Binod Kumar Sinha @ Binod Kumar vs The State Of Jharkhand
2022 Latest Caselaw 4968 Jhar

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            IN THE HIGH COURT OF JHARKHAND, RANCHI
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Cr.M.P. No. 706 of 2018

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Binod Kumar Sinha @ Binod Kumar, aged about 45 years, s/o Akhileshwar Prasad Sinha, R/o New Colony, Nimdih, P.O. & P.S. Sadar, Chaibasa, District- West Singhbhum (Jharkhand) ..... Petitioner

-- Versus --

The State of Jharkhand, through C.B.I. ...... Opposite Parties

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner :- Mr. Navin Kumar Singh, Advocate For the C.B.I. :- Mr. Anil Kumar, A.S.G.I.

Ms. Chandana Kumari, A.C to A.S.G.I.

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18/08.12.2022 Heard Mr. Navin Kumar Singh, the learned counsel

appearing on behalf of the petitioner, Mr. Anil Kumar, the learned A.S.G.I

appearing on behalf of the respondent-C.B.I.

This petition has been filed for quashing of the order dated

31.01.2018 passed by learned Special Judge, C.B.I., Ranchi in F.I.R

No.RC-219/2011E/13 whereby discharge petition filed by the petitioner

has been rejected and the matter is pending before the said learned

court. Subsequently by way of filing I.A. order framing charge dated

19.01.2019 was also challenged which was allowed to be challenged by

order dated 03.09.2019.

The Vigilance case was registered alleging therein that one

FIR Vigilance Case No.38 of 2010 dated 30.08.2010 was registered by

the Vigilance Bureau of the State of Jharkhand whereby and whereunder

29 persons were named as accused in the said FIR. The said FIR was the

result of an appraisal report prepared in pursuance of search and seizure

operation conducted on 21.10.2009, 23.12.2009 and 16.02.2010 by

Income Tax Department in the premises of M/s IVRCL. As per the

investigation conducted by the Income Tax Department, huge amount of

bribe paid to different government servant during the process of

allotment of tender of IVRCL.

Mr. Navin Kumar Singh, the learned counsel appearing on

behalf of the petitioner submits that the Vigilance has registered a case

being Vigilance Case No.38 of 2010 dated 30.08.2010 against 29 persons

and the petitioner is named as an accused. In the said vigilance case, the

charge sheet has been submitted. He submits that in W.P.(PIL) No.4700

of 2008 and W.P.(PIL) No.2255 of 2009 by order dated 04.08.2010, the

Division Bench directed the C.B.I. to take over the investigation and

proceed and file the investigation report. The C.B.I registered the case as

R.C.-219/2011E/0013. He submits that the C.B.I submitted the closure

report on 18.10.2013 as contained in Annexure-6 of the petition. By way

of drawing the attention of the Court to paragraph no.28 of the said

report, he submits that it has come that the allegation of taking of money

for award of tender was without basis and that allegation shall be dealt in

later stage. By way of referring to paragraph no.46 of the said report, he

submits that scrutiny of individual account is there and nothing has been

found in the account of the petitioner. He submits that in paragraph 74 of

the said report, it has come that this petitioner is acted as associate of

Madhu Koda and besides this, no specific role has been played by the

petitioner is mentioned in the PIL. He further submits that D.K.Srivastava,

(Jt. General Manager) of M/s IVRCL has also not supported which has

come at paragraph no.51 of the said report. By way of referring

paragraph no.75 he submits that Durga Oraon who was the petitioner in

the PIL was also not supported. By way of referring paragraph no.76 of

the said report, he submits that no incriminating information was found

on expert analysis of C.F.S.L, New Delhi. He refers to paragraph no.77 of

the said report, and submits that even no conversation is found of this

petitioner on the mobile of the persons disclosed therein. By way of

referring paragraph no.80 of the said report, he submits that closure

report has been submitted by the C.B.I. By way of referring this report,

he submits that sufficient materials are not there and inspite of that, the

learned court has rejected the discharge petition filed by this petitioner.

