Jharkhand High Court

Ravindra Kumar Xalxo @ Ravindra Kumar ... vs Union Of India Through C.B.I. ... ... ... on 2 February, 2024

Author: Sujit Narayan Prasad

Bench: Sujit Narayan Prasad

                                         Criminal Revision No.1294 of 2018
                                                 With
                                         Criminal Revision No.1295 of 2018
                                                 With
                                         Criminal Revision No.1298 of 2018
                         1

 IN THE HIGH COURT OF JHARKHAND AT RANCHI
           Criminal Revision No.1294 of 2018
                             -----

1. Ravindra Kumar Xalxo @ Ravindra Kumar Khalko aged about 39 years, son of Rijha Oraon, resident of Kamatoli Chowk, Buti Road, P.O. Ranchi University, P.S. Lalpur, District Ranchi.

2. Mani Ram Munda, aged about 39 years, son of Late Kandru Munda, resident of village Pundag P.O. Ormanjhi, P.S. Ormanjhi, District Ranchi.

3. Basant Kumar Mandal, aged about 44 years, son of Tarni Prasad Mandal, resident of Village Kuthnipathar, P.O. Mohanpur, P.S. Godda Muffasil, District Godda.

4. Amit Kumar Singh, aged about 39 years, son of Sh. Samar Pratap Singh, permanent resident of Housing Board Colony, P.O. + P.S. Barari, District Bhagalpur State- Bihar.

5. Chandan Kumar, aged about 42 years, son of Sri Parameshwar Mahato, permanent resident of village Mayaganj, P.O. Barari, P.S. Barari, District Bhagalpur (State-Bihar).

6. Dhananjay Kumar, aged about 34 years, son of Late Bhagwan Singh, permanent village + P.O. Baknaoura, P.S. Rohtas, District Rohtas, State- Bihar.

7. Dhankeshwar Nayak, aged about 40 years, son of Late Kallu Nayak, resident at Munat Patra Chakla, P.O. Chakla, P.S. Ormanjhi, District Ranchi.

8. Manoj Kumar Singh, aged about 45 years, son of late Kalika Singh, resident of village Pian P.O. Pian + P.S. Sohhan District Kaimur, State- Bihar.

9. Sanjay Kumar Munda, aged about 41 years, son of Late Ballu Munda, permanent resident of village Bankheta, P.O. Chutupalu, P.S. Ramgarh, District Ramgarh.

10. Rajendra Munda, aged about 42 years, son of Late Sitaram Munda, permanent resident of village Gabraiya, P.O. Nawadih, P.S. Bundu, District Ranchi.

11. Birendra Karmali, aged about 39 years, son of Bhuneshwar Karmali, resident of Village Simrabeda, P.O. Kander, P.S. Mahuatand, Bokaro.

12. Vinod Kumar Tigga, aged about 44 years, son of Late Jeevan Oraon, permanent resident of village Kanddeori, P.O. Shero, P.S. Narkopi, District Ranchi.

13. Sujit Kumar Singh @ Sujeet Kumar Singh, aged about 38 years, son of Baidyanath Singh, permanent village P.O. Surni, P.S. Mahagama, District Godda.

                                   ...    ...    Petitioners
                           Versus
Union of India through C.B.I.      ...    ...    Opp. Party
                                           Criminal Revision No.1294 of 2018
                                                  With
                                          Criminal Revision No.1295 of 2018
                                                  With
                                          Criminal Revision No.1298 of 2018


                          With
           Criminal Revision No.1295 of 2018
                             -----

Vikram Das, aged about 42 years, son of Late Arjun Das, R/o Village + P.O. Hussainabad, P.S. Debipur, District Deoghar and at present residing at Quarter no. H-79, Argora Housing Colony, P.O. Ashok Nagar, P.S. Argora, District-Ranchi, Jharkhand.

                                    ...    ...    Petitioner
                            Versus

The State through Central Bureau of Investigation (A.C.B.), Ranchi, having its local office at Kali Babu Street, PO-GPO, PS-Kotwali, Dist- Ranchi. ... ... Opp. Party With Criminal Revision No.1298 of 2018

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Rajiv Ranjan, aged about 42 years, son of Banarasi Mehra, R/o Village Logai, PO-Lataana, PS-Pathargama, District Godda (Jharkhand) and at present residing at Quarter no. H-79, Argora Housing Colony, P.O. Ashok Nagar, P.S. Argora, District-Ranchi, Jharkhand.

