Jharkhand High Court
Saurabh Garg vs The State Of Jharkhand ..... ... ... on 8 September, 2025
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
( 2025:JHHC:26974 )
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Revision No. 1095 of 2023
1. Saurabh Garg, aged about 46 years, son of Yogesh Prakash Garg, resident
of H. No. 19, Shiv Sarovar Colony Bank Colony Garh Road Meerut-250001,
P.O. Meerut, P.S. Meerut, District- Meerut (Uttar Pradesh-250001)
2. Mangalmay Acharya, aged about 42 years, son of Narayan Acharya,
resident of Cuttack near Ramchandra Bhavan, Telengana Bazar, P.O. and
P.S. Purighat, District-Cuttack (Odisha-753009).
...... ... Petitioners
Versus
The State of Jharkhand ..... ... Opposite Party
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
For the Petitioners :Mr. Indrajit Sinha, Advocate
Mr. Arpan Mishra, Advocate
Mr. Akhouri Awinash Kumar, Advocate
Ms. Aswini Priya, Advocate
For the State : Mr. Shailendra Kumar Tiwari, Spl. P.P.
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16/ 08.09.2025: Heard learned counsel for the petitioner and learned
counsel for the State.
2. It appears that I.A. No. 8243 of 2023 meant for stay has already
been allowed by a Co-ordinate Bench of this Court and interim protection has
been provided by order dated 26.03.2025 however the said I.A. was not
disposed of and in view of that this matter has been posted for orders.
3. Since prayer made in I.A. has already been allowed, the I.A. No.
8243/2023 stands infructuous.
3. This petition has been filed against the order dated 05.08.2023
passed by the learned Special Judge (Cyber Crime), East Singhbhum,
Jamshedpur in Cyber Crime Case No. 27 of 2019 (arising out of
Miscellaneous Criminal Application No. 1351 of 2023), corresponding to G.R.
No. 2646/2017 for the offences registered under section 420, 379, 419, 465,
467, 468, 471, 120(B) of I.P.C. and Sections 66(C), 66(D) of the Information
Technology Act whereby the discharge petition filed by the petitioners has
been rejected, now pending in the Court of learned A.D.J.-II at Jamshedpur.
( 2025:JHHC:26974 )
4. Learned counsel for the petitioner submits that during pendency
of this petition, charge has been framed against the petitioner for that I.A.
has been filed for challenging the charge framing order which has been
allowed by this Court by order dated 20.03.2025.
5. In view of that order framing charge dated 20.03.2025 is also
under challenge.
6. The F.I.R. is based on a written report lodged by Pramod Kumar
Singh on 20.09.2017 alleging therein that some unknown persons had
illegally transferred money amounting to Rs. 50,00,000/- in five different
transactions over the period of two days through internet banking from his
bank account of Union Bank of India, MSME Branch, Bistupur, Jamshedpur,
on 19.09.2017 and 20.09.2017. On the basis of this, a First Information
Report was registered on 20.09.2017 for the offences under Section 420 and
other sections of Indian Penal Code and Section 66 (C)/ 66(D) of Information
Technology Act.
