9911796707
TMI Blog2022 (9) TMI 1490X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court has not been able to comprehend the true scope and ambit of Section 239 of the Code of Criminal Procedure. The High Court has also not been able to comprehend in what set of circumstances the revisional powers Under Section 397 read with Section 401 of the Code of Criminal Procedure are to be exercised - the High Court seems to be labouring under a serious mis-conception of law as is evident from the two impugned orders and such erroneous mis-conceptions need to be eradicated. The learned Counsel appearing for the State rightly submitted that at the stage of consideration of discharge Under Section 239 of the Code of Criminal Procedure only a prima facie case is to be seen and the Special Court having recorded a satisfaction with regard to the existence of a prima facie case there cannot be said to be any material error or illegality in the orders assailed before the High Court. The primary consideration at the stage of framing of charge is the test of existence of a prima facie case, and at this stage, the probative value of materials on record is not to be gone into - The provisions which deal with the question of framing of charge or discharge, relatable to: (i) a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... UPREME COURT ], a three-Judge Bench of this Court, after noting the three pairs of Sections i.e. (i) Sections 227 and 228 reply in so far as the sessions trial is concerned; (ii) Sections 239 and 240 reply relatable to the trial of warrant cases; and (iii) Sections 245(1) and (2) qua the trial of summons cases, which dealt with the question of framing of charge or discharge, stated thus 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 cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage. In the context of trial of a warrant case, instituted on a police report, the provisions for discharge are to be governed as per the terms of Section 239 which provide that a direction for discharge can be made only for reasons to be recorded by the court where it considers the charge against the Accused to be groundless. It would, therefore, follow that as per the provisions Under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d above, which govern the power to discharge the Accused from the prosecution. The High Court could be said to have donned the role of a chartered accountant - The High Court has completely ignored that it was not at the stage of trial or considering an appeal against a verdict in a trial. Section 13(1)(e) of the Act 1988 makes a departure from the principle of criminal jurisprudence that the burden will always lie on the prosecution to prove the ingredients of the offences charged and never shifts on the Accused to disprove the charge framed against him. The legal effect of Section 13(1)(e) is that it is for the prosecution to establish that the Accused was in possession of properties disproportionate to his known sources of income but the term known sources of income would mean the sources known to the prosecution and not the sources known to the Accused and within the knowledge of the Accused - The Accused cannot make an attempt to discharge this onus upon him at the stage of Section 239 of the Code of Criminal Procedure. At the stage of Section 239 of the Code of Criminal Procedure, the Court has to only look into the prima facie case and decide whether the case put up by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olice Station, Vigilance and Anti-Corruption, District Salem for the offences under the Act 1988 as enumerated above. 8. For better and effective adjudication of the present appeals, we deem it necessary to reproduce the entire FIR as under: Column No. 12 in FIR Cr. No. 9/AC/2005/SL/SU Tr. R. Sundararasu was working as Motor Vehicle Inspector Grade-1 at the office of the Regional Transport Officer, Namakkal, Rasipuram and Sankari from March 98 to May 2000 to July 2002 and September 2002 to September 2004 respectively and again in Namakkal from 27.09.2004. He is a Public Servant as defined Under Section 2(C) of Prevention of Corruption Act, 1988. The Accused Tr. R. Sundararasu, Motor Vehicle Inspector Grade-1 hailed from an ordinary agricultural family. He is a second son to his parents. Tr. Ramasamy and Tmt. Krishnammal. He has got diploma in Mechanical Engineering and got B.E., degree by attending evening classes. He got married one Suguna D/o. Tr. Duraisamy of Kavai on 12.2.90. He has got one son by name Sarankumar who is studying VIIth standard in Holy Matriculation School, Salem. On receipt of credible information that the Accused has acquired and he is in posses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... formation discloses an offence of criminal misconduct by public servant punishable Under Section 13(2) r/w 13(1)(e) of prevention of Corruption Act, 1988, against the Accused and requires a detailed investigation. I am therefore, registering a case in Cr. No. 9/AC/2005/SL/SU against the Accused for the above said offence for the purpose of taking up investigation. (Sd/- XXX) (K. PERIYASAMY) DSP, V AC, Spl. Cell, Salem. 