2020 (12) TMI 1414 - HC - Indian Laws

Dismissal of discharge application of the petitioner under Section 239 Cr.P.C. - Conspiracy and bribery in connection with a Legislative Council election - entire case of the prosecution is based on the opinion of experts of Forensic Science Laboratory - existence of sufficient prima facie material to frame charges against the petitioner for offences under Section 12 of the Prevention of Corruption Act 1988 - HELD THAT - Admittedly no certificate as required under Section 65-B(4) of Evidence Act is obtained by the investigating agency with regard to recognition of voice of A-2 and to compare the same with the voice of the petitioner/A-5. In this regard the learned Special Public Prosecutor would submit that the said certificate can be obtained and produced during the course of trial of the case and it is not a ground to discharge the petitioner/A-5 from the subject case. The said submission cannot be brushed aside. As per Section 12 of P.C. Act abatement to commit offence under Sections 7 and 11 are punishable irrespective whether that offence is committed or not. Further the essence of Section 120A of IPC is an agreement to commit an offence. The abatement of conspiracy under Section 107 of IPC requires the commission of some act or illegal omission in pursuance of the conspiracy. In the instant case the material placed on record reveals an act of criminal conspiracy. Pursuant to the said conspiracy an amount of Rs. 50 lakhs was offered as part of bribe to LW.1 Elvis Stephenson to cast his vote in favour of Vem Narender Reddy for his membership in Legislative Council of Telangana State. The Court below while dealing with the subject matter of this Criminal Revision Case has placed reliance on the statements of LW.1 Elvis Stephenson investigating officers witnesses Sim Cards used by the accused including the petitioner/A- 5 FSL reports obtained after analyzing the data and came to the conclusion that the material on record prima facie show that the petitioner/A-5 shared the idea of influencing the de-facto complainant to cast his vote in favour of Vem Narender Reddy. Further the learned trial Judge having examined the entire material on record rejected the contentions advanced on behalf of the petitioner/A-5 for the offences incorporated in the charge-sheet and held that there is prima facie case against the petitioner/A-5 to frame charges and there are no grounds for his discharge and further observed that no detailed enquiry is required to be conducted at this stage. Conclusion - The impugned order of trial Court does not reflect patent defect or an error of jurisdiction or law. It is in accordance with law. Neither there is non-compliance of the provisions of law nor is it grossly erroneous. The conclusion reached by the trial Court is based on material on record it is not perverse or illegal. There is prima facie case to frame charge/s against the petitioner/A-5 and proceed with. The Criminal Revision Case is dismissed.

Summary

The central legal question considered is whether the order dismissing the discharge application of the petitioner under Section 239 Cr.P.C. is illegal, perverse, or liable to be set aside. This involves determining if there exists sufficient prima facie material to frame charges against the petitioner for offences under Section 12 of the Prevention of Corruption Act, 1988 (P.C. Act) and Sections 120B read with 34 of the Indian Penal Code (IPC), relating to conspiracy and bribery in connection with a Legislative Council election.

Another issue concerns the admissibility and sufficiency of electronic evidence, specifically voice recordings and call data records, in the absence of a certificate under Section 65-B(4) of the Evidence Act, which is mandatory for the admissibility of electronic records. The petitioner contended that the absence of such certification renders the evidence inadmissible and insufficient to proceed against him.

Further, the petitioner challenged the validity of the supplementary charge-sheet filed against him after the initial charge-sheet was filed against other accused, asserting that the supplementary filing was improper and that there was no direct or indirect evidence linking him to the offence.

Lastly, the scope and limits of the revisional jurisdiction under Sections 397 and 401 of the Cr.P.C. were considered, particularly whether the revisional court can reappraise evidence or substitute its findings for those of the trial court at the stage of framing charges.

