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CASE NO.: Appeal (crl.)  479 of 2008

PETITIONER: Hem Chand

RESPONDENT: State of Jharkhand

DATE OF JUDGMENT: 13/03/2008

BENCH: S.B. Sinha & V.S. Sirpurkar

JUDGMENT: JUDGMENT

CRIMINAL APPEAL NO.    479 OF 2008 (Arising out of SLP(Crl.) No. 5934 of 2007)

S.B. SINHA, J.  

1.      Leave granted.

2.      Appellant is an IPS Officer of 1971 batch of the West Bengal cadre.    He joined the Central Coalfields Ltd., a Government Company as a Chief  Vigilance Officer on deputation.  He was re-designated as Executive  Director (Vigilance).   

A raid  was conducted by the CBI Officials at his residence  in the  night of 30/31.8.1992, pursuant whereto, a first information report was  lodged.   A charge sheet was filed in the said case against him on or about  18.6.1997. Appellant filed an application inter alia for supply of the copies  of item Nos. 1 and 20 of the documents mentioned in the said charge sheet.   The same was not issued to him.  Several contentions in regard thereto were  raised.   He moved the High Court in revision which was marked as  Criminal Revision No. 90 of 1999

3.      By an order dated 20.4.2001, a learned Single Judge of the High Court  directed supply of the said documents to the petitioner, stating;

"16.   Various points were raised on behalf of both  sides but it is unnecessary to enter into all those  points on merit at this stage as I find that the order  passed by the learned Special Judge has got to be set  aside and thus it would be appropriate to remit the  matter back to the court below leaving it open to the  parties to raise their respective contentions before  the learned Special Judge, C.B.I. and the learned  Special Judge, C.B.I., Ranchi is directed to furnish  the copies of Item Nos. 1 and 20 of the Search List  to the accused/petitioner and those documents may  also be taken into consideration along with other  documents placed by the C.B.I. while passing the  order on the matter of discharge."

4.      Appellant filed an application for his discharge inter alia on the  premise that no case for framing of charge has been made out.  He,   furthermore, filed some documents in his own defence.   The said  application for discharge was rejected by the learned Special Judge, CBI,  opining that the documents relied on by the appellant cannot be looked into  for the purpose of passing an order on his application for discharge.  

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Revision Application filed by the appellant thereagainst under Section 397  of the Code of Criminal Procedure has been dismissed by the High Court by  reason of the impugned judgment.  

5.      Appellant admittedly, is facing trial for an alleged commission of an  offence under Section 13(2) read with Section 13(1)(e) of the Prevention of  Corruption Act, 1998.

       Allegations against the appellant are that he was found to be in  possession of assets more than his known source of income.   

The question is as to whether any documents, whereupon the  appellant may rely upon in support of his defence, can be looked into at the  stage of framing of the charge.  

6.      Mr. Saurabh Mishra, the learned counsel appearing on behalf of the  appellant would submit that keeping in view the order passed by the High  Court on 20.4.2001 in Criminal Revision No. 90 of 1999, it is evident that  Central Bureau of Investigation itself has seized the said documents from the  residence of the appellant and in that view of the matter, he could rely  thereupon.

7.      Mr. B.B. Singh, the learned counsel appearing on behalf of the State,  on the other hand, would submit that from a perusal of the order passed by  the learned Special Judge, it would be evident that the appellant intended to  rely upon some documents which were filed before the learned Special  Judge for the first time, the impugned judgment should not be interfered  with.    

8.      It is beyond any doubt or dispute that at the stage of framing of  charge, the Court will not weigh the evidence.  The stage for appreciating  the evidence for the purpose of arriving at a conclusion as to whether the  prosecution was able to bring home the charge against the accused or not  would arise only after all the evidences are brought on records at the trial.

       The documents whereupon the appellant intended to rely upon were:  (i) an order of assessment passed by the Income Tax Authority and (ii) his  declaration of assets.

9.      It is one thing to say that on the basis of the admitted documents, the  appellant was in a position to show that the charges could not have been  framed against him, but it is another thing to say that for the said purpose he  could rely upon some documents whereupon the prosecution would not rely  upon.

10.     The learned Special Judge has noticed that sixteen number of  documents had been filed by the appellant together with his application for  discharge.  The prosecution has also relied upon a large number of  documents which were 56 in number, out of which 5 being related to the  matter of investigation, have nothing to do with the merit of the matter.  Out  of the 51 documents, seventeen related to the expenditure purported to have  been incurred by the appellant.   Four documents related to income of the  appellant’s wife.   Out of remaining 30 documents, 6 documents related to  the assets of his wife exclusively and one related to his mother’s assets.  23  documents, thus, related to the assets of the appellant which are reflected in  his declaration of assets made annually by him.

11.     The learned Special Judge, however, considering the documents on  record opined; "\005But at this stage I find that unless the documents filed  by the defence are not formally proved no finding can be  given, because it would amount to discussion the merit of  the case before conclusion of trial.  However, the  materials collected in the case diary by the prosecution  reveals that there are ground for framing charge under the

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aforesaid sections against the accused petitioner.   Hence,  the above petition stands rejected."

12.     The learned counsel for the CBI is, thus, correct in his submission that  what has been refused to be looked into by the learned Special Judge related  the documents filed by the appellant alongwith his application for discharge.    

       The Court at the stage of framing charge exercises a limited  jurisdiction.   It would only have to see as to whether a prima facie case has  been made out.   Whether a case of probable conviction for commission of  an offence has been made out on the basis of the materials found during  investigation should be the concern of the Court.   It, at that stage, would not  delve deep into the matter for the purpose of appreciation of evidence.   It  would ordinarily not consider as to whether the accused would be able to  establish his defence, if any.  

       In State of M.P. Vs. Mohanlal Soni [(2000) 6 SCC 338], this Court  has held; "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.

It was furthermore observed;

"\005As is evident from the paragraph extracted above if the  court is satisfied that a prima facie case is made out for  proceeding further then a charge has to be framed.  Per contra,  if the evidence which the prosecution proposes to produce to  prove the guilt of the accused, even if fully accepted before it is  challenged by the cross-examination or rebutted by the defence  evidence, if any, cannot show that the accused committed the  particular offence then the charge can be quashed."    

       We agree with the said view.

       See also State of Orissa Vs. Debendra Nath Padhi [(2005) 1 SCC 568]

       We may, however, add that in this case, this Court is not concerned  with other legal principles, which would be applied in determining the issues  at that stage.

13.     For the reasons aforementioned, there is no merit in this appeal which  is dismissed accordingly.