Jharkhand High Court
Bhanu Pratap Shahi vs State Of Jharkhand Through Cbi on 11 August, 2023
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Revision No. 1682 of 2017
Bhanu Pratap Shahi ..... ... Petitioner
Versus
State of Jharkhand through CBI ..... ... Opposite Party
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CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
------
For the Petitioner : Mr. Ajit Kumar, Sr. Advocate.
: Mrs. Akriti Shree, Advocate.
: Ms Aprajita Bhardwaj, Advocate.
For the CBI : Mr. Anil Kumar, A.S.G.I.
: Ms Chandana Kumari, A.C. to A.S.G.I.
------
19/ 11.08.2023 Heard Mr. Ajit Kumar, learned senior counsel appearing for
the petitioner and Mr. Anil Kumar, learned A.S.G.I. appearing for the CBI.
2. This petition has been filed against the order dated
06.09.2017, passed in connection with R.C. 11(A)/2009-AHD-R, lodged
for the offences under Sections 120-B, 420, 467, 468 and 471 of the Indian
Penal Code read with Section 13(2), 13(1)(c) and 13(1)(d) of the
Prevention of Corruption Act, whereby, the learned court has been pleased
to reject the application filed for discharge of the present petitioner,
pending in the court of learned Special Judge, CBI, Ranchi.
3. The short facts of the present case are as follows:-
Dr. Pradeep Kumar, IAS, while functioning as the Secretary,
Health Department, Government of Jharkhand during the period between
2008 and 2009 entered into a criminal conspiracy with Dr. Vijay Shankar
Narayan Singh, State RCH Officer, Namkum, Ranchi with some unknown
officials of the Health Department as well as with some Private persons,
namely, Shyamal Chakravarty, Dharmendra Kumar Dheeraj, partner of
M/s Rebloom, Impex, Basudev Regency Kantatoli, Ranchi and Anoop
Chakravarty alias Tullu and in furtherance of the said conspiracy they by
abusing their respective official positions as Public Servants fraudulently
and dishonestly purchased medicines, medical equipments/appliances,
sundry from 19 suppliers worth Rs. 1,30,50, 79,951.74 without assessing
the actual requirement and without observing the causal formalities
prescribed in this regard. It has been further alleged that the amount
squandered was out of the fund allotted for National Rural Health Mission
(NRHM) a scheme sponsored and financed by the Government of India. It
was further revealed that during the financial year 2007-08 the Health
Department of the Government of Jharkhand had invited Tenders for
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procurement of the medicines for NRHM Scheme and the rates of the
medicines were fixed and the medicines were purchased at the fixed rates
during the aforesaid financial year and NIT was floated and technical bids
were opened and the price bids were not opened and no follow up action
was initiated and the Medicines etc. were purchased for during the
financial year 2008-09 at the rates approved for the financial year 2007-08
by not adhering to the dos and don'ts of the purchase preference policy of
the Government of India which came in force w.e.f. 3rd October 2009,
which mandates purchase of 102 nos. of medicines compulsorily from the
P.S. Us. It has been further alleged that if the purchase is made adherence
to the stipulations in the percentage knowing purchase preference policy a
fixed percentage of discount is permissible but knowing that fully well the
purchasers were dishonestly and intentionally not made conforming to the
guidelines which occasioned enormous unlawful pecuniary loss to the
State of Jharkhand and corresponding wrongful gain to themselves and
under hand deal was done between the accused public servants and the
private suppliers and others namely, Shyamal Chakraverty, Dharmendra
Kumar Dheeraj, and Anoop Chakravarty alias Tullu. It has been further
alleged that purchase made were not at all need based. It has been further
alleged that for the purchasing some of the items in question budget
allocation for NRHM Scheme was not taken into account which is
manifest from the fact that as against the budget allocation of Rs. 9.56
Crores, an amount of Rs. 10.31 Crores was spent as against the budget
allocation of Rs. 2,289.24 lakhs for the purchase of medicines and medical
equipments an amount of Rs. 2,015.30 lakhs have been expended.
Similarly out of budget allocation made by the State Government 50,000/-
units of disinfectant Microgen D-125300 units of fogger machines and
dispenser have been purchased for Rs. 14.74 Crores Rs. 5.15 Crores and
Rs. 19,57,000/- respectively. It has further been alleged that the medicines
equipments etc. worth of Rs. 48.58 Crores have been purchased. Mr. Nand
Kishore Fogla Rs. 11,81,759.28 from M/s G.R. Associates, Rs. 1,70,800/-
from M/S Prabhat Drug House, Rs. 27,59,974/- from M/s Gaurav
Enterprises, Rs. 18,68,184/- from M/S Plastic Surgery India Pvt. Ltd. and
Rs. 98,08,768.84 from M/S Nicholas Piramal India Ltd.
