Narayan Lal Depura vs State Of Rajasthan
2022 Latest Caselaw 7392 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Revision Petition No. 472/2019

Narayan Lal Depura S/o Shri Ganesh Lal Ji Depura, Aged About 59 Years, Resident Of 17, Hiran Magri, Sector 11, Udaipur.

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

----Respondent

For Petitioner(s) : Mr. Kuldeep Mathur, Sr. Adv. a/w Mr. Vineet Dave For Respondent(s) : Mr M.A. Siddiqui, A.A.G.

Mr. Brijesh Soni, Addl. S.P., Bali Mr. Mahaveer Singh Ranawat, Addl.

S.P., A.C.B., Jalore

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

Reserved On: 12/05/2022 Pronounced On: 18/05/2022

1. This Criminal Revision Petition has been preferred under

Section 397 read with Section 401 Cr.P.C. praying for the following

reliefs:-

"It is, therefore, most humbly and respectfully prayed on behalf of the petitioner that this revision petition may kindly be allowed and the order dated 07.02.2019 passed by the learned Special Judge, Prevention of Corruption Act Cases, Udaipur in Sessions Case No. 32/2016 may kindly be quashed and set aside."

2. Mr. Kuldeep Mathur, learned Senior Counsel assisted by Mr.

Vineet Dave appearing on behalf of the petitioner submitted that

vide the impugned order dated 07.02.2019, the learned Court

below rejected the application filed by the petitioner under Section

227 Cr.P.C., and the learned Court below proceeded to frame the

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charges against the petitioner under Sections 7, 13 (1) (d)/13 (2)

of the Prevention of Corruption Act, 1988 (as it then stood) read

with Section 120-B I.P.C.

2.1. Learned Senior Counsel further submitted that a

communication dated 08.09.2014 was issued by the

Superintending Mining Engineer, Circle-Rajasamand, whereby, the

then Mining Engineer, Rajsamand-II was forwarded a copy of

complaint dated 08.09.2014, made by one Shri Bhura Lal, on the

public web portal of the State Government namely 'Rajasthan

Sampark Portal' in relation to an unauthorized excavation being

undertaken in Nathdwara, District Rajsamand.

2.2 He also submitted that vide communication dated

22.09.2014, the then Mining Engineer, Rajsamand, instructed the

Senior Mines Foreman, Rajsamand, to conduct an inspection

regarding the same and submit a report within three days

thereafter; subsequent to which a Site Panchnama report

prepared, and it was found that the unauthorized excavation has

been undertaken by one Shri Brijendra Agarwal (the offender),

who was utlizing a crusher plant for the said purpose.

2.3 He further submitted that vide communication dated

21.10.2014, the then Mining Engineer, called upon Shri Brijendra

Agarwal to submit his explanation within a period of 15 days, after

which vide communication dated 28.10.2014 he submitted his

explanation and that the present petitioner came to be posted and

joined as Mining Engineer, Rajsamand - II on 27.10.2014 and an

inspection was carried out by the petitioner who found that the

offender without due authorization had excavated and utilized

mineral quartzite to the extent of about 185 tonnes, in clear

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violation of Rule 48 of the Rajasthan Minor Mineral Concession

Rules, 1986 (hereinafter referred to as 'Rules of 1986').

2.4 He also submitted that an order sheet came to be drawn by

the petitioner and a demand of Rs.1,35,000/- towards cost of

mineral, royalty and rent as well as as sum of Rs. 25,000/- as

compounding fees in accordance with Rule 48(5) and 48(3) of the

Rules of 1986, respectively was raised against the offender for the

aforementioned violation of law. And, accordingly a notice for the

same came to be to be issued to the offender.

2.5 He further submitted that it is after all of this, that the

offender lodged a false complaint to the A.C.B. stating that on

13.01.2015 (on the date of inspection), the petitioner alongwith

the Mines Foreman Shri Om Prakash Agaal visited his factory and

demanded a bribe which he refused to pay. And that, it was

alleged that as a consequence of such refusal, the penalty and

compounding fees, as aforementioned, was imposed on him.

However, the trap proceedings were set and the Mines Foreman

was caught red handed, but that the petitioner was not involved in

any kind of transaction with Shri Brijendra Agarwal nor with Shri

Om Prakash Agaal.

2.6 He also submitted that furthermore, given the above

mentioned background of the case, the complaint is in fact a false

and fabricated one.

2.7 Learned Senior Counsel further submitted that on

18.02.2015, interim bail was granted to the petitioner by the

Special Court and Sessions Judge, Prevention of Corruption Act

Cases, Udaipur and this Hon'ble Court granted bail under Section

438 Cr.P.C. to the petitioner; on 12.10.2015 an investigation

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report came to be submitted by the A.C.B. Udaipur and that on

12.05.2016, a charge sheet, bearing No. 97/2016 dated

06.05.2016, was filed before the learned Special Court against the

petitioner and the mines foreman, as above-named.