                                    ...    ...    Petitioner
                            Versus

The State through Central Bureau of Investigation (A.C.B.), Ranchi, having its local office at Kali Babu Street, PO-GPO, PS-Kotwali, Dist- Ranchi. ... ... Opp. Party

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CORAM:HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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For the Petitioner : Mr. R.S. Mazumdar, Sr. Advocate Mr. Nishant Kr. Roy, Advocate [In Cr. Rev. 1294/2018] Mr. Saket Upadhyay, Advocate [In Cr. Rev. 1295 & 1298/2018] For the Opp. Party : Mr. Anil Kumar, A.S.G.I.

------

nd Order No. 18/Dated 2 February, 2024

I.A. No. 11488 of 2018 & I.A. No. 11490 of 2018

1. The present interlocutory applications being I.A. No.

11488 of 2018 and I.A. No. 11490 of 2018 have been filed

on behalf of the petitioners seeking amendment of prayer in

the Criminal Revision No 1295 of 2018 and Criminal Criminal Revision No.1294 of 2018 With Criminal Revision No.1295 of 2018 With Criminal Revision No.1298 of 2018

Revision No 1298 of 2018 respectively, which are detailed

in paragraph 4 of the aforesaid interlocutory applications.

2. Having heard the learned counsel for the parties

and considering the fact that initially the aforesaid revision

applications were preferred by the petitioners challenging

the order dated 06.08.2018 passed by the learned court

refusing to discharge them and by way of the present

interlocutory applications, they have sought challenge to

the order dated 16.11.2018 framing charge against them by

the court, as such the amendment sought by the

petitioners by way of the present interlocutory applications

are hereby allowed.

3. The learned counsel for the petitioners, is directed

make necessary amendment in the relevant part of the

Criminal Revision No 1295 of 2018 and Criminal Revision

No 1298 of 2018.

4. Accordingly, I.A. No. 11488 of 2018 and I.A. No.

11490 of 2018 stand disposed of.

Criminal Revision 1294, 1295 and 1298 of 2018

5. Since all these criminal revision petitions arising

out of common F.I.R as well as discharge order therefore,

all these criminal revision petitions are heard together with

consent of the parties and disposed of by this common

order.

Criminal Revision No.1294 of 2018 With Criminal Revision No.1295 of 2018 With Criminal Revision No.1298 of 2018

6. The instant criminal revision petitions has been

filed under Section 397 read with Section 401 of the Code

of Criminal Procedure assailing the order dated 06.08.2018

and 16.11.2018 passed by the learned Special Judge, CBI,

Ranchi, in Misc. Criminal Application No.706, 707 and 708

of 218 in connection with R.C.10(A) 2012-R registered

under section 120B, 420, 468 and 471 of the Indian Penal

Code and under Section 13(2) read with Section 13(1)(d) of

Prevention of Corruption Act, 1988, whereby and

whereunder, the petitions filed for discharge of the

petitioners from the criminal liability has been rejected and

consequently order framing charge was passed by holding

therein that there is sufficient prima-facie material

available on record against the petitioners for the purpose

of framing of charge for the alleged offences.

Facts

7. The factual matrix leading to filing of the instant

case in brief reads as under:-

Earlier this case was instituted and registered as

Ranchi Sadar Vigilance P.S Case no. 11/2011 dated

26.04.11 for the offence punishable u/s 201, 409, 467,

468, 471, 474, 477A r/w 34, 109, 120B of IPC & u/s 13(2)

r/w 13(1) (d) of the P.C Act, 1988 on written report

submitted by informant Krishna Mohan Lal, Dy. S.P. cum

Officer In-charge, Vigilance Bureau, Ranchi vide his letter Criminal Revision No.1294 of 2018 With Criminal Revision No.1295 of 2018 With Criminal Revision No.1298 of 2018

dated 26.04.11 addressing to the Special Judge, Vigilance

Court, Ranchi alleging therein that for the appointment of

Assistant Engineer and Junior Engineer, he found the

certain irregularities committed by the Jharkhand Public

Service Commission (JPSC), Ranchi for which the Vigilance

Bureau, Ranchi vide P.E. No. 33/10 handed over the

investigation to one Dy. S.P Shambhu Nath Jha.

