Jharkhand High Court
Nistar Minz vs The State Of Jharkhand Through ... on 29 August, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Revision No. 635 of 2021
Nistar Minz .......... Petitioner
Versus
The State of Jharkhand through Anti Corruption Bureau, Jharkhand
.......... Opposite Party
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. Rajiv Sinha, Advocate
Mr. Rohit Sinha, Advocate
Mr. Ajit Kumar, Advocate
Ms. Shreesha Sinha, Advocate
For the State : Mrs. Priya Shrestha, Spl. P.P.
25/Dated: 29/08/2023
Heard Mr. Rajiv Sinha, learned counsel for the petitioner and
Mrs. Priya Shrestha, learned counsel for the State.
2. I.A. No. 5979 of 2023 has been filed for quashing the order of
framing charge dated 09.12.2022. Mr. Rajiv Sinha submits that since this
petition is pending and the petitioner has no option, charge has been framed
in that view of the matter I.A. may be allowed.
3. Mrs. Priya Shrestha, learned counsel for the State got objection
on prayer made in I.A. and submits that at this stage that I.A. may not be
allowed as the charge has already been framed and petitioner is required to
face the trial.
4. In view of above submission of the learned counsel for the
parties and considering that the criminal revision petition is with regard to
discharge petition, is still pending and hearing on different dates were going on
and to avoid multiplicity of litigation prayer made in I.A. is allowed.
5. I.A. No. 5979 of 2023 stands allowed and disposed of.
6. Let the said I.A. be treated as part of the present criminal
revision petition.
7. This petition has been filed for quashing the order dated
09.03.2021 passed by the learned Special Judge, Anti-Corruption Bureau,
Ranchi in Discharge Petition being Misc. Criminal Application No. 584 of 2019
filed in connection with Vigilance P.S. Case No. 11/2009, corresponding to
Vigilance (Spl.) Case No. 15/2009, registered under sections 406, 409, 420,
423, 424, 465, 120B of the I.P.C. and Sections 11, 12, 13 and 15 of the
Prevention of Corruption Act, 1988, pending in the Court of learned Special
Judge, Anti-Corruption Bureau, Ranchi.
8. Mr. Rajiv Sinha, learned counsel for the petitioner submits that
the petitioner has filed an application for discharge in connection with
Vigilance Case bearing No. 11/2009 . He submits that the instant case was
registered on 07.07.2009 at Ranchi on the basis of the Complaint Petition
bearing No-02/2009 converted into Special case bearing No.-15/2009 arising
out of Vigilance case bearing No-11/2009. He further submits that allegations
are mainly in respect of supply of seeds by unknown institutions instead from
the Agriculture Universities in the year 2003 including the supply of Seeds
grains Jawar and Bazra vide letter No.-707 dated 20.05.2003 and further vide
letter no. 872 dated 21.06.2003. He submits that in the complaint petition
further it has been disclosed that work Order relating to the purchase of seeds
vide letter dated 02.09.2003 coupled with the allegation of the Financial Year
2004-2005, 2005-2006 and 2006-2007. He further submits that Agriculture
Business Centre was required to be developed and this scheme as alleged is of
the period 2005 and the Akasmik Fasal Yojna carried out vide letter dated
13.09.2005, by investing to the tune of Rs.2,20,44,200/- wherein, the said
scheme was never given to the farmer and the scheme as alleged is of the
period of 2005. He further submits that the allegation is referring to the year
2006 "Shankar Dhan Seed Kray Yojna" and the same was carried out pursuant
to the Government Order vide letter dated 23.06.2006. He submits that the
allegation is further made about the BEEJ BINIMAYAN KARYAKARAM. It has
further been alleged that the Purchase and Supply of Seeds of Vegetable and
Food Grains by the Firm named M/s NAFED and M/S NERAMAC. He further
submits that the allegation further refers to the Purchase and Supply order of
Shankar Dhan Seeds as well as the Scheme named "ZAIVIK KHETI VIKASH
YOGNA", clearly demonstrate that the said scheme was implemented vide letter
dated 16.06.2005. He further submits that the allegation is further with regard
to the Scheme named "ZAIVIK KHETI VIKASH YOGNA", in which as per the
contents of the relevant paragraph clearly demonstrate that the said scheme
was implemented vide letter 16.06.2005. He further submits that allegation
was further there of supply order given by the Accused No.-1 vide its office
order bearing dated 12.04.2007 to M/s NAFED and M/s NERAMAKE for supply
of Vegetable Seeds including the supply order relating to Paddy Seeds, HPS-III.
He draws the attention of the Court to the relevant paragraphs of the said
F.I.R.
9. Mr. Sinha, further submits that the petitioner took Charge as
Director, Agriculture, Government of Jharkhand, Ranchi vide Government
Notification dated 10.03.2007 and got retired from the said post on
28.02.2009. He submits that the entire allegations took place prior to the
petitioner taking charge as Director, Agriculture which cannot be attributed to
the petitioner. He further submits that another F.I.R. being Vigilance Case No.
12/2013 was registered in connection with fertilizer, burmi compost,
micronutrients and hand pumps in which the petitioner and others have also
been made accused. He submits that since the allegation according to the
petitioner was identical the petitioner moved before this Court in W.P.(Cr) No.
329 of 2017 wherein prayer was made for quashing of proceeding arising out of
Vigilance Case No 12 of 2013 on the ground that for the same offence Vigilance
Case No. 11/2009 was already registered and Co-ordinate Bench of this Court
by order dated 28.03.2022 considering the allegations of both cases have
come to the conclusion that both the cases were different and in view of that
refused to quash the proceeding of Vigilance Case No. 12 of 2013. He further
submits that the petitioner filed objection petition with regard to framing of
charge stating that the facts of the Vigilance Case No. 12/2013 is being
considered for framing of charge against the petitioner in the present case and
in view of that prayer was made for discharge of the petitioner. He further
submits that by the impugned order dated 09.03.2021 the learned court has
only recorded the submission of the petitioner as well as the submission of the
Special P.P. and without giving the finding on the objection made by the
petitioner has been pleased to reject the petition of discharge and directed to
frame the charge against the petitioner. He further submits that now the charge
has also been framed and for that I.A. No. 5979 of 2023 has been filed and
prayer is made for quashing the order framing charge. He submits that
however charge has been framed for foreign materials with regard to framing
charge in connection with Vigilance Case No. 11/2009. He further submits that
14 charges have been disclosed therein however 12 charges are with regard to
Vigilance Case No. 12/2013. He submits in view of that the learned court in a
routine way has framed charge that too on materials which was foreign to
the materials in Vigilance P.S. Case No. 11/2009. He draws the attention of
the Court to the Anneuxre-5 which are different orders passed by the learned
court with regard to discharge petition. He further submits that on several
dates the matter was adjourned on the submission of the learned Spl. P.P with
regard to clear report of final investigation however, the same was not
presented which has been recorded in different ordersheets contained in
Annexure-5. In these backgrounds he submits that when the materials were
foreign to the case in hand, the learned court without applying its judicial mind
has rejected the petition and framed the charge. He submits that if such facts
are there the High Court while exercising its power under the revisional
jurisdiction can pass appropriate order. He further submits that chargesheet is
contained at page 163 of the criminal revision petition. He further submits that
chargesheet was submitted in the present case on 06.01.2012 but the learned
court in the impugned order has considered para 380 of the case diary and the
facts of that para relates to Vigilance Case No. 12/2013 wherein he was
passing order with regard to Vigilance Case No. 11/2009 and facts of Vigilance
Case No. 12/2013 has been brought in present case. In this background he
submits that the entire exercise made by the learned court is abuse of process
of the law and once this is proved the High Court can exercise its power in the
revisional jurisdiction. He further submits that if such a situation is there the
High Court can exercise its power and to buttress this argument, he relied in
the case of "Sanjay Kumar Rai Vs. State of Uttar Pradesh & Anr."
