nagar, gets himself

involved in the selection process which was enquired by a team of four

members constituted by the Collector who found the irregularities and

illegalities committed in the selection process and submitted its report to

that effect. From the statements of the witnesses Santosh Kumar, Lal Crr 841 of 2018

Bahadur, Pahluram Kushwah, Rammilan Prasad, Jaishankar Prasad

Upadhyay, Dukhteshwar Prasad and Kansraj Singh, there is sufficient

prima facie material to frame charge and to proceed with the trial of the

case which supported by the enquiry report of the committee. There are

allegations against the present applicant that he committed the offence of

criminal misconduct while he was posted as Chief Executive Officer,

Janpad Panchayat, Wadraf Nagar. Criminal misconduct, as defined

under Section 13(1) of the Prevention of Corruption Act, 1988, clearly

spells out the act of the present applicant and the other co-accused

persons from the material available in the charge-sheet and statement of

the aforementioned witnesses. Various documents and registers have

been seized and handwriting of the persons have also been examined.

20. From perusal of the charge memo, this court finds that there is

sufficient description in the charge memo of the offence of conspiracy

and criminal misconduct and allegation against the present applicant that

he, being the member of the Selection Committee, had selected the

ineligible candidate and has committed the offence in violation of Rules of

CG Panchayat Shiksha Karmi (recruitment and service condition) Rules.

The allegation against the applicant requires evidence for which the

charge has been framed, and the learned trial court proceeded with the

trial. Although the applicant was transferred from Wadraf Nagar to

Lakhanpur on 03-08-1998, his role in the selection process and his

position prior to his transfer, and the allegation against him clearly makes

him liable to face the trial.

Crr 841 of 2018

21. In the matter of K. Ravi (supra), the Hon'ble Supreme Court, in para

11 and 12 of its judgment has held that:

"11. It is trite to say that Section 216 is an enabling provision which enables

the court to alter or add to any charge at any time before judgment is

pronounced, and if any alternation or addition to a charge is made, the

court has to follow the procedure as contained therein. Section 216 does

not give any right to the Accused to file a fresh application seeking his

discharge after the charge is framed by the court, more particularly when

his application seeking discharge Under Section 227 has already been

dismissed. Unfortunately, such applications are being filed in the trial courts

sometimes in ignorance of law and sometimes deliberately to delay the

proceedings. Once such applications though untenable are filed, the trial

courts have no alternative but to decide them, and then again such orders

would be challenged before the higher courts, and the whole criminal trial

would get derailed. Suffice it to say that such practice is highly deplorable,

and if followed, should be dealt with sternly by the courts.

12. So far as the facts of the present case are concerned, as stated

hereinabove the Respondent No. 2 had miserably failed to get himself

discharged from the case in the first round of litigation, when he had filed

the application Under Section 227 Code of Criminal Procedure, still

however he filed another vexatious application seeking modification of

charge Under Section 216 of Code of Criminal Procedure to derail the

criminal proceedings. The said Application also having been dismissed by

the Sessions Court, the order was challenged before the High Court by

filing Revision Application Under Section 397 Code of Criminal Procedure.

The High Court, on an absolutely extraneous consideration and in utter

disregard of the settled legal position, allowed the Revision Application filed

by the Respondent No. 2, though legally untenable, and set aside the Crr 841 of 2018

charge framed by the Sessions Court against the Respondent No. 2. The

said order being ex facie illegal, untenable and dehors the material on

record, the same deserves to be set aside."

22. It is settled legal position that at the stage of framing of charge, the

trial judge has to examine the evidence placed by the prosecution in

order to prima facie satisfy as to whether or not the evidence is sufficient

to proceed with trial against the accused. The nature of the evidence

collected during the investigation or the documents produced with it, in

which prima facie it reveals that there are suspicious circumstances

against the accused, would suffice to frame the charge, and they proceed

with the trial. If there is no sufficient ground for proceeding against the

accused, necessarily the accused would be discharged, but if the court is

of the opinion after considering the material available in the charge-sheet,

then the charge has to be framed. It is also settled that at the time of

framing the charge, the accused has no right to produce any material and

to call upon the court to examine the same. The defence of the accused

is not to be looked into at the stage of framing of the charge. The primary

consideration at the stage of framing of charge is the test of the existence

of a prima facie case, and at this stage, the probative value of the

material on record need not be gone into.

