Gujarat High Court

Nitinchandra Somnath Raval vs State Of Gujarat on 11 April, 2023

Bench: Samir J. Dave

     R/SCR.A/11313/2021                               JUDGMENT DATED: 11/04/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


      R/SPECIAL CRIMINAL APPLICATION NO. 11313 of 2021

FOR APPROVAL AND SIGNATURE:                         SD/-


HONOURABLE MR. JUSTICE SAMIR J. DAVE

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1      Whether Reporters of Local Papers may be allowed
       to see the judgment ?                                           YES

2      To be referred to the Reporter or not ?                         YES

3      Whether their Lordships wish to see the fair copy
       of the judgment ?                                               NO

4      Whether this case involves a substantial question
       of law as to the interpretation of the Constitution             NO
       of India or any order made thereunder ?

================================================================
                          NITINCHANDRA SOMNATH RAVAL
                                      Versus
                                STATE OF GUJARAT
================================================================
Appearance:
PARTY IN PERSON(5000) for the Applicant(s) No. 1
MR J.M. PANCHAL, SR. ADVOCATE WITH MR PARTHIV B SHAH(2678) for
the Respondent(s) No. 2
MS MH BHATT APP for the Respondent(s) No. 1
================================================================

    CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE

                                Date : 11/04/2023

                                ORAL JUDGMENT

1. In the devastating earthquake measuring 7.7 on the

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Richter Scale which struck the State of Gujarat on 26.01.2001

having its epicentre in District Kutch, thousands of people lost

their lives as they got buried under the rubble of buildings

that got destroyed. The effects of the earthquake were felt in

District Ahmedabad and beyond. The petitioner herein and his

family were residing in a housing scheme named "Shikhar

Tower" at the relevant point of time. However, in the massive

earthquake, one amongst the four Blocks of the housing

scheme i.e. Block-D, consisting of 40 residential flats, collapsed

like a pack of cards and 98 residents were killed under the

debris and several others were injured. The petitioner herein

was also a sufferer as his two adult sons, daughter-in-law and

grandson, who were in the building at the relevant time, had

died.

2. It appears from the documents on record that

construction work of the housing scheme - "Shikhar Tower"

had commenced in pursuance of the Revised Development

Permission dated 22.04.1998 issued by the competent

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authority. According to the said Development Permission,

sanction was accorded to construct 160 residential flats in four

towers, each consisting 40 residential flats, having built-up

area of 42 sq. metres. After the construction work was over,

the promoters of the housing scheme had applied for

regularization of construction as some portion of the

construction was illegal. However, the competent authority had

regularized only a partial portion of the illegal construction.

The Catalog of the housing scheme has been produced on

record vide Annexure-S. However, the built-up area of Flats as

shown in the Catalog varies from the particulars mentioned in

the Revised Development Permission dated 22.04.1998. In other

words, construction work was carried out in excess of what

was sanctioned by the competent authority vide order dated

22.04.1998.

3. According to the petitioner, the respondent No.2 herein

was the Builder of the housing society; however, the same has

been disputed by the other side by submitting that as per the

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agreement for construction which was entered into between the

parties, respondent No.2 was only a Supervisor. Be that as it

may, the fact remains that said Tower-B was constructed, sold,

occupied by different residents and had ultimately, collapsed.

4. On 06.02.2001 a complaint in connection with the above

incident was lodged before Satellite Police Station vide I-C.R.

No. 58 of 2001 under sections 304, 420 and 114 of IPC and

sections 3(2)(C)(D), 7(1)(i)(ii)2 r/w. Section 42 of the Gujarat

Ownership of Flats Act. At the end of investigation, charge-

sheet was filed on 02.05.2001 before the Sessions Court

concerned. When the matter came up for framing of Charge,

the respondent No.2-accused moved application Exhibit-55

seeking removal of the charge u/s. 304 IPC, which came to be

allowed vide order dated 15.02.2006, which was confirmed by

this Court as well as by the Apex Court.

