Rajasthan High Court - Jodhpur

Sandeep Kumar Swami vs State Of Rajasthan (2024:Rj-Jd:10697) on 4 March, 2024

Author: Manoj Kumar Garg

Bench: Manoj Kumar Garg

[2024:RJ-JD:10697]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Revision Petition No. 136/2024

Sandeep Kumar Swami S/o Shri Ramesh Kumar Swami, Aged
About 40 Years, R/o 3 C 13 Murlidhar Vyas Colony Bikaner
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent

For Petitioner(s) : Ms. Deepika Soni
For Respondent(s) : Mr. Mukesh Trivedi, PP

HON'BLE MR. JUSTICE MANOJ KUMAR GARG

Order

04/03/2024

Instant revision petition has been filed by the petitioner

against the order dated 11.05.2023 passed by learned Special

Judge (Prevention of Corruption Act) Cases, Bikaner whereby, the

trial court framed charges against the petitioner for offences under

Section 7 of the Prevention of Corruption Act.

Brief facts of the case are that one FIR bearing No. 173/2022

came to be lodged against the petitioner who was working on the

post of Patwari, for the offence under Section 7 of Prevention of

Corruption Act. The State Government granted prosecution

sanction against the petitioner vide order dated 28.10.2022.

Thereafter, investigation commenced and after investigation, the

police submitted chargesheet against the petitioner under Section

7 of Prevention of Corruption At. Thereafter, arguments upon

charge were heard and by way of impugned order dated

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11.05.2023, charges were framed by the trial court. Hence, this

revision petition.
Learned counsel for the petitioner submits that on perusal of

FIR as well as the challan papers, there is no evidence whatsoever

to frame charges against the petitioner for aforesaid offences. It

is argued that neither any demand was made by the petitioner nor

any work was pending with the petitioner. It has come on record

in the chargesheet itself that no work was pending with the

petitioner. Despite the fact that there are no witnesses or

evidence of demand of bribe from the complainant, the trial court

has mechanical framed charge against the petitioner. It is argued

that no offence whatsoever is made out against the petitioner and

the impugned order framing charges is liable to be set aside. He

placed reliance on the judgment of Hon'ble Apex Court in the case

of Jagtar Singh Vs. State of Punjab reported in 2023 LiveLAW (SC)

232, Soundarajan Vs. State (Criminal Appeal No. 1592/2022)

dated 17.04.2023 and Subash Parbat Sonvane Vs. State of

Gujarat (appeal Crl.) No. 546/2022 dated 24.04.2022.

Per contra, learned Public Prosecutor supported the order

passed by the learned Trial Court and argued that the police after

thorough investigation submitted challan against the petitioner

and the trial court after going through the entire record, has

framed charges against the petitioner. It is argued that there is

allegation against the present petitioner for receiving money,

therefore, the order of framing charge passed by the learned

Court below does not suffer from any infirmity and all other

questions raised in regard to the present case are to be

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considered by the learned Trial Court at the appropriate stage.

I have thoughtfully considered the arguments advanced on

behalf of the parties and perused the material available on record.

From the perusal of the material on record, more

particularly, the transcript of conversation, it is clear that

petitioner demanded a sum of Rs.4,000/- from the complainant.

When the complainant expressed his inability, the petitioner

insisted on payment of amount. Thus, there is specific averment

with regard to demand of money for the work done by the

petitioner. After perusing the documents and studying the

evidence collected during investigation, this Court is of the opinion

that trial court has not committed any error in framing charge for

offences mentioned above. It is settled law that at the time of

framing the charges, the truth, veracity and the effect of the

evidence, which the prosecution proposes to produce are not to be

meticulously examined. At this stage, the Court only has to see

whether the unrebutted evidence, which the prosecution is to

adduce, makes way for conviction and if it is so then the charge

can be framed. But if the evidence itself does not disclose that the

accused has committed the offence, then the charge should not be

framed. The Court, while framing the charges, is required to

evaluate the materials and documents on record with a view to

find out if the facts emerging therefrom disclose the presence of

all the ingredients constituting the alleged offence.

In the case of Sajjan Kumar v. Central Bureau of

Investigation reported in (2010) 9 SCC 368, Hon'ble Supreme

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Court in para 21 of the judgment has laid down the principles

which are to be kept in mind by the Court while exercising

jurisdiction under Sections 227 & 228 Cr.P.C., which are as

below :

"(i) The Judge while considering the question of framing the
charges under Section 227 Cr.P.C. has the undoubted power
to sift and weigh the evidence for the limited purpose of
finding out whether or not a prima facie case against the
accused has been made out. The test to determine prima
facie case would depend upon the facts of each case.

(ii) Where the materials placed before the Court disclose
grave suspicion against the accused which has not been
properly explained, the court will be fully justified in framing
a charge and proceeding with the trial.

(iii) The court cannot act merely as a post office or a
mouthpiece of the prosecution but has to consider the broad
probabilities of the case, the total effect of the evidence and
the documents produced before the court, any basic
infirmities etc. However, at this stage, there cannot be a
roving enquiry into the pros and cons of the matter and
weigh the evidence as if he was conducting a trial.

