Manoj Kumar vs Union Of India
2023 Latest Caselaw 3095 Jhar

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              IN THE HIGH COURT OF JHARKHAND, RANCHI
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Cr. Revision No.228 of 2021

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        Manoj Kumar                                            .... Petitioner
                                   --    Versus --

Union of India, through its S.P., C.B.I., E.O.W, Ranchi .... Opposite Party

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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        For the Petitioner          :-     Mr. Saurabh Shekhar, Advocate
                                           Mr. Arun Kumar, Advocate
        For C.B.I.                  :-     Mr. Anil Kumar, A.S.G.I.
                                           Ms. Chandana Kumari, A.C to A.S.G.I.

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12/ Dated:-23/08/2023         Heard Mr. Saurabh Shekhar, learned counsel assisted by

Mr. Arun Kumar, learned counsel for the petitioner and Mr. Anil Kumar, learned

A.S.G.I. assisted by Ms. Chandana Kumari, A.C to A.S.G.I. appearing on behalf

of the C.B.I.

2. In the present petition prayer has been made for setting aside the

order dated 27.02.2020 by which the discharge petition filed by the petitioner

in relation to R.C.No.3(S)/2014-EOW-R was rejected by the learned Special

Judge, C.B.I pending in that learned court.

3. The F.I.R was registered alleging therein that in compliance of

the order dated 22.11.2013 passed by a Bench of this Hon'ble Court in

W.P.(PIL) No. 3718 of 2013 (Sima Devi Vs. State of Jharkhand and others),

having regard to the enormous amount involved in the alleged scam

committed by M/s Sanjeevani Buildcon Pvt. Ltd, an F.I.R, being Ormanjhi P.S.

Case No. 60 of 2012 dated 22.04.2012, registered against accused persons,

namely, Jayant Lal Nandi, Smt. Anamika Nandi, wife of S. Nandi, P.P. Lala,

Shyam Kishore Gupta, Abdul Bahab, Neeraj Singh, Prabhat Ranjan Tewari,

Sanjay Karn and Arvind Kumar Singh (All related to M/s Sanjeevani Buildcon

Pvt. Ltd.), was registered and taken for investigation by the CBI.

It has been alleged that the First Information. Report, being

Ormanjhi P.S. case No. 60/2012 dated 22.04.2012 was instituted on the basis

of written report of one Rakesh Kumar, wherein it has been alleged that the

accused persons conspired among themselves and pursuant to the said

conspiracy, dishonestly and fraudulently, cheated the informant/complainant

Rakesh Kumar and nine other buyers by way of illegal sale of plots of land

belonging to some other person in lieu of payment in the name of the

informant /complainant and nine others.

In the light of the above, Ormanjhi P.S. Case No. 60/2012 dated

22.04.2012 was re-registered as R.C. Case No. 03(S) of 2014-R dated

28.02.2014 (FIR No. 0932014S0003) for committing an offence punishable

under sections 120B/34, 406,420,467,471, and 202 of the Indian Penal Code

against the petitioner and others.

4. Learned counsel for the petitioner submits that chargesheet

bearing Chargesheet No. 2 of 2015 dated 30.06.2015 has been submitted

for the alleged offence under sections 120B read with section 420 of the I.P.C

and under section 13 (1) (d) of the Prevention of Corruption Act, 1988. He

submits that allegation is made against the petitioner who happens to be the

Circle Officer of Ormanjhi that the petitioner along with other accused has

done excess mutation excluding the land sold to the victim mentioned in the

F.I.R. out of total land of 88 decimals and excess mutation of land measuring

6.88 decimals, has been mutated dishonestly and fraudulently. He submits that

Sanjeevani Buildcon was authorized to get mutation of maximum 0.88

decimals of land and the allegations are there that the petitioner who was

Circle Officer of Ormanjhi had done 23 mutations of total measuring area of

159.33-3.44 decimals as sold again by the person who had purchased the

land from Sanjeevani Buildcon against 88 decimals. He submits that

investigation is faulty as the C.B.I. has not considered the nature and scope of

work and duties of the petitioner. He submits that the petitioner has only

discharged his duty and also mutated the land in question however the

petitioner has unnecessarily been made an accused. He relied in the case of

C.K.Jaffer Sharief v. State (Through CBI), (2013) 1 SCC 205. He

submits that the case of the petitioner is fully covered with the said judgment

of the Hon'ble Supreme Court. He submits that the learned trial court has not

appreciated the discharge petition in its right perspective and has dismissed

the petition mechanically. He submits that the camp was organized by the

Deputy Commissioner, Ranchi. He submits that in the camp the petitioner has

rejected about 100 cases however, he has mutated with regard to the present

case. He submits that the petitioner has already been put in trauma of the

trial.

5. Mr. Anil Kumar, learned ASGI appearing on behalf of the C.B.I

submits that identical issue has already been decided by this Court in Cr.

Revision No. 238 of 2020 and analogous cases on 03.08.2023. He submits that

this case is fit to be dismissed.

6. 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 petitioner who happened to be Circle Officer 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 petitioner which has been revealed in the charge

sheet. In the charge sheet the action of the petitioner has been discussed

elaborately. The learned counsel for the petitioner has also admitted in his

argument that petitioner has done excess mutation of the plot in question.

The question remains that as to whether in absence connivance of this

petitioner along with M/s Sanjeevani Buildcon Pvt. Ltd. the said mutation can

be done or not? It appears that Circle Inspector has also been charge sheeted

which suggests 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."

7. It is further well settled that 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."

8. The Hon'ble Supreme Court considered 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."

9. 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."

10. 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 ingredients or

not as has been held in the case of State of Karnataka v. M.R. Hiremath,

(2019) 7 SCC 515.

11. 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."

12. In the case of C.K.Jaffer Sharief (supra), relied by the

learned counsel for the petitioner, 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.

13. 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.

14. 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.

15. In view of the above facts, reasons and analysis the Court finds

that there is not illegality in the order dated 27.02.2020 by which discharge

petition has been rejected by the learned court and the identical issue has

already been decided by this Court in Cr. Revision No. 238 of 2020 along with

analogous cases by judgement dated 03.08.2023. No case of interference is

made out. Accordingly, this petition is dismissed. Pending I.A, if any, stands

dismissed.

( Sanjay Kumar Dwivedi, J.)

Satyarthi/A.F.R.