Criminal Appeal 472 of 2021 arising out of Special Leave Petition
(Crl.) No. 10157 of 2019 wherein para 12, 13, 15, 16 and 18 it has been
held as under:-
"12. At the outset, we may note that the High Court has dismissed the Criminal Revision
on the ground of lack of jurisdiction under Section 397 of Cr.P.C. The High Court did not
examine the issue in detail to find out whether the continuation of proceedings will
amount to abuse of process of law in this case. The impugned order cites the decision of
this Court in Asian Resurfacing (supra) wherein it was noted as under:--
"...Thus, we declare the law to be that order framing charge is not purely an interlocutory
order nor a final order. Jurisdiction of the High Court is not barred irrespective of the
label of a petition, be it under Sections 397 or 482 CrPC or Article 227 of the Constitution.
However, the said jurisdiction is to be exercised consistent with the legislative policy to
ensure expeditious disposal of a trial without the same being in any manner hampered.
Thus considered, the challenge to an order of charge should be entertained in a rarest of
rare case only to correct a patent error of jurisdiction and not to re-appreciate the
matter."
13. It appears to us that while limiting the scope of a criminal revision to jurisdictional
errors alone, the High Court apparently under-appreciated the Judgment in Asian
Resurfacing (supra). We say so at least for two reasons. First, the material facts in the
above-cited case dealt with a challenge to the charges framed under the Prevention of
Corruption Act, 1988 ("POCA"). The cited judgment itself enlightens that not only is POCA
a special legislation, but also contains a specific bar under Section 19 against routine
exercise of revisional jurisdiction. Second, This Court in Asian Resurfacing (Supra) while
expressing concern regarding the need to tackle rampant pendency and delays in our
criminal law system, followed the ratio laid down in an earlier decision in Madhu
Limaye v. State of Maharashtra4 as can be seen from the following extract:
"27. Thus, even though in dealing with different situations, seemingly conflicting
observations may have been made while holding that the order framing charge was
interlocutory order and was not liable to be interfered with under Section 397(2) or even
under Section 482 CrPC, the principle laid down in Madhu Limaye [Madhu Limaye v. State
of Maharashtra, (1977) 4 SCC 551 : 1978 SCC (Cri) 10] still holds the field. Order framing
charge may not be held to be purely an interlocutory order and can in a given situation
be interfered with under Section 397(2) CrPC or 482 CrPC or Article 227 of the
Constitution which is a constitutional provision but the power of the High Court to
interfere with an order framing charge and to grant stay is to be exercised only in a
exceptional situation."(emphasis supplied)
15. The correct position of law as laid down in Madhu Limaye (supra), thus, is that
orders framing charges or refusing discharge are neither interlocutory nor final in nature
and are therefore not affected by the bar of Section 397 (2) of CrPC. That apart, this
Court in the above-cited cases has unequivocally acknowledged that the High Court is
imbued with inherent jurisdiction to prevent abuse of process or to secure ends of justice
having regard to the facts and circumstance of individual cases. As a caveat it may be
stated that the High Court, while exercising its afore-stated jurisdiction ought to be
circumspect. The discretion vested in the High Court is to be invoked carefully and
judiciously for effective and timely administration of criminal justice system. This Court,
nonetheless, does not recommend a complete hands off approach. Albeit, there should
be interference, may be, in exceptional cases, failing which there is likelihood of serious
prejudice to the rights of a citizen. For example, when the contents of a complaint or the
other purported material on record is a brazen attempt to persecute an innocent person,
it becomes imperative upon the Court to prevent the abuse of process of law.
16. Further, it is well settled that the trial court while considering the discharge
application is not to act as a mere post office. The Court has to sift through the evidence
in order to find out whether there are sufficient grounds to try the suspect. The court has
to consider the broad probabilities, total effect of evidence and documents produced and
the basic infirmities appearing in the case and so on. [Union of India v. Prafulla Kumar
Samal5]. Likewise, the Court has sufficient discretion to order further investigation in
appropriate cases, if need be.
18. The High Court has committed jurisdictional error by not entertaining the revision
petition on merits and overlooking the fact that 'discharge' is a valuable right provided to
the accused. In line with the fact that the High Court and the court below have not
examined the fairness of criminal investigation in this case and other related aspects
concerning improvement of witness statements, it is necessary for the High Court to
reconsider the entire matter and decide the revision petition afresh. Accordingly, we set
aside the impugned order dated 28.11.2018 and remand the case back to the High Court
for its reconsideration in accordance with law."
10. Relying on said judgment, he submits that the Hon'ble Supreme
Court has been pleased to interfere holding that the High Court has committed
error by not exercising its power for discharge. He further submits that the
learned court has come to the prima facie conclusion of charge against the
petitioner without weighing the circumstances as well as the evidences and if
such a situation is there the Court can entertain the petition. He relied in the
case of "Union of India Vs. Prafulla Kumar Samal and Another" (1979)
3 SCC 4 wherein para 3, 5, 8 and 10 it has been held as under:-
"3. The short point which arises for determination in this case is the scope and ambit
of an order of discharge to be passed by a Special Judge under Section 227 of the
Code. The appeal does not raise any new question of law and there have been several
authorities of the High Courts as also of this Court on the various aspects and grounds
on which an accused person can be discharged, but as Section 227 of the Code is a
new section and at the time when the application for special leave was filed, there
was no direct decision of this Court on the interpretation of Section 227 of the Code,
the matter was thought fit to be given due consideration by this Court.
5. Before interpreting and analysing the provisions of Section 227 of the Code so far
as pure sessions trials are concerned, two important facts may be mentioned. In the
first place, the Code has introduced substantial and far-reaching changes in the Code
of 1898 as amended in 1955 in order to cut out delays and simplify the procedure, has
dispensed with the procedure for commitment enquiries referred to in Sections 206 to
213 of the Code of 1898 and has made commitment more or less a legal formality.