5. The Charge came to be framed on 21.06.2018 but, when

it was framed, the application preferred by the respondent-

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accused u/s. 239 Cr.P.C. in Criminal Case No.853 of 2001

seeking discharge was pending. Being aggrieved by the order

of framing of charge, the respondent-accused preferred revision

application before the Sessions Court, which was allowed with

a direction to decide the discharge application. Pursuant

thereto, the Court of learned Chief Judicial Magistrate,

Ahmedabad (Rural) heard the discharge application and vide

order dated 11.01.2021, rejected the said application preferred

by the respondent-accused. Against the said order dated

11.01.2021, the respondent-accused preferred revision being

Criminal Revision Application No.27 of 2021 before the

Sessions Court. The said revision application came to be

allowed by the learned Principal District and Sessions Judge,

Ahmedabad (Rural) vide order dated 30.04.2021 and the

respondent-accused was discharged of all the offences. Being

aggrieved by the same, the present petition has been preferred.

6. Heard the petitioner - Mr. Nitinchandra Somnath Raval,

who appears as party-in-person. It was submitted by the

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petitioner, party-in-person, that the respondent-accused was the

Builder, who had constructed the housing society. There is

ample material on record to suggest that the respondent-

accused was actively involved in the construction work of the

residential flats since its inception. Therefore, the say of the

respondent-accused that he was merely working as Supervisor

at the construction site and was not aware and / or

responsible for the construction work would not absolve him

from his culpability as it would be a matter of trial.

6.1 The petitioner further submitted that right from the very

beginning the respondent-accused carried the intention to dupe

the customers. As per the Revised Development Permission

granted by the competent authority in April 1998, 160

residential flats having built-up area of 42 sq. metres was to

be constructed. However, the accused had carried out excess

construction work in total violation of all the relevant Rules

and Regulations. Severe compromise was made in the

prescribed standards of building construction, which,

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ultimately, led to loss of 98 human lives and several injured.

By publishing a Catalog displaying a higher built-up area of

the residential flats than what was sanctioned by the

competent authority, the accused in connivance with each

other had hatched a conspiracy with the intention to cheat the

prospective home-buyers and to earn huge money. The accused

had the knowledge also that a compromise in the basic

structure of the building could prove detrimental to the

residents as such building would not have the strength and

sustainability in comparison to those which have been

constructed in strict compliance of the relevant Rules and

Regulations governing building construction works. Thus, the

revisional Court has seriously erred in discharging the

respondent-accused.

6.2 It was contended by the petitioner, party-in-person, that

the revisional Court has erred in recording the conclusion that

the respondent-accused could not be held guilty for the

collapse of the building as it was as an "Act of God". He

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submitted that the reasoning adopted by the revisional Court is

erroneous inasmuch as the respondent No.2 herein and co-

accused were fully aware of the fact that certain portion of the

construction was illegal and that compromise had been made

in many vital areas of construction work. As a result thereof,

the building was structurally improper and was thereby, weak

from the core. Thus, the respondent-accused had the

knowledge that the building was weak from the core, which

resulted into its collapse. From the material on record, it is

established that the respondent-accused had committed fraud

with the buyers in order to attract prospective buyers and had

also compromised the building structure knowing fully well

that such compromise would reduce the overall strength and

life of the building. Hence, the revisional Court has seriously

erred in discharging the respondent-accused.

6.3 The party-in-person further submitted that the trial Court

concerned had already framed the charge when the application

for discharge filed by the respondent-accused came to be

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decided. He contended that after the framing of charge, there

cannot be a 'discharge' but only an 'acquittal' based on a

finding of not guilty turning on the merits of the case. Hence,

the impugned order passed by the revisional Court is bad in

law and deserves to be quashed and set aside.

6.4 In support of his submissions, the petitioner has relied

upon the following decisions;

(a) Ram Kumar v. State of Uttar Pradesh and others, AIR 2022 SC 4705.

(b) Mrs. Akella Lalitha v. Sri Konda Hanumantha Rao and another, AIR 2022 SC 3544.

(c) Bharat Amratlal Kothari & Anr. v. Dosukhan Samadhkhan Sindhi and others, AIR 2010 SC 475.

(d) Kantibhadra Shah and another v. State of W.B., AIR 2000 SC 522.

(e) Ratilal Bhanji Mithani v. State of Maharashtra, AIR 1979 SC 94.