4. Mr. Ajit Kumar, learned senior counsel for the petitioner
submits that the petitioner was former Health and Family Welfare
Minister, Government of Jharkhand and his role in crime has transpired
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during investigation. He submits that however, the entire chargesheet is
based on no evidence so far as this petitioner is concerned and the
petitioner has been put to such harassment by way of facing the trial. He
further submits that the entire case is based on a scheme of Government of
India namely Nation Rural Health Mission and the allegations are made in
executing the said scheme, a sum of Rs. 24,88,44,320/- was
misappropriated by the petitioner and others. He draws the attention of the
court towards to the complete scheme, contained in Annexure-6 of the
revision petition. He submits that the approval of plan by Governing Body
and submission of State PIP to MoHEW is disclosed and in the remarks
column how the things to be done are disclosed. He submits that Chapter-
3 speaks of Overarching principle governing delegation of administrative
and financial powers and the delegations of such power is described
therein, in which, six persons have been shown to be exercising the power.
He further submits that the financial powers of the Governing Body,
Executive Committee, Programme Committee and other officer bearers of
the State Health Society was also provided at Chapter 4 and 4.1 of the said
scheme. He further draws the attention of the court to Chapter 4.2 of the
said scheme, which relates to Financial Powers of the Governing Body,
Executive Committees, Programme Committees and other office bearers
of the District Health Society. He also draws the attention of the court to
tabular chart 4.3, which relates to Financial Powers of the Governing
Body, Executive Committee and other office bearers of the Hospital
Management Societies (Rogi Kalyan Samities or equivalent). By way of
drawing the attention of several points, discussed in the said scheme, he
submits that in view of the scheme, the petitioner is not the authority to
issue any cheque or grant any approval for finance and in view of that the
petitioner has unnecessarily been made an accused in the present case.
5. Learned senior counsel appearing for the petitioner submits
that the petitioner was the Health Minister of the State of Jharkhand with
effect from 08.02.2007 to 23.08.2008 and further till 27.08.2008 to
12.01.2009. He further submits that the CBI has manipulated the things as
one Rajesh Kumar Fogla, who is also an accused in the first statement
under Section 164 Cr.P.C., contained in page-157 of the revision petition,
has not taken the name of this petitioner, however, in the second
statement, he has taken the name of this petitioner. He further submits that
these two contradictory statements of Rajesh Kumar Fogla, who is the co-
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accused suggests that he has taken the name of the petitioner in the second
statement, which is on the force made by the CBI and to buttress his
argument, he further draws the attention of the court to page-192 of the
revision petition, which is the letter issued by the said Rajesh Kumar
Fogla, while he was in imprisonment. By way of referring several contents
of the said letter, he submits that the CBI has forced him to say so that's
why, such statement was made. In view of that, learned senior counsel
submits that the petitioner has unnecessarily been dragged in this case. He
further submits that the confessional statement of other co-accused that
too when two contradictory statements are there, the case against the
petitioner is very weak. In these backgrounds, he submits that the learned
trial court has failed to appreciate the spirit of discharge petition and
wrongly rejected the petition. He further submits that if there is no
sufficient ground for proceeding against any of the accused, this court is
competent to discharge the petition and to buttress his argument, he relied
in the case of Union of India Versus Prafulla Kumar Samal & Anr.
reported in (1979) 3 SCC 4, wherein the Hon'ble Supreme Court in para-
10 thereof, has held as follows:-
"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
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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."
6. Learned senior counsel appearing for petitioner further
submits that likewise on the consideration of the records and the
documents submitted with the police, if the court comes to a conclusion
that the court is competent to discharge the petitioner and to buttress his
argument, he relied in the case of Yogesh Versus State of Maharashtra,
reported in (2008) 10 SCC 394, where the Hon'ble Supreme Court in
paras-15 and 16 held as follows:-
"15. Chapter XVIII of the Code lays down the
procedure for trial before the Court of Session,
pursuant to an order of commitment under
Section 209 of the Code. Section 227
contemplates the circumstances whereunder there
could be a discharge of an accused at a stage
anterior in point of time to framing of charge
under Section 228. It provides that upon
consideration of the record of the case, the
documents submitted with the police report and
after hearing the accused and the prosecution, the
court is expected, nay bound to decide whether
there is "sufficient ground" to proceed against
the accused and as a consequence thereof either
discharge the accused or proceed to frame charge
against him.
