Jharkhand High Court
Krishna Kumar vs Union Of India on 3 August, 2023
1
IN THE HIGH COURT OF JHARKHAND, RANCHI
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Cr. Revision No.238 of 2020
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Krishna Kumar .... Petitioner
-- Versus --
Union of India, through its S.P., C.B.I., E.O.W, Ranchi .... Opposite Party
With
Cr. Revision No.239 of 2020
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Krishna Kumar .... Petitioner
-- Versus --
Union of India, through its S.P., C.B.I., E.O.W, Ranchi .... Opposite Party
With
Cr. Revision No.240 of 2020
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Krishna Kumar .... Petitioner
-- Versus --
Union of India, through its S.P., C.B.I., E.O.W, Ranchi .... Opposite Party
With
Cr. Revision No.255 of 2020
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Om Prakash Yadav .... Petitioner
-- Versus --
Union of India, through C.B.I. .... Opposite Party
With
Cr. Revision No.253 of 2020
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Om Prakash Yadav .... Petitioner
-- Versus --
Union of India, through C.B.I. .... Opposite Party
With
Cr. Revision No.298 of 2020
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Om Prakash Yadav .... Petitioner
-- Versus --
Union of India, through C.B.I. .... Opposite Party
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioners :- Mr. Rajendra Krishna, Advocate
Mr. Jay Shankar Tiwary, Advocate
Mr. Amit Sinha, Advocate
Mr. Krishna Kumar, Advocate
Mr. Pratyush Shounikya, Advocate
..... in
Cr. Revision No.238 of 2020
Cr. Revision No.239 of 2020
Cr. Revision No.240 of 2020
Mr. Indrajit Sinha, Advocate
Mr. Rajeev Kumar Sinha, Advocate
..... in
Cr. Revision No.253 of 2020
Cr. Revision No.255 of 2020
Cr. Revision No.298 of 2020
For C.B.I. [in all cases] :- Mr. Anil Kumar, A.S.G.I.
Ms. Chandana Kumari, A.C to A.S.G.I.
Mr. Nitish Parth Sarthi, A.C to A.S.G.I.
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15/C.A.V. On 25.07.2023 Pronounced On: 03 /08/2023
In all these criminal revision petitions arising out of common F.I.R as
well as discharge order and that is why all these criminal revision petitions are
heard together with consent of the parties.
2. The argument was concluded on 25.07.2023 and on that date, the
judgment was reserved after hearing Mr. Rajendra Krishna, the learned
counsel appearing on behalf of the petitioner-Krishna Kumar and Mr. Indrajit
Sinha, the learned counsel appearing on behalf of the petitioner-Om Prakash
Yadav.
3. In Cr. Revision No.238 of 2020, the prayer is made for setting aside the
order dated 31.01.2020 by which the discharge petition filed by the petitioner
in relation to R.C.No.7(S)/13-EOW-R dated 13.08.2013 (CNRJHRN-01-000383-
2020) was rejected by the learned Special Judge, C.B.I in Miscellaneous
Criminal Application No.61 of 2020, pending in that learned court.
4. The F.I.R was registered alleging therein that-, the FIR was initially
lodged by Uma Shankar Prasad Shrivastava stating therein that he has booked
one house over the land of 1350 sq.ft. and has also booked one shop of 120
sq.ft. of Sanjeevni Buildcon, Aisharwa Residency at Phase-II, two years back
and for the said booking, he has paid Rs.6,25,000/- for which the receipt has
also been issued to him but the informant has neither been given possession
of house nor the shops. It has also been alleged that for the aforesaid
transaction, he has also entered into an agreement with Smt. Anamika Nandi
wife of Sri J.S. Nandi, the Director of Sanjeevni Buildcon. The informant has
also been given a letter by one Arvind Singh, Technical Director of said
Sanjeevni Buildcon in which also the promises has been made for providing
the land of 1350 sq.ft. but the said statement is still on paper. It has further
been stated that the informant came to know that he has been cheated, he
insisted for return of money. In the said connection, the informant has also
met with one Sri Shyam Kishore Gupta, Director (Project) and Abdul Wahab,
Administrative Officer but they did not provide him the possession and finally
on 14.12.2011, the informant sent a Pleader Notice. Subsequently, the cheque
has been issued by Shyam Kumar Gupta and Abdul Wahab on different dates
given in the First Information Report. The aforesaid cheque was dishonored
and the information for dishonor of cheque was given to the said persons by
the informant. In the aforesaid manner, the informant has been cheated and a
sum of Rs.6,85,000/- on the pretext of land as well as shop. Based on the
aforesaid information, the First Information Report lodged in Lower Bazar
Police Station and was numbered as FIR No. 120/12 dated 12.4.2012 for the
offence under section 406,410 and 120B of the Indian Penal Code. The
Investigating Officer (Police Officers) investigated the matter and the charge-
sheet has been submitted by the police after making complete investigation in
which the petitioner was not charge-sheeted. The State Government thereafter
took a decision for transferring the investigation relating to affairs of
Sanjeeveni Buildcon, Ranchi to the C.B.I. and to that effect a Notification was
issued on 15.1.2013 by the Government of Jharkhand under section 6 of the
Delhi Special Police Establishment Act, 1946. Pursuant to the said notification,
the S.P.,C.B.I., E.O.W., Ranchi has been re-registered a case vide R.C. Case
No.7(S)/2013-EOWR dated 13.08.2013 and thereafter has taken up for the
investigation.
5. In Cr. Revision No.239 of 2020, the prayer is made for setting aside the
order dated 31.01.2020 by which the discharge petition filed by the petitioner
in relation to R.C.No.17(S)/13-R dated 06.08.2013 (CNRJHRN-01-000132-
2020) was rejected by the learned Special Judge, C.B.I in Miscellaneous
Criminal Application No.21 of 2020, pending in that learned court.
6. The F.I.R was registered alleging therein that-, based on a complaint
written by Abbhishek Kumar in which it has been stated that he has
purchased 2000 square ft, of land from Khata No. 155, Plot No. 841, Sub-Plot
No. B59, Deed No. 11401 dated 14.5.2010 at Pundag in the District of Ranchi
and he has paid altogether 9 lakhs rupees but till the filing of the FIR neither
the land was handed over to the complainant nor money was refunded. After
hectic effort a sum of Rs. 4.5 lakhs was returned. There was a problem to
refund the entire money along with interest but the said problem has not been
fulfilled. The complainant was handed over two cheques of Rs.2 lakhs and one
another cheque of Rs. 1,20,000/- but the said cheques represented in the
bank which were dishonoured. The complainant thereafter approached the
accused persons for refund of his money or for anything over the land in
question but nothing was done by the accused persons. On the basis of the
aforesaid complaint, the case has been lodged in Jagarnathpur Police Station.
The aforesaid case has subsequently been transferred for investigation to the
CBI, ACB, Ranchi by the State of Jharkhand vide Notification dated 15.1.2013
and accordingly the CBI has re-registered the said case vide Case No. RC 17
(s)/2013-R under section 406,420 and 34 of the IPC.
7. In Cr. Revision No.255 of 2020, the prayer is made for setting aside the
order dated 07.01.2020 by which the discharge petition filed by the petitioner
in relation to R.C.No.17(S)/2013-EOW-R dated 07.01.2020 was rejected by the
learned Special Judge, C.B.I in Miscellaneous Criminal Application No.30 of
2020, pending in that learned court.