Regarding the sufficiency of evidence and framing of charges, the Court examined Sections 7, 11, and 12 of the Prevention of Corruption Act, 1988, which criminalize acceptance or agreement to accept gratification by public servants as a motive or reward for official acts, and abetment thereof. Section 12 punishes abetment of offences under Sections 7 and 11, whether or not the offence is actually committed. The Court also referenced Section 120A of IPC defining criminal conspiracy and Section 107 of IPC concerning abetment, requiring some overt act in pursuance of the conspiracy.

The prosecution's case was that the petitioner, along with other accused, conspired to bribe the de facto complainant, a nominated MLA, to secure his vote in favour of a particular candidate in the Legislative Council election. The evidence included call data records and voice communications between the petitioner and other accused, corroborated by Forensic Science Laboratory (FSL) reports. The petitioner was also present at a hotel where the conspiracy was said to have been hatched, supported by the statement of his gunman. Although the petitioner was not present at the spot where the bribe was allegedly offered, the Court found that the material on record prima facie established his involvement in the conspiracy.

On the issue of electronic evidence, the Court acknowledged that no certificate under Section 65-B(4) of the Evidence Act was produced to authenticate the voice recordings and call data. However, it held that this procedural requirement can be complied with during the trial and its absence at the charge-framing stage does not warrant discharge of the accused. The Court emphasized that the trial court is not a mere post office and must sift through the material to determine if a prima facie case exists, but detailed scrutiny of evidence is not required at this stage.

Regarding the supplementary charge-sheet, the Court referred to Section 173(8) of the Cr.P.C., which allows further investigation and filing of supplementary charge-sheets upon discovery of additional evidence. The investigating officer had explicitly stated in the initial charge-sheet the inability to complete investigation and intention to file supplementary charges. Therefore, the filing of a supplementary charge-sheet against the petitioner was lawful and proper.

The Court also distinguished the petitioner's case from that of another accused, against whom proceedings were quashed, noting that the quash order was not binding and was sub judice before the Supreme Court.

On the scope of revisional jurisdiction, the Court reiterated that Sections 397 and 401 Cr.P.C. confer limited power to examine legality, propriety, or regularity of proceedings or orders, not to reappraise evidence or substitute findings of fact. Revisional jurisdiction is invoked only where there is a patent defect, error of jurisdiction, or perversity. The Court found no such defect or error in the impugned order, which was based on material evidence and proper application of law.

The Court considered the precedents cited by the petitioner, including rulings on the requirement of strong suspicion founded on material for framing charges, the inadmissibility of confessions to police officers, and the necessity of Section 65-B(4) certificates for electronic evidence. It held that these principles were not contravened in the present case and that the absence of the certificate at this stage was not fatal.

In conclusion, the Court held that there was a prima facie case against the petitioner to proceed with trial under the relevant provisions of the P.C. Act and IPC. The impugned order dismissing the discharge application was neither illegal nor perverse. The revisional court declined to interfere with the trial court's order, and the criminal revision petition was dismissed.

Significant holdings include the affirmation that:

"The Court, at the stage of charge, is not a mouthpiece of the prosecution, nor would it act as a mere post office. The Court has the power to sift through the material placed on record for the limited purpose of determining whether grave suspicion exists against an accused for the purpose of framing charge."

Also, the Court observed:

"No certificate under Section 65-B(4) of Evidence Act was obtained by the prosecuting agency to identify the electronic record containing the communication between A-2 and the petitioner/A-5. The said certificate can be obtained and produced during the course of trial of the case and it is not a ground to discharge the petitioner/A-5 from the subject case."

Further, the Court emphasized the limited nature of revisional jurisdiction:

"Revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded are based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. The Revisional Court has to confine itself to the legality and propriety of the findings of the subordinate Court and as to whether the subordinate Court acted within its jurisdiction."

These principles collectively establish that at the charge-framing stage, the presence of material evidence creating a strong suspicion suffices, and procedural deficiencies in evidence authentication can be remedied during trial. The Court's role is to ensure no patent illegality or perversity in the trial court's order, not to reappraise evidence or substitute findings.