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TMI Blog2023 (3) TMI 745X X X X Extracts X X X X X X X X Extracts X X X X ..... rupees have been credited in the accounts of wife of the applicant as well as his children in USA and the wife of the applicant was made partner in a firm to the extent of 30% by investment of only Rs. 1 lakh and getting crores of rupees from India as well as UAE. It appears from the record that at this stage, on the basis of the charge sheet and documents produced with it, court should have to take decision. The defence taken and evidences produced by the accused should not be considered at this stage. At the present stage, it is to see that whether prima facie offence is there against the accused or not and evaluation of evidence produced by the accused and evaluation of the evidence should not be considered at this stage. Considering the impugned order does not suffer from any illegality, irregularity or impropriety and present revision is liable to be dismissed and accordingly, stands rejected. - R/Criminal Revision Application No. 66 of 2018 With Criminal Misc.Application (For Vacating Interim Relief) No. 1 of 2020In R//Application No. 66 of 2018 - - - Dated:- 14-3-2023 - Honourable Mr. Justice Samir J. Dave Appearance in Criminal Revision Application No. 66 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plicant has been enlarged on anticipatory bail by this Hon ble Court vide order dated 03.02.2022 in Criminal Misc. Application No. 2003/2011. 2.3 That, as far as scheduled offence being ICR. No.09/2010 registered with Rajkot Zone, CID Crime is concerned, the petitioner is enlarged on regular bail by the Hon'ble Supreme court by order dated 13.12.2011 passed in Special Leave Petition (Crl.) No.7962/2011. 2.4 That, the applicant had filed an application for discharge under Section 227 of Criminal Procedure Code, 1973 vide Exh.13 on 09.11.2017. The said application came to be heard and after hearing both the sides, the said application came to be rejected by order dated 08.01.2018. Hence, as against this order, the applicant has approached this court by way of present application. 3. Heard learned advocates for the respective parties. 4. It was submitted by learned advocate for the applicant that in present case under PMLA, the Resp.no.1 has relied upon aforesaid two scheduled offence hence other offences cannot be taken into consideration and as stated above since one of the offence is committed prior to act coming into the force, therefore the aforesaid offence canno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the submissions made by learned advocate for the applicant and submitted that there are sufficient material evidence and grounds for proceeding against the applicant to believe that the applicant has been guilty of an offence punishable under the Act. That the reasons for such belief has been recorded in writing and the applicant was informed about the grounds of such arrest. While referring Section 3 of PMLA, he has submitted that this being special statute, the presumption is that the accused has prima facie committed an offence and onus is on the accused to discharge the said burden during the trial, and therefore, at this stage, when full fledged trial yet to begun the accused cannot be discharged. That, there is prima facie case against the applicant and there are reasons to believe that the applicant is prima facie guilty for the offence charged against him. The trial court has considered the relevant provisions of the Act and compared the same with the material collected by the Investigation Officer and prima facie found that crores of rupees have been transferred in the bank accounts of the wife and children of the applicant in USA by different modes and the same is support ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces. It is further observed and held that at this stage the High Court is not required to appreciate the evidence on record and consider the allegations on merits and to find out on the basis of the evidence recorded the accused chargesheeted or against whom the charge is framed is likely to be convicted or not. 8.2 In case of Gulam Hassan Baigh vs. Mahammad Maqbool Magrey Ors., the Hon ble Supreme Court, arising out of SLP (Criminal) No.4599 of 2021, decided on 26th July, 2022, by the Larger Bench of the Hon ble Apex Court, in paragraph nos.15 to 28, observed as under: POSITION OF LAW 15. Section 226 of the CrPC corresponds to subsection (1) of the old Section 286 with verbal changes owing to the abolition of the jury. Section 286 of the 1898 Code reads as under: 286.(1) In a case triable by jury, when the jurors have been in chosen or, in any other case, when the Judge is ready to hear the case, the prosecutor shall open his case by reading from the Indian Penal or other law the description of the offence charged, and stating shortly by what evidence he expects to prove the guilt of the accused. (2) The prosecutor shall then examine his witnesses. Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) Where the Judge frames any charge under clause (b) of sub-section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried. 18. The purpose of framing a charge is to intimate to the accused the clear, unambiguous and precise nature of accusation that the accused is called upon to meet in the course of a trial. [See: decision of a Four Judge Bench of this Court in V.C. Shukla v. State through C.B.I. reported in1980 Supp SCC 92: 1980 SCC (Cri) 695). 19. The case may be a sessions case, a warrant case, or a summons case, the point is that a prima facie case must be made out before a charge can be framed. Basically, there are three pairs of sections in the CrPC. Those are Sections 227 and 228 relating to the sessions trial; Section 239 and 240 relatable to trial of warrant cases, and Sections 245(1) and (2) with respect to trial of summons case. 20. Section 226 of the CrPC, over a period of time has gone, in oblivion. Our understanding of the provision of Section 226 of the CrPC is that before the Court proceeds to frame the charge against the accused, the Public Pros ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of this Court in State of Bihar v. Ramesh Singh wherein this Court has laid down the principles relating to framing of charge and discharge as follows: 4 ..Reading Sections 227 and 228 together in juxtaposition, as they have got to be, it would be clear that at the beginning and initial stage of the trial the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an be translated into evidence at the stage of trial. The strong suspicion cannot be the pure subjective satisfaction based on the moral notions of the Judge that here is a case where it is possible that accused has committed the offence. Strong suspicion must be the suspicion which is premised on some material which commends itself to the court as sufficient to entertain the prima facie view that the accused has committed the offence. 