8. The F.I.R was registered alleging therein that-, F.I.R. by the Informant
namely Abhishek Kumar in Jagannathpur (Pundag) Case No. 96/12 against
Sanjeevni Buildcon represented by S. Nandi & Shyam Kishore Gupta which was
registered U/sec 406, 420 & 34 of Indian Penal Code. According to the said
F.I.R. it has been alleged that the Informant in order to purchase a piece of
land measuring 2000 sq. ft. or about 3 Kathas of land more or less at village
Pundag, paid Rs. 9,00,000/ to Sri Jayant Dayal Nandi. But subsequently the
said land was not transferred to the Informant on one pretext or another and
as such the accused after being pressurized by the Informant regarding the
transfer of the said land persuaded the Informant to take back his money and
subsequently returned Rs.4,50,000/- to the Informant and also issued different
cheques of the remaining amount which could not be encashed due to
insufficient fund in the account of the accused as such the Informant felt
cheated and lodged the above F.I.R against Jayanti Lal Nandi Director Sanjivini
Buildeon & Ors. It is further submitted that compliance of the order and
Direction of Hon'ble High Court of Jharkhand in W.P (PIL) No. 3321/2012, the
all matters having similar nature related with the above was referred to the
Central Bureau of Investigation and accordingly the said case was also taken
up by the CBI and registered as RC 17 (S)/2013-R.
9. In Cr. Revision No.240 of 2020, the prayer is made for setting aside the
order dated 31.01.2020 by which the discharge petition filed by the petitioner
in relation to R.C.Case No.3(S)/2013-EOW-R dated 07.08.2013 (CNRJHRN-01-
000108-2020) was rejected by the learned Special Judge, C.B.I in
Miscellaneous Criminal Application No.15 of 2020, pending in that learned
court.
10. The F.I.R was registered alleging therein that-, on the basis of the
written complaint by one Mr. Manoj Shrivastava on 5.1.2012. It has been
stated that the complainant/informant has paid a sum of Rs. 51,000/- to M/s
Sanjeevni BuildCon Pvt. Ltd. For purchase of a Plot No. 841 situated at
Pundag, Ranchi having Khata No. 155 and total area of the flat is 1350 square
ft. and the said amount has been paid through the bank draft. The
complainant has further paid Rs. 1,00,000/- on 9.1.2010 and Rs.3,50,000/- on
20.01.2010 as well as he has paid Rs. 36,000/- for the purpose of registration
of the said land and for that a money receipt has been given to the
complainant by M/s Sanjeevni Buildcon Pvt. Ltd. It has further been alleged
that one Jayant Dayal Nandi has given assurance to the complainant that the
concerned land/flat shall be registered in his favour within two months and,
thereafter the concerned mutation was done which shall be handed over to
the complainant. It has further been alleged that after making the entire
payment towards the flat, the petitioner contacted Mr. Jayant Dayal Nandi at
his office time and again and several times one Mr. Nandi and another
employee Shyam Kumar Gupta assured to the complainant that the said work
shall be done as soon as possible. M/s Sanjeevni Buildcon Pvt. Ltd. has issued
an allotment letter which was handed over to the complainant on 08.06.2010
and the complainant was told that the sale deed has already been executed
vide Deed No. 4232 dated 26.2.2010 for the Khata No. 155, R.S. Plot No. 841,
Sub Plot No. B-75. The complainant has also been assured that the mutation
shall be done within 10 days and thereafter the complainant shall be given the
documents relating to the deed of mutation. The complainant waited for 2/3
months but M/s Sanjeevni Buildcon Pvt. Ltd. did not give him the sale deed or
the documents for mutation and when the complainant/informant approached
the office of M/s Sanjeevni Buildcon Pvt. Ltd. at Church Complex there he met
Sri Jayant Dayal Nandi who again assured the complainant that the entire
relevant document shall be handed over within a week. The complainant again
visited the office of M/s Sanjeevni Buildcon Pvt. Ltd. in the month of November
2011 for the aforesaid document relating to the sale deed and mutation and
there he met one Sri Shyam Kumar Gupta who finally told him (complainant)
that the said land can not be sold to the complainant therefore M/s Sanjeevni
Buildcon Pvt. Ltd. would return the money and accordingly three cheques were
issued on different dates for different amount. The complainant has deposited
the aforesaid two cheques in the Corporation Bank but the said cheques can
not be encashed due to non-availability of fund. Accordingly, the complainant
as alleged that he has been cheated by Mr. Jayant Lal Nandi for the amount of
Rs. 5,37,000/-. On the basis of the aforesaid complaint, the FIR initially has
been lodged in the Lower Bazar Police Station being P.S.Case No. 6 of 2012
dated 5.1.2012 under sections 406,420 and 120B of the IPC and Section 138
of the N.I. Act.
11. In Cr. Revision No.253 of 2020, the prayer is made for setting aside the
order dated 04.01.2020 by which the discharge petition filed by the petitioner
in relation to R.C.No.03(S)/2013-EOW-R dated 04.01.2020 was rejected by the
learned Special Judge, C.B.I in Miscellaneous Criminal Application No.12 of
2020, pending in that learned court.
12. The F.I.R was registered alleging therein that-, the Informant namely
Shri. Manoj Srivastava in Lower Bazar P.S Case No. 06/12 against Jayant Dayal
Nandi & Shyam Kishore Gupta both Directors of Sanjeevni Buildcon Pvt. Ltd.
which was registered u/sec 120 (B), 406 & 420 of the Indian Penal Code and
Under Section 138 of the N. I Act. According to the said F.I.R. it has been
alleged that accused persons mentioned above conspired among themselves
and in pursuant to the said criminal conspiracy they cheated to the
Complainant on the false Pretext of registration and mutation of 1350 Sq. feet
land bearing Plot No. 84, Sub Plot B-75, Khata No. 155 at Aishwarya Residency
Project, Pundag, Ranchi for consideration of Rs.5,37,000/- in favour of the
Complainant. But they did not transfer the land as promised to the
Complainant and being persuaded they fraudulently and dishonestly issued
three cheques of total amount of Rs. 5,01, 000/- in favour of the Complainant.
When the aforesaid Cheques were presented in the Bank by the Complainant
they dishonored due to insufficient balance. Therefore a regular Jayant Dayal
Nandi and Shayam Kishore Gupta has been registered for the offence
punishable U/s 120 (B) r/w Sec 406 & 420 of the Indian Penal Code as well as
Under Section 138 of the NI Act was instituted. It is further submitted that in
compliance of the order and Direction of Hon'ble High Court of Jharkhand in
W.P (PIL), all matters having similar nature related with the above was
referred to the Central Bureau of Investigation and accordingly the said case
was also taken up by the CBI and registered as RC 03 (S)/2013-R.
13. In Cr. Revision No.298 of 2020, the prayer is made for setting aside the
order dated 04.12.2019 by which the discharge petition filed by the petitioner
in relation to R.C.No.9(S)/2013-EOW-R dated 04.12.2019 was rejected by the
learned Special Judge, C.B.I in Miscellaneous Criminal Application No.1279 of
2019, pending in that learned court.
14. The F.I.R was registered alleging therein that- the Informant namely Sh.
Manoj Srivastava in Lower Bazar P.S 188/12 against Smt. Anita Dayal Nandi,
Smt. Anamika Nandi, Shri Ramesh Singh & Shyam Kishore Gupta of Sanjeevni
Buildcon Pvt. Ltd. which was registered u/sec 120 (B), 406 420, 467, 468, 471,
506 & 34 of the Indian Penal Code and Under Section 138 of the N.I Act.