9. It appears that vide the letter dated 16.10.2007 the investigating officer called for the explanation from the Respondent No. 1 as regards the allegations levelled in the FIR. 10. The Respondent No. 1 vide his letter dated 1.11.2007 offered his explanation stating that he does not possess or had acquired any assets disproportionate to the known source of his income. The Respondent No. 1 also placed on record the income tax returns filed by his wife from 1990 onwards and that of the partnership firm too from 1993. 11. It appears that in the course of investigation the role of the Respondent No. 2 as the wife of the Respondent No. 1 also surfaced as an abettor. 12. Upon conclusion of the investigation, the Investigating Agency filed charg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y documents except the Income-Tax returns of the Petitioner to trace the source of income of the Petitioner to acquire the properties that stood recorded in her name during the check-period. Hence the Investigating Officer has proceeded to treat the properties standing in the name of the Petitioner and her minor son as the properties of the Petitioner's husband, the Ist Accused, which cannot be found fault at this stage more so when the Petitioner's husband has not disclosed the acquisition of properties by his wife, the Petitioner herein, to the concerned Department as required under Tamil Nadu Government Servants Conduct Rules. Hence this Court decides that, at this stage, there is no substance in the contention' of the Petitioner that the methodology adopted by the Investigating Officer in computing the value of the assets of the Petitioner's husband is erroneous. x x x x x 18. The materials produced by the Investigating Officer along with the final report prima facie disclose the existence of all the ingredients essential to constitute the offence Under Section 13(2) r/w 13(2) r/w 13(1)(e) of the Prevention of Corruption Act read with Section 109 of the In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be treated as self-acquired properties of the wife of the Petitioner. 11. (II). Income derived by the Petitioner's wife through money lending business not given due consideration. According to the Petitioner, his wife, the 2nd Accused by doing money lending business was deriving size able income but the same was not considered by the Investigating Officer and as such the conclusion arrived at by the Investigating Officer that the 2nd Accused is an ostensible owner of the properties standing in her name and that the Petitioner is the true owner of the said properties is absolutely wrong. The Investigating Officer has categorically mentioned that in respect of the so called money lending business no documents were produced before him either by the Petitioner or his wife during investigation. Even in the present application the Petitioner has not claimed that there are documents to establish the money lending business carried out by his wife and the income derived by her through the said business. The contentious issue as to whether the Petitioner wife was deriving income by doing money lending business can be decided only during trial based on the evidence placed in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idering the materials available on record in the back drop of the principles of law propounded by our Apex Court in the case of Suresh Rajan referred supra, this Court decides that the Petitioner is not entitled for an order of discharge alleging that the methodology adopted by the Investigating Officer is erroneous. 14. In the present case the total value of the assets and pecuniary resources of the Petitioner and his family members at the end of the check-period has been computed by the Investigating Officer at Rs. 31,69,498/- as set out in Statement II. During investigation of the case, the Petitioner has not produced any documents before the Investigating Officer except the Income-Tax returns of his wife, the 2nd Accused, to trace the source of income of the Petitioner's wife to acquire the properties standing in her name. Hence the Investigating Officer proceeded to treat the properties standing in the name of the Petitioner's wife and his son as the properties of the Petitioner, which cannot be found fault at this stage more so when the Petitioner has not disclosed the acquisition of properties by his wife to the concerned department as required under the Tamil Nad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d A2. 42. This Court has also perused the statements of the listed witnesses along with the impugned orders. As already discussed in the foregoing paragraphs and as decided in State of Maharashtra v. Wasudeo (AIR 1981 SC 1186: 1981 3 scc 199) cited supra, the nature and the extent of burden cast on the Accused is well settled and the Accused is not bound to prove his innocence beyond all reasonable doubt. All that he would do is to bring out a preponderance of probability. In so far as this case is concerned, the Petitioners have brought out a preponderance of probability by way of establishing their case. As enunciated in Explanation to Clause (e) of Sub-section (1) to Section 13, the Petitioners have intimated their income received from lawful source to the income tax authorities concerned in accordance with the provisions of the Income Tax Act, which is applicable for the first Accused being the public servant to intimate his known source of income and therefore, this Court is of the view that the prosecution has miserably failed to make out a prima facie case against the Petitioners/ A1 and A2. 