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CASE NO.: Appeal (crl.)  710 of 2007

PETITIONER: Soma Chakravarty

RESPONDENT: State Through CBI

DATE OF JUDGMENT: 10/05/2007

BENCH: S.B. Sinha

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO.    710            OF 2007 [Arising out of SLP (Crl.) No. 552 of 2006]

S.B. SINHA,  J :

1.      Although I entirely agree with the concluding part of the judgment  rendered by my learned Brother, but I would like to state my own reasons  therefor.

2.     Charges have been framed against the appellant and several others on  25.09.2004.  Trial has already started and it is not in dispute that some  witnesses have been examined.  It is likely that the trial would be over  within a few months.  Thus, it would not be proper for us to enter into the  merit of the matter at this stage.

3.      Some of the questions, however, which have been raised by the  appellant are of some importance and it may be necessary to deal therewith.   The learned Trial Judge, it appears, did not properly apply its mind in regard  to the different categories of accused while framing charges.  It ought to  have been done.  Charge may although be directed to be framed when there  exists a strong suspicion but it is also trite that the court must come to a  prima facie finding that there exists some materials therefor.  Suspicion  cannot alone, without anything more, it is trite, form the basis therefor or  held to be sufficient for framing charge.

4.      In Union of India and Another v. Major J.S. Khanna, Etc. [(1972) 3  SCC 873], this Court opined:

"22 . It is true that at the stage when the Special  Judge drew up charges and decided to proceed  with the case on the footing of a conspiracy to  defraud the Government, he had only to see that  there was a prima facie case against the two  respondents. That could also be the basis upon  which the High Court had to try upon two  revision applications. Even so, there had to be  some material before the Special Judge which  could point towards a conspiracy in which the  two respondents had joined. Such of the  statements which the investigating officer could  procure did not, as the High Court observed,  point to such a conspiracy. What appears to have  been lost sight of by the Special Judge was the  fact that the period during which the orders in  question were placed was an emergency period,  when procedure laid down for such orders could

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not perhaps be strictly adhered to. He also  appears to have lost sight of the fact that out of  the thirteen orders in question, four of the value  of Rs 32,000 and odd were placed by Brig. Mani,  and orders only for the balance of Rs 8000 and  odd were placed by Res. Khanna. It may be that  someone had played fraud in the matter of  quotations in the name of Darrang Transport,  United Motor Works, Auto Stores etc. But unless  there was some material at least to link these two  officers with the person who tendered those  quotations, it is difficult to say that there were  conspirators who had joined with the rest of the  accused to defraud the Government. In these  circumstances, we find ourselves unable to agree  with the contention of Mr Mukherjee that the  High Court was in error in coming to the  conclusion that no prima facie case had been  made out against either of the two officers."

5.      In State of Maharashtra and Others v. Som Nath Thapa and Others  [(1996) 4 SCC 659] , this Court held:

"30. In Antulay case Bhagwati, C.J., opined, after  noting the difference in the language of the three  pairs of sections, that despite the difference there  is no scope for doubt that at the stage at which  the court is required to consider the question of  framing of charge, the test of "prima facie" case  has to be applied. According to Shri Jethmalani,  a prima facie case can be said to have been made  out when the evidence, unless rebutted, would  make the accused liable to conviction. In our  view, a better and clearer stateme nt of law  would be that if there is ground for presuming  that the accused has committed the offence, a  court can justifiably say that a prima facie case  against him exists, and so, frame a charge against  him for committing that offence.   31. Let us note the meaning of the word  ’presume’. In Black’s Law Dictionary it has been  defined to mean "to believe or accept upon  probable evidence". (emphasis ours). In Shorter  Oxford English Dictionary it has been mentioned  that in law ’presume’ means "to take as proved  until evidence to the contrary is forthcoming",  Stroud’s Legal Dictionary has quoted in this  context a certain judgment according to which  "A presumption is a probable consequence drawn  from facts (either certain, or proved by direct  testimony) as to the truth of a fact alleged."  (emphasis supplied). In Law Lexicon by P.  Ramanath Aiyer the same quotation finds place  at p.   1007 of 1987 Edn. 32. The aforesaid shows that if on the basis of  materials on record, a court could come to the  conclusion that commission of the offence is a  probable consequence, a case for framing of  charge exists. To put it differently, if the court  were to think that the accused might have  committed the offence it can frame the charge,  though for conviction the conclusion is required  to be that the accused has committed the offence.  It is apparent that at the stage of framing of a  charge, probative value of the materials on record

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cannot be gone into; the materials brought on  record by the prosecution has to be accepted as  true at that stage."

6.      The courts although may take a strict view of an offence where fraud  is alleged against a public servant, but only because it is found to have been  committed, the same by itself may not be sufficient to arrive at a conclusion  that all officers who have dealt with the files at one point of time or the other  would be taking part in conspiracy thereof or would otherwise be guilty for  aiding and abetting the offence.  It is necessary to deal with the individual  acts of criminal misconduct for finding out a case therefor.

7.      In a case of this nature, the learned Special Judge also should have  considered the question having regard to the ’doctrine of parity’ in mind.   An accused similarly situated has not been proceeded against only because,  the departmental proceedings ended in his favour.  Whether an accused  before him although stands on a similar footing despite he having not been  departmentally proceeded against or had not been completed exonerated also  required to be considered.  If exoneration in a departmental proceeding is the  basis for not framing a charge against an accused person who is said to be  similarly situated, the question which requires a further consideration was as  to whether the applicant before it was similarly situated or not and/ or  whether the exonerated officer in the department proceeding also faced same  charges including the charge of being a party to the larger conspiracy.            8.      In L. Chandraiah v. State of A.P. and Another [(2003) 12 SCC 670], it  was held:

"\005It may be, and as rightly observed by the  courts below, that they acted in a negligent  manner and if they had taken due care they  would have detected the fraud, but they failed to  do so. However, that by itself would not  constitute an offence under Section 409 IPC  though it may expose the appellants to  disciplinary action under the relevant rules. The  learned counsel also brought to our notice the  fact that in respect of the same sub-post office  some vouchers prepared and countersigned by A- 3 on the reverse side were sent to the head post  office at Mancherial. PW 5, the investigating  officer has referred to several such vouchers  which were sent to the head post office for  payment, and the officers of the head post office  also sanctioned payment on the basis of such  fabricated vouchers. Obviously, the officers at  the head post office were also not very careful,  and as a result A-3 succeeded in his evil design  to fraudulently withdraw a large sum of money.  The learned counsel submitted that on the basis  of these facts not only the appellants were  cheated by A-3 but even the officers of the head  post office were similarly cheated by A-3."

9.      Ordinarily, we would have remitted the matter to the Special Judge,  for consideration of the matter afresh, but as the prosecution has already  started examination of witnesses and as we have been assured by the learned  Additional Solicitor General that all endeavours would be made for early  disposal of the matter, we may not exercise our discretionary jurisdiction  under Article 136 of the Constitution of India at this point of time.  We,  however, keeping in view the fact that a large number of officers of the  Union of India are involved and as it is stated at the bar that they have not  been promoted because of the pendency of this case, would request the

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learned Special Judge to dispose of the matter as expeditiously as possible.