8. During investigation it has been found that for the

post of 160 Assistant Engineer and 226 post of Junior

Engineer, the result has been published and accordingly

sent to the concerned department for recommendation and

informant has supervised the investigation report, related

files and records, found several irregularities have been

done by overwriting in the final marks and further he found

against 145 vacant post of Assistant Engineer only 198

candidates has been called for interview rather as per the

rules there double or triple candidates should have to be

called for the interview and the then Chairman Radha

Govind Singh Nagesh and the members have taken their

own decision in written examination that those candidates

who have secured 40% marks in General Category, 35%

marks in Backward Category and 30 % marks in ST-SC

category would only be allowed for interview but the said

rule was not followed in the advertisement.

Criminal Revision No.1294 of 2018 With Criminal Revision No.1295 of 2018 With Criminal Revision No.1298 of 2018

9. He further found that Hindustan News Paper has

published the news of question leakage and as such

inquiry, the then Secretary has recommended for

cancellation of exam but such file was never put up before

the Vigilance Bureau and found in the serial no. 33 to 44

there was no signature of the members of the Board in the

interview chart for the Assistant Engineer and also from the

serial no. 44 to 55 in chart, there was no signature of the

expert II, although the charts were prepared on same date

on 23.03.2007 and further it was found that JPSC have

concealed the material evidence and tried to destroy the

same.

10. Accordingly, case was instituted by the Vigilance

Bureau and during the investigation of the same, vide order

dated 14.06.12 of the High Court of Jharkhand, Ranchi

passed in W.P (PIL) no. 3594/11 (Budhdeo Oraon V/s

State of Jharkhand & Others) directing CBI to take up

investigation of cases relating to JPSC scam being

investigated by the Vigilance Bureau, Jharkhand and

accordingly the said Vigilance P.S.Case No. 11/2011 dated

26.04.11, which was registered u/s 34, 109, 120B, 201,

409, 467, 468, 471, 474, 477A of the IPC and u/s 13(2) r/w

and 13(1) (d) of the P.C Act, 1988 against accused persons

namely Dilip Kumar Prasad, the then Chairman Gopal

Prasad Singh , Radha Govind Singh Nagesh, Shanti Devi, Criminal Revision No.1294 of 2018 With Criminal Revision No.1295 of 2018 With Criminal Revision No.1298 of 2018

the then members JPSC and Alice Usha Rani Singh, the

then Examination Controller cum Secretary, JPSC, was

taken over by the CBI.

11. Further it appears that after due investigation, the

matter was found true by the CBI against these petitioners

and others accused persons and accordingly, CBI

submitted charge sheet against them u/s 120B r/w 420,

468, 471 of the IPC and 13(2) r/w 13(1)(d) of P.C Act, 1988.

12. Accordingly, cognizance of alleged offence was taken

and thereafter a discharge petition was filed by the present

petitioners but the same was dismissed vide order dated

06.08.2018 and consequently vide order dated 16.11.2018

order framing charges was passed against these petitioners

which is assailed by way of these revision petitions.

Argument of the learned counsel for the petitioners

13. Learned counsel appearing on behalf of the

petitioners of criminal revision no. 1294 of 2018 has

submitted that petitioners are innocent and committed no

offence whatsoever alleged and has been falsely implicated

in this case and the charge sheet does not disclose an

offence per-se against the accused petitioners and further

no overt act as such attributed to any of the accused to

make any prima-facie case for charge.

14. It is further submitted that since the petitioners

were not public servants at the time of alleged offence Criminal Revision No.1294 of 2018 With Criminal Revision No.1295 of 2018 With Criminal Revision No.1298 of 2018

committed u/s 13(2) r/w 13(1)(d) of P.C. Act and the same

is not attracted against these petitioners and offence u/s

420, 468, 471, 120B of IPC has also not made out against

these petitioners.