According to the said F.I.R. it has been alleged that accused persons
mentioned above conspired amongst themselves and in pursuant to the said
criminal conspiracy cheated the Complainant namely Sujit Kumar. S/o Late
Basant Kumar Singh, R/o Qr. No. S/4, Dakra Colliery, PS- Khelari, Dist- Ranchi,
it was stated in the Complaint Petition that under the criminal conspiracy they
used to employ young and dynamic persons as sales representative like
Ramesh Singh and who too under pre-mind set with the Principal accused
persons used to make inducement with innocent persons amongst the public
at large in regard of providing suitable Plots of land at very reasonable rate at
different locations within the district of Ranchi. Further alleged that Sujit
Kumar and witness Ramesh Kumar Singh and Anjani Kumar by registration a
Plot of land which was either not in existence or not in their Physical
possession in lieu of payment of Rs.3.5 lakhs. It is further submitted that in
compliance of the order and Direction of Hon'ble High Court of Jharkhand in
W.P (PIL), all matters having similar nature related with the above was
referred to the Central Bureau of Investigation and accordingly the said case
was also taken up by the CBI and registered as RC 09 (S)/2013-R.
15. Mr. Rajendra Krishna, the learned counsel appearing on behalf of the
petitioner-Krishna Kumar in three criminal revision petitions submitted that in
Cr.Revision No.238 of 2020 is arising out of R.C. Case No.7(S)/13-EOWR,
Cr.Revision No.239 of 2020 arising out of R.C.Case No.17(S)/13-R and
Cr.Rev.No. 240 of 2020 arising out of R.C. Case No.3(S)/2013-EOW-R. He
submitted that the learned Special Judge, C.B.I., Ranchi has taken cognizance
by order dated 18.08.2015 against several persons including the petitioners for
offence under section 13(2) read with section 1(d) of the Prevention of
Corruption Act, 1988 and other sections of the I.P.C, particularly, section 420
and 120B of the I.P.C. He submitted that in these cases, cognizance was taken
inspite of no evidence was found during investigation against the petitioners.
By way of referring to charge sheet he submitted that one Sri Arvind Singh of
Sanjeevani Buildcon Pvt. Ltd. has been given power of attorney of 15 decimals
of land by Sri Mahesh Sahu and Ramdhani Sahu belongs to plot no.841, khata
no.155, thana no.228 deed no.337 dated 20.02.2010. The said Sri Arvind
Singh has sold the land to the persons giving in the chart at sl.no.1 to 12
initially and total land which was sold to the persons at sl.1 to 11 at page no.9
of the charge sheet, comes to 45.35 decimals and the aforesaid land has been
mutated by the petitioners and admittedly there is no illegality in mutation of
the said land. He submitted that thereafter the land sold to the persons at
sl.no.12 and thereafter except 50 decimals of land of which Arvind Singh has
been given power of attorney. The petitioner thereafter mutated the land at
sl.no.13, 23 and 24 of the charge sheet which constituted total 11.71 decimals
land. He submitted that in view of this fact, it is crystal clear that the petitioner
has mutated total land admeasuring 57 decimals and admittedly Arvind Singh
was authorized to sell only 50 decimals of land of khata no.155, plot no.841.
He submitted that the said mutation was in light of sale deed executed. He
submitted that in view of this fact the petitioner was only required to follow
the procedure prescribed under section 14 of the Bihar Tenants Holding
(Maintenance of Records) Act, 1973. He submitted that by way of following
the procedure prescribed therein under the said sections, the petitioner has
looked into the registered deed and record and found that the lands are there
and that is why the petitioner has mutated the land. He submitted that in two
of the cases, the petitioner found that the land is not there, he has rejected
the mutation. He further submits that the Karamchari has given the report and
the Circle Inspector has forwarded to the petitioner and the petitioner has
mutated the land. There is no illegality. He submitted that even there is no
allegation of taking any bribe and the connivance is not made out and in view
of that section 120B of the I.P.C is not attracted. He submitted that there is no
allegation of connivance from the very beginning and section 420 I.P.C is not
attracted. In this background, he submitted that it is a fit case that this Court
may exercise its power and discharge the petitioner and to buttress his such
argument, he relied in the case of C.K.Jaffer Sharief v. State (Through
CBI), (2013) 1 SCC 205. Replying on the judgment he submitted that the
discharge petition was allowed arising out of Prevention of Corruption Act and
based on that, in one of the case, Jharkhand High Court in Cr.M.P. No.2741 of
2013 by order dated 14.11.2014 the cognizance order has been pleased to be
quashed. He submitted that on this background, the petitioner's case is fit to
be allowed. He further submitted that in R.C.Case No.17(S)/2023, the power
of attorney was made for 40 decimals of land and three sale deeds, however,
by the total 75.55 decimals land was transferred by M/s Sanjeevani Buildcon
Pvt. Ltd. and total are of mutation is 117.89 decimals in favour of 27 different
persons. In the charge sheet, it has been stated that total land of 77.55
decimals includes 40 decimals from the power of attorney and 35.55 decimals
from two sale deeds out of 75.55 decimals and in view of 117.89 decimals of
land has been mutated. He submitted that in R.C.Case No.3(S)/2013, the
power of attorney no.513 dated 19.02.2010 was for 40 decimals of land
which was the subject matter, however, the total area of mutation is 73.81
decimals in favour of 17 persons and the aforesaid 17 persons are also
included in R.C.Case No.17(S)/2013. On these grounds, he submitted that the
discharge petition so far as the petitioner is concerned has passed the order of
mutation only in the official capacity and he has followed the procedure, which
is also admitted in charge sheet and in view of that, the petitioner may kindly
be discharged.
16. Mr. Indrajit Sinha, the learned counsel appearing for the petitioner-Om
Prakash Yadav in Cr.Revision No.255 of 2020, Cr.Revision No.253 of 2020 and
Cr.Revision No.298 of 2020 has adopted the argument of Mr. Rajendra Krishna,
the learned counsel appearing on behalf of the petitioner-Krishna Kumar and
has further added that so far the petitioner-Om Prakash Yadav, the petitioner
herein was posted as Circle Officer, Ratu and the allegations are made that he
has ordered excess mutation except of land sold by Mrs. Anamika Nandi and
Arvind Kumar Singh in 19 cases in respect of the land situated at Pundag,
khata no.155, plot no.841. He submitted that in R.C.Case No.3(S)/2013-R, the
transfer made by Mr. Arvind Kumar Singh has been questioned in R.C.Case
No.17(S)/2013-R, both the transactions have been alleged to be criminal
offence. He submitted that so far as the allegations emanating from the
transfer of land by Mrs. Anamika Nandi is concerned, it is admitted that Mrs.
