Narendra Kumar Mishra @ Nand ... vs The State Of Jharkhand Through ...
2023 Latest Caselaw 2576 Jhar

                                                              1

       IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   Cr. Revision No. 683 of 2021

  Narendra Kumar Mishra @ Nand Kishore Mishra              ...........Petitioner
                         Versus
  The State of Jharkhand through Vigilance Commission, Ranchi
                                                          ..........Opp. Party


 CORAM:        HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
 For the Petitioners : Mr. Amritansh Vats, Advocate
 For the State       : Mr. Deepankar Roy, Advocate
                       .......

08/ 03.08.2023

This petition has been filed for quashing the order dated

08.07.2021 passed by the learned Special Judge, A.C.B., Cyber Cases &

Electricity Act, Dhanbad in Miscellaneous Criminal Application No. 1210

of 2021 in connection with case being Vigilance P.S. Case No. 42/2013

whereby the learned court has been pleased to reject the discharge

petition filed by the petitioner, pending in the Court of learned Special

Judge, Dhanbad.

2. Learned counsel for the petitioner submits that the petitioner

has filed the petition for discharge however the learned court has

rejected the said petition and aggrieved with that the petitioner has filed

the present criminal revision. He submits that the petitioner was posted

as Managing Director of Dhanbad Central Cooperative Bank Limited and

allegation against the petitioner is that the petitioner has not taken

prompt action for recovery of loan amount from different consumers.

Subsequently in the departmental proceeding the petitioner has been

exonerated and in that view of the matter learned court has erred in

dismissing the discharge petition.

3. Mr. Deepankar Roy, learned counsel for the respondent-State

submits that the said ground was not taken before the learned court and

the learned court looking into the parameters of deciding the discharge

petition has rightly passed the order. There is no illegality in the said

order.

4. In view of above submissions of the learned counsel for

the parties it appears that chargesheet has been submitted pursuant to

that cognizance has been taken. The point which been argued here was

not taken before the learned trial court while arguing the matter of

discharge petition. Further, it transpires that there are allegations and

there are parameters of allowing the discharge petition. At this stage the

Court is not required to roam into and come to the conclusion for

discharge of the accused. Reference may be made to recent judgment of

the Hon'ble Supreme Court in 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 26 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 27 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 28 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."

5. The point argued by the Mr. Vats, is not tenable in view

of the fact that if charge is grave and on the same facts and on the

same witnesses criminal proceeding and departmental proceeding are

not proceeded and even exoneration from the charges of departmental

proceeding cannot be a ground of discharge.

6. In view of above facts, no relief can be extended to the

petitioner. Accordingly, this petition is dismissed. Pending I.A. if any,

stands disposed of.

7. Further liberty is provided to the petitioner to take all grounds

in the trial court.

( Sanjay Kumar Dwivedi, J.)

satyarthi/