Pramod Prakash Mathur vs State Of Rajasthan
2022 Latest Caselaw 14416 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Revision Petition No. 1356/2022

H.G. Grover S/o Shri Kesar Das, Aged About 78 Years, R/o 12-A Jyoti Nagar Hiran Magri Sec.-4 Udaipur

----Petitioner Versus State Of Rajasthan, Through The Pp

----Respondent Connected With S.B. Criminal Revision Petition No. 1096/2022 Laxmi Lal Patel S/o Sh. Kanji Patel, Aged About 62 Years, 10, Ashok Vihar Samta Nagar, Hiranmagri Sector-3, Udaipur.

----Petitioner Versus State Of Rajasthan, Through Pp

----Respondent S.B. Criminal Revision Petition No. 1097/2022 Tarun Mathur S/o Sh. Shyam Manohar Mathur, Aged About 59 Years, R/o A-293 Chitrkoot Nagar Bhuwana Behind Jaideep School Udaipur

----Petitioner Versus State Of Rajasthan, Through The Pp

----Respondent S.B. Criminal Revision Petition No. 1155/2022 Pramod Prakash Mathur S/o Sh. Vivek Prakash Mathur, Aged About 67 Years, R/o B-106 Amrit Kalash Apartment Tonk Road Jaipur Raj.

----Petitioner Versus State Of Rajasthan, Through Pp

----Respondent

For Petitioner(s) : Mr. Vineet Jain, Sr. Adv. assisted by Mr. Rajiv Bishnoi

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Mr. Aidan Choudhary Mr. Yuvraj Singh Mertiya For Respondent(s) : Mr. M.A. Siddiqui, GA-cum-AAG with Mr. A.R. Malkani

HON'BLE MR. JUSTICE FARJAND ALI

Judgment

08/12/2022 Reportable

1. The instant revision petition has been filed by the petitioner

under Section 397 r/w Section 401 Cr.P.C. against the order dated

03.08.2022 passed by the learned Special Judge (Prevention of

Corruption Act), No.2, Udaipur in Sessions Case No.194/2019

whereby an order framing charge has been passed against the

petitioner under Sections 13(1)(d) and 13(2) of the Prevention of

Corruption Act and under Sections 420, 467, 468, 471 & 120-B of

the IPC.

2. Learned counsel for the petitioners submit that the impugned

order is not sustainable in the eyes of law on the sole count that

the learned Court below has not applied its mind to see whether

the elements essential to constitute the alleged offences are

present or not in the charge sheet filed by the prosecution.

Learned counsel further submit that to inflict a charge upon an

accused under Section 420 of IPC, prima facie there must, at the

least, be an iota of evidence to prove the dishonest intention of

the accused persons to induce the complainant party to believe

certain things and the complainant-state should have acted under

the influence of that inducement and thus, incurred huge loss. The

inducement must be dishonest as envisaged under Section 415 of

the IPC. The term 'forgery' and the act of 'making a false

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document' are defined under Sections 463 & 464 of the IPC

respectively but there is no whisper in the entire charge sheet

which could show that any documents were prepared falsely or

any forgery was committed. He, thus, submits that Sections 420,

467 & 468 of the IPC can not be invoked in these cases because of

the absence of the requisite ingredients. Since no forged

documents were used as genuine ones, therefore, Section 471

IPC is also not applicable in these matters. For invocation of

Sections 13(1)(d) & 13(2) of Prevention of Corruption Act cases, it

is further submitted that the contract was issued by the

Government to the concerned contractor to construct the road

through BOT mode for constructing a 15 kilometers long road. The

road was completed and the technical sanction was granted on

14.03.2001. The road was prepared within time and no defect was

found in the construction of the road uptil the length of 11

kilometers, however, for the rest of the 4 kilometers, it was stated

that the design was not perfect. He, thus, submits that if the

design was not perfect then the entire condition of the 15

kilometers long road must have been dilapidated but that is not

the case of prosecution. To book an accused for commission of an

offence is a different thing but when the trial court proceeds to

frame charge, then, it is imperative upon the trial Court to

consider the record of the case and the documents submitted

therewith and after hearing the submissions of the parties, the

learned Judge has to form an opinion as to whether there are

reasonable grounds for presuming that the accused had

committed the offence alleged.