Anamika Nandi admittedly was the owner of the tracts of land admeasuring
35.55 decimals whereas he has sold by 9 registered sale deeds various tracts
of land, total up to 39.49 decimals and after execution of registered sale deeds
the purchasers have filed 9 different applications before the Circle Officer,
Ratu for mutating their names in the revenue records. The applications were
considered by the petitioner in accordance with the provisions of Bihar Tenants
Holding (Maintenance of Records) Act, 1973 and the rules made thereunder
and orders were passed by mutating the names of the purchasers in the
revenue records and wrongly excess mutation of 3.94 decimals is said to be
done. He further submitted that the transfer made by Sri Arbind Kumar Singh,
pursuant to registered power of attorney holder authorizing to sell 40 decimals
of land situated at Mauza-Pundag, khata no.155, plot no.851 whereby he has
transferred more than 40 decimals of land by registered sale deed. Thereafter
the purchasers have applied for mutation by 10 different applications before
the Circle Officer Ratu, the post which the petitioner was holding. He
submitted that the petitioner after following the procedure under the said Act,
mutated the land and it is alleged that excess mutation of 3.27 decimal has
been made. He submitted that thus, excess mutation of 7.21 decimal of land is
alleged to be ordered by the petitioner. He submitted that the learned court
has already framed the charge against the petitioner. He submitted that no
case is made out under the Prevention of Corruption Act as well as under the
sections of I.P.C and inspite of that, the petitioner has not been discharged
and the charge has been framed. He submitted that the said entries are made
pursuant to fiscal purpose and subsequently right and title of ownership can
only be decided by the competent civil court and to buttress his such
argument, he relied in the case of Rajinder Singh v. State of Jammu and
Kashmir and Others, (2008) 9 SCC 368. Paragraph no.17 of the said
judgment is quoted below:
"17. It is well settled that revenue records confer no title on
the party. It has been recently held by this Court in Suraj
Bhan v. Financial Commr. [(2007) 6 SCC 186] that such entries are
relevant only for "fiscal purpose" and substantive rights of title
and of ownership of contesting claimants can be decided only by a
competent civil court in appropriate proceedings."
17. On the same line, he further relied in the case of Jitendra Singh v.
State of Madhya Pradesh and Others, 2021 SCC OnLine SC 802 .
Paragraph nos.7 and 8 of the said judgment are quoted below:
"7. Right from 1997, the law is very clear. In the case
of Balwant Singh v. Daulat Singh (D) By Lrs., reported in (1997) 7
SCC 137, this Court had an occasion to consider the effect of
mutation and it is observed and held that mutation of property in
revenue records neither creates nor extinguishes title to the
property nor has it any presumptive value on title. Such entries are
relevant only for the purpose of collecting land revenue. Similar
view has been expressed in the series of decisions thereafter.
8. In the case of Suraj Bhan v. Financial Commissioner, (2007)
6 SCC 186, it is observed and held by this Court that an entry in
revenue records does not confer title on a person whose name
appears in record-of-rights. Entries in the revenue records or
jamabandi have only "fiscal purpose", i.e., payment of land
revenue, and no ownership is conferred on the basis of such
entries. It is further observed that so far as the title of the property
is concerned, it can only be decided by a competent civil court.
Similar view has been expressed in the cases of Suman
Verma v. Union of India, (2004) 12 SCC
58; Faqruddin v. Tajuddin, (2008) 8 SCC 12; Rajinder Singh v. State
of J&K, (2008) 9 SCC 368; Municipal Corporation,
Aurangabad v. State of Maharashtra, (2015) 16 SCC 689; T.
Ravi v. B. Chinna Narasimha, (2017) 7 SCC 342; Bhimabai
Mahadeo Kambekar v. Arthur Import & Export Co., (2019) 3 SCC
191; Prahlad Pradhan v. Sonu Kumhar, (2019) 10 SCC 259; and Ajit
Kaur v. Darshan Singh, (2019) 13 SCC 70."
18. He submitted that the case of the petitioner is fit to be allowed
considering that if two views are possible; one of them gives rise to suspicion
only, the petitioner can be discharged and to buttress his such argument, he
relied in the case of M.E. Shivalingamurthy v. C.B.I, (2020) 2 SCC 768.
Paragraph nos.17 (i) to 17 (viii) of the said judgment are quoted below:
"17.1. If two views are possible and one of them gives rise
to suspicion only as distinguished from grave suspicion, the trial
Judge would be empowered to discharge the accused.
17.2. The trial Judge is not a mere post office to frame the
charge at the instance of the prosecution.
17.3. The Judge has merely to sift the evidence in order to find
out whether or not there is sufficient ground for proceeding.
Evidence would consist of the statements recorded by the police or
the documents produced before the Court.
17.4. If the evidence, which the Prosecutor proposes to adduce
to prove the guilt of the accused, even if fully accepted before it is
challenged in cross-examination or rebutted by the defence
evidence, if any, "cannot show that the accused committed
offence, then, there will be no sufficient ground for proceeding
with the trial".
17.5. It is open to the accused to explain away the materials
giving rise to the grave suspicion.
17.8. There must exist some materials for entertaining the
strong suspicion which can form the basis for drawing up a charge
and refusing to discharge the accused.
17.7. At the time of framing of the charges, the probative value
of the material on record cannot be gone into, and the material
brought on record by the prosecution, has to be accepted as true.
17.6. The court has to consider the broad probabilities, the
total effect of the evidence and the documents produced before
the court, any basic infirmities appearing in the case and so on.
This, however, would not entitle the court to make a roving inquiry
into the pros and cons."
19. He submitted that it is well settled that the courts are not only the post
offices and the court is required to apply its mind for framing of the charge
and to buttress his such argument, he relied in the case of Dipakbhai
Jagdishchandra Patel v. State of Gujarat, (2019) 16 SCC 547 . He
further also relied in the case of C.K.Jaffer Sharief(supra) on which reliance
has already been made by Mr. Rajendra Krishna, the learned counsel
appearing on behalf of the petitioner-Krishna Kumar. He submitted that
cheating is an essential ingredient from the very beginning and for the same
dishonesty must be there and thereafter only section 420 I.P.C is attracted and
to buttress his such argument, he relied in the case of Vijay Kumar Ghai v.
State of West Bengal, (2022) 7 SCC 124. Paragraph nos.33 and 35 of the
said judgment are quoted below:
"33. Section 420IPC defines "cheating and dishonestly
inducing delivery of property" which reads as under:
"420. Cheating and dishonestly inducing delivery of
property.--Whoever cheats and thereby dishonestly induces the
person deceived to deliver any property to any person, or to make,
alter or destroy the whole or any part of a valuable security, or
anything which is signed or sealed, and which is capable of being
converted into a valuable security, shall be punished with
imprisonment of either description for a term which may extend to
seven years, and shall also be liable to fine."
35. To establish the offence of cheating in inducing the delivery
of property, the following ingredients need to be proved:
(i) The representation made by the person was false.
(ii) The accused had prior knowledge that the representation he
made was false.
(iii) The accused made false representation with dishonest
intention in order to deceive the person to whom it was made.
(iv) The act where the accused induced the person to deliver
the property or to perform or to abstain from any act which the
person would have not done or had otherwise committed."
20. On the point of criminal conspiracy, he relied in the case of C.B.I v. K.
Narayana Rao, (2012) 9 SCC 512. In this background, he submitted that
the allegations against the petitioner are only of mutating more land and this
has happened after following the procedure prescribed under Bihar Tenants
Holding (Maintenance of Records), Act, 1973 on the basis of the report of
Halka Karamchari and the Circle Inspector and in view of that, the criminality
is not made out from the very beginning and there is no allegation that the
connivance with M/s Sanjeevani Buildcon Pvt. Ltd of the petitioner was there,
and in view of that, the petitioner may kindly be discharged.