43. It is the cardinal principle that the Accused is presumed to be innocent u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, is to be exercised only in exceptional cases where there has been a miscarriage of justice owing to: (i) a defect in the procedure or (ii) a manifest error on a point of law; (iii) excess jurisdiction, (iv) abuse of power, (v) where the decision upon which the trial Court relied has since been reversed or overruled when the revision petition was being heard. 49. As observed by the Supreme Court in State of M.P. v. S.B. Johari, (AIR 2000 SC 665 : (2000) 2 scc 57 : 2000 SCC (Crl.) 311: 2000 Crl.L.J. 944), Under Section 401 of Code of Criminal Procedure quashing of the charge by the High Court would be justified if even on considering the entire prosecution evidence, the offence is not made out. 50. Viewing it from any angle, this Court is of considered opinion that the prosecution has not made out any case as against the Petitioners/ A1 and A2 to proceed with. 51. In the result, Criminal Revision Case Nos. 702 and 703 of 2016 are allowed and the impugned orders, dated 29.03.2016 and made in Crl.M.P. Nos. 87 and 86 of 2014 in Special CC. No. 76 of 2014 on the file of the learned Special Judge (for Corruption Cases), Salem are set aside and the petitions i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used persons beyond all reasonable doubt even at the stage of framing charge. The scope and ambit of inquiry before framing the charge or at the stage of discharge has been well settled by this Court. 22. He would submit that the High Court grossly erred in taking into consideration the documents produced by the Accused persons in their defence such as the Income Tax Assessments of A2 and other records, to come to the conclusion that the properties disclosed therein ought to be eschewed from consideration. The learned Counsel submitted that the practice of looking into the documents produced by the Accused at the stage of framing of charge has not been approved by this Court in the case of State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568. 23. He would submit that the High Court could be said to have conducted a mini trial while considering the discharge applications filed by the Accused persons. In other words, at the stage of framing of charge, roving and fishing inquiry is impermissible and that would defect the object of the Code. 24. In the last, he submitted that the High Court overlooked the dictum as laid by this Court in the State of Tamil Nadu by Inspector ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome tax Assessee, by itself, cannot be a ground to assume that such property belongs to the Assessee. 28. He would submit that this Court in N. Suresh Rajan (supra) was dealing with a factual situation wherein the parents of the Accused to whom the property belonged were not having any independent source of income unlike in the facts of the present case where the wife of the Respondent is a commerce graduate and an entrepreneur. She has her own independent source of income and had purchased the properties out of her own income and that one of those has been gifted by her father. She has been an income tax Assessee from the year 1990 and has been regularly filing her income tax returns. 29. He would submit that the Investigating Officer failed to consider the explanation furnished by the Respondent No. 1. Relying on the decision of this Court in the case of State of Maharashtra v. Wasudeo Ramchandra Kaidalwar, (1981) 3 SCC 199, the learned Counsel submitted that the nature and extent of burden cast on the Accused is not to prove his innocence beyond reasonable doubt. All that the Accused is obliged in law is to explain on preponderance of probability. In so far as the presen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urces that stood to the credit of Respondent and his family members. The check period, as per the prosecution has been determined from 1.1.2002 to 31.3.2004. In statement No. 1, 14 items have been shown. In so far as Statement I is concerned, properties mentioned at item Nos. 01, 02, 08, 10, 12 and 14 are exclusively the investments of his wife out of her own resources. 