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3. It is further submitted that a bare perusal of the impugned

order available on record does not reflect that the trial court

considered the above-mentioned aspects, therefore, the impugned

order is not sustainable in the eyes of law and thus, the same

deserves to be quashed and set aside because a public servant

who acted in good faith should not be forced to face the rigour of

trial on groundless accusations. The inspection of the road was

made after 2 years of its completion and in the meantime, due to

heavy rain fall and other climatic changes, the condition of the

road for 2 to 3 kilometers may have deteriorated but for that no

liability can be fastened upon the petitioners. Learned counsel for

the petitioners drew the attention of this Court towards the site

inspection memo prepared by the investigating agency on

19.08.2004 on the questioned area wherein it is specifically

mentioned by the Investigating Officer that there were trenches

on both sides of the roads which were found filled with water

throughout the year.

4. Shri M.A Siddiqui, learned AAG, submits that the report

prepared by Dinesh Chandra Katara, General Manager, stated that

the said committee inspected the site, prepared a report, noted

the defects and deficiency and on the basis of the said report and

some complaints, an incisive probe was made by the agency and

thereafter, certain complications came to light that revealed the

involvement of the petitioners in the commission of crime. He

further submits that at the stage of framing of charge, the Court

has to only see whether a prima facie case against the petitioners

is made out or not and meticulous appreciation of evidence is not

warranted by law at this stage.

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5. Heard learned counsel for the petitioners as well as learned

AAG and perused the material available on record.

6. A perusal of the impugned order does not reflect as to how

offences under Sections 420, 467, 468 & 471 of the IPC are made

out or can be invoked against the petitioners as there is no

mention, not even a whiff in this regard. Though the learned court

below has made a mention of the submissions made at the bar but

the same have not been discussed and appreciated. It is true that

at the stage of framing of charge threadbare discussion of the

material collected during the course of the investigation is not

required but at the same time it is expected from the trial Judge

to form an opinion as to whether there are reasonable grounds to

presume that the accused should be tried for the offences alleged.

It is imperative upon the trial Court to see as to whether the

ingredients essential to constitute alleged offences are present or

not in the fact situation of the case. Having minutely gone through

the entire material available on record, this Court is of the

considered view that the learned Court below has not paid heed to

the afore-discussed aspects which are necessary to consider

before framing the charge against the accused in any criminal

proceeding. There seems no justification to allow the

commencement of trial against the accused-petitioners for the

alleged offences, elements of which are not available on record,

and if available, reference of the same should be made in the

order but the same is not reflecting from the order impugned.

7. In some cases where commission of crime is alleged, there is

a dispute of civil nature in reality and in order to mount pressure

on the opposite party, proceedings in the guise of a criminal case

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are initiated without there actually being any components of the

alleged offences present on record.

8. Before beginning with the discussion on Sections 467, 468

and 471, it is necessary to have a look at the definition of 'forgery'

provided under Section 463. The elements of forgery as stipulated

in Section 463 are:

i) making of a false document or part of it or making of a false

electronic record or part of it;

ii) such making of document or record is done with the intention

to:

a) cause damage to public/ injury to any person

b) to support any claim or title

c) to cause nay person to part with property

d) to enter into any express/implied contract

iii) or such making of document is done with the intent to commit

fraud or that fraud may be committed.

9. Similarly, the meaning of the phrase 'making of a false

document' as used in Section 463 has also been expounded in

Section 464 which is as follows:

464. Making a false document.--A person is said to make a false documentor false electronic record --- First--Who dishonestly or fraudulently -

(a) makes, signs, seals or executes a document or part of a document;

(b) makes or transmits any electronic record or part of any electronic record;

(c) affixes any digital signature on any electronic record;

(d) makes any mark denoting the execution of a document or the authenticity of the electronic signature, with the intention of causing it to be believed that such document or a part of document, electronic record or digital signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person

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by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly--Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with digital signature either by himself or by any other person, whether such person be living or dead at the time of such alternation; or Thirdly--Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his digital signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration.

10. It is manifested from a plain reading of the afore-mentioned

sections that for the purpose of imposing punishment for offences

under Sections 467, 468 and 471 of IPC, the condition required to

be fulfilled is commission of forgery and the condition requisite for

commission of forgery is making of a false document. It cannot be

understood from the material available on record as to which facts

or circumstances pertain to any act that can fall under the

definition of forgery and making of a false document as discussed

above. Thus, it cannot be inferred that a prima facie case under

Sections 467, 468 and 471 IPC is made out against the accused

from the record and documents placed on record and from the

perusal of the order impugned.