23. So far as the conspiracy is concerned, the Hon'ble Supreme Court

has held in para 168 to 180 that to establish the offence, it is not required

to be of a single agreement. Each conspirator plays his separate part, Crr 841 of 2018

and he may not know all its secrets. It is difficult to establish a conspiracy

by direct evidence.

24. In the case of "State of Karnataka vs. J. Jayalalitha" 2017 (6)

SCC 263, the Hon'ble Supreme Court has held that:-

168. While dwelling on the concept of conspiracy, this Court in Mohd.

Husain Umar Kochra v. K.S. Dalipsinghji [Mohd. Husain Umar Kochra v.

K.S. Dalipsinghji, (1969) 3 SCC 429 : 1970 SCC (Cri) 99] (SCC pp. 435-36,

para 15) held that in conspiracy, agreement is the gist of the offence and a

common design and common intention in furtherance of the common

scheme is necessary. Each conspirator plays his separate part in one

integrated and united effort to achieve the common purpose. It was

enounced that conspiracy may develop in successive stages and new

techniques may be invented and new means may be devised, and a

general conspiracy may be a sum up of separate conspiracies having a

similar general purpose, the essential elements being collaboration,

connivance, jointness in severalty and coordination.

(emphasis supplied)

169.Noor Mohammad Mohd. Yusuf Momin [Noor Mohammad Mohd. Yusuf

Momin v. State of Maharashtra, (1970) 1 SCC 696 : 1970 SCC (Cri) 274]

(SCC pp. 699-700, para 7), encountered a fact situation witnessing a clash

between the neighbours on a very trivial incident of a cow blocking a

passage. Murderous assaults followed in which the appellant along with 4/5

associates were involved. The appellant along with others were found

guilty under Sections 302/34 IPC. This Court held that participation is the

gravamen of common intention but under Section 109, abetment can be

attracted even if the abettor is not present. Qua conspiracy, it was Crr 841 of 2018

exposited that it postulates an agreement between two or more persons to

do or cause to be done an illegal act or an act which is not illegal by illegal

means. It was elucidated that conspiracy is of wider amplitude than

abetment though there is a close association between the two. It was ruled

that conspiracy can be proved by circumstantial evidence and proof thereof

is largely inferential, founded on facts and this is because of the difficulty in

securing direct evidence of criminal conspiracy. It was explicated that once

a reasonable ground is shown to suggest that two or more persons have

conspired, then anything done by one of them in reference to their common

intention becomes relevant in proving the conspiracy and the offences

committed pursuant thereto.

(emphasis supplied)

170. In Saju v. State of Kerala [Saju v. State of Kerala, (2001) 1 SCC 378 :

2001 SCC (Cri) 160] (SCC p. 383, para 7), it was propounded that to

attract Section 120-B IPC, it is to be proved that all the accused had the

intention and they had agreed to commit the crime. It was assumed that

conspiracy is hatched in private and in secrecy, for which direct evidence

would not be readily available. It was ruled that it is not necessary that

each member to a conspiracy must know all the details of all the

conspiracy.

(emphasis supplied)

171. This Court recalled its observations in Yash Pal Mittal v. State of

Punjab [Yash Pal Mittal v. State of Punjab, (1977) 4 SCC 540 : 1978 SCC

(Cri) 5] (SCC p. 543, para 9) that there may be so many devices and

techniques adopted to achieve the common goal of the conspiracy, and

there may be division of performances in the chain of actions with one

object to achieve the real end, of which every collaborator need not be

aware but in which each one of them would be interested. There must be a Crr 841 of 2018

unity of object or purpose but there may be plurality of means, sometimes

even unknown to one another, amongst the conspirators. The only relevant

factor is that all means adopted and illegal acts done must be to fulfil the

object of the conspiracy. Even if some steps are resorted to by one or two

of the conspirators without the knowledge of the others, it will not affect the

culpability of those others when they are associated with the object of the

conspiracy.