15. It is further contended that admittedly the

Chairman of the Board were different in the case of

different aspirants and no link has been attributed in the

charge sheet or in any material on record to establish that

there was any connection between the petitioners and the

Chairman or other members of the board.

16. It is further argued that cut off marks attributed to

petitioners in the pages under reference in the charge sheet

is arbitrary and not supported by any valid document to

substantiate that the cut off marks was set out but rather

the cut off marks have been imposed by the prosecution

unilaterally without the backing of any authority and as

such the same is not tenable in law.

17. Learned counsel further tried to impress upon this

Court that over writings of the marks in the interview have

been interpreted wrongly as bare perusal of the same will

show that the same is a product/ outcome of human error

which the prosecution is misinterpreting for the purposes of

a case and petitioners have not committed any of the

offences for which cognizance has been taken and charges

were framed.

Criminal Revision No.1294 of 2018 With Criminal Revision No.1295 of 2018 With Criminal Revision No.1298 of 2018

18. It is further argued that in the light of aforesaid

facts and circumstances no offence can be said to have

committed by these petitioners and apparently further

prosecution against the petitioners are groundless and will

tantamount to extreme abuse of the process of the court as

such impugned orders required to be quashed and set

aside.

Argument of learned counsel for the petitioners of Criminal revision no.1295 of 2018 and 1298 of 2018

19. Learned counsel appearing on behalf of petitioner

Vikram Das (petitioner in Criminal revision 1295 of 2018)

and petitioner Rajiv Ranjan (petitioner in Criminal revision

1298 of 2018) submitted that they have been falsely

implicated in this case and no material evidence collected

against these petitioners by the I.O. and they were

implicated in this case on the basis of presumption that

they are the beneficiary of the alleged malpractice of over

writing of marks and further there is no evidence against

these petitioners in what manner they had influenced or

conspired with the member of the interview Board to

change and overwrite the marks.

20. It is further submitted that it is not known to the

petitioners why they have been made accused in the charge

sheet while leaving behind other selected candidates who

have been appointed as Assistant Engineers even though Criminal Revision No.1294 of 2018 With Criminal Revision No.1295 of 2018 With Criminal Revision No.1298 of 2018

against their names there are cuts and over writings in the

total marks similar to these petitioners.

21. It is further contended that there is no involvement

of these petitioners in the matter of preparation of

examination results and as a matter of fact, no mens-rea of

the petitioners are involved in the examination results and

there is nothing on record to show that there has been prior

meeting of minds with the named accused persons in the

FIR and hence, the petitioners are unnecessarily dragged in

the present case.

22. It is further canvassed that petitioners have applied

for the post advertised by the JPSC in response to the

advertisement as they were qualified and fulfilling the

requisite educational qualifications for the said examination

and petitioners appeared in the written examination held

by the Commission and having qualified in the written

examination, they were called for interview and there is no

allegation of manipulation or any bungling in the written

examination which clearly goes to show that petitioners are

genuine and meritorious candidates otherwise they would

not have qualified in the written examination.

23. It is further submitted that in the charge sheet it is

alleged that in the Assessment Chart of Interview,

tampering and overwriting have been found but

surprisingly nothing has been alleged in the charge sheet Criminal Revision No.1294 of 2018 With Criminal Revision No.1295 of 2018 With Criminal Revision No.1298 of 2018

that the petitioners have committed any overt act like

approaching the Chairman and members of the respective

interview boards or they have passed on any illegal

gratification to any of those persons for their selection.

24. It is further contended that no evidence of any

criminal conspiracy, abatement or causing concealment in

course of investigation against these petitioners and there

is no whisper in the entire charge-sheet that there is any

evidence and circumstances of the involvement or

culpability of the petitioner in hatching out any criminal

conspiracy with the Chairman and Members of the

interview board.

25. It is further submitted that petitioners had no

knowledge regarding manipulation or overwriting in the

matter of tabulation of marks in the assessment chart or in

the process of recommendation made by the JPSC for their

selection and appointment so as to charge them for offence

of criminal conspiracy for abatement and they have no

knowledge whatever that any of the relatives/well-wishers

have ever been instrumental in getting the marks obtained

by them changed by process of cutting and overwriting.