16. It is trite that the words "not sufficient ground
for proceeding against the accused" appearing in
the section postulate exercise of judicial mind on
the part of the Judge to the facts of the case in
order to determine whether a case for trial has
been made out by the prosecution. However, in
assessing this fact, the Judge has the power to sift
and weigh the material 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 a prima facie case depends upon the
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facts of each case and in this regard it is neither
feasible nor desirable 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
gives rise to suspicion only as distinguished from
grave suspicion, he will be fully within his right to
discharge the accused. At this stage, he is not to
see as to whether the trial will end in conviction
or not. The broad test to be applied is whether the
materials on record, if unrebutted, make a
conviction reasonably possible. (See State of
Bihar v. Ramesh Singh [(1977) 4 SCC 39 : 1977
SCC (Cri) 533] and Prafulla Kumar
Samal [(1979) 3 SCC 4 : 1979 SCC (Cri) 609] .)"
7. He submits that the confession of the co-accused made under
Section 164 Cr.P.C. is a very weak evidence and that cannot be looked into
and to buttress his argument, he relied in the case of Haricharan Kurmi
Versus State of Bihar, reported in (1964) 2 Cri LJ 344, where in paras-11
to 18 the Hon'ble Supreme Court has held as follows:-
"11. Such documents are called documentary
evidence. Technically construed, this definition
will not apply to a confession. Part (1) of the
definition refers to oral statements which the
court permits or requires to be made before it;
and clearly a confession made by an accused
person is not such a statement; it is not made or
permitted to be made before the court that tries
the criminal case. Part (2) of the definition refers
to documents produced for the inspection of the
court; and a confession cannot be said to fall
even under this part. Even so S. 30 provides that a
confession may be taken into consideration not
only against its maker, but also against a co-
accused person; that is to say, though such a
confession may not be evidence as strictly defined
by S. 3 of the Act, it is an element which may be
taken into consideration by the criminal court and
in that sense, it may be described as evidence in a
non-technical way. But it is significant that like
other evidence which is produced before the
Court, it is not obligatory on the court to take the
confession into account. When evidence as
defined by the Act is produced before the Court it
is the duty of the Court to consider that evidence.
What weight should be attached to such evidence,
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is a matter in the discretion of the Court. But a
Court cannot say in respect of such evidence that
it will just not taken that evidence into account.
Such an approach can, however, be adopted by
the Court in dealing with a confession, because S.
30 merely enables the Court to take the
confession into account.
12. As we have already indicated, this question
has been considered on several occasions by
judicial decisions and it has been consistently
held that a confession cannot be treated as
evidence which is substantive evidence against a
co-accused person. In dealing with a criminal
case where the prosecution relies upon the
confession of one accused person against other
accused person, the proper approach to adopt is
to consider the other evidence against such an
accused person, and if the said evidence appears
to be satisfactory and the court is inclined to hold
that the said evidence may sustain the charge
framed against the said accused person, the court
turns to the confession with a view to assure itself
that the conclusion which it is inclined to draw
from the other evidence is right. As was observed
by Sir Lawrence Jenkins in Emperor v. Lalit
Mohan Chockerburty, ILR 38 Cal 559 at p. 588 a
confession can only be used to "lend assurance to
other evidence against a co-accused". In
Periyaswami Moopan v. Emperor. ILR 54 Mad 75
at p. 77 Reilly, J., observed that the provision of S.
30 goes not further than this, "where there is
evidence against the coaccused sufficient, "if
believed, to support his conviction, then the kind
of confession described in S. 30 may be thrown
into the scale as a additional reason for believing
that evidence." In Bhuboni Sahu v. The King, 76
Ind App. 147 at p. 155 the Privy Council has
expressed the same view. Sir. John Beaumont who
spoke for the Board, observed that " a
confession of a co-accused is obviously evidence
of a very weak type. It does not indeed come
within the definition of "evidence" contained in S.