23. In Sajjan Kumar v. CBI [(2010) 9 SCC 368 : (2010) 3 SCC (Cri) 1371] , this Court had an occasion to consider the scope of Sections 227 and 228 CrPC. The principles which emerged there from have been taken note of in para 21 as under: (SCC pp. 376- 77) 21. On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge: (i) The Judge while considering the question of framing the charges under Section 227 CrPC has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case. (ii) Where the materials ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expressed that the trial court is not expected or supposed to hold a mini trial for the purpose of marshalling the evidence on record. We quote the relevant observations as under: 18. Taking note of the exposition of law on the subject laid down by this Court, it is settled that the Judge while considering the question of framing charge under Section 227 CrPC in sessions cases(which is akin to Section 239 CrPC pertaining to warrant cases) has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; where the material placed before the Court discloses grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing the charge; by and large if two views are possible and one of them giving rise to suspicion only, as distinguished from grave suspicion against the accused, 3 2018(13) SCC 455 4 2019(6) SCALE 794 the trial Judge will be justified in discharging him. It is thus clear that while examining the discharge application filed under Section 227 CrPC, it is expected from the trial Judge to exercise its judicial mind to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... material which is produced and relied upon by the prosecution. The sifting of such material is not to be so meticulous as would render the exercise a mini trial to find out the guilt or otherwise of the accused. All that is required at this stage is that the Court must be satisfied that the evidence collected by the prosecution is sufficient to presume that the accused has committed an offence. Even a strong suspicion would suffice. Undoubtedly, apart from the material that is placed before the Court by the prosecution in the shape of final report in terms of Section 173 of CrPC, the Court may also rely upon any other evidence or material which is of sterling quality and has direct bearing on the charge laid before it by the prosecution. (See : Bhawna Bai v. Ghanshyam, (2020) 2 SCC 217). 28. In Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460, this Court observed in paragraph 30 that the Legislature in its wisdom has used the expression there is ground for presuming that the accused has committed an offence . There is an inbuilt element of presumption. It referred to its judgement rendered in the case of State of Maharashtra v. Som Nath Thapa and others, (1996) 4 SCC 659, and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat trial court has framed a charge against an accused the trial must proceed without unnecessary interference by a superior court and the entire evidence from the prosecution side should be placed on record. Any attempt by an accused for quashing for a charge before the entire probabilities evidence has come on record should not be entert10 sans exceptional cases. (see State of Delhi v. Gyan Devi, (2000) 8 SCC 239). 22. The scope of interfere and exercise of jurisdiction under Section 397 of CrPC has been time and again explained by this Court. Further, the scope of interference under Section 397 CrPC at a stage,w hen charge had been framed, is also well settled. At the stage of framing of charge, the court is concerned not with the proof of all allegation rather it has to focus on the material and form an opinion whether there is strong suspicion that the accused has committed an offence, which if put to trial, could prove his guilt. The framing of charge is not a stage, at which stage the final test of guilt is to be applied. Thus, to hold that at the stage of framing the charge, the court should form an opinion that the accused is certainly guilty of committing an offence, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orestated. Even framing of charge is a much advanced stage in the proceedings under the Cr.P.C. 25. The Court in para-27 has recorded its conclusion and laid down the principles to be considered for the exercise of jurisdiction under Section 397 particularly in the context of quashing of charge framed under Section 228 CrPC. Paras 27, 27(1) (2) (3) (9), (12) resply are extracted as follows: 27. Having discussed the scope of jurisdiction under these two provisions, i.e., Section 397 and Section 482 of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but is inherently impossible to state with precision such principles. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be : 27.1. Though there are no limits of the powers of the Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be expected even at the initial stage to accept as gospel truth all that the prosecution states. At this stage, the court has to consider the material only with a view to find out if there is ground for presuming that the accused has committed an offence and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction. (See: Niranjan Singh Karam Singh Punjabi Ors. Vs. Jitendra Bhimraj Bijja Ors5). 27. In State of Maharashtra v. Som Nath Thapa, (1996) 4 SCC 659, a three-Judge Bench of ths Court explained the meaning of the word presume . Referring to the dictionary meanings of the said word, the Court observed thus: 32. .. 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 charge, probative value of the materials on record cannot be gone into; the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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