15. On the other hand, Mr. Anil Kumar, the learned A.S.G.I appearing on
behalf of the respondent-C.B.I submitted that in the charge sheet it has come
that M/s Sanjeevani Buildcon Pvt. Ltd. started purchasing and selling the plots
of land in different areas of Ranchi. The company made wide advertisement
through newspapers and other modes of media. M/s Sanjeevani Buildcon Pvt.
Ltd. was also publishing contact numbers of its marketing agents in such
advertisements. Responding to the advertisement, Dr. Uma Shankar Prasad
Shrivastava, retired Dairy Development Officer, Government of Jharkhand
made telephonic call to the office of M/s Sanjeevani Buildcon Pvt. Ltd. and
after due survey and negotiation, Dr. Uma Shankar Prasad Shrivastava agreed
to purchase 1350 sq.ft of land for constructing the house and 120 sq.ft of land
for running a shop @ Rs.450 per square ft. in Pundag at total Rs.6,85,000/-.
He made the payment which has come in the charge sheet to the tune of
Rs.6,85,000/- to Smt. Anamika Nandi, w/o Sri S.Nandi of M/s Sanjeevani
Buildcon Pvt. Ltd and made to agreements dated 25.02.2010 and 20.12.2010
and thereafter plot no.841, R.S.khata no.155, rakba-1350 sq.ft at Mouza
Pundag, thana no.228, P.S. Jagarnathpur, Ranchi was registered to Dr. Uma
Shankar Prasad Shrivastava by M/s Sanjeevani Buildcon Pvt. Ltd. by sale deed
dated 15.3.2010 executed in the office of District Sub-Registrar, Ranchi and Sri
Arvind Singh executed the sale deed on behalf of M/s Sanjeevani Buildcon Pvt.
Ltd. After registration of land, Dr. Uma Shankar Prasad Shrivastava requested
several times to Sri Arvind Singh and Sri Shyam Kishore Gupta of M/s
Sanjeevani Buildcon Pvt. Ltd. for mutation of the plot but only assurance was
given and after being frustrated Dr. Uma Shankar Prasad Shrivastava asked
Shyam Kishore Gupta to refund the whole amount and for that given allotment
letter dated 02.08.2010 to Dr. Uma Shankar Prasad Shrivastava show
allotment of plot no.B/86, at Aishwarya Residency, IInd Phase, Pundag at R.S.
plot no.841, khata no.155, however, mutation of the said plot was not made.
When Dr. Uma Shankar Prasad Shrivastava realized that false assurance is
made, he visited several times and requested for refund of money. On
03.02.2011 he called Sri S.Nandi, Head of M/s Sanjeevani Buildcon Pvt. Ltd.
and requested for refund of money. Sri Nandi assured to register another plot
but all the assurance went in vein and legal notice was served on Sri Shyam
Kishore Gupta by Dr. Uma Shankar Prasad Shrivastava. Responding to that
legal notice, Sri Shyam Kishore Gupta handed over five post-dated cheques
amounting to Rs.6,85,000/- on 20.12.2011 to Dr. Uma Shankar Prasad
Shrivastava. All the original receipts of M/s Sanjeevani Buildcon Pvt. Ltd. was
taken back by Sri Shyam Kishore Gupta and consequently the said cheques
were bounced back due to insufficient balance. Finally, Dr. Uma Shankar
Prasad Shrivastava has realized that the accused persons such as, Smt.
Anamika Nandi, Sri Arvind Kumar Singh, Sri Shyam Kishore Gupta and Abdul
Wahab have cheated him. He lodged the F.I.R on 12.04.2012 under section
120B, 406, 420 I.P.C under section 138 of Negotiable Instruments Act, 1882
with Lower Bazar Police Station, District Ranchi against the above mentioned
accused persons. At the same time the cases under section 138 of the
Negotiable Instruments Act, 1882 have been instituted against Sri Shyam
Kishore Gupta and Abdul Wahab in Civil Court, Ranchi. He submitted that in
these background, the case handed over to C.B.I and the C.B.I has
investigated the matter and it was further found which has come in the charge
sheet that Sri Mahesh Sahu and Ramdhani Sahu having share of each 54
decimals of land in the above plot in this way both were having total share of
1.08 acres of land, apart from Vanshawali Partition Suit No.30 of 2002 has
already been decided by the court of Sub-Judge-VI, Ranchi in this regard. In
view of that, the Court's order, Mahesh Sahu was given a share of 1.04 acres
of land and Sri Ramdhani Sahu has been given a share of 1.03.50 acres of
land in above plot. In view of that, Mahesh Sahu and brother Ramdhani Sahu
who are having ownership of minimum 1.04 acres land each in above plot,
however, Mahesh Sahu and Ramdhani Sahu gave power of attorney of 50
decimals of land belonging to plot no.841, khata no.155 to Sri Arvind Singh,
s/o Ram Daresh Singh of M/s Sanjeevani Buildcon Pvt. Ltd. vide deed no.337
dated 10.02.2010. He submitted that Arvind Singh of M/s Sanjeevani Buildcon
Pvt. Ltd in criminal conspiracy with Sri Shahdeo Mehra executed 57 sale deeds
in the office of District Sub Registrar, Ranchi on the strength of power of
attorney which has been disclosed in the judgment and Sri Arvind Singh in
that way sold 245.97 decimals of land against the ownership of 50 decimals
and after execution of 57 sale deeds in the name of different purchasers
belong to the said plot 24 mutation order has been issued by Ratu, Nagri,
Circle Officer which is disclosed in the charge sheet and in this way officials of
Circle Officer, Ratu and Nagri issued mutation order for 105.32 decimals land
against 50 decimals of land belonging to plot no.841, khata no.155, thana
no.228, Mauza-Pundag. He submitted that details of the mutation order
passed by the different officials are disclosed in the charge sheet. He further
submitted that the officials concerned has issued 75 mutation orders covering
total area of 3.33 acres land against total available area of 3.24 acres of land
in plot no.841, khata no.155, thana no.228, Mauza-Pundag. He submitted that
the other records of Circle Officer being maintained and in any case the area
of mutation should not exceed the area of land if the area of mutation exceeds
the area of land the respective Circle Officer, Circle Inspector and Rajasva
Karamchari are fully responsible. In this background he submitted that criminal
conspiracy with Anamika Nandi, Sri Jayant Dayal Nandi, Sri Arvind Kumar
Singh and Sri Shyam Kishore Gupta in criminal conspiracy with each other and
also with Sri Pradip Xalxo, Sri Shyam Sunder Nath Rai, Sri Rajiv Ranjan and Sri
Krishna Kumar and in pursuance thereof mutation order of a total area of
105.32 decimals lands was made against the permissible limit of 50 decimals
land against Sri Pradeep Xalxo, Sri Shyam Sundar Nath Rai, Sri Rajiv Ranjan
and Sri Krishna Kumar in criminal conspiracy with each other and also with
Smt. Anamika Nandi, Sri Jayant Dayal Nandi with Navin Kumar Singh and Sri
Shyam Kishore Gupta issued mutation order for a total area of 3.33 acres of
land against the available area of 3.24 acres land and the criminal conspiracy
to that effect so far Krishna Kumar is concerned is also made out. He being
the Circle Officer of Nagri Circle ordered for mutation of 14 plots covering total
area of 57.06 decimals land belonging to plot no.841, khata no.155, thana no.