He submits that by order dated 11.12.2013 on the point of accepting of

closure report it has been recorded by the learned court that the same

shall be considered at the time of framing of charge and without

considering the materials on record, the learned court has rejected the

discharge petition. He submits that on 09.01.2019 the charge has been

framed against the petitioner and charge framing order is also not in

accordance with law. He further submits that the charge order was

challenged by way of filing I.A. No.2843 of 2019 which was allowed by

order dated 03.09.2019 and the petitioner was directed to make out

necessary correction in the petition. He submits that, however, the

petitioner has not made out the necessary correction in light of the order

dated 03.09.2019 and paid the cost as per direction of that order.

He submits that there are no materials and once the documents are

there, without looking into the materials on record, the discharge petition

has been dismissed which is against the mandate of law as held in the

case of "State of Madhya Pradesh v. Sheetla Sahai and Others", (2009) 8

SCC 617, paragraph nos. 53 and 54 of the said judgment are quoted

hereinbelow:

"53. The question as to whether the court should proceed on the basis as to whether the materials brought on record even if given face value and taken to be correct in their entirety disclose commission of an offence or not must be determined having regard to the entirety of materials brought on record by the prosecution and not on a part of it. If such a construction is made, sub-section (5) of Section 173 of the Code of Criminal Procedure shall become meaningless.

54. The prosecution, having regard to the right of an accused to have a fair investigation, fair inquiry and fair trial as adumbrated under Article 21 of the Constitution of India, cannot at any stage be deprived of taking advantage of the materials which the prosecution itself has placed on record. If upon perusal of the entire materials on record, the court arrives at an opinion that two views are possible, charges can be framed, but if only one and one view is possible to be taken, the court shall not put the accused to

harassment by asking him to face a trial. (See State of Maharashtra v. Som Nath Thapa [(1996) 4 SCC 659 : 1996 SCC (Cri) 820] .)"

He further submits that the learned court is not a mouth-

piece of the prosecution and he is required to apply his judicial mind and

to buttress his argument, he relied in the case of "Pushpendra Kumar

Sinha v. State of Jharkhand", 2022 SCC OnLine 1069 and he also relined

in the case of "Union of India v. Prafulla Kumar Samal and Another",

(1979) 3 SCC 4.

Per contra, Mr. Anil Kumar, the learned A.S.G.I. appearing

on behalf of the respondent-C.B.I submits that the closure report is not in

the dispute, however, he assisted the Court and submits that if there are

two reports, and the learned court comes to a conclusion that there are

materials on record to proceed further, the learned court amalgamating

the first report and second report, which are the materials of first report

as well as the second report, and can proceed and to buttress his

argument he relied in the case of "Vinay Tyagi v. Irshad Ali @ Deepak

and Ors.", (2013) 5 SCC 762 and refers to paragraph nos.60 and 61 of

the said judgment. Paragraph nos.60 and 61 of the said judgment are

quoted herein below:

"60. Once a report under Section 173(2) of the Code has been filed, it can only be cancelled, proceeded further or case closed by the court of competent jurisdiction and that too in accordance with law. Neither the police nor a specialised investigating agency has any right to cancel the said report. Furthermore, in the present case, the High Court had passed no order or direction staying further investigation by Delhi Police or proceedings before the court of competent jurisdiction. On the contrary, the Court had noticed explicitly in its order that it was a case of supplementary or further investigation and filing of a "supplementary report". Once the Court has taken this view, there is no question of treating the first report as being withdrawn, cancelled or capable of being excluded from the records by the implication. In fact, except by a specific order of a higher court competent to make said orders, the previous as well as supplementary report shall form part of the record which the trial court is expected to consider for arriving at any appropriate

conclusion, in accordance with law. It is also interesting to note that CBI itself understood the order of the Court and conducted only "further investigation" as is evident from the status report filed by CBI before the High Court on 28-11- 2007.