R/SCR.A/11313/2021 JUDGMENT DATED: 11/04/2023

(f) Ritesh Tiwari and another v. State of Uttar Pradesh and others, (2010) 10 SCC 677.

(g) Mekharam and others v. State of Rajasthan and others, AIR 2022 SC 1591.

(h) Muzaffar Hussain v. State of Uttar Pradesh, 2022 Live Law SC 450.

(i) R.S. Mishra v. State of Orissa, 2011 (0) GLHEL-SC 49397.

(j) Ghulam Hassan Beigh v. Mohammad Maqbool Magrey and others, AIR Online 2022 SC 1130.

(k) Ram Sharan Chaturvedi v. State of Madhya Pradesh, AIR 2022 SC 4002.

(l) State of NCT of Delhi; Kantadevi v. Shiv Charan Bansal and others, AIR Online 2019 SC 1674.

(m) Ramchandra Barathi @ Satish Sharma V.K. & others v. The State of Telengana, 2022 Live Law (SC) 986.

(n) Gregory Patrao and others v. Mangalore Refinery and Petrochemicals Ltd. and others, 2022 Live Law (SC) 602.

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(o) R.S. Mishra v. State of Orissa and others, (2011) 2 SCC 689.

(p) Kanti Bhadra Shan and another v. State of W.B., (2000) 1 SCC 722.

(q) Ratilal Bhanji Mithani v. State of Maharashtra and others, (1979) 2 SCC 179.

7. Learned Senior Advocate Mr. J.M. Panchal appearing

with learned advocate Mr. P.B. Shah for the respondent-

accused submitted that none of the ingredients of the offence

alleged from the complaint or for that matter, from the entire

records pertaining to the investigation. In the absence of

evidence as to cheating and causing death by negligence, the

respondent-accused could not have been prosecuted for the

offence u/s. 304A and 420 of IPC.

7.1 Learned Senior Advocate Mr. Panchal submitted that

there is nothing on record to suggest that the residents of the

building died on account of the rash or negligent act of the

respondent-accused. In fact, it was on account of the severity

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of the earthquake, which was measuring 7.7 on the Richter

Scale, that the building had collapsed. He pointed out that not

only the building in question had collapsed but several other

high-rise buildings located in the city of Ahmedabad had also

collapsed. Earthquake, being a natural calamity, the destruction

caused could be termed as an "Act of God". He, accordingly,

urged that the revisional Court was justified in discharging the

respondent-accused of all the charges.

7.2 The learned Senior Advocate further submitted that the

respondent-accused was working as a Supervisor at the

construction site and his main duty was to keep a check on

the works undertaken by the Labour Contractors. He was not

at all connected with the structural designing of the building

or for that matter, to examine whether the actual construction

was carried out as per the sanctioned plans. The main duty of

the respondent-accused was to supervise the overall

construction activity at the site and not to enter into the nicety

of the technical / civil specifications of construction work.

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Hence, under no circumstances, it could be inferred that the

building had collapsed on account of the rash or negligent act

of the respondent-accused and thereby, making him liable

under the provisions of section 304A of IPC. Thus, there is no

prima facie material against the respondent-accused, which

would necessitate framing of charge against him and hence,

the revisional Court was completely justified in discharging the

respondent-accused.

7.3 In support of the submissions, the learned Senior

Advocate placed reliance upon the following decisions;

(a) Ambalal D. Bhatt v. The State of Gujarat, (1972) SCC 525.

(b) Girishbhai Maganlal Pandya v. State of Gujarat, 2015 (1) G.L.H. 126.

(c) Baldev Raj Kapur v. State, 2009 Cri.L.J. 1418 (Del).

8. Heard the petitioner, party-in-person, learned Senior

Advocate Mr. J.M. Panchal and learned APP appearing for the

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respondent State. The case has a very long history and has its

origin from the devastating earthquake that struck the State of

Gujarat in the year 2001, which has resulted into the loss of

thousands of human lives and destruction of property worth

crores of rupees. The earthquake had also caused severe

damage in Ahmedabad District resulting from the collapse of

several buildings. The present case arises out of one such

incident in which a ten-storied residential building had

collapsed resulting into the death of 98 residents, which

included four of the family members of the petitioner herein.

