http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3  

PETITIONER: STATE OF M.P.

       Vs.

RESPONDENT: S.B.  JOHARI & OTHERS

DATE OF JUDGMENT:       17/01/2000

BENCH: K.T.Thomas, M.B.Shah

JUDGMENT:

     Shah, J.

     Leave granted.

     The  aforesaid  appeals  are  filed by  the  State  of Madhya.Pradesh  challenging  the orders passed by  the  High Court  of Madhya Pradesh, Bench at Indore allowing  Criminal Revision  Applications  Nos.613 of 1998 and 159 of 1999  and quashing  the  charges  framed by  the  Additional  Sessions Judge,   Indore  in  Special   Case  No.28/96  against   the respondents  for  the  offences  punishable  under  Sections 5(1)(d)  and 5(2) of the Prevention of Corruption Act,  1948 read  with Section 120-B IPC and in the alternative for  the offence  punishable  under  Section  13(1)(d)/13(2)  of  the Prevention of Corruption Act, 1988.

     FIR  was  lodged at the Police Station Bhopal  to  the effect  that  there was criminal conspiracy in  purchase  of medicines  for  S.G.   Cancer   Hospital,  Indore.   At  the relevant time, Dr.  C.P.  Tiwari was posted as Dean, Medical College,  Dr.  M.S.  Dwivedi was working as  Superintendent, Mr.   S.B.   Johari (Respondent No.1 in SLP No.2854/99)  was working  as  Medical  Officer In- charge of Stores  and  Mr. Sudhir  Pingle  (Sole  Respondent  in  SLP  No.2855/99)  was working  as Accountant in the hospital.  It is alleged  that all  the aforesaid accused entered into criminal  conspiracy with  some  local  businessmen of Indore by  misusing  their posts  and  also by using some forged documents that  caused wrongful  loss  to the Government.  It has been stated  that though  many of the items have not been purchased, amount is paid  on  bogus vouchers.  On the basis of the  material  on record,  it  was  pointed  out   that  some  medicines  were purchased  at Jabalpur at lesser price, roughly at half  the rate.   After  considering the material on  record,  learned Sessions  Judge  framed  the charge as stated  above.   That charge  is quashed by the High Court against respondents  by accepting  the contention raised and considering details  of material  produced  on  record.  The same is  challenged  by filing these appeals.

     In  our view, it is apparent that the entire  approach of  the  High  Court  is illegal and  erroneous.   From  the reasons  recorded by the High Court, it appears that instead of  considering  the  prima facie case, the High  Court  has appreciated  and weighed the materials on record for  coming

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3  

to  the conclusion that charge against the respondents could not  have been framed.  It is settled law that at the  stage of framing the 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  the evidence  and  arrive at the conclusion that  the  materials produced  are sufficient or not for convicting the  accused. If  the  Court is satisfied that a prima facie case is  made out  for proceeding further then a charge has to be  framed. The  charge  can  be  quashed  if  the  evidence  which  the prosecutor  proposes  to  adduce to prove the guilt  of  the accused,  even if fully accepted before it is challenged  by cross  examination or rebutted by defence evidence, if  any, cannot  show that accused committed the particular  offence. In  such  case,  there  would be no  sufficient  ground  for proceeding  with  the trial.  In Niranjan Singh Karam  Singh Punjabi  etc.  v.  Jitendra Bhimraj Bijjayya and Others etc. reported  in  (1990)  4  SCC   76,  after  considering   the provisions  of Sections 227 and 228, Cr.P.C., Court posed  a question,  whether at the stage of framing the charge, trial court should marshal the materials on the record of the case as  he  would do on the conclusion of the trial?  The  Court held  that  at the stage of framing the charge inquiry  must necessarily  be  limited to deciding if the  facts  emerging from  such  materials constitute the offence with which  the accused  could be charged.  The Court may peruse the records for  that limited purpose, but it is not required to marshal it with a view to decide the reliability thereof.  The Court referred  to earlier decisions in State of Bihar v.   Ramesh Singh  (1977)  4 SCC 39, Union of India v.   Prafulla  Kumar Samal  (1979)  3 SCC 4 and Supdt.  & Remembrancer  of  Legal Affairs, West Bengal v.  Anil Kumar Bhunja (1979) 4 SCC 274, and  held thus:  - From the above discussion it seems  well settled  that  at  the Sections 227-228 stage the  court  is required  to  evaluate the material and documents on  record with  a view to finding out if the facts emerging  therefrom taken  at their face value disclose the existence of all the ingredients constituting the alleged offence.  The court may for  this limited purpose shift the evidence as it cannot be expected  even  at the 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. (emphasis supplied)