3 of the Evidence Act. It is not required to be give
on oath, nor in the presence of the accused, and it
cannot be tested by cross-examination. It is a
much weaker type of evidence than the evidence
of an approver, which is not subject to any of
those infirmities. Section 30, evidence on which
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the court may act; but the section does not say
that the confession is to amount to proof. Clearly
there must be other evidence. The confession is
only one element in the consideration of all the
facts proved in the case; it can be put into the
scale and weighed with the other evidence." It
would be noticed that as a result of the provisions
contained in S. 30, the confession has no doubt to
be regarded as amounting to evidence in a
general way. Because whatever is considered by
the Court is evidence; circumstances which are
consider by the court as well as probabilities do
amount to evidence in that generic sense. Thus,
though confession may be regarded as evidence in
that generic sense because of the provisions of S.
30, the fact remains that is not evidence as
defined by S. 3 of the Act. The result, therefore, is
that in dealing with a case against an accused
person, the court cannot start with the confession
of co-accused person; it must begin with other
evidence adduced by the prosecution and after it
has formed its opinion with regard to the quality
and effect of the said evidence, then it is
permissible to turn to the confession in order to
receive assurance to the conclusion of guilt which
the judicial mind is about to reach on the said
other evidence. That, briefly stated, is the effect of
the provisions contained is S. 30. The same view
has been expressed by this Court in Kashmira
Singh v. State of Madhya Pradesh, 1952 SCR 526
where the decision of the Privy Council in
Bhuboni Sahu s case, 76 Ind. App 147 has been
cited with approval. 13. In appreciating the
full effect of the provisions contained in S. 30, it
may be useful to refer to the position of the
evidence given by an accomplice under S. 133 of
the Act. Section 133 provides that an accomplice
shall be a competent witness against an accused
person; and that a conviction is not illegal merely
because it proceeds upon the uncorroborated
testimony of an accomplice. Illustration (b) to S.
114 of the Act bring out the legal position that an
accomplice is unworthy of credit, unless he is
corroborated in material particulars. Reading
these two provisions together, it follows that
though an accomplice is a competent witness,
prudence requires that his evidence should not be
acted upon unless it is materially corroborated;
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and that is the effect of judicial decisions dealing
with this point. The point of significance is that
when the Court deals with the evidence by an
accomplice, the Court may treat the said evidence
as substantive evidence and enquire whether it is
materially corroborated or not. The testimony of
the accomplice is evidence under S. 3 of the Act
and has to be dealt with as such. It is no doubt
evidence of a tainted character and as such, is
very weak; but, nevertheless, it is evidence and
may be acted upon, subject to the requirement
which has now become virtually a part of the law
that it is corroborated in material particulars.
14. The statements contained in the confessions of
the co-accused persons stand on a different
footing. In cases where such confession are relied
upon by the prosecution against an accused
person, the Court cannot begin with the
examination of the said statements. The stage to
consider the said confessional statements arrives
only after the other evidence is considered and
found to be satisfactory. The difference in the
approach which the Court has to adopt in dealing
with these two types of evidence is thus clear,
well-understood and well-established. It, however,
appears that in Ram Prakash s case, 1959 SCR
1219 some observations have been made which
do not seem to recognise the distinction between
the evidence of an accomplice and the statements
contained in the confession made by an accused
person. "An examination of the reported decisions
of the various High Courts in India" said Iman,
J., who spoke for the Court in that case,
"indicates that the preponderance of opinion is in
favour of the view that the retracted confession of
an accused person may be taken into
consideration against a co-accused by virtue of
the provisions of S. 30 of the Act, its value was
extremely weak and there could be no conviction
without the fullest and strongest corroboration on
material particulars." The last portion of this
observation has been interpreted by the High
Court in the present case as supporting the view
that like the evidence of an accomplice, a
confessional statement of a co-accused person
can be acted upon if it is corroborated in material
particulars. In our opinion, the context in which
the said observation was made by this Court
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shows that this Court did not intend to lay down
any such proposition. In fact, the other evidence
against the appellant Ram Prakash was of such a
strong character that this court agreed with the
conclusion of the High Court and held that the
said evidence was satisfactory and in that
connection, the confessional statement of the co-
accused person was considered, We are, therefore,
satisfied that the High Court was in error in this
case in taking the view that the decision in Ram
Prakash's case, 1959 SCR 1219 was intended to
strike a discordant note from the well-established
principles in regard to the admissibility and the
effect of confessional statements made by co-
accused persons. Confessional statements of the
co-accused persons, particularly Ram Surat, on
whose confession the High Court has
substantially relied, is satisfactory and tends to
prove the prosecution case. It is only if the said
evidence is satisfactory and is treated as sufficient
by us to hold the charge proved against the two
appellants, that an occasion may arise to seek for
an assurance for our conclusion from the said
confession. Thus considered, there can be no
doubt that the evidence about the discovery of
blood stains on which the prosecution relies is
entirely insufficient to justify the prosecution
charge against both the appellants. In our
opinion, it is impossible to accede to the argument
urged before us by Mr. Singh that the said
evidence can be said to prove the prosecution
case. In fact, the judgment of High Court shows
that it made a finding against the appellants
substantially because it thought that the
confession of the co-accused persons could be
first considered and the rest of the evidence could
be treated as corroborating the said confessions.