7. Learned counsel for the petitioners submits that the petitioner
no.1 was working as the customer service group head at Vodafone Mobile
Services Limited of Bihar and Jharkhand Circle. The petitioner no.2 was
working as Zonal Manager of Customer Service Group at Vodafone Mobile
Services Limited. He submits that in order to provide best of the services to
its subscriber / customers, the Company has chain of Distributors, Vodafone
Mini Store and Channel Partners for activation of the communication services
to the subscribers /customers. He submits that all the said Distributors,
Vodafone Mini Store and Channel Partners are having their independent
individual identity and only they have the business relations and that also
strictly on the principle to principle basis. He further submits that on
16.09.2017 unknown miscreant(s) had made request for change of SIM card
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of Mobile No. 7631233339 along with the necessary documents before one
such franchisee / Channel Partner / Vodafone Mini Store of the Company,
namely "Sri Sai Enterprises" situated at Chaibasa in the State of Jharkhand
and after duly verification of the said documents by the said Vodafone Mini
Store /Channel Partner as they only directly interacted with the subscriber
and put their stamp on the documents that he has seen the original and
verified it from the original documents and thereafter the same was sent to
the Company with a recommendation for activation. He submits that after
receipt of the request, the Company took abundant precaution and did not
activate the SMS services so that there is no chances of misuse in case the
duplicate SIM Card of the same mobile number got issued by some unknown
persons fraudulently. He submits that SIM was barred for 24 hours in order
to prevent misuse and fraud on the customers of the Company regarding
financial transactions wherein OTP's (One Time Passwords) are generated
and communicated by Banks to its customers through SMS. He submits that
SMS Service of Mobile Number 7631233339 was duly barred by the Company
after the request for issuance of the duplicate SIM was received by the
Company in respect of the said mobile number. He submits that the
petitioners have received the notice and they have co-operated in the
investigation. He further submits that the learned court has been pleased to
reject the discharge petition based on paras 45 and 48 of the case diary. He
submits that the learned court has wrongly relied on the said paragraphs of
the case diary. He further submits that in para 45 there is statement of
petitioner no.2 and in para 48 there is written reply given by the petitioner
no.2 and based on those paragraphs, the learned court has come to the
conclusion that there is materials against the petitioners and apart from that
there is nothing on record to suggest that the petitioners are having any role
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in activation of the said SIM card. He submits that if such petition is there
the learned court has wrongly passed the order and has framed the charge
which is not in accordance with law. He relied in the case of " Ram Prakash
Chadha Vs. State of Uttar Pradesh" reported in (2024) 10 SCC 651. He
relied paras 15 to 27 of the said judgment which is as under:-
" 15. Section 227 Cr.P.C., rerads thus:
"227. Discharge.--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."
16. We have already considered the meaning of the expression "the
record of the case and the documents submitted therewith" relying
on the decision in Debendra Nath Padhi's case (supra) only to re-
assure as to what are the materials falling under the said expression
and thus, available for consideration of an application filed for
discharge under Section 227, Cr.PC. In the light of the same, there
cannot be any doubt with respect to the position that at the stage of
consideration of such an application for discharge, defence case or
material, if produced at all by the accused, cannot be looked at all.
Once "the record of the case and the documents submitted
therewith" are before the Court they alone can be looked into for
considering the application for discharge and thereafter if it considers
that there is no sufficient ground for proceeding against the accused
concerned then he shall be discharged after recording reasons
therefor. In that regard, it is only appropriate to consider the
authorities dealing with the question as to what exactly is the scope
of consideration and what should be the manner of consideration
while exercising such power.
17. The decision in Yogesh alias Sachin Jagadish Joshi v. State of
Maharashtra2 this Court held that the words "not sufficient ground
for proceeding against the accused" appearing in Section 227, Cr.PC,
postulate exercise of judicial mind on the part of the Judge to the
facts of the case revealed from the materials brought on record by
the prosecution in order to determine whether a case for trial has
been made out.
18. In the decision in State of Tamil Nadu v. N Suresh Rajan &
Ors. this Court held that at a 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 materials to find out whether the facts taken at their
face value disclose the existence of the ingredients constituting the
offence. At this stage, only the probative value of the materials has
to be gone into and the court is not expected to go deep into the
matter to hold a mini-trial.
19. In the decision in BK Sharma v. State of UP, the High Court of
judicature at Allahabad held that the standard of test and judgment
which is finally applied before recording a finding of conviction
against an accused is not to be applied at the stage of framing the
charge. It is just a very strong suspicion, based on the material on
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record, and would be sufficient to frame a charge.
20. We are in agreement with the said view taken by the High
Court. At the same time, we would add that the strong suspicion in
order to be sufficient to frame a charge should be based on the
material brought on record by the prosecution and should not be
based on supposition, suspicions and conjectures. In other words, in
order to be a basis to frame charge the strong suspicion should be
the one emerging from the materials on record brought by the
prosecution.
21. In the decision in Stree Atyachar Virodhi Parishad v. Dilip
Nathumal Chordia & Anr.5, this Court held that the word 'ground'
in Section 227, Cr.PC, did not mean a ground for conviction, but a
ground for putting the accused on trial.
22. In P. Vijayan v. State of Kerala and Anr.6, after extracting Section
227, Cr.PC, this Court in paragraph No.10 and 11 held thus: -
"10........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.