Under the previous Code of 1898 the Magistrate was enjoined to take evidence of the
prosecution witnesses after giving opportunity to the accused to cross-examine the
witnesses and was then required to hear the parties and to commit the accused to the
Court of Session unless he chose to act under Section 209 and found that there was
no sufficient ground for committing the accused person for trial. Under the Code the
Committing Magistrate has been authorised to peruse the evidence and the
documents produced by the police and commit the case straightaway to the Sessions
Court if the case is one which is exclusively triable by the Sessions Court. Thus, it
would appear that the legislature while dispensing with the procedure for commitment
enquiry under the Code of 1898 has conferred a dual responsibility on the trial Judge
who has first to examine the case on the basis of the statement of witnesses recorded
by the police and the documents filed with a view to find out whether a prima facie
case for trial has been made out and, then if such a case is made out to proceed to
try the same. In our view the legislature has adopted this course in order to avoid
frivolous prosecutions and prevent the accused from being tried of an offence on
materials which do not furnish a reasonable probability of conviction. In the instant
case, as the offences alleged to have been committed by the respondents fall within
the provisions of the Act, the Special Judge has been substituted for the Sessions
Judge, the procedure of the Sessions Court having been applied fully to the trial of
such cases. Thus, it is manifest that the accused has got only one opportunity and
that too before the Sessions Judge for showing that no case for trial had been made
out. This was obviously done to expedite the disposal of the criminal cases.
8. The scope of Section 227 of the Code was considered by a recent decision of this
Court in the case of State of Bihar v. Ramesh Singh [(1977) 4 SCC 39 : 1977 SCC (Cri)
533 : (1978) 1 SCR 257] where Untwalia, J., speaking for the Court observed as
follows:
"Strong suspicion against the accused, if the matter remains in the region of
suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But
at the initial stage if there is a strong suspicion which leads the Court to think that
there is ground for presuming that the accused has committed an offence then it is
not open to the Court to say that there is no sufficient ground for proceeding against
the accused. The presumption of the guilt of the accused which is to be drawn at the
initial stage is not in the sense of the law governing the trial of criminal cases in
France where the accused is presumed to be guilty unless the contrary is proved. But
it is only for the purpose of deciding prima facie whether the Court should proceed
with the trial or not. If the evidence which the Prosecutor proposes to adduce to prove
the guilt of the accused even if fully accepted before it is challenged in cross-
examination or rebutted by the defence evidence, if any, cannot show that the
accused committed the offence, then there will be no sufficient ground for proceeding
with the trial."
This Court has thus held that whereas strong suspicion may not take the place of the
proof at the trial stage, yet it may be sufficient for the satisfaction of the Sessions
Judge in order to frame a charge against the accused. Even under the Code of 1898
this Court has held that a committing Magistrate had ample powers to weigh the
evidence for the limited purpose of finding out whether or not a case of commitment
to the Sessions Judge has been made out.
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."
11. He further submits that the High Court is entitled to go into reasons
given by the Sessions Judge in support of his order and to determine for itself
whether order is justified in the facts and circumstances of the case or not,
thereafter only the conclusion can be drawn and to buttress his argument he
relied in the case of "State of Karnataka Vs. L. Muniswamy and others "
(1977) 2 SCC 699, wherein para 7 to 11 it has been held as under:-
"7. The second limb of Mr Mookerjee's argument is that in any event the High Court
could not take upon itself the task of assessing or appreciating the weight of material
on the record in order to find whether any charges could be legitimately framed against
the respondents. So long as there is some material on the record to connect the
accused with the crime, says the learned counsel, the case must go on and the High
Court has no jurisdiction to put a precipitate or premature end to the proceedings on
the belief that the prosecution is not likely to succeed. This, in our opinion, is too broad
a proposition to accept. Section 227 of the Code of Criminal Procedure, 2 of 1974,
provides that:
"If, upon consideration of the record of the case and the documents submitted
therewith, and after hearing the submissions of the accused and the prosecution in this
behalf, the Judge considers that there is not sufficient ground for proceeding against
the accused, he shall discharge the accused and record his reasons for so doing."
This section is contained in Chapter 18 called "Trial Before a Court of Session". It is
clear from the provision that the Sessions Court has the power to discharge an accused
if after perusing the record and hearing the parties he comes to the conclusion, for
reasons to be recorded, that there is not sufficient ground for proceeding against the
accused. The object of the provision which requires the Sessions Judge to record his
reasons is to enable the superior court to examine the correctness of the reasons for
which the Sessions Judge has held that there is or is not sufficient ground for
proceeding against the accused. The High Court therefore is entitled to go into the
reasons given by the Sessions Judge in support of his order and to determine for itself
whether the order is justified by the facts and circumstances of the case. Section 482 of
the New Code, which corresponds to Section 561-A of the Code of 1898, provides that:
"Nothing in this Code shall be deemed to limit or affect the inherent powers of the High
Court to make such orders as may be necessary to give effect to any order under this
Code or to prevent abuse of the process of any Court or other wise to secure the ends
of justice."
In the exercise of this wholesome power, the High Court is entitled to quash a
proceeding if it comes to the conclusion that allowing the proceeding to continue would
be an abuse of the process of the Court or that the ends of justice require that the
proceeding ought to be quashed. The saving of the High Court's inherent powers, both
in civil and criminal matters, is designed to achieve a salutary public purpose which is
that a court proceeding ought not to be permitted to degenerate into a weapon of
harassment or persecution. In a criminal case, the veiled object behind a lame
prosecution, the very nature of the material on which the structure of the prosecution
rests and the like would justify the High Court in quashing the proceeding in the interest
of justice. The ends of justice are higher than the ends of mere law though justice has
got to be administered according to laws made by the legislature. The compelling
necessity for making these observations is that without a proper realisation of the
object and purpose of the provision which seeks to save the inherent powers of the
High Court to do justice, between the State and its subjects, it would be impossible to
appreciate the width and contours of that salient jurisdiction.
8. Let us then turn to the facts of the case to see whether the High Court was justified
in holding that the proceedings against the respondents ought to be quashed in order
to prevent abuse of the process of the court and in order to secure the ends of justice.
We asked the State counsel time and again to point out any data or material on the
basis of which a reasonable likelihood of the respondents being convicted of any
offence in connection with the attempted murder of the complainant could be
predicated. A few bits here and a few bits there on which the prosecution proposes to
rely are woefully inadequate for connecting the respondents with the crime, howsoever
skilfully one may attempt to weave those bits into a presentable whole. There is no
material on the record on which any tribunal could reasonably convict the respondents
for any offence connected with the assault on the complainant. It is undisputed that the
respondents were nowhere near the scene of offence at the time of the assault. What is
alleged against them is that they had conspired to commit that assault. This, we think,
is one of those cases in which a charge of conspiracy is hit upon for the mere reason
that evidence of direct involvement of the accused is lacking. We have been taken
through the statements recorded by the police during the course of investigation and
the other material. The worst that can be said against the respondents on the basis
thereof is that they used to meet one another frequently after the dismissal of Accused
1 and prior to the commission of the assault on the complainant. Why they met, what
they said, and whether they held any deliberations at all, are matters on which no
witness has said a word. In the circumstances, it would be a sheer waste of public time
and money to permit the proceedings to continue against the respondents. The High
Court was therefore justified in holding that for meeting the ends of juslicc the
proceedings against the respondents ought to be quashed.