228, Mauza-Pundag which was over and above the permissible limit of
maximum 50 decimals land should have been mutated in the above plot. The
area of mutation cannot exceed without connivance of the Circle Officer. He
submitted that during 2009-2010 Sri Omprakash Yadav was posted and
functioning as Circle Officer, Ratu. He has ordered mutation in 19 cases as
against the actual holding of 35.55 decimals of land by Smt. Anamika Nandi of
M/s Sanjeevani Buildcon Pvt. Ltd., Ranchi. Sri Omprakash Yadav has ordered
mutation of 39.49 decimals land in plot no.841, khata no.155, Mauza-Pundag
as against the actual holding of 40 decimals of land Sri Arvind Singh of M/s
Sanjeevani Buildcon Pvt. Ltd, Sri Omprakash Yadav ordered mutation of 30.43
decimals land at plot no.841, khata no.155 which was excess. He further
submitted that in other cases the identical is the situation and connivance of
the petitioners who are Circle Officers are made out. He submitted that this is
not a case that in absence of any connivance the excess mutation was made.
He further submitted that the judgment relied by the learned counsel for the
petitioners are on different facts and those are not helping the petitioners. He
submitted that the learned court has already framed the charge and at this
stage this Court may not interfere as they have earlier moved before this
Court before passing of the order taking cognizance and in some of the cases
the petitioners have moved before this Court for quashing of the entire
criminal proceeding including the order taking cognizance which was dismissed
and pursuant to that the discharge petitions have been filed and the learned
court has rightly rejected the same. He further submits that there are
restrictions in discharging the petitioners under section 227 of the Cr.P.C and
at this stage a roving enquiry is not required. He submitted that recently the
Hon'ble Supreme Court has also held in the case of Ghulam Hassan Beigh
v. Mohammad Maqbool Magrey and Others [arising out of S.L.P.
(Criminal) No.4599 of 2021]. He further submitted that discharge petition
was again considered by the Hon'ble Supreme Court in the case of State,
through Deputy Superintendent of Police v. R. Soundirarasu, etc.,
2022 0 AIR (SC) 4218 and the law on this point has been considered in that
case. He referred to the paragraph nos.61, 72, 75, 76 and 81 of the said
judgment which are quoted below:
"61. Section 239CrPC 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 239CrPC 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.
72. The ambit and scope of exercise of power under Sections
239 and 240CrPC, are therefore fairly well-settled. The obligation
to discharge the accused under Section 239 arises when the
Magistrate considers the charge against the accused to be
"groundless". The section mandates that the Magistrate shall
discharge the accused recording reasons, if after : (i) considering
the police report and the documents sent with it under Section
173, (ii) examining the accused, if necessary, and (iii) giving the
prosecution and the accused an opportunity of being heard, he
considers the charge against the accused to be groundless i.e.
either there is no legal evidence or that the facts are such that no
offence is made out at all. No detailed evaluation of the materials
or meticulous consideration of the possible defences need be
undertaken at this stage nor any exercise of weighing materials in
golden scales is to be undertaken at this stage -- the only
consideration at the stage of Sections 239/240 is as to whether the
allegation/charge is groundless.
75. Thus, the revisional power cannot be exercised in a casual
or mechanical manner. It can only be exercised to correct manifest
error of law or procedure which would occasion injustice, if it is not
corrected. The revisional power cannot be equated with the
appellate power. A Revisional Court cannot undertake meticulous
examination of the material on record as it is undertaken by the
trial court or the appellate court. This power can only be exercised
if there is any legal bar to the continuance of the proceedings or if
the facts as stated in the charge-sheet are taken to be true on their
face value and accepted in their entirety do not constitute the
offence for which the accused has been charged. It is conferred to
check grave error of law or procedure.
76. Thus, the revisional power cannot be exercised in a casual
or mechanical manner. It can only be exercised to correct manifest
error of law or procedure which would occasion injustice, if it is not
corrected. The revisional power cannot be equated with the
appellate power. A Revisional Court cannot undertake meticulous
examination of the material on record as it is undertaken by the
trial court or the appellate court. This power can only be exercised
if there is any legal bar to the continuance of the proceedings or if
the facts as stated in the charge-sheet are taken to be true on their
face value and accepted in their entirety do not constitute the
offence for which the accused has been charged. It is conferred to
check grave error of law or procedure.
81. In the overall view of the matter, we are convinced that the
impugned orders passed by the High Court are not sustainable in
law and deserve to be set aside. The circumstances emerging from
the record of the case, prima facie, indicate the involvement of the
accused persons in the alleged offence. Having regard to the
materials on record, it cannot be said that the charge against the
accused persons is groundless. There are triable issues in the
matter. If there are triable issues, the court is not expected to go
into the veracity of the rival versions."
21. He submitted that these discharge petitions are fit to be dismissed.
22. In view of aforesaid submissions of the learned counsels appearing on
behalf of the parties, the Court has gone through the contents of the
discharge petitions as well as the impugned order and finds that the
allegations against the petitioners who happened to be Circle Officers are
there of mutating more lands of the plots in question. A large number of
innocent public have been cheated by M/s Sanjeevani Buildcon Pvt. Ltd. in
conspiring with the others including the petitioners which has been revealed in
the charge sheet. In the charge sheet the action of the petitioners have been
discussed elaborately in all the cases and the learned counsel for the
petitioners have also admitted in their argument that they have done excess
mutation of the plot in question. The question remains that as to whether in
absence of their connivance along with M/s Sanjeevani Buildcon Pvt. Ltd. the
said mutation can be done or not? It appears that Circle Inspectors have also
been charge sheeted which suggest that all were in connivance of such excess
mutation of the plot in question. The discharge petition was the subject matter
before the Hon'ble Supreme Court in the case of State of Tamilnadu, by
Inspector of Police in Vigilance and Anti Corruption v. N. Suresh
Rajan and Others, (2014) 11 SCC 709, wherein paragraph no.29, 32.4, 33
and 34 has held as under:
"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 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.
32.4. While passing the impugned orders [N. Suresh
Rajan v. Inspector of Police, Criminal Revision Case (MD) No. 528
of 2009, order dated 10-12-2010 (Mad)] , [State v. K. Ponmudi,
(2007) 1 MLJ (Cri) 100] , the court has not sifted the materials for
the purpose of finding out whether or not there is sufficient
ground for proceeding against the accused but whether that would
warrant a conviction. We are of the opinion that this was not the
stage where the court should have appraised the evidence and
discharged the accused as if it was passing an order of acquittal.
Further, defect in investigation itself cannot be a ground for
discharge. In our opinion, the order impugned [N. Suresh
Rajan v. Inspector of Police, Criminal Revision Case (MD) No. 528
of 2009, order dated 10-12-2010 (Mad)] suffers from grave error
and calls for rectification.
33. Any observation made by us in this judgment is for the
purpose of disposal of these appeals and shall have no bearing on
the trial. The surviving respondents are directed to appear before
the respective courts on 3-2-2014. The Court shall proceed with
the trial from the stage of charge in accordance with law and
make endeavour to dispose of the same expeditiously.
34. In the result, we allow these appeals and set aside the
order of discharge with the aforesaid observations."
23. The settled law does not permit a mini trial at the stage of discharge
and facts are there that can be only subject matter of trial. The purpose of
framing charge is to intimate the accused about clear unambiguous and
precise nature of acquisition and the accused is called upon to meet the
course of trial. The scope of enquiry by a Judge is required to be considered at
the question of framing of charge and this aspect of the matter has been
considered in the case of Union of India v. Prafulla Kumar Samal and
Another, (1979) 3 SCC 4, wherein at paragraph no.10 the following
principles have been enumerated:
"10. Thus, on a consideration of the authorities mentioned
above, the following principles emerge:
(1) That the Judge while considering the question of framing
the charges under Section 227 of the Code has the undoubted
power to sift and weigh the evidence for the limited purpose of
finding out whether or not a prima facie case against the accused
has been made out.