172. It was noted that as an exception to the settled position of law, an act

or action of one of the accused cannot be used as evidence against

another, Section 10 of the Evidence Act provided otherwise. To attract the

applicability of Section 10, the Court must have reasonable ground to

believe that two or more persons had conspired together for committing an

offence and then the evidence of action or statement made by one of the

accused could be used as evidence against the other.

(emphasis supplied)

173. In Ram Narayan Popli v. CBI [Ram Narayan Popli v. CBI, (2003) 3

SCC 641 : 2003 SCC (Cri) 869] , the executives of Maruti Udyog Ltd. were

charged with criminal conspiracy to siphon off its funds in favour of A-5 and

were prosecuted under Sections 13(1)(c) and 13(2) of the 1988 Act along

with Sections 120-B, 420, 409, 467 and 471 IPC. This Court reiterated

(SCC pp. 778-79, paras 342 & 343) that the essence of a criminal

conspiracy, is unlawful combination and ordinarily the offence is complete

when the combination is framed and that the law making conspiracy a

crime, is designed to curb the immoderate power to do mischief which is

gained by combination of the means. It was held that the offence of

criminal conspiracy has its foundation in an agreement to commit an

offence. A conspiracy consists not merely in the intention of two or more

but in the agreement of two or more to do an unlawful act by unlawful Crr 841 of 2018

means. The agreement which is the quintessence of criminal conspiracy

can be proved either by direct or by circumstantial evidence or by both and

it is a matter of common experience that direct evidence to prove

conspiracy is rarely available.

174. The following excerpt from Halsbury's Laws of England, 4th Edn., Vol.

11, p. 44, para 58 was relied upon : (Ram Narayan case [Ram Narayan

Popli v. CBI, (2003) 3 SCC 641 : 2003 SCC (Cri) 869] , SCC p. 779, para

344)

"344. ... '58. Meaning of conspiracy.-- ... The conspiracy arises and

the offence is committed as soon as the agreement is made; and the

offence continues to be committed so long as the combination

persists, that is, until the conspiratorial agreement is terminated by

completion of its performance or by abandonment or frustration or

however, it may be. The actus reus in a conspiracy is the agreement

to execute the illegal conduct, not the execution of it. It is not enough

that two or more persons pursued the same unlawful object at the

same time or at the same place. It is necessary to show the meeting

of minds, a consensus to effect an unlawful purpose. It is not,

however, necessary that each conspirator should have been in

communication with each other.' "

(emphasis supplied)

175. Reference was made to R. v. Murphy [R. v. Murphy, (1837) 8 Car & P

297 : 173 ER 502] , where Coleridge, J., was of the view (ER p. 508) that

although common design is the root of the charge, it is not necessary to

prove that these two parties had come together and actually agreed in

terms to have the common design and to pursue it by common means and

so to carry it into execution, as in many cases of established conspiracy,

there are no ways of proving any such thing. If it is found that these two Crr 841 of 2018

persons pursued by their acts, the same object, often by the same means,

one performing one part of an act and the other another part of the same

act so as to complete it, with a view to attain the object which they are

pursuing, you will be at liberty to draw the conclusion that they have been

engaged in a conspiracy to effect that object.

(emphasis supplied)

176. The overwhelming judicial opinion thus is that a conspiracy can be

proved by circumstantial evidence as mostly having regard to the nature of

the offending act, no direct evidence can be expected.

177. In Firozuddin Basheeruddin v. State of Kerala [Firozuddin

Basheeruddin v. State of Kerala, (2001) 7 SCC 596 : 2001 SCC (Cri) 1341]

(SCC pp. 607-08, paras 26 & 27), it was ruled that loosened standards

prevail in a conspiracy trial regarding admissibility of evidence. Contrary to

the usual rule, in conspiracy prosecution, any declaration by one

conspirator, made in furtherance of a conspiracy and during its pendency,

is admissible against each co-conspirator. Despite the unreliability of

hearsay evidence, it is admissible in conspiracy prosecutions. It was

observed that thus the conspirators are liable on an agency theory for

statements of co-conspirators just as they are for the overt acts and crimes

committed in their confederates. (emphasis supplied)

178. In Mir Nagvi Askari v. CBI [Mir Nagvi Askari v. CBI, (2009) 15 SCC

643 : (2010) 2 SCC (Cri) 718] (SCC pp. 665-66, para 62), it was enounced

that courts in deciding on the existence or otherwise, of an offence of

conspiracy must bear in mind that it is hatched in secrecy and that it is

difficult, if not impossible, to obtain direct evidence to establish the same.