2.8. Learned Senior Counsel also submitted that the learned

Court below has proceeded against the revisionist-petitioner

without there being any allegation in the entire investigation

report, and without any basis, but proceeded merely on

conjectures and surmises.

2.9 Learned Senior Counsel further submitted that it has been

concluded in the charge sheet that the note sheet, dated

16.01.2015, was drawn by the petitioner subsequent to the trap

conducted on 20.01.2015 And that the charge-sheet has also

disputed the authority of the petitioner to levy the compound fee

of Rs. 25,000/-

2.10. Learned Senior Counsel also submitted that the petitioner

moved an application under Section 227 Cr.P.C. before the learned

Court below seeking his discharge in the matter. But that the

same was rejected and the learned Court below went on to frame

charges against the petitioner despite the absence of ingredients

for the offence under Section 7 of the Act of 1988 to be made out,

and without affording him an opportunity to present his case in

regard thereto.

2.11 Learned Senior Counsel further submitted that the learned

Court below erred rejecting the petitioner's application filed under

Section 227 Cr.P.C. and further erred in framing the charges

against the petitioner.

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2.12 Learned Senior counsel placed reliance on the following

judgments:-

2.12.1 Dilawar Balu Kurane Vs. State of Maharashtra

(2002) 2 SCC 135, relevant portion of which reads as under:

" Our attention was drawn to the decision of this court in State of Gujarat versus Manshankar Prabhasankar Dwivedi 1973 (1) SCC 313. In that case a lecturer of Government College was appointed as an examiner by the University and it was alleged that he took Rs. 400/- from a candidate at the examination for showing favour. On these facts, this court held that a person appointed as an examiner by the University even if he was a lecturer of a Government College would not be a public servant within the meaning of Section 21 of the Indian Penal Code. We have already observed that the appellant would not come under the purview of the said Section 21 and therefore that decision is of no help. In the case in hand, the appellant was appointed by the University for a specified work, namely to evaluate answer scripts and therefore he was a public servant at the relevant time under sub-section (4) of Section 73 of the Act.

Now the next question is whether a prima facie case has been made out against the appellant. In exercising powers under Section 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section has the undoubted power to sift and weight 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 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; by and large 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 justified to discharge the accused, and in exercising jurisdiction under Section 227 of the Code of Criminal Procedure, the Judge

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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 but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial [See Union of India v. Prafulla Kumar Samal and Anr. 1979CriLJ154.

As stated earlier, neither the Special Judge nor the High Court considered the materials on records while framing charge and there was no application of mind and the Special Judge merely acted as a post office. All the materials produced by the prosecution against the accused were duly considered by the High Court while disposing of the Writ Petition filed by the appellant. In coming to the conclusion that the prosecution case rests upon flimsy foundation and it is quite possible that the chances of a conviction are bleak, the High Court recorded as follows:

"Without in any way prejudging the issue I must say that the vital content of the prosecution case seems somewhat amazing. An association of students provides money to an examinee to get his marks increased. This is said to have been done and the answer-books attached. The First Information Report is given some seven days after this incident. Information of the offence is conveyed to a police station and yet investigation by the A.C.B. is taken up as late as March 1987. Nothing incriminating has been found with the Petitioner."

2.12.2 Union of India Vs. Prafulla Kumar Samal and Anr. (1979) 3 SCC 4, relevant portion of which reads as under:

"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

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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."

3. On the other hand, Mr M.A. Siddiqui, learned A.A.G.

appearing on behalf of the State/respondent, alongwith Additional

SP, Bali and Addl. SP, ACB, Jalore present in person, while

opposing the aforementioned submissions made on behalf of the

petitioner, submitted that the learned trial court, after taking into

due consideration all the facts and circumstances of the present

case and after considering the evidence placed on record before it,

has rightly passed the impugned order.

3.1 Learned A.A.G. further submitted that the learned trial court

has passed the impugned order of framing the charges against the

petitioner, wherein a detailed analysis or a roving enquiry is not

required at the stage concerned.

3.2 Learned A.A.G. harped upon the word "presumption"

occurring in Section 228 Cr.P.C. stating that if the Judge is of the

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opinion that a ground for presumption of the alleged offence

against the accused lies after consideration and hearing of the

case, then charges can be framed against such accused person(s).

3.3 Learned A.A.G. further submits that upon conducting the trap

proceedings, there was a recovery made from the petitioner, and

on testing his hands, he was revealed to have come into contact

with the currency notes used during the trap proceedings.

3.4 Learned A.A.G. also submitted that the amount of Rs.

25,000/- which is being claimed by the petitioner as a

compounding fee, prima facie cannot be accepted as no receipt

towards the same was given to the complainant.

3.5 Learned A.A.G. thus submitted that in light of the above, the

learned Court below has rightly proceeded to frame charges

against the petitioner.