16. It is submitted that in so far as Statement II is concerned. i. Item 1, the house was constructed at the cost of Rs. 4,15,344/- by Respondent's wife Tmt. S. Suguna from her independent resources derived from S.K. Mat Industries and other income and LIC Finance Housing Loan. ii. Item No. 2 was purchased by Respondent's wife out of her independent income derived from S.K. Mat Industries. iii. Item No. 12, the Land measuring 0.67. cents comprised in Survey No. 12/1Q situated at M. Chettipatti, Omalur Taluk, Salem District was inherited by Respondent's mother Krishnammal and subsequently settled this property in favour of her three sons and thereby he had received 1/3rd share. iv. Item No. 13 was purchased by Respondent's father-in-law Thiru. T. Duraisamy with his own resources and la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... value of assets that stood to Respondent's credit as well as to the credit of his family members at the beginning of the check period is Rs. 1,31,254/-. ii. The value of the assets that stood to Respondent's credit as well as to the credit of his family members at the end of the check period is Rs. 1,37,430/- iii. Therefore, the value of assets acquired during the check period is Rs. 6,176/-. iv. Income derived by him and his family members during the check period is Rs. 3,11,547/-. v. Expenditure during the check period is Rs. 1,91,910/-. vi. Thus, the savings during the check period is Rs. 1,19,636.80 Therefore, it is submitted that the assets acquired by the Respondent (R. Soundirarasu) are not disproportionate to his known source of income. 20. It is submitted that in his explanation Respondent (R. Soundirarasu), has referred to the provisions of the Tamil Nadu Government Servant Conduct Rules 1973 as amended up to September 2006, Rules 7(1)(a), which reads as follows: (1)(a) No Government servant, shall except after notice to the prescribed authority, acquire or dispose of any immovable property by lease, mortgage, purchase, sale, gift, exchang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. (Emphasis supplied) In such circumstances referred to above, the learned Counsel prayed that there being no merit in the two appeals filed by the State, those may be dismissed. 31. If we have to give a fair idea as regards the case put up by the Prosecution against the Accused persons, we may do so as under: (a) There are 14 items shown in the Statement No. 1, i.e. Assets and pecuniary sources that stood to the credit of the Accused and his family members at the beginning of the check period i.e., 01.01.2002 such as lands, house sites, shares, jewels and other movables valued at Rs. 3,46,006-00. (b) There are 21 items shown in the Statement No. II i.e., assets and pecuniary source that stood to the credit of the Accused and his family members at the end of the check period as on 31.03.2004, valued at Rs. 31,69,498-00. (c) There are 6 items shown in the Statement No. III as income derived by the Accused and his family members during the check period i.e., 01-01-2002 to 31-03-2004, calculated at Rs. 9,97,888-00. (d) There are 15 items shown in the Statement No. IV i.e., expenditure incurred by the Accused and his family members during the check period from 01- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law, Rules or orders for the time being applicable to a public servant. 35. The explanation to Section 13(1)(e) defines the expression known sources of income and states that this expression means the income received from any lawful source and also requires that the receipt should have been intimated by the public servant in accordance with any provisions of law, Rules or orders for the time being applicable to a public servant. This explanation was not there in the Prevention of Corruption Act, 1947 (for short, Act 1947 ). Noticing this fact in Jagan M. Seshadri v. State of Tamil Nadu, (2002) 9 SCC 639, this Court has observed as under: 7. A bare reading of Section 30(2) of the 1988 Act shows that any act done or any action taken or purported to have been done or taken under or in pursuance of the repealed Act, shall, insofar as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under or in pursuance of the corresponding provisions of the Act. It does not substitute Section 13 in place of Section 5 of the 1947 Act. Section 30(2) is applicable without prejudice to the application of Section 6 of the General Clauses Act, 1897 . In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, every receipt would not partake into the character of income. For the public servant, whatever return he gets of his service, will be the primary item of his income. Other income which can conceivably be income qua the public servant will be in the regular receipt from (a) his property, or (b) his investment. A receipt from windfall, or gains of graft crime or immoral secretions by persons prima facie would not be receipt for the known source of income of a public servant. 38. The above brings us to the second part of the explanation, defining the expression such receipt should have been intimated by the public Servant i.e. intimation by the public servant in accordance with any provisions of law, Rules or orders applicable to a public servant. 