11. Moving on to the provision of Section 420 IPC that pertains

to the offence of cheating and dishonestly inducing delivery of

property, it is pertinent to note the essential ingredients of

cheating. A dishonest intention is required with which any person

deceives the other person and induces him/her/them to deliver

any property to any person or induces the said person to make,

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alter or destroy the whole or any part of a valuable security. It can

also be anything which is signed or sealed and which is capable of

conversion into a valuable security. The ingredients of cheating

have been elaborately discussed in Md. Ibrahim and Ors. Vs.

State of Bihar and Ors. reported in (2009) 8 SCC 751. The

relevant portion of the afore-said judgment has been reproduced

below:

"13. Let us now examine whether the ingredients of an offence of cheating are made out. The essential ingredients of the offence of "cheating" are as follows: (i) deception of a person either by making a false or misleading representation or by dishonest concealment or by any other act or omission; (ii) fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) such act or omission causing or is likely to cause damage or harm to that person in body, mind, reputation or property. To constitute an offence under Section 420, there should not only be cheating, but as a consequence of such cheating, the accused should have dishonestly induced the person deceived (i) to deliver any property to any person, or (ii) to make, alter or destroy wholly or in part a valuable security (or anything signed or sealed and which is capable of being converted into a valuable security)."

It cannot be said from the scrutiny of the documents

available on record that there are ingredients of cheating present

in the present factual matrix of the case. If the material is

available on record, then the reference of the same must be

reflected in order impugned.

12. The charges are proposed to be framed on the relevant

material available on record. It is not to be seen that whether the

evidence produced on record is sufficient to record conviction or

not, thus, probative value of defence is not required to be seen

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but at the very least, application of mind to see the sufficiency of

material on record is required so as to put the accused to face the

rigour of trial. Neither the evidence is required to be discussed in

detail nor is the same required to be appreciated.

13. The stage of framing of charge is a very significant step in a

criminal case and it is the duty of the court to frame a charge

against the accused in accordance with the statutory terms

stipulated in Section 228 of CrPC. Section 227 of the Code

provides that if it is the consideration of the judge, post careful

weighing of the record of the case and the documents submitted

therewith and after hearing the submissions of the prosecution as

well as the accused on this count, that there is lack of adequacy in

the grounds on the basis of which the proceedings can move

forward against the accused, then the judge shall discharge the

accused and record his reasons for said discharge.

14. The provision under Section 228 begins with the phrase

'after such consideration and hearing as aforesaid' which means

that similar to the consideration and hearing done before

discharging an accused under Section 227, before framing a

charge as well, the judge is required to hear the contentions

proffered by both the sides as well as consider the record of the

case as well as the documents submitted therewith. It is further

laid down under Section 228 that after such consideration and

hearing, if the judge has formed an opinion that there is ground

for 'presuming' that the accused has committed an offence, then

the judge shall frame the charge. The judge shall frame the

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charge in writing if the offence is exclusively triable by Court of

Session and if the case is not exclusively triable by Court of

Session, then the judge may frame the charge and order the

transfer of the case for trial to the appropriate Magisterial Court.

15. Another mandatory requirement as per Section 228 is that if

the judge framed the charge for offence exclusively triable by him/

her/them, then the charge shall not just be read but explained to

the accused and the accused shall be questioned whether he

pleads guilty or claims to be tried. Thus, the language of the

aforesaid provisions makes it luculent that the step of framing of

charge is a vital role to be played by the judge after due

application of mind and not just a mere solemnity to be done on

behalf of a Sessions judge as he is not supposed to be a simpleton

onlooker. The intention of the legislature is also evident in the

words that it has chosen to use purposefully. For instance, the

word 'presuming' used in Section 228 has not just been strewn

randomly but it conveys a specific meaning as it is a well-

entrenched rule of statutory interpretation that there is an

objective attributable to employing the use of any word or phrase

in the language of a statute.