We are, therefore, satisfied that the High Court
was not right in confirming the conviction of the
two appellants under S. 396 of the Indian Penal
code.
16. It is true that the confession made by Ram
Surat is a detailed statement and it attributes to
the two appellants a major part in the commission
of the offence. It is also true that the said
confession has been found to be voluntary, and
true so far as the part played by Ram Surat
himself is concerned, and so, it is not unlikely that
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the confessional statement in regard to the part
played by the two appellants may also be true;
and in that sense, the reading of the said
confession may raise a serious suspicion against
the accused. But it is precisely in such cases that
the true legal approach must be adopted and
suspicion, however grave, must not be allowed to
take the place of proof. As we have already
indicated it has been a recognised principle of the
administration of criminal law in this country for
over half a century that the confession of a co-
accused person cannot be treated as substantive
evidence and can be pressed into service only
when the court is inclined to accept other
evidence and feels the necessity of seeking for an
assurance in support of its conclusion deducible
for the said evidence. In criminal trials, there is
no scope for applying the principle of moral
conviction or grave suspicion. In criminal cases
where the other evidence adduced against an
accused person is wholly unsatisfactory an the
prosecution seeks to rely on the confession of a
co-accused person, the presumption of innocence
which is the basis of criminal jurisprudence
assists the accused person and compels the Court
to render the verdict that the charge is not proved
against him , and so, he is entitled to the benefit
of doubt. That is precisely what has happened in
these appeals.
17. In the result, the appeals are allowed and the
orders of conviction and sentence passed against
the two appellants Haricharan Kurmi and Jogia
Hajam are set aside and the accused are ordered
to be acquitted.
18. Conviction set aside."
8. According to him, identical was the situation in the case of
Suresh Budharmal Kalani Versus State of Maharashtra, reported in
(1998) 7 SCC 337, where in paras-6, 7 and 8, the Hon'ble Supreme Court
held as follows:-
"6. Thus said, we may turn our attention to the
confession made by Dr Bansal and Jayawant
Suryarao. Under Section 30 of the Evidence Act,
1872, a confession of an accused is relevant and
admissible against a co-accused if both are
jointly facing trial for the same offence. Since,
admittedly, Dr Bansal has been discharged from
the case and would not be facing trial with
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Kalani, his confession cannot be used against
Kalani. The impugned order shows that the
Designated Court was fully aware of the above
legal position but, surprisingly enough, it still
decided to rely upon the confession on the
specious ground that the prosecution was not in
any way precluded from examining Dr Bansal as
a witness in the trial for establishing the facts
disclosed in his confession. This again was a
perverse approach of the Designated Court while
dealing with the question of framing charges. At
that stage, the court is required to confine its
attention to only those materials collected during
investigation which can be legally translated into
evidence and not upon further evidence (dehors
those materials) that the prosecution may adduce
in the trial which would commence only after the
charges are framed and the accused denies the
charges. The Designated Court was, therefore,
not at all justified in taking into consideration the
confessional statement of Dr Bansal for framing
charges against Kalani.
7. So far as the confession of Jayawant
Suryarao is concerned, the same (if voluntary and
true) can undoubtedly be brought on record
under Section 30 of the Evidence Act to use it also
against Kalani but then the question is: what
would be its evidentiary value against the latter?
The question was succinctly answered by this
Court in Kashmira Singh v. State of M.P. [(1952)
1 SCC 275 : AIR 1952 SC 159 : 1952 SCR 526]
with the following words:
"The proper way to approach a case of this
kind is, first, to marshal the evidence against the
accused excluding the confession altogether from
consideration and see whether, if it is believed, a
conviction could safely be based on it. If it is
capable of belief independently of the confession,
then of course it is not necessary to call the
confession in aid. But cases may arise where the
judge is not prepared to act on the other evidence
as it stands even though, if believed, it would be
sufficient to sustain a conviction. In such an event
the judge may call in aid the confession and use it
to lend assurance to the other evidence and thus
fortify himself in believing what without the aid of
the confession he would not be prepared to
accept."