9. Learned counsel for the State Government relies upon a decision of this Court in R.P.
Kapur v. State of Punjab [(1960) 3 SCR 388 : AIR 1960 SC 866 : (1961) 1 SCJ 59 : 1960
CrLJ 1239] in which it was held that in the exercise of its inherent jurisdiction under
Section 561-A of the Code of 1898, the High Court cannot embark upon an enquiry as
to whether the evidence in the case is reliable or not. That may be so. But in the instant
case the question is not whether any reliance can be placed on the veracity of this or
that particular witness. The fact of the matter is that there is no material on the record
on the basis of which any tribunal could reasonably come to the conclusion that the
respondents are in any manner connected with the incident leading to the prosecution.
Gajendragadkar, J., who spoke for the Court in Kapur case observes in his judgment
that it was not possible, desirable or expedient to lay down any inflexible rule which
would govern the exercise of the High Court's inherent jurisdiction. The three instances
cited in the judgment as to when the High Court would be justified in exercising its
inherent jurisdiction are only illustrative and can in the very nature of things not be
regarded as exhaustive. Considerations justifying the exercise of inherent powers for
securing the ends of justice naturally vary from case to case and a jurisdiction as
wholesome as the one conferred by Section 482 ought not to be encased within the
strait-jacket of a rigid formula.
10. On the other hand, the decisions cited by learned counsel for the respondents
in Vadilal Panchal v. D.D. Ghadigaonkar [AIR 1960 SC 1113 : 1960 Cri LJ 1499 : 62 Bom
LR 915] and Century Spinning & Manufacturing Co. v. State of Maharashra [AIR 1972
SC 545 : 1972 Cri LJ 3291972 SCC (Cri) 495] show that it is wrong to say that at the
stage of framing charges the court cannot apply its judicial mind to the consideration
whether or not there is any ground for presuming the commission of the offence by the
accused. As observed in the latter case, the order framing a charge affects a person's
liberty substantially and therefore it is the duty of the court to consider judicially
whether the material warrants the framing of the charge. It cannot blindly accept the
decision of the prosecution that the accused be asked to face a trial. In Vadilal Panchal
case, Section 203 of the old Code was under consideration, which provided that the
Magistrate could dismiss a complaint if after considering certain matters mentioned in
the section there was in his judgment no sufficient ground for proceeding with the case.
To an extent Section 327 of the new Code contains an analogous power which is
conferred on the Sessions Court. It was held by this Court, while considering the true
scope of Section 203 of the old Code that the Magistrate was not bound to accept the
result of an enquiry or investigation and that he must apply his judicial mind to the
material on which he had to form his judgment. These decisions show that for the
purpose of determining whether there is sufficient ground for proceeding against an
accused the court possesses a comparatively wider discretion in the exercise of which it
can determine the question whether the material on the record, if unrebutted, is such
on the basis of which a conviction can be said reasonably to be possible.
11. We are therefore in agreement with the view of the High Court that the material on
which the prosecution proposes to rely against the respondents is wholly inadequate to
sustain the charge that they are in any manner connected with the assault on the
complainant. We would, however, like to observe that nothing in our judgment or in the
judgment of the High Court should be taken as detracting from the case of the
prosecution, to which we have not applied our mind, as against Accused 1 to 9. The
case against those accused must take its due and lawful course."
12. He further submits that if prima-facie there is nothing which affixes
culpability or constitutes commission of offence including mens-rea on the part
of the petitioner, the Court can exercise its power. He further relied in the case
of "Pushpendra Kumar Sinha V. State of Jharkhand" "2022 SCC Online
SC 1069 wherein para 13,16, 18 and 19 it has been held as under:-
"13. The perusal of material indicates that because it was difficult for the
JSEB to implement the award due to financial difficulty, a roving and fishing enquiry was
conducted, in consequence of which, Secretary, JSEB vide letter dated 30.07.2010 and
Smt. Rajbala Verma (then Vigilance Commissioner) vide letter dated 03.09.2010,
requested the DGP, Vigilance Bureau to register an FIR against the Appellant. We fail to
understand as to why the same person, who had approved the implementation of award
as a member of the Board, had later as Vigilance Commissioner, recommended initiation
of prosecution against the Appellant, who had merely prepared the agenda for
appointment of an arbitrator and had nothing to do with the approval of the award and
payment of money. In view of the aforesaid, if at all any culpability had to be assigned, it
should have been assigned after examining the role of senior authorities who were
involved in the decision-making process. Astonishingly, most of the senior officials, who
approved various decisions regarding extension of time, appointment of arbitrator and
implementation of arbitration award and consequent payment to RPCL have not been
arrayed as accused. In our considered view, prima-facie there is nothing which affixes
culpability or constitutes commission of offence including mens-rea on the part of the
Appellant. It seems that an attempt has been made to implicate the Appellant for the
decisions in which prima-facie, he did not have any role to play, nor do his acts establish
any culpability regarding the alleged offences.
16. The High Court quashed the criminal proceedings against Umesh Kumar with the
above said observations. Assailing the same, Special Leave Petition (Criminal) No. 4062 of
2017, was filed by the State of Jharkhand, which was dismissed by this Court vide order
dated 05.02.2020, after condoning the delay. As per the FIR allegations, it is alleged that
Umesh Kumar and the present Appellant had made the payment of Rs. 4,89,24,788/-
against the gross value of Rs. 7,89,84,826/- without approval of the competent authority.
In this regard, the allegation against the Appellant is that he suggested that part
payment of the arbitral award may be made to RPCL from the working fund, on
refundable basis since there was no fund available in the Power Finance Corporation
Account. It is not the case of the prosecution that the Appellant had made payment to
the agency. However, it can be inferred that the Appellant has suggested the possible
mode of payment in furtherance of the Board's office order no. 243 dated 16.03.2006,
after passing of the arbitral award which was required to be paid alongwith interest, but
to satisfy the award by noting, the said suggestion was made. In our view, this itself is
not sufficient to implicate the Appellant. In addition thereto, it is most pertinent that even
on such a suggestion, the payments were not made from the working fund, rather, part
payment of the award was made from the loan taken from Power Finance Corporation on
the recommendation of Umesh Kumar, against whom criminal proceedings have been
quashed as indicated hereinabove and the said order has not been interfered with by this
Court.
18. It is a well settled law that at the time of framing of the charges, the probative value
of the material on record cannot be gone into but before framing of charge the Court
must apply it's judicial mind on the material placed on record and must be satisfied that
the commission of offence by the accused was possible. Indeed, the Court has limited
scope of enquiry and has to see whether any prima-facie case against the accused is
made out or not. At the same time, the Court is also not expected to mirror the
prosecution story, but to consider the broad probabilities of the case, weight of prima-
facie evidence, documents produced and any basic infirmities etc. In this regard the
judgment of "Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4" can be profitably
referred for ready reference. Having due regard to the documents placed before us and
in the light of the submissions and discussion made above, we are of the considered view
that sufficient grounds casting a grave suspicion on the Appellant, do not exist. It is
observed that the ingredients of alleged offences cannot be prima-facie established
against the Appellant as neither had he been entrusted with funds of JSEB nor he had
fraudulently or dishonestly deceived senior officials of the JSEB to cause any benefit to
RPCL or any wrongful loss to JSEB and no evidence of illegal gratification or
disproportionate assets has been found against the Appellant.