(2) Where the materials placed before the Court disclose grave
suspicion against the accused which has not been properly
explained the Court will be fully justified in framing a charge and
proceeding with the trial.
(3) The test to determine a prima facie case would naturally
depend upon the facts of each case and it is difficult to lay down a
rule of universal application. By and large however if two views are
equally possible and the Judge is satisfied that the evidence
produced before him while giving rise to some suspicion but not
grave suspicion against the accused, he will be fully within his right
to discharge the accused.
(4) That in exercising his jurisdiction under Section 227 of the
Code the Judge which under the present Code is a senior and
experienced court cannot act merely as a Post Office or a
mouthpiece of the prosecution, but has to consider the broad
probabilities of the case, the total effect of the evidence and the
documents produced before the Court, any basic infirmities
appearing in the case and so on. This however does not mean that
the Judge should make a roving enquiry into the pros and cons of
the matter and weigh the evidence as if he was conducting a trial."
24. The Hon'ble Supreme Court has an occasion to consider the scope of
section 227 and 228 Cr.P.C. In the case of Sajjan Kumar v. CBI, (2010) 9
SCC 368, wherein at paragraph no.21 it has been held as under:
"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 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 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."
25. It has been further held in the case of Asim Shariff v. National
Investigation Agency, (2019) 7 SCC 148, that mini trial is not expected
by the trial court for the purpose of marshaling the evidence on record at the
time of framing of record. It has been held at paragraph no.18 of the said
judgment 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 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, 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."
26. It is the settled principle of law that at the stage of considering an
application for discharge the court must proceed on the assumption that the
materials which have been brought on record by the prosecution is true and
evaluate the material in order to determine whether the facts emerging from
the materials taken on its face value discloses the existence of the ingredients
or not as has been held in the case of State of Karnataka v. M.R.
Hiremath, (2019) 7 SCC 515. In view of the above the trial court is
required to apply its mind at the time of framing of charge and will not act as
mere post office and at the same time the court is also not required to made a
mini trial and if the satisfaction to that effect is there that there are materials
to frame the charge, the discharge petition is not to be maintained. It is
further well settled that defence on merit is not to be considered at the time of
stage of framing of charge and that cannot be a ground of discharge. A
reference may be made to the case of State of Rajasthan v. Ashok Kumar
Kashyap, (2021) 11 SCC 191. Paragraph no.10 to 17 of the said judgment
are quoted below:
"10. By the impugned judgment [Ashok Kumar
Kashyap v. State of Rajasthan, 2018 SCC OnLine Raj 3468] and
order, the High Court in exercise of its revisional jurisdiction has set
aside the order passed by the learned Special Judge framing the
charge against the accused under Section 7 of the PC Act and
consequently has discharged the accused for the said offence.
What has been weighed with the High Court while discharging the
accused is stated in paras 10 and 11 of the impugned judgment
[Ashok Kumar Kashyap v. State of Rajasthan, 2018 SCC OnLine Raj
3468] and order, which are reproduced hereinabove.
11. While considering the legality of the impugned judgment
[Ashok Kumar Kashyap v. State of Rajasthan, 2018 SCC OnLine Raj
3468] and order passed by the High Court, the law on the subject
and few decisions of this Court are required to be referred to.
11.1. In P. Vijayan [P. Vijayan v. State of Kerala, (2010) 2 SCC
398 : (2010) 1 SCC (Cri) 1488] , this Court had an occasion to
consider Section 227 CrPC 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 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 228 CrPC,
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 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 [M.R. Hiremath v. State, 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 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. SureshRajan [State of T.N. v. N. Suresh Rajan, (2014) 11
SCC 709 : (2014) 3 SCC (Cri) 529 : (2014) 2 SCC
(L&S) 721] , adverting to the earlier decisions on the subject,
this Court held : (SCC pp. 721-22, para 29)
'29. ... At this stage, probative value of the materials has to be
gone into and the court is not expected to go deep into the matter
and hold that the materials would not warrant a conviction. In our
opinion, what needs to be considered is whether there is a ground
for presuming that the offence has been committed and not
whether a ground for convicting the accused has been made out.
To put it differently, if the court thinks that the accused might have
committed the offence on the basis of the materials on record on
its probative value, it can frame the charge; though for conviction,
the court has to come to the conclusion that the accused has
committed the offence. The law does not permit a mini trial at this
stage.' "
12. We shall now apply the principles enunciated above to the
present case in order to find out whether in the facts and
circumstances of the case, the High Court was justified in
discharging the accused for the offence under Section 7 of the PC
Act.
13. Having considered the reasoning given by the High Court
and the grounds which are weighed with the High Court while
discharging the accused, we are of the opinion that the High Court
has exceeded in its jurisdiction in exercise of the revisional
jurisdiction and has acted beyond the scope of Section 227/239
CrPC. While discharging the accused, the High Court has gone into
the merits of the case and has considered whether on the basis of
the material on record, the accused is likely to be convicted or not.
For the aforesaid, the High Court has considered in detail the
transcript of the conversation between the complainant and the
accused which exercise at this stage to consider the discharge
application and/or framing of the charge is not permissible at all.
14. As rightly observed and held by the learned Special Judge
at the stage of framing of the charge, it has to be seen whether or
not a prima facie case is made out and the defence of the accused
is not to be considered. After considering the material on record
including the transcript of the conversation between the
complainant and the accused, the learned Special Judge having
found that there is a prima facie case of the alleged offence under
Section 7 of the PC Act, framed the charge against the accused for
the said offence. The High Court materially erred in negating the
exercise of considering the transcript in detail and in considering
whether on the basis of the material on record the accused is likely
to be convicted for the offence under Section 7 of the PC Act or
not.
15. As observed hereinabove, the High Court was required to
consider whether a prima facie case has been made out or not and
whether the accused is required to be further tried or not. At the
stage of framing of the charge and/or considering the discharge
application, the mini trial is not permissible. At this stage, it is to
be noted that even as per Section 7 of the PC Act, even an attempt
constitutes an offence. Therefore, the High Court has erred and/or
exceeded in virtually holding a mini trial at the stage of discharge
application.
16. We are not further entering into the merits of the case
and/or merits of the transcript as the same is required to be
considered at the time of trial. Defence on merits is not to be
considered at the stage of framing of the charge and/or at the
stage of discharge application.
17. In view of the above and for the reasons stated above, the
impugned judgment [Ashok Kumar Kashyap v. State of Rajasthan,
2018 SCC OnLine Raj 3468] and order passed by the High Court
discharging the accused under Section 7 of the PC Act is
unsustainable in law and the same deserves to be quashed and set
aside and is accordingly hereby quashed and set aside and the
order passed by the learned Special Judge framing charge against
the accused under Section 7 of the PC Act is hereby restored. Now
the case is to be tried against the accused by the competent court
for the offence under Section 7 of the PC Act, in accordance with
law and its own merits."