26. It is further submitted that these petitioners were

not the custodian of assessment chart as well as other

documents and they have no access to these documents

and the documents said to have been tampered were in Criminal Revision No.1294 of 2018 With Criminal Revision No.1295 of 2018 With Criminal Revision No.1298 of 2018

exclusive custody of the Secretary/ Controller of

Examination of the JPSC as the custodian and as such

these petitioners cannot be held responsible for any act of

manipulation or tempering or overwriting of

marks/totalling over those document/s assessment charts.

27. On the aforesaid ground it is submitted that these

petitioners are victim of circumstances and are being made

suffer for no fault on their part being totally ignorant of

facts of omission and commission by the custodians of the

relevant document and the I.O. without analyzing the entire

facts, has submitted the charge sheet against these

petitioners.

28. On the aforesaid premise the learned counsel has

submitted that the orders impugned may require the

interference of this Court.

Argument of the learned counsel for the CBI

29. Learned counsel for the CBI has vehemently

opposed the prayer of the learned counsel for the

petitioners and submitted that there are sufficient

materials against these petitioners for the purpose of

framing of charge.

30. Learned Counsel appearing for the C.B.I submits

that after proper investigation, charge sheet has been

submitted, sanction for prosecution has been received,

cognizance of offence has been taken by the learned court Criminal Revision No.1294 of 2018 With Criminal Revision No.1295 of 2018 With Criminal Revision No.1298 of 2018

below and there is enough material collected during

investigation showing more than prima-facie case to

proceed against the petitioner.

31. He further submits that there are restrictions in

discharging the petitioners and at this stage a roving

enquiry is not required. To buttress this limb of argument

he has put reliance upon the judgment as rendered by the

Hon'ble Supreme Court in the case of Ghulam Hassan

Beigh v. Mohammad Maqbool Magrey and Others (2022)

12 SCC 657.

32. On the aforesaid grounds, learned counsel for the

CBI has submitted that the order rejecting discharge

petition as well as order framing charge may not be

interfered with.

Analysis

33. In view of aforesaid submissions of the learned

counsels appearing on behalf of the parties, the Court has

gone through the contents of the instant revision petition

as well as the impugned order and finds that it is not in

dispute that the case was originally instituted and

registered as Ranchi Sadar Vigilance P.S Case no. 11/2011

dated 26.04.11 for the offence punishable u/s 201, 409,

467, 468, 471, 474, 477A r/w 34, 109, 120B of IPC & u/s

13(2) r/w 13(1) (d) of the P.C Act, 1988 on written report

submitted by informant Krishna Mohan Lal, Dy. S.P. cum Criminal Revision No.1294 of 2018 With Criminal Revision No.1295 of 2018 With Criminal Revision No.1298 of 2018

Officer In-charge, Vigilance Bureau, Ranchi vide his letter

dt. 26.04.11 addressing to the Special Judge, Vigilance

Court, Ranchi alleging therein that for the appointment of

Assistant Engineer and Junior Engineer, he found the

certain irregularities committed by the Jharkhand Public

Service Commission (JPSC), Ranchi for which the Vigilance

Bureau, Ranchi vide P.E. No. 33/10 handed over the

investigation to one Dy. S.P Shambhu Nath Jha.

34. During investigation it has been found that for the

post of 160 Assistant Engineer and 226 post of Junior

Engineer, the result has been published and accordingly

sent to the concerned department for recommendation and

informant has supervised the investigation report, related

files and records, found several irregularities have been

done by overwriting in the final marks and he further found

that Hindustan News Paper has published the news of

question leakage and as such inquiry, the then Secretary

has recommended for cancellation of exam but such file

was never put up before the Vigilance Bureau and found in

the serial no. 33 to 44 there was no signature of the

members of the Board in the interview chart for the

Assistant Engineer and also from the serial no. 44 to 55 in

chart, there was no signature of the expert II, although the

charts were prepared on same date on 23.03.2007 and Criminal Revision No.1294 of 2018 With Criminal Revision No.1295 of 2018 With Criminal Revision No.1298 of 2018

further it was found that JPSC have concealed the material

evidence and tried to destroy the same.

35. Further, vide order dated 14.06.12 of the High

Court of Jharkhand, Ranchi passed in W.P (PIL) no.