61. In our considered view, the trial court has to consider the entire record, including both Delhi Police report filed under Section 173(2) of the Code as well as the closure report filed by CBI and the documents filed along with these reports. It appears, the trial court may have three options: firstly, it may accept the application of the accused for discharge; secondly, it may direct that the trial may proceed further in accordance with law; and thirdly, if it is dissatisfied on any important aspect of investigation already conducted and in its considered opinion, it is just, proper and necessary in the interest of justice to direct "further investigation", it may do so."

He submits that in view of this aspect of the matter

considered by the Hon'ble Supreme Court and identical was the situation

in that case. The earlier report was there of the Delhi Police, however,

the C.B.I has filed closure report and considering this aspect of the

matter, the Hon'ble Supreme Court has come to the ratio as held at

paragraph nos.60 and 61 of the said judgment on the point of discharge.

He further submits that what are the parameters to

consider the petition of discharge has been held recently by the Hon'ble

Supreme Court in the case of "State through Deputy Superintendent of

Police v. R. Soundirarasu", AIR 2020 SC 4281 and refers to paragraph

nos.55 to 72 of the said judgment, which are quoted hereinbelow:

"55. The aforestated Sections indicate that the CrPC contemplates discharge of the accused by the Court of Sessions under Section 227 in a case triable by it, cases instituted upon a police report are covered by Section 239 and cases instituted otherwise than on a police report are dealt with in Section 245. The three Sections contain somewhat different provisions in regard to discharge of the accused. As per Section 227, the trial judge is required to discharge the accused if "the Judge considers that there is not sufficient ground for proceeding against the accused".

The obligation to discharge the accused under Section 239 arises when "the Magistrate considers the charge against the accused to be groundless". The power to discharge under Section 245(1) is exercisable when "the Magistrate considers, for reasons to be recorded, that no case against

the accused has been made out which, if unrebutted would warrant his conviction". Sections 227 and 239 resply provide for discharge being made before the recording of evidence and the consideration as to whether the charge has to be framed or not is required to be made on the basis of the record of the case, including the documents and oral hearing of the accused and the prosecution or the police report, the documents sent along with it and examination of the accused and after affording an opportunity to the parties to be heard. On the other hand, the stage for discharge under Section 245 is reached only after the evidence referred to in Section 244 has been taken.

56. Despite the slight variation in the provisions with regard to discharge under the three pairs of Sections referred to above, the settled legal position is that the stage of framing of charge under either of these three situations, is a preliminary one and the test of "prima facie" case has to be applied -- if the trial court is satisfied that a prima facie case is made out, charge has to be framed.

57. The nature of evaluation to be made by the court at the stage of framing of charge came up for consideration of this Court in Onkar Nath Mishra v. State (NCT of Delhi), (2008) 2 SCC 561, and referring to its earlier decisions in the State of Maharashtra v. Som Nath Thapa, (1996) 4 SCC 659, and the State of M.P. v. Mohanlal Soni, (2000) 6 SCC 338, it was held that at that stage, the Court has to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged and it is not expected to go deep into the probative value of the materials on record. The relevant observations made in the judgment are as follows:--

"11. 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, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence."

58. Then again in the case of Som Nath Thapa (supra), a three-Judge Bench of this Court, after noting the three pairs of Sections i.e. (i) Sections 227 and 228 resply in so far as the sessions trial is concerned; (ii) Sections 239 and

240 resply relatable to the trial of warrant cases; and (iii) Sections 245(1) and (2) qua the trial of summons cases, which dealt with the question of framing of charge or discharge, stated thus : (SCC p. 671, para 32).

"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 a charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage."

59. In a later decision in Mohanlal Soni (supra), this Court, referring to several of its previous decisions, held that : (SCC p. 342, para 7)

"7. The crystallised judicial view is that at the stage of framing charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused."