27. While deciding the discharge petition, the High Court is not required to
scrutinize the evidence and advancing elaborate arguments in that count as
the High Court is not exercising its power at the appellate stage and only the
said argument is being heard in a criminal revision petition. In this regard a
reference may be made to the case of State of Uttar Pradesh v. Uday
Narayan and Another, (1999) 8 SCC 741. The essential ingredients for
the offence of criminal conspiracy are-, (i) an agreement between two or more
person, (ii) the agreement must relate to doing or causing to be done either-,
(a) an illegal act, or (b) an act which is not illegal in itself, but is done by
illegal means. Thus, the plain minds of two or more persons meeting for doing
or causing to be done an illegal act or an act by illegal means is sine qua non
of criminal conspiracy. It is extremely difficult to adduce direct evidence to
prove conspiracy, existence of conspiracy and its objectives can be inferred
from the surrounding circumstances and the conduct of the accused. On
perusal of section 13(1)(d), (ii) and (iii) of the Prevention of Corruption Act it
is crystal clear that if the elements of any of the three sub clauses are made,
the same would be sufficient to constitute an offence of criminal misconduct
undoubtedly all three wings of clause(d) of section 13(i) are independent,
alternative and disjunctive. Thus, under section 13(1)(d)(i) of the P.C.Act
obtaining any valuable thing or pecuniary advantage by corrupt or illegal
means by a public servant itself would amount to criminal misconduct. On the
same reasoning under section 13(1)(d)(ii) of the P.C.Act obtaining a valuable
thing or pecuniary advantage by abusing his official position as a public
servant either for himself or for any other person would amount to criminal
misconduct.
28. In a criminal conspiracy the intention to do a criminal act is itself a
crime unlike other offences which require not only the intention to do a
criminal act but also in addition something committed in execution of the
intention. The essence of conspiracy being bare agreement between the
conspirators, the same has to be proved in the manner allowed by law. While
accepting the proof of conspiracy reality of the situation has to be taken into
account. Conspiracy as a whole is brought about in secrecy and the proof of
the same, by adduction of evidence direct, is really an impossible feat in most
of the cases, though in the rarest of rare occasion, the possibility of obtaining
such evidence is there and in view of that the conspiracy may be proved in
most of the cases, by process of inference or induction from relevant proved
facts and circumstances which can be only by way of trial and not at the time
of framing of charge and in that view of the matter, the discharge petitions
cannot be allowed.
29. In view of the above, at this stage, the argument advanced by the
learned counsels for the petitioners are the subject matter of trial which
cannot be appreciated at this stage and the Court finds that the learned court
has rightly rejected the discharge petition.
30. The judgment relied by Mr. Indrajit Sinha, the learned counsel
appearing for the petitioner in the case of Rajinder Singh v. State of
Jammu and Kashmir and Others(supra) purely arising out of a civil dispute
and in that circumstance the said order was passed and there are provision of
appeal and revision in the Bihar Tenants Holding (Maintenance of Records)
Act, 1973. In that case, the conspiracy was not the subject matter. Thus, that
judgment is not helping the petitioner. In the case of Jitendra Singh(supra),
relied the learned counsel appearing for the petitioner-Omprakash Yadav was
only on the point that mutation entry does not confer any right, title and
interest and in that case also the civil proceeding was there and in that case
the criminality and corruption was not the subject matter and that judgment is
not helping the petitioner. In the case of M.E. Shivalingamurthy(supra), the
petitioner of that case was acted on the basis of past practice of the
Department. He has spoken with the Deputy Director (Legal) and acted on his
advice. The discharge petition was allowed by the learned trial court which
was reversed by the High Court and the same was the subject matter before
the Hon'ble Supreme Court and the Hon'ble Supreme Court has held that at
that stage, in view of principle of discharge, the High Court has rightly set-
aside and the order of the High Court was affirmed and the said case was
dismissed and for coming to the ratio of the case the entire facts of the case is
required to be considered and the learned counsel has only relied on certain
paragraphs of the said judgment which is not helping the petitioner. In the
case relied by the learned counsel Mr. Indrajit Sinha, in Dipakbhai
Jagdishchandra Patel(supra), it has also been held that all that is required
the court must satisfy that on the materials available the case is made out for
the accused to send for trial, a strong suspicion suffices, however, a strong
suspicion must be founded on some material. In the case in hand, the
materials are there in the charge sheet and in the facts of that case, the
materials were not there and that is why the Hon'ble Supreme Court had
discharged the petitioner. Thus, that judgment is not helping the petitioner. In
the case of C.K.Jaffer Sharief(supra), relied by Mr. Rajendra Krishna as well
as Mr. Indrajit Sinha, the learned counsels appearing on behalf of the
petitioners, the Hon'ble Supreme Court found that four persons while in
London had assisted the appellant of that case in performing certain task
connected with the discharge of duties as a Minister and in that view of the
matter, the Hon'ble Supreme Court found that it is difficult to visualize as to
how in light of that facts demonstrated by the materials revealed in the course
of investigation, the petitioner of that case can be construed to have adopted
corrupt or illegal or to have abused his position as a public servant to obtain
any valuable thing or pecuniary advantage either for himself or for any of the
four of the accused persons and in that view of the matter, that order has
been passed which is not helping the petitioner. In Cr.M.P. No.2741 of 2012
relied by Mr. Rajendra Krishna, the learned counsel for the petitioner, the
mutation was with regard to scheduled area under the Chotanagpur Tenancy
Act. The Court found that had the petitioners would have recommended and
forwarded with knowledge that the purchaser was not having any land in that
area he would have certainly liable to be prosecuted with the criminal offence
as in that event both the ingredients of a crime actus reus and mens rea
would have been completed. Here only actus reus was found on the part of
the petitioner and in view of that the cognizance order was quashed. In the
case in hand after a detailed enquiry the connivance of the petitioners has
come in the charge sheet and thereafter the learned court has rejected the
discharge petition. The said case is also not helping the petitioners.
31. In view of the discussions made hereinabove with regard to
ingredients of P.C.Act and section 120B of the IPC the cases relied on the point
of section 120B and 420 IPC by Mr. Indrajit Sinha, the learned counsel for the
petitioner are not helping the petitioners. Thus, in view of the above facts,
reasons and analysis the Court finds that there are allegations against the
petitioners of mutating more land than the area of the plot which has also
been admitted in the argument of the learned counsel for the petitioners
which cannot be ruled out at this stage that the petitioners were not in
connivance with the said M/s Sanjeevani Buildcon Pvt. Ltd. The poor people
have been cheated by the said M/s Sanjeevani Buildcon Pvt. Ltd. and the
connivance of these petitioners cannot be ruled out considering that in two of
the cases one of the petitioner has refused the mutation on the ground that
the land is excess meaning thereby that they were knowing about the area of
the land and inspite of that they have mutated the excess land.
32. In view of the above facts, reasons and analysis and considering
the principles of discharge, the Court is not inclined to interfere in all these
criminal revision petitions. Further considering that the corruption has spread
its tentacles in almost all the key areas of the State and it is an impediment to
growth and development of the country. There has to be unrelenting stern
action by all the concerns, particularly, in government and there should be
public awareness against corruption.
33. Accordingly, Cr. Revision No.238 of 2020, Cr. Revision No.239 of
2020, Cr. Revision No.240 of 2020, Cr. Revision No.253 of 2020, Cr. Revision
No.255 of 2020 and Cr. Revision No.298 of 2020 are dismissed.
( Sanjay Kumar Dwivedi, J.)
Jharkhand High Court, Ranchi
Dated : 03/08/2023
A.F.R./SI,