3594/11 (Budhdeo Oraon V/s State of Jharkhand &

Others) whereby CBI was directed to take up investigation

of cases relating to JPSC scam being investigated by the

Vigilance Bureau, Jharkhand and accordingly, the said

Vigilance P.S.Case No. 11/2011 dated 26.04.11, which was

registered u/s 34, 109, 120B, 201, 409, 467, 468, 471,

474, 477A of the IPC and u/s 13(2) r/w and 13(1) (d) of the

P.C Act, 1988 against accused persons namely Dilip Kumar

Prasad, the then Chairman Gopal Prasad Singh , Radha

Govind Singh Nagesh, Shanti Devi, the then members JPSC

and Alice Usha Rani Singh, the then Examination

Controller cum Secretary, JPSC, was taken over by the CBI

36. Further it appears that after due investigation

charge-sheet was submitted by CBI against these

petitioners who are the examinee of the aforesaid exam and

against others accused persons also u/s 120B r/w 420,

468, 471 of the IPC and 13(2) r/w 13(1)(d) of P.C Act, 1988.

37. Consequently, a discharge petitions were filed by

the present petitioners but the same was dismissed vide

order dated 06.08.2018 passed by the Special Judge, CBI,

Ranchi, in Misc. Criminal Application No. 706, 707 and 708 Criminal Revision No.1294 of 2018 With Criminal Revision No.1295 of 2018 With Criminal Revision No.1298 of 2018

of 218 and further order framing charge dated 16.11.2018

was also passed which is the subject matter of the instant

revision application.

38. Before adverting in to merit of the case this Court

this Court at this juncture thinks fit to discuss the

principle of discharge as contained in the Code of Criminal

Procedure.

39. It is well settled that at the time of framing of charge

meticulous examination of evidence is not required,

however the evidence can be sifted or weighed at least for

the purpose of recording a satisfaction that a prima facie

case is made out for framing charge to proceed in the case.

Further the trial Court is not required to discuss the

evidence for the purpose of conducting a trial but the

discussion of the materials on record is required to reflect

the application of judicial mind for finding that a prima-

facie case is made out against the petitioner.

40. It is settled connotation of law that at the stage of

framing of charge, the probable defence of the accused is

not to be considered and the materials, which are relevant

for consideration, are the allegations made in the First

Information Report, the statement of the witnesses recorded

in course of investigation under section 161(3) of the Code,

the documents on which the prosecution relies and the

police report submitted under section 173(2) of the Code.

Criminal Revision No.1294 of 2018 With Criminal Revision No.1295 of 2018 With Criminal Revision No.1298 of 2018

The probative value of the defence is to be tested at the

stage of trial and not at the stage of framing of charge and

at the stage of framing of charge minute scrutiny of the

evidence is not to be made and even on a very strong

suspicion charges can be framed.

41. Further it is settled position of law that at the stage

of framing the charge, the trial Court is not required to

meticulously examine and marshal the material available

on record as to whether there is sufficient material against

the accused which would ultimately result in conviction.

The Court is prima facie required to consider whether there

is sufficient material against the accused to presume the

commission of the offence. Even strong suspicion about

commission of offence is sufficient for framing the charge,

the guilt or innocence of the accused has to be determined

at the time of conclusion of the trial after evidence is

adduced and not at the stage of framing the charge and,

therefore, at the stage of framing the charge, the Court is

not required to undertake an elaborate inquiry for the

purpose of sifting and weighing the material.

42. The issue of discharge 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 Criminal Revision No.1294 of 2018 With Criminal Revision No.1295 of 2018 With Criminal Revision No.1298 of 2018

SCC 709, wherein at paragraphs no.29, 32.4, 33 and 34

the Hon'ble Apex Court has been observed 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 22 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 Criminal Revision No.1294 of 2018 With Criminal Revision No.1295 of 2018 With Criminal Revision No.1298 of 2018

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."

43. 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 marshalling 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 Criminal Revision No.1294 of 2018 With Criminal Revision No.1295 of 2018 With Criminal Revision No.1298 of 2018

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."