The petitioner has challenged the discharge of the respondent-

accused on multiple grounds; however, the main ground is that

though it was well within the knowledge of the respondent-

accused that compromise had been made with the structural

requirement of the residential tower and that sub-standard

building materials had been used for the construction of the

residential tower consisting of 10 floors as also the fact that

construction was done not in accordance with the Revised

Development Permission dated 22.04.1998 inasmuch as excess

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construction had been was done, the respondent-accused had

published a Catalog of the housing scheme which was not in

accordance with the development permission and had thereby,

defrauded the home-buyers and guilty of criminal negligence.

It is in this background that the Court has to consider whether

the ingredients of the offence as alleged against the

respondent-accused are made out or not on the basis of the

charge-sheet and the material collected during the course of

investigation.

9. The parameters which govern the exercise of jurisdiction

under Section 239 Cr.P.C. have found expression in a catena of

judgments rendered by the Apex Court as well as by this

Court. It is a settled principle of law that at the stage of

considering an application for discharge, the Court has to

proceed on the assumption that the material which has been

brought on record by the prosecution is true and that such

material material has to be evaluated in order to determine

whether the facts emerging from the material so produced, if

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taken on its face value, disclose the existence of the

ingredients necessary to constitute the offence. Thereafter, on

the basis of the materials on record, if the Court comes to the

opinion that the accused might have committed the offence,

then it may proceed to frame the charge. Thus, 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.

10. Before the trial Court concerned, both the parties were

duly heard. It was deposed by witness - Bhaveshbhai

Pravinchandra that his brother had purchased a Flat in Block-D

of "Shikhar Apartment" and that sale consideration of such

Flat was paid to "S.N. Builder". The Labour Contractor -

Hirabhai Nanjibhai Patel, who is also a witness, has

categorically deposed that he had undertaken the work of

labour contract from Satishbhai, i.e. the respondent-accused.

As per the said labour contract, the respondent-accused used to

deliver the building materials at the construction site. This

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witness has categorically deposed that sub-standard materials

were used in the construction of the building. The construction

was weak from its foundation. Another witness - Ashishbhai

has deposed that the respondent-accused used to remain

present at the site and that construction work was being done

according to the instructions of the respondent-accused. Similar

fact has been narrated by witnesses - Jaidevbhai Jhala, Rahul

Vasantbhai and Brijen Vipinbhai. Witness - Ashishbhai has

further categorically deposed that the construction was done

not in accordance with the sanctioned Plan. Thus, from the

evidence of the above witnesses, it is clear that the

respondent-accused was actively involved in the construction

activity of the building in question and was not working as a

mere Supervisor, as has been argued by learned Senior

Advocate for the respondent-accused.

11. It is a matter of record that sub-standard materials were

used in construction work and that construction was carried

out not in accordance with the sanctioned Plan. It appears that

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the Building Council had inspected the site after its collapse

and as per its Report, the building does not meet with the IS

13920-1993 standards set up by the Government, meaning

thereby, that the residential Tower was not Earthquake

Resistant. Here, it is pertinent to note that the building was

around 2-3 years old only at the time of its collapse and

therefore, it cannot be said that the building had collapsed for

want of maintenance. Further, the concrete grade was also

found to be of sub-standard quality as it did not meet with the

IS 13920-1993 standards.

12. Insofar as the provisions of section 304A IPC is

concerned, it relates to causing death of any person by doing

any rash or negligent act not amounting to culpable homicide.

In the case on hand, it was well within the knowledge of the

respondent-accused that certain portion of the construction was

illegal, sub-standard materials had been used in construction

work and that structural specifications for the building had not

been followed and therefore, the building would not have the

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required strength. In the impugned order, the revisional Court

has observed that the respondent-accused could not be held

liable for the collapse of the building and that it could be

termed as an "Act of God". However, the said conclusion

recorded by the revisional Court does not inspire any

confidence in view of the fact that it was well within the

knowledge of the respondent-accused that the construction of

the building was not strong. Therefore, the collapse of the

building on account of the tremors caused by the Earthquake

of 2001 could not be attributed as an "Act of God". It is

pertinent to note that there were four Towers in all and

amongst them, Tower-D had collapsed. If the building was to

collapse on account of the tremors, then all the four Towers

should have collapsed as they are situated adjacent to each

other. However, when only one of the Towers, i.e. Tower-D,

had collapsed out of the four Towers, then certainly questions

would arise about the strength of the Tower which has

collapsed. Hence, the reasoning given by the revisional Court

is erroneous and without any basis.