16. Framing of charge is a determinative action taken by the

judge as subject to the decision of framing of the charge against

an accused or discharging an accused of the charges leveled

against him, two outcomes are generated; either the prosecution

(State or complainant) gets a point to moot, i.e. to challenge the

order of discharge or the accused is made to face the trial. If the

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charges are framed without there being even a scruple of the

ingredients or circumstances required to constitute an offence

under the Sections alleged against the accused, then the accused

is made to face the rigour of the trial which may prove to be

deleterious to him as he may finally be acquitted of the charges so

framed against him. The word 'presuming' must be read ejusdem

generis to the opinion of a judge that there is a ground; the

ground to form the opinion on the basis of the record of the case

and the documents submitted therewith that an individual has

committed an offence and thus, he shall be accused with the

charge under that offence. To a slight extent, if a plea of defence

is raised that the criminal proceedings are barred by any other

statutory provision, then it needs to be considered and a

provisional opinion needs to formed. Thus, it can safely be inferred

that the process of framing of charge is an exercise that requires

solemn consideration on the point of forming a tentative opinion

whether there are ingredients and facts which are enough to

constitute the offence for which charge is being framed against

the accused or not.

17. It is needless to state that it is not expected from the court

to form an opinion regarding the guilt of the accused at the stage

of framing of charge. It is imperative to consider the evidence

presented by the prosecution at this stage as presumption is a

feeble phenomenon which would cover in its orbit, cases where

there is insufficiency of evidence or some lacuna which can be

thought of getting covered during the course of trial. At the step

of charge-framing, it is not of the essence to be thorough with the

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examination of evidence or material available on record or hearing

of the arguments to the extent that there should be detailed,

lexical deliberation of each of the ingredients of the offence

supported by precise facts. It is sufficient if there is substantial

conformity to the statutory stipulations of the relevant Sections for

which charge is being framed.

18. What a marrow is to the bones, charge is to the procedure of

a criminal proceeding. The metaphoric use of the word 'marrow' is

apt to denote that a charge, if framed against an accused, it is a

formal accusation which sets the statutory stage for the offences

that the accused will be prosecuted for and he would have to

defend during the trial.

19. In addition to the germination of a right of the accused to

have the charges framed against him after consideration of the

material available on record and hearing the arguments of the

parties, there is a fundamental right of the accused to life and

personal liberty which is threatened if charges are framed without

due application of mind and a certain required amount of

consideration, thus, legitimate reasons have to be assigned

before compelling an individual to face the trial. The word required

has been deliberately used herein above to express due caution

that the intent of law as well as this Court is not to imply that a

mini trial be conducted at the stage of framing of charge. It is

obvious that at the step, where charge is being framed, the court

is not supposed to delve so deep into the matter so as to propel

conduct of a full-fledged trial. A balance needs to be struck

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between framing charge without non-application of mind or due

consideration and conducting a miniature trial before the actual

one. If the matter is examined in too much detail or with

excessive precision, exercised without there being any need for

the same at the stage of charge-framing, then it will defeat the

purpose of having a trial. There should not be a roving inquiry

though existence of ingredients sufficient enough to draw a

presumption in favour of commission of crime is required.

20. While discussing the concept of charge, the judgment

delivered by Hon'ble the Supreme Court in State of Orissa Vs.

Debendra Nath Padhi, reported in AIR 2005 SC 359 cannot go

undiscussed. In this judgment, a Division Bench of three judges

overruled Satish Mehra Vs. Delhi Administration and Anr.

[(1996) 9 SCC 766] and it was held that the accused does not

have a right to produce any material or document in evidence to

prove his defence at the stage of framing of charge and the same

is granted only at the stage of trial. It was also opined that the

submissions of the accused made on the record of the case are

considered only with respect to the evidence and documents

submitted therewith by the prosecution. In addition, it was

observed that there cannot be two trials; one prior to framing of

charge and one pursuant to framing of charge. In Satish Mehra

(supra), it was held, contrary to Padhi (supra), that if the accused

is able to produce clinching and unimpeachable evidence that can

prove to be fatal to the very survival of the case of the

prosecution at the stage of framing of charge, then it would be

unjust and unfair to not look into it before passing the order of

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framing of charge. It was further observed that the time of the

court is also saved by considering such evidence of sterling worth

at the stage of framing of charge as the trial court is able to

decide whether to proceed further and frame the charge and

continue with the trial or discharge the accused on the basis of

incontrovertible evidence shaking the very foundation on the basis

of which the case of the prosecution stands. This court is not

concerned with the observation regarding admissibility of evidence

produced by accused at the stage of charge-framing in the present

matter but the two afore-mentioned judicial pronouncements of

the Apex Court are imperative in establishing the fact that it is

indeed vital to consider the evidence and documents available on

record supplied by the prosecution as well as the arguments

advanced by the counsel appearing for the parties, that is, it is

vital to apply one's mind to the extent of finding substantial

evidence to support framing of charge of offences alleged against

an accused.