The manner and circumstances in which the offences have been

committed and the accused persons had taken part are relevant. To prove

that the propounders had expressly agreed to commit the illegal act or had Crr 841 of 2018

caused it to be done, may be proved by adducing circumstantial evidence

and/or by necessary implications. (emphasis supplied)

179. The following extract from Russell on Crimes, 12th Edn., Vol. 1 was

quoted with approval : (Mir Nagvi case [Mir Nagvi Askari v. CBI, (2009) 15

SCC 643 : (2010) 2 SCC (Cri) 718] , SCC p. 666, para 63)

"63. ... 'The gist of the offence of conspiracy then lies, not in doing

the act, or effecting the purpose for which the conspiracy is

formed, nor in attempting to do them, nor in inciting others to do

them, but in the forming of the scheme or agreement between the

parties. Agreement is essential. Mere knowledge, or even

discussion, of the plan is not, per se, enough.' " (emphasis in

original)

180. It recalled its conclusions in Kehar Singh v. State (Delhi Admn.)

[Kehar Singh v. State (Delhi Admn.), (1988) 3 SCC 609 : 1988 SCC (Cri)

711] , that to establish the offence of criminal conspiracy, it is not required

that a single agreement should be entered into by all the conspirators at

one time. Each conspirator plays his separate part in one integrated and

united effort to achieve the common purpose. Each one is aware that he

has a part to play in a general conspiracy though he may not know all its

secrets or means by which the common purpose is to be accomplished. On

the touchstone of the above adumbrated legal postulations, the evidence

on records would have to be assayed to derive the deduction as logically

permissible. (emphasis supplied)

25. In view of the aforementioned legal position and the facts of the

case, it is clear that the submissions made by the applicant that he was

not there at the time when the final selection list was published and on

03-08-1998, he was transferred, Lata Jaiswal does not come under the Crr 841 of 2018

definition of the relative of the applicant, the applicant was not the

member of the interview board of his relative and he has not obtained

any extraneous consideration and has not conspired with other accused

persons are the matter of evidence and the allegation levelled against the

applicant is to be adjudicated after recording evidence of the witnesses.

There is prima facie material against the applicant available in the charge

sheet to frame the charge and to proceed with the trial of the case.

26. The judgment cited by learned counsel for the applicant i.e. of

Vinubhai Ranchhodbhai (supra) relates to proper framing of charge but

in the present case, the ingredients of the charge is found sufficient and

clear, therefore, it is not applicable to the facts of the present case. The

judgment of Sushil Sethi (supra) is also not applicable to the present

case as the facts and issues involved in that case is different than the

present case. In Pepsi Foods Ltd. (supra), it is held by the Hon'ble

Supreme Court that the accused can be discharged at any stage of trial if

the trial court considers the charge to be groundless, but it is also not the

case herein. In the present case, there are sufficient grounds to frame a

charge. In the case of D. Devaraja (supra), the judgment on the point of

sanction of prosecution, although the issue of discharge has also been

considered, but sufficient prima facie material is there in the present

charge sheet against the applicant. The other judgments are also on the

different footing but on the same point that if, there is no sufficient prima

facie evidence to proceed with the trial of the case, therefore, no benefit

can be extended to the applicant from the judgments of Owasis Sabeer Crr 841 of 2018

Hussain, Bhajan Lal, Marium Faisuddhin and Gurjindar Pal Singh

(supra).

27. This court, therefore, is of the considered opinion that the learned

trial court has rightly framed the charge against the applicant, and there is

sufficient prima facie material available in the charge-sheet to frame the

charge and to proceed with the trial of the case. There is no ground to

quash the charge framed by the learned trial court and no illegality or

irregularity is found warranting interference in the impugned order of

framing charge against the applicant as such Criminal revision

deserves to be and hereby dismissed.