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13. At this stage, it would be beneficial to highlight the law

relating to discharge of an accused. In the case of Smt. Om

Wati and another vs. State through Delhi Administration and

others, AIR 2001 SC 1507, the Apex Court has laid down the

criteria for discharge of an accused in the following terms;

"(i) If upon consideration that there is no sufficient ground for proceeding against the accused, he shall discharge the accused for which he is required to record his reasons for so doing. No reasons are required to be recorded when the charges are framed against the accused persons.

(ii) Where it is shown that the evidence which the prosecution proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross-examination or rebutted by defense evidence cannot show that the accused committed the crime, then and then along the Court can discharge the accused. The Court is not required to enter into meticulous consideration of evidence and material placed before it at this stage."

13.1 In the case of Saranya vs. Bharathi and another,

(2021) 8 SCC 583, the Apex Court observed in paragraph no.

11 as under;

"11. In the case of Deepak (supra), to which one of us (Dr. Justice D.Y. Chandrachud) is the author, after considering the

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other binding decisions of this Court on the point, namely, Amit Kapoor v. Ramesh Chander (2012) 9 SCC 460; State of Rajasthan v. Fatehkaran Mehdu (2017) 3 SCC 198; and Chitresh Kumar Chopra v. State (Government of NCT of Delhi) (2009) 16 SCC 605, it is observed and held 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. It is observed and held that at that stage, the High Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, take at their face value, disclose the existence of all the ingredients constituting the alleged offence or offences. It is further observed and held that at this stage the High Court is not required to appreciate the evidence on record and consider the allegations on merits and to find out on the basis of the evidence recorded the accused charge-sheeted or against whom the charge is framed is likely to be convicted or not."

13.2 In the case of Gulam Hassan Baigh vs. Mahammad

Maqbool Magrey & Ors. arising out of SLP (Criminal) No.4599

of 2021 decided on 26th July, 2022 by the Larger Bench of the

Apex Court, in paragraph nos.15 to 28, it has been observed

as under:

"POSITION OF LAW :

15. Section 226 of the CrPC corresponds to subsection (1) of the old Section 286 with verbal changes owing to the abolition of the jury. Section 286 of the 1898 Code reads as under:

"286. (1) In a case triable by jury, when the jurors have been in chosen or, in any other case, when the Judge is ready to hear the case, the prosecutor shall open his case by

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reading from the Indian Penal or other law the description of the offence charged, and stating shortly by what evidence he expects to prove the guilt of the accused. (2) The prosecutor shall then examine his witnesses."

Section 226 of the 1973 Code reads thus:

"226. Opening case for prosecution.─ When the accused appears or is brought before the Court in pursuance of a commitment of the case under section 209, the prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused."

Section 226 of the CrPC permits the prosecution to make the first impression regards a case, one which might be difficult to dispel. In not insisting upon its right under Section 226 of the CrPC, the prosecution would be doing itself a disfavour. If the accused is to contend that the case against him has not been explained owing to the noncompliance with Section 226 of the CrPC, the answer would be that the Section 173(2) of the CrPC report in the case would give a fair idea thereof, and that the stage of framing of charges under Section 228 of the CrPC is reached after crossing the stage of Section 227 of the CrPC, which affords both the prosecution and accused a fair opportunity to put forward their rival contentions.

16. Section 227 of the CrPC reads thus:

"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."

17. Section 228 of the CrPC reads thus:

"228. Framing of charge:

(1) If, after such consideration and hearing as aforesaid,the Judge is of opinion that there is ground for presuming that

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the accused has committed an offence which -

(a) is not exclusively triable by the Court of Session, he may frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate shall try the offence in accordance with the procedure for the trial of warrant cases instituted on a police report;

(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.

(2) Where the Judge frames any charge under clause (b) of sub-section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried."