Further, the words "not sufficient ground for proceeding against the
accused" clearly show that the Judge is not a mere post office to
frame the charge at the behest of the prosecution, but has to
exercise his judicial mind to the facts of the case in order to
determine whether a case for trial has been made out by the
prosecution. In assessing this fact, it is not necessary for the court to
enter into the pros and cons of the matter or into a weighing and
balancing of evidence and probabilities which is really the function of
the court, after the trial starts.
11. 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. In other words, the
sufficiency of ground 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."
23. In paragraph 13 in P. Vijayan's case (supra), this Court took
note of the principles enunciated earlier by this Court in Union of
India v. Prafulla Kumar Samal7 which reads thus: -
"10....(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
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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."
24. In the light of the decisions referred supra, it is thus obvious
that it will be within the jurisdiction of the Court concerned to sift
and weigh the evidence for the limited purpose of finding out
whether or not a prima facie case against the accused concerned has
been made out. We are of the considered view that a caution has to
be sounded for the reason that the chances of going beyond the
permissible jurisdiction under Section 227, Cr.PC, and entering into
the scope of power under Section 232, Cr.PC, cannot be ruled out as
such instances are aplenty. In this context, it is relevant to refer to a
decision of this Court in Om Parkash Sharma v. CBI8. Taking note of
the language of Section 227, Cr.PC, is in negative terminology and
that the language in Section 232, Cr.PC, is in the positive terminology
and considering this distinction between the two, this Court held that
it would not be open to the Court while considering an application
under Section 227, Cr.PC, to weigh the pros and cons of the evidence
alleged improbability and then proceed to discharge the accused
holding that the statements existing in the case therein are
unreliable. It is held that doing so would be practically acting
under Section 232, Cr.PC, even though the said stage has not
reached. In short, though it is permissible to sift and weigh the
materials for the limited purpose of finding out whether or not a
prima facie case is made out against the accused, on appreciation of
the admissibility and the evidentiary value such materials brought on
record by the prosecution is impermissible as it would amount to
denial of opportunity to the prosecution to prove them appropriately
at the appropriate stage besides amounting to exercise of the power
coupled with obligation under Section 232, Cr.PC, available only after
taking the evidence for the prosecution and examining the accused.
25. Even after referring to the aforesaid decisions, we think it
absolutely appropriate to refer to a decision of the Madhya Pradesh
High Court in Kaushalya Devi v. State of MP9. It was held in the said
case that if there is no legal evidence, then framing of charge would
be groundless and compelling the accused to face the trial is
contrary to the procedure offending Article 21 of the Constitution of
India. While agreeing with the view, we make it clear that the
expression 'legal evidence' has to be construed only as evidence
disclosing prima facie case, 'the record of the case and the
documents submitted therewith'.
26. The stage of Section 227, Cr.PC, is equally crucial and
determinative to both the prosecution and the accused, we will dilate
the issue further. In this context, certain other aspects also require
consideration. It cannot be said that Section 227, Cr.PC, is couched in
negative terminology without a purpose. Charge sheet is a misnomer
for the final report filed under Section 173 (2), Cr.PC, which is not a
negative report and one that carries an accusation against the
accused concerned of having committed the offence (s) mentioned
therein.
27. In cases, where it appears that the said offence(s) is one triable
exclusively by the Court of Session, the Magistrate shall have to
commit the case to the Court of Session concerned following the
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prescribed procedures under Cr.PC. In such cases, though it carries
an accusation as aforementioned still legislature thought it
appropriate to provide an inviolable right as a precious safeguard for
the accused, a pre-battle protection under Section 227, Cr.PC.