21. A strong suspicion in certain cases with regard to

presence of ingredients required to compose commission of

an offence is enough; finding of infallible or fool-proof

evidence to constitute an offence is suggested neither by

the spirit nor by the letter of law.

22. In Union of India (UOI) vs. Prafulla Kumar Samal and

Ors., reported in (1979) 3 SCC 4, Hon'ble the Supreme Court

propounded certain principles on the subject of charge. The

relevant paragraph of the afore-said judgment is as follows:

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"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 largo 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 Judge cannot act merely as a Post Office or a mouth-piece 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."

23. The Apex Court has supplied authority to this legal premise

through a plethora of judgments. The recent imprimatur of

Hon'ble the Supreme Court of the aforesaid aspect can be found in

Ghulam Hassan Beigh Vs. Mohammad Maqbool Magrey &

Ors. [Criminal Appeal No. 1041 of 2022 (Arising out of S.L.P.

(Criminal) No. 4599 of 2021)], wherein Hon'ble the Apex Court

has held that as the trial court only considered the medical

evidence on record, more particularly only the post-mortem report

of the deceased, for the purpose of framing of charge against the

accused and not the entire evidence, thus, the trial court was not

correct in its approach and the matter was remanded back. It was

further held that a mere endorsement of the charge sheet

submitted by the investigating agency without applying its mind or

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recording any reasons in support of its opinion is non-fulfillment of

its duty by the trial court and the same is not countenanced by

law.

24. This Court is of the opinion that the phrase 'formal

application of mind' has a wide meaning which is to be construed

parallel to the stage at which the trial is going on at the moment.

For instance, 'formal application of mind' at the stage of trial

would include to see, to observe, to ponder, to appreciate the

material available on record minutely, with a fine-tooth comb,

consider the arguments advanced before the dias and then reach

on a legitimate conclusion. 'Formal application of mind' at the

stage of taking cognizance of an offence would be limited to the

purpose of proceeding further in the matter; 'formal application of

mind' at the stage of framing of charge would include dealing with

those things in the order, which are at the very least, necessary to

constitute the offence alleged. There needs to be a presumption

with regard to sufficient grounds for want of frame of charge and

not the sufficiency of evidence for the purpose of recording

conviction.

25. The charges are proposed to be framed on the relevant

material available on record. It is not to be seen that whether the

evidence produced on record is sufficient to record conviction or

not, thus, probative value of defence is not required to be seen

but at the very least, application of mind to see the sufficiency of

material on record is required so as to put the accused to face the

rigour of trial. Neither the evidence is required to be discussed in

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detail nor is the same required to be appreciated. In view of the

point of law discussed above, this Court is of the firm opinion that

the matter is required to be remanded back to the learned trial

court for apt consideration of the material brought by the

prosecution.

26. Accordingly, all the four petitions being S.B. Criminal

Revision Petition bearing No. 1356/2022, 1096/2022, 1097/2022

and 1155/2022 succeed and the same are allowed. The impugned

order dated 03.08.2022 passed by the learned Special Judge

(Prevention of Corruption Act), No.2 Udaipur in Sessions Case

No.194/2019 is hereby quashed and set aside. The matter is

remanded back to the learned trial Court with the direction to pass

an appropriate order strictly in accordance with the mandate of

law envisaged under Sections 227 & 228 of the CrPC which must

be a speaking order, without being influenced by the earlier order

passed by it and the order passed by this Court herein.

It is to be made clear, in unambiguous terms, that the

observations made herein above shall not influence the trial judge

in any manner whatsoever so as to adversely affect the rights of

either of the parties.

The misc petitions are disposed of. Stay petitions are also

disposed of.

(FARJAND ALI),J

23-Anshul/-

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