18. The purpose of framing a charge is to intimate to the accused the clear, unambiguous and precise nature of accusation that the accused is called upon to meet in the course of a trial. [See: decision of a Four Judge Bench of this Court in V.C. Shukla v. State through C.B.I. reported in1980 Supp SCC 92: 1980 SCC (Cri) 695).

19. The case may be a sessions case, a warrant case, or a summons case, the point is that a prima facie case must be made out before a charge can be framed. Basically, there are three pairs of sections in the CrPC. Those are Sections 227 and 228 relating to the sessions trial; Section 239 and 240 relatable to trial of warrant cases, and Sections 245(1) and (2) with respect to trial of summons case.

20. Section 226 of the CrPC, over a period of time has gone, in oblivion. Our understanding of the provision of Section 226 of the CrPC is that before the Court proceeds to frame the charge against the accused, the Public Prosecutor owes a duty to give a fair idea to the Court as regards the case of the prosecution.

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21. This Court in the case of Union of India v. Prafulla Kumar Samal and another, (1979) 3 SCC 4, considered the scope of enquiry a judge is required to make while considering the question of framing of charges. After an exhaustive survey of the case law on the point, this Court, in paragraph 10 of the judgment, laid down the following principles :

"(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 Judge 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."

22. There are several other judgments of this Court delineating the scope of Court's powers in respect of the framing of charges in a criminal case, one of those being Dipakbhai Jagdishchandra

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Patel V. State of Gujarat, (2019) 16 SCC 547, wherein the law relating to the framing of charge and discharge is discussed elaborately in paragraphs 15 and 23 respectively and the same are reproduced as under:

"15. We may profitably, in this regard, refer to the judgment of this Court in State of Bihar v. Ramesh Singh wherein this Court has laid down the principles relating to framing of charge and discharge as follows:

"4.....Reading Sections 227 and 228 together in juxtaposition, as they have got to be, it would be clear that at the beginning and 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

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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.... 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."

"23. At the stage of framing the charge in accordance with the principles which have been laid down by this Court, what the Court is expected to do is, it does not act as a mere post office. The Court must indeed sift the material before it.

The material to be sifted would be the material which is produced and relied upon by the prosecution. The sifting is not to be meticulous in the sense that the Court dons the mantle of the Trial Judge hearing arguments after the entire evidence has been adduced after a full-fledged trial and the question is not whether the prosecution has made out the case for the conviction of the accused. All that is required is, the Court must be satisfied that with the materials available, a case is made out for the accused to stand trial. A strong suspicion suffices. However, a strong suspicion must be founded on some material. The material must be such as can be translated into evidence at the stage of trial. The strong suspicion cannot be the pure subjective satisfaction based on the moral notions of the Judge that here is a case where it is possible that accused has committed the offence. Strong suspicion must be the suspicion which is premised on some material which commends itself to the court as sufficient to entertain the prima facie view that the accused has

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committed the offence."

23. In Sajjan Kumar v. CBI [(2010) 9 SCC 368 : (2010) 3 SCC (Cri) 1371], this Court had an occasion to consider the scope of Sections 227 and 228 CrPC. The principles which emerged there from have been taken note of in para 21 as under: (SCC pp. 376-

77)

"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 227 CrPC 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.

(ii) Where the materials placed before the court dis close 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

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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 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 dis charge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal."

24. The exposition of law on the subject has been further considered by this Court in State v. S. Selvi, (2018) 13 SCC 455 : (2018) 3 SCC (Cri) 710, followed in Vikram Johar v. State of Uttar Pradesh, (2019) 14 SCC 207 : 2019 SCC OnLine SC 609 : (2019) 6 Scale 794.