39. The language of the substantive provisions of Section 5(3) of the Act 1947 before its amendment, Section 5(1)(e) of the Act 1947 and 13(1)(e) of the Act 1988 continues to be the same though Section 5(3) before it came to be amended was held to be a procedural Section in the case of Sajjan Singh v. State of Punjab AIR 1964 SC 464. Section 5(3) of the Act 1947 before it came to be amended w.e.f. 18th December, 1964 was interp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the very nature of things, be expected to know the affairs of an Accused person. Those will be matters specially within the knowledge of the Accused, within the meaning of Section 106 of the Evidence Act. The prosecution can only lead evidence, as it has done in the instant case, to show that the Accused was known to earn his living by service under the Government during the material period. The prosecution would not be justified in concluding that travelling allowance was also a source of income when such allowance is ordinarily meant to compensate an officer concerned for his out-of-pocket expenses incidental to journeys performed by him for his official tours. That could not possibly be alleged to be a very substantial source of income. The source of income of a particular individual will depend upon his position in life with particular reference to his occupation or avocation in life. In the case of a government servant, the prosecution would, naturally, infer that his known source of income would be the salary earned by him during his active service. His pension or his provident fund would come into calculation only after his retirement, unless he had a justification for bor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... must be the same. The expression known sources of incomes means sources known to the prosecution . So also, the same meaning must be given to the words for which the public servant cannot satisfactorily account occurring in Section 5(1)(e). No doubt, Section 4(1) provides for presumption of guilt in cases falling Under Section 5(1)(a) and (b), but there was, in our opinion, no need to mention Section 5(1)(e) therein. For, the reason is obvious. The provision contained in Section 5(1)(e) of the Act is a self-contained provision. The first part of the Section casts a burden on the prosecution and the second on the Accused. When Section 5(1)(e) uses the words for which the public servant cannot satisfactorily account , it is implied that the burden is on such public servant to account for the sources for the acquisition of disproportionate assets. The High Court, therefore, was in error in holding that a public servant charged for having disproportionate assets in his possession for which he cannot satisfactorily account, cannot be convicted of an offence Under Section 5(2) read with Section 5(1)(e) of the Act unless the prosecution disproves all possible sources of income. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court has placed an impossible burden on the prosecution to disprove all possible sources of income which were within the special knowledge of the Accused. As laid down in Swamy case, the prosecution cannot, in the very nature of things, be expected to know the affairs of a public servant found in possession of resources or property disproportionate to his known sources of income i.e. his salary. Those will be matters specially within the knowledge of the public servant within the meaning of Section 106 of the Evidence Act, 1872. Section 106 reads: When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. In this connection, the phrase the burden of proof is clearly used in the secondary sense namely, the duty of introducing evidence. The nature and extent of the burden cast on the Accused is well settled. The Accused is not bound to prove his innocence beyond all the reasonable doubt. All that he need to do is to bring out a preponderance of probability. 41. While the expression known sources of income refers to the sources known to the prosecution, the expression for which the public servant cannot satisfactorily acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ements. 43. In the case of Central Bureau of Investigation (CBI) and Anr. v. Thommandru Hannah Vijayalakshmi @ T.H. Vijayalakshmi and Anr., this Court, after an exhaustive review of its various other decisions, more particularly the decision in the case of K. Veeraswami v. Union of India, (1991) 3 SCC 655, held that since the Accused public servant does not have a right to be afforded a chance to explain the alleged Disproportionate Assets to the investigating officer before the filing of a chargesheet, a similar right cannot be granted to the Accused before the filing of an FIR by making a preliminary inquiry mandatory. 44. The above decision of this Court in the case of Thommandru Hannah Vijayalakshmi @ T.H. Vijayalakshmi (supra) is a direct answer to the contention raised on behalf of the Accused persons that the investigating officer wrongly declined to consider the explanation offered by the public servant in regard to the allegations and also failed to take into consideration the assets lawfully acquired by his wife. 45. In K. Veeraswami (supra), this Court held thus: 75. ...since the legality of the charge-sheet has been impeached, we will deal with that contenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the prosecution is without any merit and erroneous more particularly in view of the decision of this Court in the case of Thommandru Hannah Vijayalakshmi @ T.H. Vijayalakshmi (supra). This Court has observed in paras 58, 60 61 reply as under: 58. On the other hand, it