19. In view of the foregoing discussion, we are of the considered opinion that the High
Court erred in refusing to exercise the revisional powers vested in it under Sections 397
and 401 of the Cr.P.C. and dismissing the criminal revision preferred by the Appellant. In
the facts and circumstances of the case as discussed, the inescapable conclusion that can
be drawn in this case that ingredients of the alleged offences are not prima-facie made
out against the Appellant. Therefore, we deem it fit to allow the instant appeal and set-
aside the impugned order. Consequently, the Appellant is discharged in the criminal
proceedings arising out of Special Case No. 02 of 2011."
13. Mr. Sinha further submits that if the Court comes to the conclusion
that in absence of any application of judicial mind to factual and legal
controversy involved, the said order has been passed, the Court can interfere.
He relied in the case of "Central Board of Trustees Vs. Indore Composite
Private Limited" (2018) 8 SCC 443 wherein para 11, 14, 15 and 16 the
Hon'ble Supreme Court has held as under:-
" 11. After setting out the facts, the Division Bench proceeded to dispose of
the writ petition with the following observations in its concluding paragraphs which read
as under: (EPFO case [EPFO v. Indore Composite (P) Ltd., 2017 SCC OnLine MP 1864] ,
SCC OnLine MP paras 9-11)
"9. On due consideration of the aforesaid on the basis of the fresh documents and
affidavit for taking additional documents on record, we cannot direct the establishment to
pay damages for the period from March 2006-April 2010 when all these objections were
not taken before the learned Tribunal.
10. Considering the aforesaid, we are of the view that the order passed by the learned
Tribunal is just and proper and no case for interference with the impugned order is
warranted.
11. The writ petition filed by the petitioner has no merit and is accordingly
dismissed."
(emphasis supplied)
14. Time and again, this Court has emphasised on the courts the need to pass
reasoned order in every case which must contain the narration of the bare facts of the
case of the parties to the lis, the issues arising in the case, the submissions urged by the
parties, the legal principles applicable to the issues involved and the reasons in support of
the findings on all the issues arising in the case and urged by the learned counsel for the
parties in support of its conclusion. It is really unfortunate that the Division Bench failed
to keep in mind these principles while disposing of the writ petition. Such order, in our
view, has undoubtedly caused prejudice to the parties because it deprived them to know
the reasons as to why one party has won and other has lost. We can never countenance
the manner in which such order was passed by the High Court which has compelled us to
remand the matter to the High Court for deciding the writ petition afresh on merits.
15. In the light of the foregoing discussion, we allow the appeal, set aside the
impugned order and remand the case to the Division Bench of the High Court for
deciding the writ petition afresh on merits in accordance with law keeping in view our
observations made supra. We, however, make it clear that we have refrained from
making any observation on merits of the controversy having formed an opinion to
remand the case to the High Court for the reasons mentioned above. The High Court
would, therefore, decide the writ petition, uninfluenced by any of our observations,
strictly in accordance with law.
16. With the aforesaid directions, the appeal is accordingly allowed and the impugned
order [EPFO v. Indore Composite (P) Ltd., 2017 SCC OnLine MP 1864] is set aside."
14. Relying on the said judgment, he submits that the learned court
has erred in rejecting the petition filed by the petitioner with regard to the
discharge and he has not made out any objection filed by the petitioner and
has passed the order and further has been pleased to frame charge that too on
foreign materials out of 14 charges 12 are of different case. He submits that
the petitioner may be discharged and order framing charge may kindly be
quashed.
15. Per contra, Mrs. Priya Shrestha, learned counsel for the
respondent-State submits that in view of order framing charge by the learned
court by order dated 09.12.2022, the resent criminal revision petition has
become infructuous. She submits that what has been argued by the learned
counsel for the petitioner cannot be subject matter of petition considering the
discharge. She submits that the Vigilance Case No. 11/2009 period of
allegations are w.e.f. 2003 to 2009 and in Vigilance Case No. 12/2013 the
period of offences are said to be 2007 to 2009. She submits that the accused
persons in both the cases, some are same however some are different. She
submits that conspiracy in both the cases are different, nature of conspiracy is
different, source of money is same, chargehseet has been submitted and
charge has been framed. She submits that in view of well settled law that High
Court is not required to roam into at this stage and come to the conclusion
that the case of discharge is made out. To buttress this argument she relied in
the case of " Munna Devi Vs. State of Rajasthan and Another" (2001) 9
SCC 631, wherein para 3 and 4 it has been held as under;-
"3. We find substance in the submission made on behalf of the appellant. The
revision power under the Code of Criminal Procedure cannot be exercised in a routine
and casual manner. While exercising such powers the High Court has no authority to
appreciate the evidence in the manner as the trial and the appellate courts are
required to do. Revisional powers could be exercised only when it is shown that there
is a legal bar against the continuance of the criminal proceedings or the framing of
charge or the facts as stated in the first information report even if they are taken at
the face value and accepted in their entirety do not constitute the offence for which
the accused has been charged. This Court in Kanti Bhadra Shah v. State of
W.B. [(2000) 1 SCC 722 : 2000 SCC (Cri) 303] has held that there is no legal
requirement for the trial court to write a reasoned or lengthy order for framing the
charges.
4. In the instant case the learned Judge ignored the basic principles which conferred
the jurisdiction upon the High Court for exercise of revisional powers. It was
premature for the High Court to say that the material placed before the trial court was
insufficient for framing the charge or that the statement of the prosecutrix herself was
not sufficient to proceed further against the accused-respondent."
16. Relying on the said judgment she submits that at this stage the
High Court is not required to appreciate the evidence in the manner as the
trial is going on. She further submits that if the prima facie material is there
while considering the discharge petition only requirement is to find out prima
facie case of proceeding against the accused. To buttress this argument, she
relied in the case of "State of Tamil Nadu Vs. N. Suresh Rajan and
Others" (2014) 11 SCC 709 wherein para 30, 32.2 and 32.4 it has been held
as under:-
30. Reference in this connection can be made to a recent decision of this Court
in Sheoraj Singh Ahlawat v. State of U.P. [(2013) 11 SCC 476 : (2012) 4 SCC (Cri) 21 :
AIR 2013 SC 52] , in which, after analysing various decisions on the point, this Court
endorsed the following view taken in Onkar Nath Mishra v. State (NCT of Delhi) [(2008)
2 SCC 561 : (2008) 1 SCC (Cri) 507] : (Sheoraj Singh Ahlawat case [(2013) 11 SCC 476
: (2012) 4 SCC (Cri) 21 : AIR 2013 SC 52] , SCC p. 482, para 15)
"15. '11. It is trite that at the stage of framing of charge the court is required to
evaluate the material and documents on record with a view to finding out if the facts
emerging therefrom, taken at their face value, disclosed the existence of all the
ingredients constituting the alleged offence. At that stage, the court is not expected to
go deep into the probative value of the material on record. What needs to be
considered is whether there is a ground for presuming that the offence has been
committed and not a ground for convicting the accused has been made out. At that
stage, even strong suspicion founded on material which leads the court to form a
presumptive opinion as to the existence of the factual ingredients constituting the
offence alleged would justify the framing of charge against the accused in respect of
the commission of that offence.' (Onkar Nath case [(2008) 2 SCC 561 : (2008) 1 SCC
(Cri) 507] , SCC p. 565, para 11)"
32.2. Similarly, accused N. Suresh Rajan has acquired properties disproportionate to his
known sources of income in the names of his father and mother.