60. Reiterating a similar view in Sheoraj Singh Ahlawat v. State of Uttar Pradesh, (2013) 11 SCC 476, it was observed by this Court that while framing charges the court is required to evaluate the materials and documents on record to decide whether the facts emerging therefrom taken at their face value would disclose existence of ingredients constituting the alleged offence. At this stage, the court is not required to go deep into the probative value of the materials on record. It needs to evaluate whether there is a ground for presuming that the accused had committed the offence and it is not required to evaluate sufficiency of evidence to convict the accused. It was held that the Court at this stage cannot speculate into the truthfulness or falsity of the allegations and contradictions & inconsistencies in the statement of witnesses cannot be looked into at the stage of discharge.

61. In the context of trial of a warrant case, instituted on a police report, the provisions for discharge are to be governed as per the terms of Section 239 which provide that a direction for discharge can be made only for reasons to be recorded by the court where it considers the charge against the accused to be groundless. It would, therefore, follow that as per the provisions under Section 239 what needs to be considered is whether there is a ground for presuming that the offence has been committed and not that a ground for convicting the accused has been made

out. At that stage, even strong suspicion founded on material which leads the Court to form a presumptive opinion as to the existence of the factual ingredients constituting the offences alleged would justify the framing of charge against the accused in respect of that offence, and it is only in a case where the Magistrate considers the charge to be groundless, he is to discharge the accused after recording his reasons for doing so.

62. Section 239 envisages a careful and objective consideration of the question whether the charge against the accused is groundless or whether there is ground for presuming that he has committed an offence. What Section 239 prescribes is not, therefore, an empty or routine formality. It is a valuable provision to the advantage of the accused, and its breach is not permissible under the law. But if the Judge, upon considering the record, including the examination, if any, and the hearing, is of the opinion that there is "ground for presuming" that the accused has committed the offence triable under the chapter, he is required by Section 240 to frame in writing a charge against the accused. The order for the framing of the charge is also not an empty or routine formality. It is of a far-reaching nature, and it amounts to a decision that the accused is not entitled to discharge under Section 239, that there is, on the other hand, ground for presuming that he has committed an offence triable under Chapter XIX and that he should be called upon to plead guilty to it and be convicted and sentenced on that plea, or face the trial. (See : V.C. Shukla v. State through CBI, 1980 Supp SCC 92 : AIR 1980 SC 962).

63. Section 239 of the CrPC lays down that if the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused. The word 'groundless', in our opinion, means that there must be no ground for presuming that the accused has committed the offence. The word 'groundless' used in Section 239 of the CrPC means that the materials placed before the Court do not make out or are not sufficient to make out a prima facie case against the accused.

64. The learned author Shri Sarkar in his Criminal P.C., 5th Edition, on page 427, has opined as:--

"The provision is the same as in S. 227, the only difference being that the Magistrate may examine the accused, if necessary, of also S. 245. The Magistrate shall discharge the accused recording reasons, if after

(i) considering the police report and documents mentioned in S. 173; (ii) examining the accused, if necessary and (iii) hearing the arguments of both sides he thinks the charge against him to be groundless, i.e., either there is no legal evidence or that the facts do not make out any offence at all."

65. In short, it means that if no prima facie case regarding the commission of any offence is made out, it would amount to a charge being groundless.

66. In Century Spinning and Manufacturing Co. Ltd. v. State of Maharashtra, (1972) 3 SCC 282 : AIR 1972 SC 545, this Court has stated about the ambit of Section 251(A)(2) of the CrPC 1898, which is in pari materia with the wordings used in Section 239 of the CrPC as follows:--

"It cannot be said that the Court at the stage of framing the charge has not to apply its judicial mind for considering whether or not there is a ground for presuming the commission of the offence by the accused. The order framing the charges does substantially affect the person's liberty and it cannot be said that the Court must automatically frame the charge merely because the prosecuting authorities by relying on the documents referred to in S. 173 consider it proper to institute the case. The responsibility of framing the charges is that of the Court and it has to judicially consider the question of doing so. Without fully adverting to the material on the record it must not blindly adopt the decision of the prosecution."