25. In the case of Asim Shariff v. National Investigation Agency, (2019) 7 SCC 148, this Court, to which one of us (A.M. Khanwilkar, J.) was a party, in so many words has expressed that the trial court is not expected or supposed to hold a mini trial for the purpose of marshalling the evidence on record. We quote the relevant observations as under:

"18. Taking note of the exposition of law on the subject laid down by this Court, it is settled that the Judge while considering the question of framing charge under Section 227 CrPC in sessions cases(which is akin to Section 239 CrPC pertaining to warrant cases) 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; where the material placed

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before the Court discloses grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing the charge; by and large if two views are possible and one of them giving rise to suspicion only, as distinguished from grave suspicion against the accused, 2018(13) SCC 455 4 2019(6) SCALE 794 the trial Judge will be justified in discharging him. It is thus clear that while examining the discharge application filed under Section 227 CrPC, it is expected from the trial Judge to exercise its judicial mind to determine as to whether a case for trial has been made out or not. It is true that in such proceedings, the Court is not supposed to hold a mini trial by marshalling the evidence on record." (emphasis supplied)

26. In the case of State of Karnataka v. M.R. Hiremath, reported in (2019) 7 SCC 515, this Court held as under:

"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, (2014) 11 SCC 709, 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

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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."

27. Thus from the aforesaid, it is evident that the trial court is enjoined with the duty to apply its mind at the time of framing of charge and should not act as a mere post office. The endorsement on the charge sheet presented by the police as it is without applying its mind and without recording brief reasons in support of its opinion is not countenanced by law. However, the material which is required to be evaluated by the Court at the time of framing charge should be the material which is produced and relied upon by the prosecution. The sifting of such material is not to be so meticulous as would render the exercise a mini trial to find out the guilt or otherwise of the accused. All that is required at this stage is that the Court must be satisfied that the evidence collected by the prosecution is sufficient to presume that the accused has committed an offence. Even a strong suspicion would suffice. Undoubtedly, apart from the material that is placed before the Court by the prosecution in the shape of final report in terms of Section 173 of CrPC, the Court may also rely upon any other evidence or material which is of sterling quality and has direct bearing on the charge laid before it by the prosecution. (See : Bhawna Bai v. Ghanshyam, (2020) 2 SCC 217).

28. In Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460, this Court observed in paragraph 30 that the Legislature in its wisdom has used the expression "there is ground for presuming that the accused has committed an offence". There is an inbuilt element of presumption. It referred to its judgement rendered in the case of State of Maharashtra v. Som Nath Thapa and others, (1996) 4 SCC 659, and to the meaning of the word "presume", placing reliance upon Blacks' Law Dictionary, where it was defined to mean "to believe or accept upon probable evidence"; "to take as true until evidence to the contrary is forthcoming". In other words, the truth of the matter has to come out when the prosecution evidence is led, the witnesses are cross - examined by the defence, incriminating

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material and evidences put to the accused in terms of Section 313 of the Code, and then the accused is provided an opportunity to lead defence, if any. It is only upon completion of such steps that the trial concludes with the Court forming its final opinion and delivering its judgement....."

13.3 In the case of Manendra Prasad Tiwari, vs. Amit

Kumar Tiwari & another passed in Criminal Appeal No.1210 of

2022 and decided on 12th August, 2022, the Division Bench of

the Apex Court observed in paragraph nos.21 to 27 as under:

"21. The law is well settled that although it is open to a High Court entertaining a petition under Section 482 of the CrPC or a revision application under Section 397 of the CrPC to quash the charges framed by the trial court, yet the same cannot be done by weighing the correctness or sufficiency of the 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 truthfulness, the sufficiency and acceptability of the material produced at the time of framing of a charge can be done only at the stage of trial. To put it more succinctly, at the stage of charge the Court is to examine the materials only with a view to be satisfied that prima facie case of commission of offence alleged has been made out against the accused person. It is also well settled that when the petition is filed by the accused under Section 482 CrPC or a revision Petition under Section 397 rad with Section 401 of the CrPC seeking for the quashing of charge framed against him, the Court should not interfere with the order unless there are strong reasons to hold that in the interest of justice and to avoid abuse of the process of the Court a charge framed against the accused needs to be quashed. Such an order can be passed only in exceptional cases and on rare occasions. It is to be kept in mind that once that trial court has framed a charge against an

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accused the trial must proceed without unnecessary interference by a superior court and the entire evidence from the prosecution side should be placed on record. Any attempt by an accused for quashing of a charge before the entire probabilities evidence has come on record should not be entertained sans exceptional cases. (see State of Delhi v. Gyan Devi, (2000) 8 SCC 239).