44. It is further settled position of law 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 judgment as rendered by the

Hon'ble Apex Court in State of Rajasthan v. Ashok

Kumar Kashyap, (2021) 11 SCC 191. For ready reference

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 Criminal Revision No.1294 of 2018 With Criminal Revision No.1295 of 2018 With Criminal Revision No.1298 of 2018

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.

Criminal Revision No.1294 of 2018 With Criminal Revision No.1295 of 2018 With Criminal Revision No.1298 of 2018

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 Criminal Revision No.1294 of 2018 With Criminal Revision No.1295 of 2018 With Criminal Revision No.1298 of 2018

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 Criminal Revision No.1294 of 2018 With Criminal Revision No.1295 of 2018 With Criminal Revision No.1298 of 2018

material on record the accused is likely to be convicted for the offence under Section 7 of the PC Act or not.

15. As observed hereinabove, the High Court was required to consider whether a prima facie case has been made out or not and whether the accused is required to be further tried or not. At the stage of framing of the charge and/or considering the discharge application, the mini trial is not permissible. At this stage, it is to be noted that even as per Section 7 of the PC Act, even an attempt constitutes an offence. Therefore, the High Court has erred and/or exceeded in virtually holding a mini trial at the stage of discharge application.

16. We are not further entering into the merits of the case and/or merits of the transcript as the same is required to be considered at the time of trial. Defence on merits is not to be considered at the stage of framing of the charge and/or at the stage of discharge application.

17. In view of the above and for the reasons stated above, the impugned judgment [Ashok Kumar Kashyap v. State of Rajasthan, 2018 SCC OnLine Raj 3468] and order passed by the High Court 28 discharging the accused under Section 7 of the PC Act is unsustainable in law and the same deserves to be quashed and set aside and is accordingly hereby quashed and set aside and the order passed by the learned Special Judge framing charge against the accused under Section 7 of the PC Act is hereby restored. Now the case is to be tried against the accused by the competent court for the offence under Section 7 of the PC Act, in accordance with law and its own merits."

45. The Hon'ble Apex Court has further dealt with the

proper basis for framing of charge in the case of Onkar

Nath Mishra & Ors Vs. State (NCT of Delhi) and Anr.

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[(2008) 2 SCC 561] wherein at paragraphs 11, 12 and 14 it

has been held as under:-

"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.

12. In State of Karnataka v. L.Muniswamy [(1977) 2 SCC 699 : 1977 SCC (Cri) 404] , a three-Judge Bench of this Court had observed that at the stage of framing the charge, the Court has to apply its mind to the question whether or not there is any ground for presuming the commission of the offence by the accused. As framing of charge affects a person's liberty substantially, need for proper consideration of material warranting such order was emphasised.

14. In a later decision in State of M.P. v. Mohanlal Soni [(2000) 6 SCC 338 : 2000 SCC (Cri) 1110] this Court, referring to several previous decisions held that: (SCC p. 342, para

7) Criminal Revision No.1294 of 2018 With Criminal Revision No.1295 of 2018 With Criminal Revision No.1298 of 2018

"7. The crystallised judicial view is that at the stage of framing charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused."

46. The Hon'ble Apex Court in the case of Palwinder

Singh Vs. Balvinder Singh & others (2009) 3 SCC(Cri)

850 has been pleased to hold that charges can also be

framed on the basis of strong suspicion. Marshaling and

appreciation of the evidence is not in the domain of the

court at that point of time.

47. Further it is pertinent to mention here that power to

discharge an accused was designed to prevent harassment

to an innocent person by the arduous trial or the ordeal of

prosecution. How that intention is to be achieved is

reasonably clear in the section itself. The power has been

entrusted to the Sessions Judge who brings to bear his

knowledge and experience in criminal trials. Besides, he

has the assistance of counsel for the accused and Public

Prosecutor. He is required to hear both sides before framing

any charge against the accused or for discharging him. If

the Sessions Judge after hearing the parties frames a

charge and also makes an order in support thereof, the law

must be allowed to take its own course. Self-restraint on

the part of the High Court should be the rule unless there Criminal Revision No.1294 of 2018 With Criminal Revision No.1295 of 2018 With Criminal Revision No.1298 of 2018

is a glaring injustice which stares the court in the face. The

opinion on any matter may differ depending upon the

person who views it. There may be as many opinions on a

particular matter as there are courts but it is no ground

for the High Court to interdict the trial. It would be

better for the High Court to allow the trial to proceed.