     In  the present appeals dealing with the contention of respondent  Dr.   Johri,  Mr.  A.P.  Acharya and  Dr.   O.P. Tiwari,  the High Court observed that role of Dr.  Johri  in purchase  of the medicines was limited to the extent that he prepared  only  a comparative statement of tenders and  that the  other  two  persons  were   members  of  the   Purchase Committee.   The  Court  arrived  at  the  conclusion   that comparison  of  different  prices  at  different  places  at different  periods  on the basis of  different  transactions between  different  persons cannot straightway be  made  the basis  for  alleging corruption or corrupt practice  on  the part  of  the accused.  The Court further observed that  the trial  court  has not properly appreciated that there  is  a difference  of  about 550 miles between Jabalpur and  Indore and  therefore  price  difference in purchase  of  medicines would be there.  The Court also held that the medicines were purchased  at  two  places   during  different  periods  and therefore  also,  there would be a price  difference.   With regard  to  A.  P.  Acharya and Dr.  O.P.  Tiwari the  Court observed  that they were not shown to have any control  over

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3  

the  purchase  of the goods and, therefore, they  cannot  be saddled  with  the criminal prosecution.  The Court  further considered  that  as  per  the  statement  of  Manufacturing Company  the  quotations  given by the M/s  Allied  Medicine Agency,  Indore  were  genuine  and,  therefore,  held  that charges  levelled  against the respondents Dr.   Johri,  Mr. A.P.   Acharya  and Dr.  Tiwari cannot stand for  a  minute. Similarly,  dealing with the contention of respondent Sudhir Pingle  in  Crl.   Revision No.159 of 1999, the  High  Court observed  that  it  cannot be disputed that  respondent  had prepared  the bills on account of instructions given to  him by superiors, namely, Dr.  Johri and Dr.  Tiwari and that on his  own  account he could not have prepared the said  bills for  making payment to M/s Allied Medical Agency.  The Court also  observed that he was neither empowered to place orders nor  competent  to make payment thereof unless the same  was approved  by the doctors who were actually in charge of  the hospital.   The  Court,  therefore, held that there  was  no sufficient material available for framing the charge against him.

     In our view the aforesaid exercise of appreciating the materials  produced  by  the  prosecution at  the  stage  of framing  of  the charge is wholly unjustified.   The  entire approach of the High Court appears to be as if the Court was deciding  the case as to whether accused are guilty or  not. It   was  done  without   considering  the  allegations   of conspiracy  relating to the charge under Section 120-B.   In most   of  the  cases,  it  is  only  from   the   available circumstantial  evidence an inference of conspiracy is to be drawn.   Further,  the  High Court failed to  consider  that medicines  are normally sold at a fixed price and in any set of  circumstances,  it  was  for  the  prosecution  to  lead necessary  evidence  at the time of trial to  establish  its case  that purchase of medicines for the Cancer Hospital  at Indore was at a much higher price than the prevailing market rate.  Further again non-joining of two remaining members to the  Purchase Committee cannot be a ground for quashing  the charge.    After  framing  the   charge  and  recording  the evidence,  if Court finds that other members of the Purchase Committee  were  also involved, it is open to the  Court  to exercise  its  power  under  Section  319  of  the  Criminal Procedure  Code.   Not  only  that,  the  Court  erroneously considered  the  alleged statement of manufacturing  company that  quotations given by M/s Allied Medicine Agency, Indore were genuine without there being any cross-examination.  The High  Court  ignored the allegation that many of  the  items have  not  been  purchased and the amount is paid  on  bogus vouchers.   Hence,  there was no justifiable reason for  the High Court to quash the charge framed by the trial court.

     In this view of the matter, the impugned orders passed by the High Court require to be quashed and set aside and we do so.  The appeals are allowed accordingly.