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."
17. She further relied in the case of "Sajjan Kumar Vs. Central
Bureau of Investigation, (2010) 9 SCC 368. She refers to para 21, 24 and
40 of the said judgment which is quoted here-in-below:-
"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.
24. At the stage of framing of charge under Section 228 CrPC or while considering the
discharge petition filed under Section 227, it is not for the Magistrate or the Judge
concerned to analyse all the materials including pros and cons, reliability or
acceptability, etc. It is at the trial, the Judge concerned has to appreciate their
evidentiary value, credibility or otherwise of the statement, veracity of various
documents and is free to take a decision one way or the other.
40. Coming to the last submission about the various observations made by the High
Court, Mr Lalit pointed out that the observations/reference/conclusion in paras 64, 65,
69, 70, 72, 73 and 50 are not warranted. According to him, to arrive at such
conclusion the prosecution has not placed relevant material. Even otherwise,
according to him, if the same are allowed to stand, the trial Judge has no other option
but to convict the appellant which would be against all canons of justice."
18. Relying on the said judgement, she submits that evidentiary value
cannot be considered at this stage and the argument advanced by the learned
counsel for the petitioner is subject matter of trial that cannot be a ground of
entertaining the present petition filed by the petitioner.
19. In view of above submissions of the learned counsel for the
parties, the Court has gone through the contents of the document annexed
with the criminal revision, counter-affidavit filed on behalf of the respondent-
State as well as supplementary affidavit and I.A. No. 5979 of 2023. It is an
admitted fact that there are two Vigilance cases against this petitioner. One is
with regard to Vigilance Case No. 11/2009 which is subject matter of the
present criminal revision and another is Vigilance Case No. 12/2013. The
allegation in the present case is with regard to seeds as has been discussed
hereinabove in the argument of the learned counsel for the petitioner. So far as
the Vigilance P.S. Case No. 12/2013 is concerned, the said case was with
respect to fertilizer, Burmi compost and micronutrients and the pump sets.
Admittedly, the petitioner has moved before this Court in connection with
Vigilance Case No. 12/2013 on the ground that the petitioner has already been
made accused in the Vigilance P.S. Case No. 11/2009 while after hearing both
the sides the coordinate Bench of this Court by order dated 28.03.2022 has
given a clear cut finding that both the cases are different and in view of that
prayer of the petitioner has been rejected and that order has attained the
finality as nobody has challenged the same in higher court. In view of that
there are two cases. It appears that the petitioner has filed objection with
regard to letter dated 17481 dated 13.12.2019 which was the basis of framing
charge against the petitioner and the said objection is on the record. The
petitioner took plea as under:-
SL. Details of allegations Objection Remarks
No. incorporated in letter no.
17481 dated 13.12.2019
1. Under the scheme of Relevant Police Doesn't form part
the Government Paper in relation of the police
16.05.2006, purchasing to the Purchase report filed in the
the Pump- sets, the committee, Not Vigilance Case No.
rates quoted by the supplied along 11/2009 Special
bidder in first tender with Police Paper. Case No. 15/2009,
was ignored and whereas it forms
purchases were made, part of Vigilance
on the higher price even Case No. 12/2013
by overlooking the Special Case No.
lowest price quoted. 13/2013 which is
still under
investigation,
2. Notice Inviting Tender was not Relevant Police Does not form
published in the Newspapers Paper in relation part of the police
leading to non-participation of to the Purchase report filed in the
level bidder Committee, Not Vigilance Case No.
supplied along 11/2009 Special
with police paper Case No. 15/2009,
3. Pump sets were supplied by Relevant Police Does not form
the supplier after the cutoff Paper in relation part of the police
date to the Purchase report filed in the
Committee, Not Vigilance Case No.
supplied along 11/2009 Special
with police paper Case No. 15/2009
4. Scheme was 1920 lacs and the Relevant Police Does not form
Minister exceeded the limit of Paper in relation part of the police
Financial power of 5 crores, to the Purchase report filed in the
without obtaining permission Committee, Not Vigilance Case No.
from the Government or supplied along 11/2009 Special
Cabinet/Council of Minister with police paper Case No. 15/2009
showing exercise
of such power by
the accused-
petitioner
5. Under the disaster Relevant records Forms part of the
management schemes, the showing decision police report filed
compensation was to be paid of the competent in the Vigilance
in the account by opening authorities to Case No. 11/2009
Bank Accounts. supply input is Special Case No.
ignored by the 15/2009 and due
Prosecution. reply already
submitted.
6. Seeds purchased without Relevant records Forms part of the
verifying the source of ignored by the police report filed
procurement by NAFED and Prosecution to in the Vigilance
NERAMAC fasten allegations. Case No. 11/2009
Special Case No.
15/2009 and due
reply already
submitted.
7. Flouting the Government Relevant records Does not form
guidelines to invite tender for dealing with the part of the police
purchasing articles above 50 subject in issues report filed in the
thousand, the purchases for have been Vigilance Case No.
1260 lacs were made. ignored by the 11/2009 Special
Prosecution and Case No. 15/2009
irresponsibility the
allegations of the
kind are made.
8. Without obtaining the Reiteration of Does not form
sanction/permission by the same and similar part of the police
council of Ministers, the charges as dealt report filed in the
purchases to the tune of 1230 in Para-4 of the Vigilance Case No.
lacs were made, while the allegations and 11/2009 Special
power of minister was only to relevant records Case No. 15/2009
the extent of 5 crores. ignored.
9. Before allotment of seeds to Relevant records Does not form
the farmer, the seeds were not dealing with the part of the police
sent for Laboratory tests. subject in issues report filed in the
have been Vigilance Case No.
ignored by the 11/2009 Special
Prosecution Case No. 15/2009
irresponsibly the
allegations of the
kind are made.
10. Sources of procurement of Reiteration of Does not form
supplied seeds by the same and similar part of the police
company named NAFED were charges as dealt report filed in the
not obtained, while the valid in para 4 of the Vigilance Case No.
source by the NERAMAC came allegations and 11/2009 Special
to light. relevant records Case No. 15/2009
ignored.
11. NAFED and NERAMAC are not Reiteration of Does not form
seed producing company same and similar part of the police
rather is multinational co- allegations which report filed in the
operative society and as such, is contrary to the Vigilance Case No.
it would not be prudent to say records and the 11/2009 Special
that they are government findings of Case No. 15/2009
institutions and without Hon'ble High
verifying it supply orders have Court has been
been issued. overlooked and
as such, the
allegations are
misconceived.