Reference in this regard may be taken from the judgment

as rendered by the Hon'ble Apex Court in Stree Atyachar

Virodhi Parishad v. Dilip Nathumal Chordia, (1989) 1

SCC 715.

48. In the backdrop of aforesaid case laws and judicial

deduction, this Court is now proceeding to examine the fact

so as to come to the conclusion as to whether the evidence

which has been collected in course of investigation and has

been brought on record, as would be available in the

impugned order prima facie case is made out or not?

49. This Court deems it fit and proper to scrutinize the

evidence collected in course of investigation by the

investigating agency as has been recorded in the charge-

sheet which is appended to the instant petitions.

50. From the perusal of charge-sheet, it appears that

these petitioners were appeared for the post of Junior

Engineers and it was found co-accused the then chairman

and Members of JPSC (Public Servant) as above

manipulated the assessment chart and thereby increased Criminal Revision No.1294 of 2018 With Criminal Revision No.1295 of 2018 With Criminal Revision No.1298 of 2018

the marks given to these petitioners in order to facilitate

their selection and it was also found the co-accused

(members of the JPSC) by abusing their official position

made similar manipulations in the marks of these

petitioners entered in the data prepared subsequently as

because marks awarded to the petitioners by the Interview

Board could not have been altered or increased without the

consent of other members of the Board and this fact is also

found supports by the materials oral and documentary

collected by the I.O. i.e the assessment chart of these

petitioners and these documents going to reflect that there

is cutting and over writing against the marks of the

petitioners who were given undue advantage by the co-

accused public servants for their final selection by

enhancing their marks in interview through the

manipulation.

51. Further it appears the assessment charts were

signed by other member of interview board at the instance

of co-accused public servants where the Sub columns of

the aforesaid chart were left blank and the column of total

marks was only filled up and other column of assessment

charts were adjusted according to the total marks by

manipulations and further it is evident that the other four

columns which were left blank of the assessment charts

were filled up by the co-accused public servants in their Criminal Revision No.1294 of 2018 With Criminal Revision No.1295 of 2018 With Criminal Revision No.1298 of 2018

own handwriting and it is also found on the aforesaid

manipulated assessment chart, the date on which final

merit list was prepared was also manipulated by the co-

accused public servant and due to this overt act of

commission and omission by the co-accused public

servants, these petitioners has got undue advantage for

their final selection for the aforesaid post.

52. It appears the manipulations in aforesaid

assessment charts were examined by the expert by the

document division of the Directorate of Forensic Science,

Gandhi Nagar, Gujarat where the report of expert disclosed

that the manipulations were committed found true against

the marks obtained by these petitioners which is sufficient

material against the above said petitioners to attract the

alleged charges for the purpose of framing of charge against

these petitioners and thus prima-facie there is sufficient

material available for charge against these petitioners.

53. The foremost argument as made by the learned

counsel for the petitioner is that there is nothing on record

or nothing has been found to establish the charge under

section 120B of the IPC against the petitioners and this

aforesaid fact has not been taken in to consideration by the

learned court while rejecting the petition of discharge in

mechanical manner.

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54. In the aforesaid context it is the considered view of

this Court that While deciding the discharge petition, the

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 revisional

jurisdiction.

55. However, on the question of availability of

ingredients of section 120 B of IPC, it is pertinent to

mention here that 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 Criminal Revision No.1294 of 2018 With Criminal Revision No.1295 of 2018 With Criminal Revision No.1298 of 2018

the time of framing of charge and in that view of the matter,

the discharge petitions cannot be allowed.

56. In view of the above, at this stage, the argument

advanced by the learned counsels for the petitioners are the

subject matter of trial which cannot be appreciated at this

stage.

57. In view of the above facts, reasons and analysis and

considering the principles of discharge, this Court is of the

view that there is no infirmity in the impugned orders to

warrant interference by this Court.

58. Accordingly, Cr. Revision No.1294 of 2018, Cr.

Revision No.1295 of 2018 and Cr. Revision No.1298 of 2018