has been argued on behalf of the Appellant that the documents relied upon by the Respondents are not unimpeachable and have to be proved at the stage of trial. Hence, it was urged that the arguments made on the basis of these documents should not be accepted by this Court. The Appellant has relied upon the judgment of a two Judge Bench of this Court in J. Jayalalitha (supra), where it has been held that documents such as Income Tax Returns cannot be relied upon as conclusive proof to show that the income is from a lawful source under the PC Act. Justice P C Ghose held thus: 191. Though considerable exchanges had been made in course of the arguments, centering around Section 43 of the Evidence Act, 1872, we are of the comprehension that those need not be expatiated in details. Suffice it to state that even assuming that the income tax returns, the proceedings in connection therewith and the decisions rendere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents and sources of such investments, Respondents 2 to 5 were ordered by this Court to file copies of income tax and wealth tax returns of the relevant assessment years which was done. It was pointed out on behalf of the Petitioner that the net assets of the family though were Rs. 9,22,72,000, as per the calculation made by the official valuer, the then value of the net assets came to be Rs. 24 crores. It was pleaded on behalf of the Respondents that income tax returns had already been filed and the matters were pending before the authorities concerned and all the payments were made by cheques, and thus the allegation levelled against them were baseless. It was observed that the minuteness of the details furnished by the parties and the income tax returns and assessment orders, sale deeds, etc. were necessary to be carefully looked into and analyzed only by an independent agency with the assistance of chartered accountants and other accredited engineers and valuers of the property. It was observed that the Income Tax Department was concerned only with the source of income and whether the tax was paid or not and, therefore, only an independent agency or CBI could, on court direction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... absolve the Respondents. (Emphasis supplied) 47. Now, the reason why we say that the impugned orders passed by the High Court are utterly incomprehensible is because the High Court has not been able to comprehend the true scope and ambit of Section 239 of the Code of Criminal Procedure. The High Court has also not been able to comprehend in what set of circumstances the revisional powers Under Section 397 read with Section 401 of the Code of Criminal Procedure are to be exercised. 48. We have gathered an impression that the High Court seems to be labouring under a serious mis-conception of law as is evident from the two impugned orders and such erroneous mis-conceptions need to be eradicated. 49. The learned Counsel appearing for the State rightly submitted that at the stage of consideration of discharge Under Section 239 of the Code of Criminal Procedure only a prima facie case is to be seen and the Special Court having recorded a satisfaction with regard to the existence of a prima facie case there cannot be said to be any material error or illegality in the orders assailed before the High Court. 50. The procedure for trial of warrant cases by Magistrate is provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments sent with it Under Section 173 and making such examination, if any, of the Accused as the Magistrate thinks necessary and after giving the prosecution and the Accused an opportunity of being heard, the Magistrate considers the charge against the Accused to be groundless, he shall discharge the Accused, and record his reasons for so doing. Section 240. Framing of charge.--(1) If, upon such consideration, examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the Accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the Accused. (2) The charge shall then be read and explained to the Accused, and he shall be asked whether he pleads guilty of the offence charged or claims to be tried. Section 245. When Accused shall be discharged.--(1) If, upon taking all the evidence referred to in Section 244, the Magistrate considers, for reasons to be recorded, that no case against the Accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. (2008) 2 SCC 561, and referring to its earlier decisions in the State of Maharashtra v. Som Nath Thapa, (1996) 4 SCC 659, and the State of M.P. v. Mohanlal Soni, (2000) 6 SCC 338, it was held that at that stage, the Court has to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged and it is not expected to go deep into the probative value of the materials on record. The relevant observations made in the judgment are as follows: 11. It is trite that at the stage of framing of charge 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, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the Accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the Court at this stage cannot speculate into the truthfulness or falsity of the allegations and contradictions inconsistencies in the statement of witnesses cannot be looked into at the stage of discharge. 