Though, this provision is couched in negative it obligated the court
concerned to unfailingly consider the record of the case and
document submitted therewith and also to hear the submissions of
the accused and the prosecution in that behalf to arrive at a
conclusion as to whether or not sufficient ground for proceeding
against the accused is available thereunder. Certainly, if the answer
of such consideration is in the negative, the court is bound to
discharge the accused and to record reasons therefor. The corollary is
that the question of framing the charge would arise only in a case
where the court upon such exercise satisfies itself about the prima
facie case revealing from "the record of the case and the documents
submitted therewith" against the accused concerned. In short, it can
be said in that view of the matter that the intention embedded is to
ensure that an accused will be made to stand the ordeal of trial only
if 'the record of the case and the documents submitted therewith'
discloses ground for proceeding against him. When that be so, in a
case where an application is filed for discharge under Section 227,
Cr.PC, it is an irrecusable duty and obligation of the Court to apply
its mind and answer to it regarding the existence of or otherwise, of
ground for proceeding against the accused, by confining such
consideration based only on the record of the case and the
documents submitted therewith and after hearing the submissions of
the accused and the prosecution in that behalf. To wit, such
conclusion on existence or otherwise of ground to proceed against
the accused concerned should not be and could not be based on
mere suppositions or suspicions or conjectures, especially not
founded upon material available before the Court. We are not
oblivious of the fact that normally, the Court is to record his reasons
only for discharging an accused at the stage of Section 227, Cr.PC.
However, when an application for discharge is filed under Section
227, Cr.PC, the Court concerned is bound to disclose the reason(s),
though, not in detail, for finding sufficient ground for rejecting the
application or in other words, for finding prima facie case, as it will
enable the superior Court to examine the challenge against the order
of rejection."
8. He further submits that if there is no material and there is no
chance of conviction of the petitioner and thus the court is competent to
discharge. He submits that the learned court has wrongly passed the order
without considering the spirit of Section 227 of the Cr.P.C in its right
perspective.
9. On the other hand, learned counsel for the State oppose the
prayer and submits that the learned court has rightly passed the order. He
submits that the learned court is not required to roam at this stage to come
to the conclusion that the case is not made out against the petitioner and
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learned court has rightly passed the order.
10. In view of above, it is an admitted position that the petitioners
happen to be officials of Vodafone Mobile Services Limited. The petitioner
no.1 was working as the customer service group head at Vodafone Mobile
Services Limited of Bihar and Jharkhand Circle. The petitioner no.2 was
working as Zonal Manager of Customer Service Group at Vodafone Mobile
Services Limited. The case has been lodged alleging therein that a person
has obtained SIM on the forged document and got it activated. In course of
argument, learned counsel for the petitioners pointed out that defalcated
amount of of Rs. 50 lakh has been paid to the victim. The company has paid
a sum of Rs. 13 lakh and further Rs. 13 lakh bank has paid and Rs. 24 lakh
has been recovered from the bank account of the offender and remitted to
the victim.
11. It appears that amount in question has been paid to the victim as
has been pointed out in course of argument. Further para 45 there is
statement of petitioner no.2 and in para 48 there is written reply given by
the petitioner no.2 and based on those paragraphs the learned court has
come to the conclusion that materials are on record against the petitioners.
12. Paras 45 and 48 of the case diary cannot be sufficient materials
to find the petitioners guilty and even to find out prima facie case against the
petitioners who are employees of the Vodafone Mobile Services Limited at
that time.
13 The question of framing the charge would arise only in a case
where the court upon such exercise satisfies itself about the prima facie case
revealing from "the record of the case and the documents submitted
therewith" against the accused concerned.
14. What has been discussed hereinabove there is no material
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against the petitioners of making any connivance with the person who has
taken the SIM card on the forged document and the petitioners were not
posted at Chaibasa and they were posted at Ranchi.
15. If such facts are there when prima facie case is not made out
against the petitioner and if such facts are there and section 227 of Cr.P.C
has been brought with the intention that innocent person may not be asked
to face trial.
16. In view of above discussion, the Court finds that it is a fit case
for discharge and the learned court based on paras 45 and 48 of the case
diary wherein para 45 there is statement of petitioner no.2 and in para 48
there is written reply given by the petitioner no.2, has been pleased to
reject the discharge petition.
17. In view of above facts, reasons and analysis, the impugned
orders 05.08.2023 and 20.03.2025 passed by the learned Special Judge
(Cyber Crime), East Singhbhum, Jamshedpur in Cyber Crime Case No. 27 of
2019 (arising out of Miscellaneous Criminal Application No. 1351 of 2023),
corresponding to G.R. No. 2646/2017, are set aside. The petitioners are
discharged from the aforesaid case.
18. This revision application is allowed and disposed of. Pending I.A.
if any, stands disposed of.
( Sanjay Kumar Dwivedi, J.)
Satyarthi/A.F.R.