22. The scope of interfere and exercise of jurisdiction under Section 397 of CrPC has been time and again explained by this Court. Further, the scope of interference under Section 397 CrPC at a stage,w hen charge had been framed, is also well settled. At the stage of framing of charge, the court is concerned not with the proof of all 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 the 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 Code of Criminal Procedure.

23. Section 397 CrPC 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.

24. It is useful to refer to judgment of this Court in Amit Kapoor and Ramesh Chander, (2012) 9 SCC 460, where the scope of Section 397 CrPC has been succinctly considered and explained in paras 12 and 13 respectively as follows:

"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

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scrutinize 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 the Cr.P.C.

25. The Court in para-27 has recorded its conclusion and laid down the principles to be considered for the exercise of jurisdiction under Section 397 particularly in the context of quashing of charge framed under Section 228 CrPC. Paras 27, 27(1) (2) (3) (9), (12) respectively are extracted as follows:

"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

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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.

xxx

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.

xxx

27.13. Quashing of a charge is an exception to the rule of

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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.

26. This Court in the case of Chitresh Kumar Chopra v. State (Government of NCT of Delhi), reported in (2009) 16 SCC 605, observed in para 25 as under:

"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. (See: Niranjan Singh Karam Singh Punjabi & Ors. Vs. Jitendra Bhimraj Bijja & Ors5).

27. In State of Maharashtra v. Som Nath Thapa, (1996) 4 SCC 659, a three-Judge Bench of ths Court explained the meaning of the word "presume". Referring to the dictionary meanings of the said word, the Court observed thus:

"32. ..... if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists.

To put it differently, if the Court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of charge, probative value of the materials on record cannot be gone into; the materials

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brought on record by the prosecution has to be accepted as true at that stage."

14. In a recent judgment rendered by the Apex Court in the case of Central Bureau of Investigation v. Aryan Singh Etc. in Criminal Appeal Nos.1025-1026 of 2023 (In SLP. (CRL.) Nos.12794-12795 of 2022) decided on 10.04.2023, the following observations have been made in paragraph nos.4.1 to 4.2;

"4.1 From the impugned common judgment and order passed by the Hihg court, it appears that the High Court has dealt with the proceedings before it, as if, the High Court was conducting a mini trial and / or the High Court was considering the applications against the judgment and order passed by the learned Trial Court on conclusion of trial. As per the cardinal principle of law, at the stage of discharge and/or quashing of the criminal proceedings, while exercising the powers under section 482 Cr.P.C., the Court is not required to conduct the mini trial. The High Court in the common impugned judgment and order has observed that the charges against the accused are not proved. This is not the stage where the prosecution / investigating agency is/are required to prove the charges. The charges are required to be proved during the trial on the basis of the evidence led by the prosecution / investigating agency. Therefore, the High Court has materially erred in going in detail in the allegations and the material collected during the course of the investigation against the accused, at this stage. At the stage of discharge and / or while exercising the powers under section 482 Cr.P.C., the Court has a very limited jurisdiction and is required to consider "whether any sufficient material is available to proceed further against the accused for which the accused is required to be tried or not".

4.2 One another reason pointed by the High Court is that the initiation of the criminal proceedings / proceedings is malicious.

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At this stage, it is required to be noted that the investigation was handed over to the CBI pursuant to the directions issued by the High Court. That thereafter, on conclusion of the investigation, the accused persons have been chargesheeted. Therefore, the High Court has erred in observing at this stage that the initiation of the criminal proceedings / proceedings is malicious. Whether the criminal proceedings was / were malicious or not, is not required to be considered at this stage. The same is required to be considered at the conclusion of the trial. In any case, at this stage, what is required to be considered is a prima facie case and the material collected during the course of the investigation, which warranted the accused to be tried."

15. Considering the allegations made in the impugned

FIR, the material produced along with the charge-sheet and the

principle enunciated by the Apex Court in the above-referred

decisions, prima facie, this Court is of the opinion that there is

sufficient material on record to suggest that the respondent-

accused might have committed the alleged offence.

However, at the stage of deciding the discharge application,

prima facie, the respondent - accused appears to have

committed the offence alleged and hence, the revisional

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Court below has committed serious error in law and on facts

in allowing the discharge application of the respondent-