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The view so expressed has been consistently
followed by this Court. Judged in the light of the
above principle, the confession of Suryarao
cannot be called in aid to frame charges against
Kalani in the absence of any other evidence to do
so.
8. That brings us to the case of Dr Desai, the
other appellant. According to the prosecution
case, the injured accused Shrikant Rai was taken
to the house of Dr Desai by Shanti Lal Patil,
Jagdish Chand and Hasmukh Bhai, three of the
accused persons, for treatment. They told Dr
Desai that he (Shrikant) had sustained bullet
injury in the stomach due to accidental firing
from the licensed revolver of Shanti Lal. Dr Desai
told them that the injured could not be admitted in
a government hospital as it was a medico-legal
case. They, however, insisted that Shrikant should
be treated in a private hospital and all expenses
thereof would be paid by them. Dr Desai then
contacted one Dr Kamble over phone and
requested him to operate upon the patient.
Accordingly, Shrikant was taken by the above
three accused persons to Dr Kamble who
operated upon him. The prosecution alleges that
knowing full well that it was a medico-legal case,
Dr Desai entertained Shrikant and arranged for
his operation by Dr Kamble at his private
hospital and thereby helped Shrikant to abscond
after he recuperated."
9. Learned senior counsel appearing for the petitioner on the
principle of Section 164 Cr.P.C. relied in the case of Rabindra Kumar Pal
@ Dara Singh Versus Republic of India, reported in (2011) 2 SCC 490,
where in para-64, the Hon'ble Supreme Court has held as follows:-
"64. The following principles emerge with regard to
Section 164 CrPC:
(i) The provisions of Section 164 CrPC must be
complied with not only in form, but in essence.
(ii) Before proceeding to record the confessional
statement, a searching enquiry must be made from the
accused as to the custody from which he was
produced and the treatment he had been receiving in
such custody in order to ensure that there is no scope
for doubt of any sort of extraneous influence
proceeding from a source interested in the
prosecution.
(iii) A Magistrate should ask the accused as to
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why he wants to make a statement which surely shall
go against his interest in the trial.
(iv) The maker should be granted sufficient time
for reflection.
(v) He should be assured of protection from any
sort of apprehended torture or pressure from the
police in case he declines to make a confessional
statement.
(vi) A judicial confession not given voluntarily is
unreliable, more so, when such a confession is
retracted, the conviction cannot be based on such
retracted judicial confession.
(vii) Non-compliance with Section 164 CrPC goes
to the root of the Magistrate's jurisdiction to record
the confession and renders the confession unworthy of
credence.
(viii) During the time of reflection, the accused
should be completely out of police influence. The
judicial officer, who is entrusted with the duty of
recording confession, must apply his judicial mind to
ascertain and satisfy his conscience that the statement
of the accused is not on account of any extraneous
influence on him.
(ix) At the time of recording the statement of the
accused, no police or police official shall be present
in the open court.
(x) Confession of a co-accused is a weak type of
evidence.
(xi) Usually the court requires some
corroboration from the confessional statement before
convicting the accused person on such a statement."
10. Relying on these judgments, Mr. Ajit Kumar, learned senior
counsel appearing for the petitioner submits that in view of these
judgments, the case of the petitioner is fully covered as there is no
documentary evidence against him to prove the said charge. He submits
that there are so many witnesses and the petitioner has unnecessarily been
put to the trauma of trial and in view of that, he submits that the petitioner
may kindly be discharged.
11. On the other hand Mr. Anil Kumar, learned A.S.G.I. for the
CBI submits that whatever been argued with regard of Rajesh Kumar
Fogla that can be only a subject matter of trial and in view of Section 10
read with Section 133 of the Evidence Act, 1872, that Section 164 Cr.P.C.
cannot be a consideration of discharging the petitioner. He submits that not
only Rajesh Kumar Fogla, another co-accused Dhirendra Kumar Singh
has taken the name of this petitioner and confessed before the learned
-15- Cr. Revision No. 1682 of 2017
Judicial Magistrate, Ranchi regarding acceptance of commission by the
petitioner Bhanu Pratap Shahi, which implicates him in commission of
offence. He further submits that there is sufficient evidence against the
petitioner and the learned court has already framed the charge and the trial
has already started and more than 16 witnesses have already been
examined. He further submits that the principle of discharge is well settled
and at this stage, this court is not required to rove into and come to the
conclusion of discharge and to buttress his argument, he relied in the case
of State through Deputy Superintendent of Police Versus R.