12. Rates were not obtained either Relevant records Does not form
before or after the purchase of dealing with the part of the police
seeds subject in issues report filed in the
have been Vigilance Case No.
ignored by the 11/2009 Special
Prosecution and Case No. 15/2009
irresponsibly the
allegations of the
kind are made.
13. Gentical test of the supplied Relevant records Does not form
seeds were not obtained dealing with the part of the police
subject in issues report filed in the
have been Vigilance Case No.
ignored by the 11/2009 Special
Prosecution and Case No. 15/2009
irresponsibly the
allegations of the
kind are made.
14. Verification form the Relevant records Does not form
Agriculture Department of dealing with the part of the police
Government of India regarding subject in issues report filed in the
the supplied Shankar seeds or have been Vigilance Case No.
certified seeds were not done ignored by the 11/2009 Special
as to whether they are fit to Prosecution and Case No. 15/2009
be sold in the market or to the irresponsibly the
farmers and who developed allegations of the
such seeds and got it notified. kind are made.
15. State orders being 64/65/66 Relevant records Does not form
dated 19.11.2007, which dealing with the part of the police
clearly mentions for purchase subject in issues report filed in the
lime/dolomite etc, from have been Vigilance Case No.
institutions of Govt. of India ignored by the 11/2009 Special
was later rectified and Prosecution and Case No. 15/2009
substituted with producing irresponsibly the
company. allegations of the
kind are made.
16. For benefitting the particular Baseless Does not form
company, in micronutrient, allegations part of the police
aquamin grade/nitrosulph was levelled with report filed in the
added. misconceived Vigilance Case No.
notion and 11/2009 Special
materials Case No. 15/2009
available on
record.
17. Aquamin was changed to Relevant records Does not form
Agromin Grade-2 after the dealing with the part of the police
State order was issued and subject in issues report filed in the
accused has also made his have been Vigilance Case No.
signature over the Memo ignored by the 11/2009 Special
dated 29.11/2007 Prosecution and Case No. 15/2009
irresponsibly the
allegations of the
kind are made.
18. Upon disclosure by the office Relevant records Does not form
that Nitrosulph is also brand of dealing with the part of the police
Aries Agrovet, the subject in issues report filed in the
amendments at many times have been Vigilance Case No.
in state orders were effected. ignored by the 11/2009 Special
Prosecution and Case No. 15/2009
irresponsibly the
allegations of the
kind are made.
19. Nistar Minz and Nalin Soren Record not Does not form
changed the term which were appreciated as part of the police
found to be in the interest of Nalin Soren was report filed in the
farmers by the Secretary and himself Minister Vigilance Case No.
the Ministers order was of Agriculture. 11/2009 Special
violated. Case No. 15/2009
20. Tender papers of Colonel Baseless Does not form
Binay was not opened. allegations part of the police
levelled with report filed in the
misconceived Vigilance Case No.
notion and 11/2009 Special
materials Case No. 15/2009
available on
record.
21. Order of supply under State Reiteration of Does not form
Order No. 05/06/07 dated same and similar part of the police
22/04/2008 was given to allegation in report filed in the
earlier supplier, while tender different outfit. Vigilance Case No.
was required to have been 11/2009 Special
through NIT Case No. 15/2009
22. Despite intention disclosed by Baseless Does not form
Colonel Binay to supply allegations part of the police
vermin compost at lower levelled with report filed in the
rates, supply orders were misconceived Vigilance Case No.
given to earlier supplier and notion and 11/2009 Special
loss to the ex-chequer was materials Case No. 15/2009
subjected. available on
record
23. Sri B.B. Mishra report declared Relevant records Does not form
the supplied fertilizers and dealing with the part of the police
organic manure/vermin subject in issues report filed in the
Compost/Neem Kitnasi etc. have been Vigilance Case No.
ignored by the 11/2009 Special
Prosecution and Case No. 15/2009
irresponsibly the
allegations of the
kind are made
24. Under State Scheme No. 2 Reiteration of Does not form
dated 31.05.2007, various same and similar part of the police
irregularities have been done allegation in report filed in the
by the accused different outfit. Vigilance Case No.
(1) M/s West Bengal and Relevant records 11/2009 Special
other had shown dealing with the Case No. 15/2009
interest for supply of subject in issues
seeds being have been
compatible with the ignored by the
climate of Jharkhand Prosecution and
to the tune of 3500 irresponsibly the
quintal by each firm allegations of the
and they informed kind are made.
KRH-2 being
unavailable in their
stock, still supply
orders were given to
these firms for
supplying Shankar
Dhan.
(2) Supply orders for
Shankar Dhan variety
HPS-III and DRRH-I
was given to NAFED
and NERAMAC vide
supply order dated
20.06.2007 without
recommendation of
Birsa Agriculture
University and both
the varieties were
non-suited to
Jharkhand Climatic
condition.
(3) NAFED and NERAMAC
are not Government
of India's Institution
and they got
registered as co-
operative Act and
both the companies
do not produce
seeds.
25. Under State Scheme No. Relevant records Does not form
17/18/19 dated 30.04.2008, dealing with the part of the police
by various means, the accused subject in issues report filed in the
have brought loss to the ex- including the Vigilance Case No.
chequer by the accused. purchase 11/2009 Special
1)In terms of file noting dated committee report Case No. 15/2009
29.05.2008, the then Minister and intentions/in
Sri Nalin Soren had ordered capacities
for supply of seeds from the disclosed by the
seed villages running under centers in
Government aid to save question have
transportation cost by Rs. 2 deliberately been
per kilogram but the accused ignored by the
person ordered for supply Prosecution and
without subtracting the said irresponsibly the
amount rather it was added in allegations of the
the supply order and loss of kind are made.
Rs. 200 per quintal was
brought to the ex-chequer.
2)Expression of Interest
invited by the Director,
mentioned the rate of IR-36
and IR-64 by the Birsa
Agriculture Univeresity, Kirsi
Vigyan Kendra, Palamu and
Dumka as Rs, 12,00 per
quintal, and ignoring the
amount so quoted by the
institute, supply orders were
issued in favour of private
institute for personal gain.
26. Unauthorized Air Travel Hon'ble High Does not form
Expenses Court's Order not part of the police
taken into report filed in the
consideration Vigilance Case No.
11/2009 Special
Case No. 15/2009
20. The Court has gone through the impugned order whereby discharge
petition of the petitioner has been rejected. The Court finds that the learned
court has been pleased to record the case and submission as well as argument
of the respondent-State and in one paragraph has stated looking into the
aforesaid facts there are sufficient materials for framing the charge against the
petitioner. The question remains when such objection was being taken on the
ground that the materials which are not subject matter of the chargesheet and
are foreign materials, the Court was justified in passing such order without
taking its objection or not. The answer is simple in view of the fact that it is
well settled that once a petition is filed the objection made there is required to
be dealt with in discharge petition, which is lacking in the case in hand. It
appears from the impugned order itself that the learned court has referred
paragraph 380 of the Case Diary No. 82 in the said order and it appears that
said paragraph 380 is with regard to the materials of Vigilance Case No.
