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PETITIONER: STATE OF MADHYA PRADESH

       Vs.

RESPONDENT: MOHANLAL SONI

DATE OF JUDGMENT:       19/07/2000

BENCH: Shivaraj V. Patil, S.R.Babu

JUDGMENT:

     Shivaraj V.  Patil,J.

     This  petition  is  by  the State  of  Madhya  Pradesh directed  against  the order dated 10.11.1998 passed by  the High  Court  of  Madhya  Pradesh in  criminal  Revision  No. 274/98  by  which the charges framed against the  respondent under  Section  13(1)(e)  read  with Section  13(2)  of  the Prevention  of  Corruption Act, 1988 (for short  the  ’Act’) were quashed.

     The  relevant  and necessary facts to dispose of  this petition are:

     The  respondent  was  working  as  a  Road   Transport Inspector  in  the  Regional Office of  the  Road  Transport Corporation,  Bhopal  and  is a public servant as  such.   A complaint  under Section 13(1)(e) read with Section 13(2) of the  Act  for  the check period 25.9.1982 to  27.3.1993  was filed stating that he had acquired the property in excess of the  known  source of his income.  During the  investigation properties  and  assets  belonging to  his  mother-in-  law, father,  brother  and  nephew were shown as  assets  of  the respondent.   The  assets of his wife, who is an  income-tax payer  and  a self-earning member, were also connected  with the assets of the respondent.  While submitting charge sheet several important documents, which were collected during the course  of  investigation, were withheld.  According to  the respondent  the  said  documents supported  him.   If  those documents  were  considered  even prima facie there  was  no scope  to frame charges against him.  At the time of framing charges   the  respondent  made   an   application   seeking production  of these documents in court before proceeding to frame charge.  But the said application was rejected stating that  for the purpose of framing charges only the  documents forwarded to the court under Section 173(5) Cr.P.C.  need to be considered.  Hence he filed Criminal Revision No.  337/97 in  the High court.  The said Revision Petition was disposed of by the order dated 8.9.1997 in the following terms:  -

     "In  the  result  the revision is allowed,  the  order impugned  is set-aside and it is directed that the documents made  available  by  the  accused  during  investigation  be produced  and  may be taken into consideration by the  court below while framing the charge."

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     Thereafter  the  trial  court   framed  charges  under Section  13(1)(e)  read  with  Section  13(2)  of  the  Act. Aggrieved by the order dated 4.4.1988 framing charges in the Special  Case  No.  26/96 by the Special Judge, Indore,  the respondent  filed  Criminal Revision No.  274/98.  The  High Court  by  order dated 10.11.1998 accepted the case  of  the respondent,  set  aside  the order of  the  learned  Special Judge,   Indore,   framing  charges   and   discharged   the respondent.  In these circumstances the State has come up in this petition challenging the said order of the High Court.

     The  learned  Senior  Advocate   for  the   petitioner contended  that at the stage of framing charges for  offence under  section  13(1)(e) read with Section 13(2) of the  Act the  Trial Judge was not required to consider documents like income-tax  return  and  income-tax orders  and  calculation chart  of  the  accounts;   the  documents  like  income-tax assessment  orders  and calculation chart submitted  by  the respondent  ought not to have been accepted at the stage  of framing   charges  without  proving   them  and  that  those documents  could be proved during trial by the author as per the  provisions of Evidence Act.  He referred to and  relied on  the  decision of this Court in State of M.P.  vs.   S.B. Johari and Others .

     On  the other hand, the learned senior counsel for the respondent  submitted  that  the   order  impugned  in  this petitioner  is  unassailable;   the  trial  court  committed manifest  error  in not considering the documents  collected during  the course of investigation though produced late but before  framing charges, by the investigating agency  itself pursuant  to  the  order dated 8.9.1997 passed by  the  High court  in  criminal Revision No.  337/97 which  prima  facie supported  the  respondent;  and that the High Court  having considered  all the material that was available at the  time of  framing charges rightly set aside the order of the trial court framing charges and discharged the respondent.

     We  have  examined the rival submissions made  by  the learned  senior counsel for the parties.  Our attention  was specifically  drawn  to the earlier order of the High  court dated  8.9.1997  passed in Criminal Revision No.  337/97  in which  the trial court was directed that the documents  made available  by  the accused during investigation be  produced and  they  be  taken into consideration by the  court  while framing charges.  The said order became final, it having not been  challenged further.  In this situation the parties and the  trial  court  were  bound  and  governed  by  the  said direction.   Since  the trial court did not follow the  said direction, the High Court having considered all the material including  the documents produced by the prosecution itself, which were collected during the course of investigation, and on being prima facie satisfied taking the documents on their face  value held that no offence was made out and as such no charge  could  be  framed against the respondent.   In  this view,  the High Court set aside the order of the trial court and  passed the order discharging the respondent.  The  High Court  in the order under appeal has elaborately  considered the  documents collected during the course of  investigation and  produced by the prosecution itself which were available at  the time of framing charges.  It may be added that  most of  the  documents  relate  to  the  income-tax  returns  or income-tax  assessment orders.  All these documents  pertain to  the period prior to 26.3.1993.  Some of them even relate to  the year 1988.  In the normal course the documents could