Soundirarasu etc. reported in AIR 2022 SC 4218.
11. On the above background, learned A.S.G.I. appearing for the
CBI submits that this petition is fit to be dismissed.
12. In view of the above submissions of learned counsel
appearing for the parties, the court has gone through the entire documents
annexed with the revision petition as well as the counter affidavit and the
rejoinder filed by the CBI and the petitioner respectively. In the
chargesheet, it has been disclosed that the role of the petitioner, who was
the former Health and Family Welfare Minister, Government of Jharkhand
fame to fore during investigation. It was further disclosed that he
dishonestly approved the purchase of disinfectant, fogger machine,
dispenser, nitrous oxide cylinder, surgical spirit, first aid box, triangular
bandage, safety pins, pen torch and first aid box for a total amount of Rs.
24,88,44,320/- from M/s Nand Kishore Fogla by offering exorbitant rates.
It has further been disclosed that his nephew Shri Abhishek Kumar was
one of the partners of M/s Sonanchal Enterprises, the consignee sales
agent of M/s Microgen Hygiene Pvt. Ltd and Shri Abhishek Kumar was
living together with Shri Bhanu Pratap Shahi at his official residence
situated at Ranchi. M/s Nand Kishore Fogla purchased the microgen make
disinfectant and fogger machine from none else than M/s Sonanchal
Enterprises at the price much less than the price offered to it by RCH. It
has been further stated that the supplier firm M/s Nand Kishore Fogla paid
a sum of Rs. 1,250/- and Rs. 15,000/- for one litre of disinfectant and for
one piece of fogger machine respectively whereas he charged Rs. 2948/-
for one litre disinfectant and Rs. 1,71,722/- for one piece of fogger
machine. It has further been disclosed that evidence has also brought on
record to prove that he received an amount of Rs. 2,16,00,000/- from
Rajesh Kumar Fogla as commission/reward for showing undue favour to
-16- Cr. Revision No. 1682 of 2017
the firm aforesaid.
13. There is no doubt, there is two statements annexed with the
revision petition of Rajesh Kumar Fogla, being the first statement, he has
not taken the name of the petitioner, however, in the second statement, he
has taken the name of the petitioner. The question remains that whether
the argument of Mr. Ajit Kumar, learned senior counsel appearing for the
petitioner with regard to these two statements can be the subject matter of
discharge or not, the answer is simply no, in view of the fact that one of
the another co-accused, Shri Dhirendra Kumar Singh has stated the name
of this petitioner and thus this is a disputed question of fact and in light of
Section 10 read with Section 133 of the Evidence Act, 1872, that can only
be the subject matter of trial.
14. The scheme referred by Mr. Ajit Kumar, learned senior
counsel is not in dispute. In the scheme, the nature of power provided to
superior authority has been disclosed and further the chargesheet has
already been submitted. One of the document relied by Mr. Kumar at
page-182, which is the letter of Rajesh Kumar Fogla, written from the
prison that also cannot be a ground of discharging the petitioner, who is
alleged to be conspirator of the Government money to the tune of
Rs. 24,88,44,320/-.
15. 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,
reported in (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
-17- Cr. Revision No. 1682 of 2017
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."
16. It is further settled law that the law does not permit a mini trial
at the stage of discharge and facts are there that can be only subject matter
-18- Cr. Revision No. 1682 of 2017
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, reported in (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."
17. Further the Hon'ble Supreme Court has an occasion to
-19- Cr. Revision No. 1682 of 2017
consider the scope of Sections 227 and 228 Cr.P.C. In the case of Sajjan
Kumar v. CBI, reported in (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 24 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
-20- Cr. Revision No. 1682 of 2017
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."
18. For discharge petition, the mini trial is not expected, which
was under consideration in the case of Asim Shariff v. National
Investigation Agency, reported in (2019) 7 SCC 148, where in para-18, it
has been held 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."
19. It is further well settled 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
-21- Cr. Revision No. 1682 of 2017
ingredients or not as has been held in the case of State of Karnataka v.
M.R. Hiremath, reported in (2019) 7 SCC 515.
20. 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,
reported in (2021) 11 SCC 191. Paragraph Nos. 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
-22- Cr. Revision No. 1682 of 2017
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
-23- Cr. Revision No. 1682 of 2017
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
-24- Cr. Revision No. 1682 of 2017
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."