12/2013 however, in the present case at para 380 it has been disclosed. The
question remains that if two cases are different why the learned court has
been pleased to take note of the facts of another case while considering the
discharge petition with regard to Vigilance Case No. 11/2009 which is apparent
error on the record. Paragraph 380 of the case diary are materials of facts of
Vigilance Case No. 12/2013 read with Memo No. 3143 dated 04.03.2020, it
appears that in the said paragraph 380 of case diary is of Vigilance Case No.
11/2009 but the materials which have been mentioned therein are of Vigilance
Case No. 12/2013 however the chargesheet has been submitted with regard to
seeds only. The learned court has considered the paragraph 380 of the case
diary which relates to fertilizer, burmi compost, micronutrients and hand
pumps which is not subject matter of the present case as the Co-ordinate
Bench of this High Court has held that there are two different cases. Thus,
these materials are foreign to subject matter of the present petition with
regard to Vigilance Case No. 11/2009. Further, it appears that the learned
court has been pleased to explain the charges against the petitioner by the
impugned order which has been brought on record by way of I.A. and in the
said 14 charges, 12 charges are with regard to another case being Vigilance
Case No. 12/2013. This aspect of the matter is further fortified in view of the
counter-affidavit filed by the respondent-State to the effect as contents of
paragraph 10 (a), (b), (c), (d), (n), (o), (p), (q), (r) and (t) are with regard to
Vigilance Case No. 12/2013. Thus, the said has also been admitted in the
counter-affidavit filed by the respondent-State. When there are two cases the
same cannot be a subject matter of framing of charge in one case and further
the investigation in Vigilance Case No. 12/2013 is not completed as yet and
chargesheet has not been submitted as yet. Thus, from the materials on
record, it is crystal clear that the materials which were not subject matter of
Vigilance Case No. 11/2009 and foreign to the said case, has been considered
by the learned court for rejecting the petition filed for discharge as well as of
framing of charge.
21. If such a situation is there whether the High Court exercising its
power under the revisional jurisdiction is competent to pass such order or not.
The answer is in affirmative as in the exercise of this wholesome power, the
High Court is entitled to quash a proceeding if it comes to the conclusion that
allowing the proceeding to continue would be an abuse of the process of the
law or for the ends of justice require that the proceeding ought to be quashed.
The said power is meant to achieve a salutary public purpose which is that a
court proceeding ought not to be permitted to degenerate into a weapon of
harassment or prosecution as has been held by the Hon'ble Supreme Court in
the cases relied by the learned counsel for the petitioner in 'Sanjay Kumar
Rai' (supra), 'Prafulla Kumar Samal (supra)', L. Muniswamy (supra),
'Pushpendra Kumar Sinha (supra)' and "Central Board of Trustrees"
(surpa) .
22. The cases relied by the learned counsel for the respondents are not
in dispute and it is well settled that for exercising power of discharge the
Court is not required to roam into and come to the conclusion that the case is
made out or not. The only prima facie materials is required to be considered
and this aspect of the matter has been considered by the Hon'ble Supreme
Court in the cases relied by the learned counsel for the respondent-State.
23. In the case in hand the materials and the proceeding as discussed
hereinabove clearly suggests that the foreign materials for rejecting the petition
for discharge and framing charge have been discussed. The objection filed by
the petitioner has not been met out by the learned court while rejecting the
petition filed for discharge.
24. Framing of charge is the first major step in a criminal trial where
the court is expected to apply its mind to the entire record and documents
placed therewith before the court. Taking cognizance of an offence has been
stated to necessitate an application of mind by the court but framing of charge
is a major event where the court considers the possibility of discharging the
accused of the offence with which he is charged or requiring the accused to
face trial. There are different categories of cases where the court may not
proceed with the trial and may discharge the accused or pass such other
orders as may be necessary keeping in view the facts of a given case. In a
case where upon considering the record of the case and documents submitted
before it, the court finds that no offence is made out or there is a legal bar to
such prosecution under the provisions of Cr.P.C. or any other law for the time
being in force and there is a bar and there exists no ground to proceed against
the accused, the court may discharge the accused.
25. Another well settled law is that revisional jurisdiction of the higher
court is very limited one and cannot be exercised in a routine manner. One of
the inbuilt restrictions is that it should not be against an interim or interlocutory
order. The court has to keep in mind that the exercise of revisional jurisdiction
itself should not lead to injustice ex facie. Where the court is dealing with the
question as to whether the charge has been framed properly and in accordance
with law in a given case, it may be reluctant to interfere in exercise of its
revisional jurisdiction unless the case substantially falls within the categories of
discharge. Even framing of charge is a much advanced stage in the proceedings
under the Cr.P.C. Normally, not required by the revisonal court.
26. It is well known that revisional jurisdiction exercised by the High
Court is in a way final and no inter court remedy is available in such cases. No
doubt, it may subject to jurisdiction of the Hon'ble Supreme Court under 136 of
the Constitution of India.
27. Normally a revisional jurisdiction should be exercised on a
question of law. However, when factual appreciation is involved, then it must
find place in the class of cases resulting in a perverse finding. Basically, the
power if required to be exercised so that justice is done and there is no abuse
of power by the court. Merely an apprehension or suspicion of the same would
not be a sufficient ground for interference in such cases.
28. The jurisdiction of the court under Section 397 read with Section
401 Cr.P.C. can be exercised so as to examine the correctness, legality or
propriety of an order passed by the trial court or the inferior court, as the case
may be. Though section 397 Cr.P.C. does not specifically use the expression
"prevent abuse of process of any court or otherwise to secure the ends of
justice ", the jurisdiction under section 397 Cr.P.C is a very limited one. The
legality, propriety or correctness of an order passed by a court is the very
foundation of exercise of jurisdiction under Section 397 Cr.P.C. but ultimately it
also requires justice to be done. The jurisdiction could be exercised where
there is palpable error, non-compliance with the provisions of law, the
decision is completely erroneous or where the judicial discretion is exercised
arbitrarily.
29. Coming to the facts of the present case as has been discussed
here-in-above and looking into the impugned order it transpires that the
learned court has not met out with the objection of the petitioner and
comparing the order framing charge with the counter affidavit filed by the
respondent-State, it appears that the materials with regard to Vigilance Case
No. 12/2013 was considered with regard to the present case which clearly
suggests that there is apparent error on the part of record.
30. In view of above facts, reasons and analysis the order dated
09.03.2021 by which discharge petition filed by the petitioner has been
rejected as well as order framing charge dated 09.12.2022 which has been
allowed by way of I.A, that is challenged in the present petition, are set aside.
31. The matter is remitted back to the learned court to pass afresh
order in accordance with law.
32. This petition stands allowed and disposed of. Pending I.A., if
any, stands disposed of.
(Sanjay Kumar Dwivedi, J.)
Satyarthi/A.F.R.