(iv) If on the basis of the material on record, the court could
form an opinion that the accused might have committed
offence, it can frame the charge, though for conviction the
conclusion is required to be proved beyond reasonable doubt
that the accused has committed the offence.

(v) At the time of framing of the charges, the probative
value of the material on record cannot be gone into but
before framing a charge the court must apply its judicial
mind on the material placed on record and must be satisfied
that the commission of offence by the accused was possible.

(vi) At the state of Sections 227 & 228, the court is required

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to evaluate the material and documents on record with a
view to find out if the facts emerging therefrom taken at
their face value disclose the existence of all the ingredients
constituting the alleged offence. For this limited purpose, sift
the evidence as it cannot be expected even at that initial
stage to accept all that the prosecution states as gospel truth
even if it is opposed to common sense or the broad
probabilities of the case.

(vii) If two views are possible and one of them gives rise to
suspicion only, as distinguished from grave suspicion, the
trial Judge will be empowered to discharge the accused at
this stage, he is not to see whether the trial will end in
conviction or acquittal."

In the case of Amit Kapoor v. Ramesh Chander & Anr.

reported in (2012) 9 SCC 460, Hon'ble Supreme Court has held

that at the initial stage of framing of a charge, the Court is

concerned not with the proof but with a strong suspicion that the

accused has committed an offence, which, if put to trial, could

prove him guilty. All that the Court has to see is that the material

on record and the facts would be compatible with the innocence of

the accused or not. The final test of guilt is not to be applied at

that stage.

Hon'ble Apex Court in the case of 'State of Rajasthan Vs.

Fatehkaran Mehdu' reported in AIR 2017 SC 796, while dealing

with the scope of interference under Section 397 Cr.P.C when the

charge had been framed, has held as under :-

"26. The scope of interference and exercise of jurisdiction
Under Section 397 of Code of Criminal Procedure has been
time and again explained by this Court. Further, the scope of
interference Under Section 397 Code of Criminal Procedure

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at a stage, when charge had been framed, is also well
settled. At the stage of framing of a charge, the court is
concerned not with the proof of the allegation rather it has to
focus on the material and form an opinion whether there is
strong suspicion that the Accused has committed an offence,
which if put to trial, could prove his guilt. The framing of
charge is not a stage, at which stage final test of guilt is to
be applied. Thus, to hold that at the stage of framing the
charge, the court should form an opinion that the Accused is
certainly guilty of committing an offence, is to hold
something which is neither permissible nor is in consonance
with scheme of Code of Criminal Procedure.

27. Now, reverting to the limit of the scope of jurisdiction
Under Section 397 Code of Criminal Procedure, which vests
the court with the power to call for and examine the records
of an inferior court for the purposes of satisfying itself as to
the legality and regularity of any proceedings or order made
in a case. The object of this provision is to set right a patent
defect or an error of jurisdiction or law or the perversity
which has crept in the proceeding.

........

29. The Court in para 27 has recorded its conclusion and laid down principles to be considered for exercise of jurisdiction Under Section 397 particularly in context of quashing of charge framed Under Section 228 Code of Criminal Procedure Para 27, 27(1), (2), (3), (9), (13) are extracted as follows:

"27. Having discussed the scope of jurisdiction under these two provisions, i.e., Section 397 and Section 482 of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but is inherently

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impossible to state with precision such principles. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction Under Section 397 or Section 482 of the Code or together, as the case may be:

27.1) Though there are no limits of the powers of the Court Under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.

27.2) The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.

27.3) The High Court should not unduly interfere.

No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.

27.9) Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to

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determine whether there is sufficient material on the basis of which the case would end in a conviction; the Court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.

27.13) Quashing of a charge is an exception to the Rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie.

30. Applying the above tests, we are of the considered opinion that High Court erred in quashing the charges framed by the order dated 05.05.2009. In result, both the appeals are allowed. The order of the High Court is set aside and the order dated 05.05.2009 is restored. The learned Special Judge may proceed with the trial in accordance with the law expeditiously."

Recently, Hon'ble Apex Court in the case of 'Bhawna Bai Vs.

Ghanshyam & Ors' reported in 2020 Cr.L.R (SC) 5, while

considering the judgment rendered in the case of Amit Kapoor

(Supra) dealing with the scope of interference when the charges

had been framed, held as under :-

"16. 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

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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 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.

17. In the result, the impugned judgment dated 25.02.2019 passed by the High Court of Madhya Pradesh at Indore Bench in Criminal Revision No. 402 of 2019 is set aside and this appeal is allowed. Sessions Trial Case No. ST/150/2018 is restored and Second Additional Sessions Judge, Mandleswar, West Nimad, Madhya Pradesh shall proceed with the matter

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in accordance with law. We make it clear that we have not expressed any opinion on the merits of the matter."

Thus, it is well settled legal position that at the stage of

framing charge for an offence against an accused only prima facie

has to be seen whether sufficient grounds are available on record

to proceed against him and even strong suspicion is enough to

frame charge and at this stage of the proceedings evidence is not

required to be analyzed, as it is required to be done at the final

stage after trial. So far as the judgments cited by counsel for the

petitioner are concerned, the same are passed by the Hon'ble

Apex Court at the appellate stage challenging the conviction,

which is not the present case.

In view of above, this Court is of the opinion that trial court

has not committed any error in framing charge for offence under