21. Thus, it is crystal clear that at the time of considering 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, reported in (1999) 8 SCC 741. The essential
ingredients for the offence of criminal conspiracy are-, (i) an agreement
-25- Cr. Revision No. 1682 of 2017
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.
22. 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 adducing 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.
23. Thus, what has been argued by learned senior counsel
appearing for the petitioner is 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.
24. So far as judgments relied by Mr. Ajit Kumar, learned senior
counsel appearing for the petitioner are not in dispute. The facts and
circumstances of each case is required to be taken in applying the ration.
The judgment relied by the learned senior counsel appearing for the
petitioner in the case of Union of India Versus Prafulla Kumar Samal &
Anr. reported in (1979) 3 SCC 4, the facts of that case is that second
-26- Cr. Revision No. 1682 of 2017
respondent was the Land Acquisition Officer aided and abetted the first
respondent in getting the huge sum of money for land acquired by the
Government, which in fact belong to the Government itself. In that case
discharge was allowed by the Special Judge, which has been affirmed up
to the Hon'ble Supreme Court on the ground that Collector, at the time of
acquisition himself slashed the rate of compensation and it was never
suggested by the prosecution that they were in conspiracy, that's why the
discharge was allowed, but the case in hand, the facts are otherwise.
25. The judgment relied in the case of Yogesh Versus State of
Maharashtra, reported in (2008) 10 SCC 394, the facts are that the
accused persons are mother, sister, father and two close associated and
they are charged under Section 302 and 120-B of the IPC, Sessions Court
and High Court while discharging the accused persons, court came to the
conclusion that there are no material on record to show that they hatched
the conspiracy to commit the murder and Hon'ble Apex Court also held
that if two views are equally possible and the Judge is satisfied that
evidence produced gives rise to suspicion only, accused will be
discharged. Whereas the case in hand, the charges are for the corruption
against the petitioner and the petitioner intentionally and malafidely
conspired the matter and get benefitted the close ones and misappropriated
the Government money, thus the case is also not helping the petitioner.
26. Further the judgment relied in the case of Haricharan Kurmi
Versus State of Bihar, reported in (1964) 2 Cri LJ 344, the facts of the
case is that appellants were charged for an offence under Section 396 of
the IPC and during the course of dacoity, they committed murder and
confession was the main issue before the Hon'ble Apex Court clarified
and the Hon'ble Apex Court clarified the provision of Section 30 and
Section 3 of the Evidence Act and its use how to be made in joint trial,
where in the case in hand, confession is not the main issue, thus this case
is also not helping the petitioner.
27. The judgment relied in the case of Suresh Budharmal Kalani
Versus State of Maharashtra, reported in (1998) 7 SCC 337, this case
arises out of an incident of rioting, murder and other cogent offence, the
fact of the case is that group of persons armed with automatic firearms
stormed into the hospital, which resulted death of a person and two police
men on guard duty and the Hon'ble Apex Court held that the confession of
an accused, who has been discharged is not admissible against the co-
-27- Cr. Revision No. 1682 of 2017
accued and further held that court not justified in taking into consideration
such confession from framing charges, but the case in hand, facts are
otherwise and the petitioner himself is the Health Minister and allegations
are that he hatched the conspiracy with the other accused persons in
purchasing the medicines and medical equipments from the company of
his nearest one just to benefit them. Thus, this case is also not helping the
petitioner.
28. Further the judgment relied in the case of Rabindra Kumar
Pal @ Dara Singh Versus Republic of India, reported in (2011) 2 SCC
490, relates to three types of evidence, (1) confession, (2) testimony of
eyewitness and (3) absconding of the accused. The fact of the case is that a
Christian Missionary from Australia was working amongst the tribal
people specially leapers of the State of Orissa engaged in propagating and
preaching Christianity in tribal areas. Suddenly a mob came there and set
fire on them, due to which, certain persons died, but the case in hand, facts
as well as the law points are different, thus, this case is also not helping
the petitioner.
29. In view of the above facts, reasons and analysis, the court
comes to a conclusion that this is not a case of discharging the petitioner
from the case and accordingly, this petition is dismissed.
30. It is made clear that whatever has been discussed hereinabove
is only for considering the discharge petition and the trial will proceed in
accordance with law and without being prejudiced by this order.
(Sanjay Kumar Dwivedi, J.)
Amitesh/-
[A.F.R.]