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not  have been prepared in anticipation that the  respondent would  have  to  face such charges on a  future  date.   The documents  being  the orders of assessment or  return  filed with  the  income-  tax  authorities  on  their  face  value supported the case of the respondent.  The High Court in the order dated 8.9.1997 passed in Criminal Revision No.  337/97 relied  on  the decision of this Court in Satish  Mehra  vs. Delhi  Administration and Another .  In the said decision it is held:  -

     "The  object  of providing such an opportunity  as  is envisaged  in Section 227 of the Code is to enable the Court to  decide whether it is necessary to proceed to conduct the trial.  If the case ends there it gains a lot of time of the Court  and  saves  much  human efforts  and  cost.   If  the materials  produced by the accused even at that early  stage would  clinch  the issue, why should the Court shut  it  out saying  that  such  documents need be  produced  only  after wasting  a  lot more time in the name of trial  proceedings. Hence,  we  are  of the view that sessions  Judge  would  be within  his  power  to  consider even  materials  which  the accused may produce at the stage contemplated in section 227 of the Code."

     Be  that it may, when the said order attained finality as  already  noticed  above, the trial court  was  bound  to follow  the directions given therein.  Its failure to follow the  directions  resulted  in framing  charges  against  the respondent ignoring the documents, which on their face value supported the respondent.

     The crystallized 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.

     In  Anand  Bezbaruah vs.  Union of India  the  Gauhati High  Court  was of the view that where accused was  charged with   the   offence  of   having  resources  and   property disproportionate  to  his income and trial court  failed  to consider  and  evaluate the income tax return which  clearly established  that  the  property included in the  assets  of accused  and  shown  to be disproportionate  is  the  wife’s property  bought from her own resources and should have been excluded from assets of the accused.

     Yet  in  another  decision of this Court  in  Niranjan Singh  Karam Singh Punjabi vs.  Jitendra Bhimraj Bijjaya and Others it is held that at the time of framing charges having regard  to  Sections  227 and 228 of Cr.P.C.  the  court  is required  to  evaluate the material and documents on  record with  a view of finding out if the facts emerging there from taken  at their face value disclose the existence of all the ingredients constituting the alleged offence.  The court may for  this limited purpose to sift 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 broad probabilities of the case.

     Further  in Satish Mehra’s case (supra) this Court has stated  that  the Sessions Judge was not expected to hold  a roving  inquiry  into the pros and cons of the case  at  the

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stage  of framing charges by weighing the evidence as if  he was conducting the trial.

     Decision  in  the  case of State of  M.P.   vs.   J.B. Johari  and Others (cited above), strongly relied on by  the learned  counsel  for the petitioner, in our view  does  not advance  or support the case of the petitioner.  That was  a case  where FIR was lodged at the Police Station, Bhopal  to the effect that there was criminal conspiracy in purchase of medicines  by  the concerned hospital authorities  including Dean, Superintendent, Medical Officer In- charge and others. It  was alleged that aforesaid accused entered into criminal conspiracy with some local businessmen of Indore by misusing their  posts and also by using some forged documents  caused wrongful  loss to the Government.  It was stated that though many  of  items had not been purchased, amount was  paid  on bogus  vouchers.  After considering the material on  record, learned  Sessions  Judge  framed  the  charges  against  the accused for the offence punishable under Section 5(1)(d) and 5(2)  of  the Prevention of Corruption Act, 1948  read  with Section  120B  IPC  and in the alternative for  the  offence punishable under Section 13(1)(d) read with Section 13(2) of the  Prevention of Corruption Act, 1988.  The High Court  in revision  quashed  the  charges  accepting  the  contentions raised  by  the  accused  after  detailed  consideration  of material produced on record.  Having regard to the facts and circumstances of the case and referring to earlier decisions of this Court in paragraph 4 it is held thus:

     "4.   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 to the conclusion that charge against the respondents could  not have been framed.  It is settled law that at  the stage  of framing the charges, 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 the 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 Pubjabi 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  the 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

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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."

     As  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 accused committed the particular offence then the charge can be quashed.

     From  the decisions referred to in the same  paragraph and the decisions already referred to above there was no bar to  consider  the  material on record in the case  on  hand, which  was collected during the course of investigation  and produced  before  the court and particularly in view of  the directions given earlier by the High Court.

     In  this view, the High Court looking to the  material and  documents  that  were made available at  the  stage  of framing  charges  on  their face value in the light  of  the directions  given  earlier in Criminal Revision No.   337/97 and  bearing  in  mind the position in  law  concluded  that charges   could  not  be   framed  against  the  respondent, consequently,  set  aside  the  order  of  trial  court  and discharged the respondent.

     On  the facts and in the circumstances of the case and having  regard to the legal position stated above, we see no good  reason  or valid ground to upset the  impugned  order. Hence the petition is dismissed.  No costs.