67. In para 15, this Court has stated as:--

"Under sub-sec. (2), if upon consideration of all the documents referred to in S. 173, Criminal P.C. and examining the accused, if considered necessary by the Magistrate and also after hearing both sides, the Magistrate considers the charge to be groundless, he must discharge the accused. This sub-section has to be read along with sub-sec. (3), according to which, if after hearing the arguments and hearing the accused, the Magistrate thinks that there is ground for presuming that the accused has committed an offence triable under Chap. XXI of the Code within the Magistrate's competence and for which he can punish adequately, he has to frame in writing a charge against the accused. Reading the two sub-sections together, it clearly means that if there is no ground for presuming that the accused has committed an offence, the charges must be considered to be groundless, which is the same thing as saying that there is no ground for framing the charges." (Emphasis supplied)

68. Thus the word 'groundless', as interpreted by this Court, means that there is no ground for presuming that the accused has committed an offence.

69. This Court has again dealt with this aspect of the matter in Superintendent and Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja, (1979) 4 SCC 274 : AIR 1980 SC 52. This Court has stated in the said case as:--

"At this stage, even a very strong suspicion found upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, may justify the framing of charges against the accused in respect of the commission of that offence."

70. The suspicion referred to by this Court must be founded upon the materials placed before the Magistrate which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged. Therefore, the words "a very strong suspicion" used by this Court must not be a strong suspicion of a vacillating mind of a Judge. That suspicion must be founded upon the materials placed before the Magistrate which leads him to form a presumptive opinion about the existence of the factual ingredients constituting the offence alleged.

71. Section 239 has to be read along with Section 240 of the CrPC. If the Magistrate finds that there is prima facie evidence or the material against the accused in support of the charge (allegations), he may frame charge in accordance with Section 240 of the CrPC. But if he finds that the charge (the allegations or imputations) made against the accused does not make out a prima facie case and does not furnish basis for framing charge, it will be a case of charge being groundless, so he has no option but to discharge the accused. Where the Magistrate finds that taking cognizance of the offence itself was contrary to any provision of law, like Section 468 of the CrPC, the complaint being barred by limitation, so he cannot frame the charge, he has to discharge the accused. Indeed, in a case where the Magistrate takes cognizance of an offence without taking note of Section 468 of the CrPC, the most appropriate stage at which the accused can plead for his discharge is the stage of framing the charge. He need not wait till completion of trial. The Magistrate will be committing no illegality in considering that question and discharging the accused at the stage of framing charge if the facts so justify.

72. The real test for determining whether the charge should be considered groundless under Section 239 of the CrPC is that whether the materials are such that even if unrebutted make out no case whatsoever, the accused should be discharged under Section 239 of the CrPC. The trial court will have to consider, whether the materials relied upon by the prosecution against the applicant herein for the purpose of framing of the charge, if unrebutted, make out any case at all.

On these grounds, he submits that there is no illegality in

the order framing charge as well as the discharge rejection order and the

learned court has rightly passed the order.

Mr. Nawin Kumar Singh, the learned counsel appearing on

behalf of the petitioner by way of reply distinguishes the judgment relied

by Mr. Anil Kumar, the learned A.S.G.I appearing on behalf of the

respondent C.B.I so far as the case of "Vinay Tyagi"(supra) is concerned,

so far as the High Court monitoring the case and that fact is not present

in the case, the High Court stayed the investigation and this fact is

lacking in the present case and that is why this case is helping the

petitioner.

In view of the submission of the learned counsels appearing

on behalf of the parties, the Court has gone through the materials on

record and finds that the vigilance case was registered and the petitioner

was charge-sheeted in which the learned court has taken cognizance.