3.6. Learned A.A.G. placed reliance on the following judgments:-

3.6.1 Bhawna Bai Vs. Ghanshyam and Ors. (2020) 2 SCC

217, relevant portion of which reads as under:

"As discussed above, in the present case, upon hearing the parties and considering the allegations in the charge sheet, the learned Second Additional Sessions Judge was of the opinion that there were sufficient grounds for presuming that the Accused has committed the offence punishable Under Section 302 Indian Penal Code read with Section 34 Indian Penal Code. The order dated 12.12.2018 framing the charges is not a detailed order. For framing the charges Under Section 228 Code of Criminal Procedure, the judge is not required to record detailed reasons. As pointed out earlier, at the stage of framing the charge, the court is not required to hold an elaborate enquiry; only prima facie case is to be seen. As held in Knati Bhadra Shah and Anr. v. State of West Bengal : (2000) 1 SCC 722, while exercising power Under Section 228 Code of Criminal Procedure, the judge is not required record

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his reasons for framing the charges against the Accused. Upon hearing the parties and based upon the allegations and taking note of the allegations in the charge sheet, the learned Second Additional Sessions Judge was satisfied that there is sufficient ground for proceeding against the Accused and framed the charges against the Accused-Respondent Nos. 1 and 2. While so, the High Court was not right in interfering with the order of the trial court framing the charges against the Accused-Respondent Nos. 1 and 2 Under Section 302 Indian Penal Code read with Section 34 Indian Penal Code and the High Court, in our view, erred in quashing the charges framed against the Accused. The impugned order cannot therefore be sustained and is liable to be set aside."

3.6.2 State of Rajasthan Vs. Ashok Kumar Kashyap, 2021 (2) Crimes 101 (SC), relevant portion of which reads as under:

"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 Code of Criminal Procedure. 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. 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

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exercise of considering the transcript in detail and in considering whether on the basis of the material on record the Accused is likely to be convicted for the offence Under Section 7 of the PC Act or not. 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.

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."

4. Heard learned counsel for the parties as well as perused

the record of the case.

5. This Court observes that at the stage of framing of

charge, the court is only required to prima facie presume

whether a case against the accused person(s) may be made

out. And that the facts that emerge from the case may be

taken at face value; if they disclose the existence of

ingredients constituting the alleged offences, then the charges

may be framed.

6. Furthermore, the word "presuming" in Section 228

Cr.P.C. has been consciously inserted by the legislature, with

the intention that if the Court strongly suspects that the

accused person(s) is in any way connected with the

commission of the alleged offence(s), then it may proceed to

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frame charges against the accused person(s). The said word

must be read ejusdem generis to the opinion that there is a

ground for forming an opinion that the accused person(s) has

committed the alleged offence(s).

7. Moreover, it would also be immaterial whether the said

opinion has been formed either on the basis of direct, or

circumstantial evidence.

8. This Court further observes that the order passed by the

Court framing charges against the accused person(s), need

not be a detailed order as Section 228 Cr.P.C. is tentative,

meaning thereby, if a strong suspicion exists in the mind of

the Court at the said stage, then the same is sufficient for the

Court to proceed with the framing of the charge against the

accused person(s). And if a prayer for discharge has been

made before a revisional court, then the same may only be

allowed if the court finds that the materials on record are

wholly insufficient for the purpose of trial.

9. This Court also observes that the cases cited by the

learned Senior Counsel appearing on behalf of the revisionist-

petitioner do not render any assistance to the petitioner's

case.

10. The observations made hereinabove, are not only

entrenched in the Cr.P.C. by the legislature, but are also

fortified by the judgments rendered by the Hon'ble Apex

Court, not only in the ones cited by the learned A.A.G. in

Bhawna Bai (supra) and State of Rajasthan Vs. Ashok

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Kumar Kashyap (supra), but in a catena of consistent

judgments delivered by the Hon'ble Apex Court over time.

11. This Court finds, as is evident from the record, that the

learned trial court has rightly proceeded with framing charges

against the petitioner, and that the presumption so made

under the Prevention of Corruption Act, 1988 (as it stood

then) has been made, since, prima facie, it seems that there a

recovery has been made from the revisionist and that the

revisionist-petitioner's hands upon being tested revealed that

he came into contact with the currency notes used during the

trap which were smeared with phenophthalein powder.

12. This Court also observes, from the transcript placed on

record, it prima facie appears that a demand for an illegal

gratification has been made by the revisionist-petitioner to the

complainant over the conversation on the telephone between

them, where the revisionist petitioner stated that he will

issue a receipt for the amount of Rs. 25,000, which he

classified as being towards the 'compounding fee' but not for

any amount over and above the said fee.

13. Needless to say, the above made observations shall not

prejudice the case of the revisionist-petitioner before the

learned Court below, during the trial.

14. This Court, in light of the above discussion, finds that

the impugned order does not suffer from any legal infirmity,

so as to warrant any interference by this Court.

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14. This Court, therefore, dismisses the present revision

petition. All pending applications also stand disposed of.

(DR.PUSHPENDRA SINGH BHATI), J.

Skant/-

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