Subsequently, in the W.P.(PIL) the Division Bench has passed the order

that the C.B.I. to take over the investigation and submit the report and

the C.B.I. has taken the matter and submitted closure report and the

closure report was before the court and the learned court by order dated

11.12.2013 recorded that the said closure report shall be considered at

the time of framing of charge. The Court has perused the order dated

31.01.2018 whereby the learned court has dismissed the application filed

by the petitioner for discharge and finds that this order is a well-

reasoned and a speaking order. The learned court has recorded the

thread-bare argument of the petitioner as well as the C.B.I and

considering various judgments of Hon'ble Supreme Court including the

judgment rendered in the case of "Vinay Tyagi v. Irshad Ali @ Deepak

and Ors."(supra) as well as in the case of "Bhagwan Das Manjhi @

Bhagwan Das Hansda v. The State of Jharkhand & Anr.", (2015) 3 JLJR 67

and other judgments has come to the conclusion that there are sufficient

materials for framing of charge in light of the earlier cognizance order

passed with regard to the A.C.B. case and the learned court has come to

the conclusion that the Vigilance charge-sheet as well as the C.B.I

conjointly there is sufficient materials against the petitioner for the

purpose of framing of charge and in that view of the matter he has

dismissed the discharge petition filed by the petitioner. In the case of

"Vinay Tyagi v. Irshad Ali @ Deepak and Ors."(supra), the Hon'ble

Supreme Court has held that the trial court has to consider the entire

record including the first police report as well as the closure report filed

by the C.B.I along with these aspects and three options were disclosed

therein and the learned court in the case in hand has chosen the second

option to proceed with the trial. The Court is not accepting the argument

of the learned counsel for the petitioner with regard to further

investigation observed in that case by the High Court as on law point

held therein, not diluted. There are parameters of considering the

discharge petition. In appropriate cases, the Courts are looking into the

materials on record even to do justice certain documents are also being

looked into as has been held in some of the cases by the Hon'ble

Supreme Court as well as the High Court, however, it is well-settled that

at the time of considering the discharge petition, each and every

evidence and the documents is not required to be looked into as it was

not at the stage of trial or considering the appeal against the verdict in

the trial. Considering this aspect of the matter, the Hon'ble Supreme

Court has reversed the finding of the High Court whereby the discharge

petition was allowed in the case of "State, through Deputy

Superintendent of Police"(supra).

In the case in hand, the cognizance has already been taken

and the charge-sheet filed by the A.C.B and considering the judgment in

the case of "Vinay Tyagi v. Irshad Ali @ Deepak and Ors."(supra), the

learned court has rightly come to the conclusion that both are required to

be looked into and that will be decided in the trial. There is no illegality in

the discharge order. The petitioner is so careless that after allowing of

the I.A. of the charge framing order, he has not corrected the same in

the petition. However, the part of order is compiled by depositing the

amount in terms of the order dated 03.09.2019. The Court has perused

the order dated 09.01.2019 whereby the learned court has framed the

charge against the petitioner and finds that this is an elaborate order and

what are the charge against them have been explained by the learned

court. At the stage of framing charge it is immaterial whether the case is

based on direct or special evidence the charge can be framed or there

are materials showing possibility about the commission of the crime as

against certainty, the learned court is not required to give the reasons

while framing the charge against the accused, however, in the case in

hand, the learned court has passed the reasoned order and the charge

has been clearly explained to the accused and sufficient compliance of

section 211 of Cr.P.C is there. In the light of the judgment of Hon'ble

Supreme Court in the case of "Vinay Tyagi v. Irshad Ali @ Deepak and

Ors."(supra), the contention of the petitioner with regard to double-

jeopardy is not helping the petitioner; there is serious allegation of

misappropriation of fund which is a serious crime against the society as

has been held by the Hon'ble Supreme Court in several cases, and in that

view of the matter, the contention of the petitioner with regard to

double-jeopardy is rejected. There is no illegality in the impugned order.

In view of the above facts, reasons and the analysis,

Cr.M.P. No.706 of 2018 is dismissed.

Pending petition, if any, also stands dismissed.

Interim order is vacated.

( Sanjay Kumar Dwivedi, J.)

SI/;