59. In the context of trial of a warrant case, instituted on a police report, the provisions for discharge are to be governed as per the terms of Section 239 which provide that a direction for discharge can be made only for reasons to be recorded by the court where it considers the charge against the Accused to be groundless. It would, therefore, follow that as per the provisions Under Section 239 what needs to be considered is whether there is a ground for presuming that the offence has been committed and not that a ground for convicting the Accused has been made out. At that stage, even strong suspicion founded on material which leads the Court to form a presumptive opinion as to the existence of the factual ingredients constituting the offences alleged would justify the framing of charge against the Accused in respect of that offence, and it is only in a case where the Magistrate considers the charge to be groundless, he is to discharge the Accused after recording hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 63. In short, it means that if no prima facie case regarding the commission of any offence is made out, it would amount to a charge being groundless. 64. In Century Spinning and Manufacturing Co. Ltd. v. State of Maharashtra AIR 1972 SC 545, this Court has stated about the ambit of Section 251(A)(2) of the Code of Criminal Procedure 1898, which is in pari materia with the wordings used in Section 239 of the Code of Criminal Procedure as follows: It cannot be said that the Court at the stage of framing the charge has not to apply its judicial mind for considering whether or not there is a ground for presuming the commission of the offence by the Accused. The order framing the charges does substantially affect the person's liberty and it cannot be said that the Court must automatically frame the charge merely because the prosecuting authorities by relying on the documents referred to in Section 173 consider it proper to institute the case. The responsibility of framing the charges is that of the Court and it has to judicially consider the question of doing so. Without fully adverting to the material on the record it must not blindly adopt the decision of the prosecution. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocedure. If the Magistrate finds that there is prima facie evidence or the material against the Accused in support of the charge (allegations), he may frame charge in accordance with Section 240 of the Code of Criminal Procedure. But if he finds that the charge (the allegations or imputations) made against the Accused does not make out a prima facie case and does not furnish basis for framing charge, it will be a case of charge being groundless, so he has no option but to discharge the Accused. Where the Magistrate finds that taking cognizance of the offence itself was contrary to any provision of law, like Section 468 of the Code of Criminal Procedure, the complaint being barred by limitation, so he cannot frame the charge, he has to discharge the Accused. Indeed, in a case where the Magistrate takes cognizance of an offence without taking note of Section 468 of the Code of Criminal Procedure, the most appropriate stage at which the Accused can plead for his discharge is the stage of framing the charge. He need not wait till completion of trial. The Magistrate will be committing no illegality in considering that question and discharging the Accused at the stage of framing charge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Court. It is a settled principle of law that at the stage of considering an application for discharge the court must proceed on the assumption that the material which has been brought on the record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary to constitute the offence. In State of T.N. v. N. Suresh Rajan [State of T.N. v. N. Suresh Rajan, (2014) 11 SCC 709, adverting to the earlier decisions on the subject, this Court held: (SCC pp. 721-22, para 29) 29. ... At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the Accused has been made out. To put it differently, if the court thinks that the Accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for convicti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ile exercising such powers the High Court has no authority to appreciate the evidence in the manner as the trial and the appellate courts are required to do. Revisional powers could be exercised only when it is shown that there is a legal bar against the continuance of the criminal proceedings or the framing of charge or the facts as stated in the first information report even if they are taken at the face value and accepted in their entirety do not constitute the offence for which the Accused has been charged. 76. Thus, the revisional power cannot be exercised in a casual or mechanical manner. It can only be exercised to correct manifest error of law or procedure which would occasion injustice, if it is not corrected. The revisional power cannot be equated with appellate power. A revisional court cannot undertake meticulous examination of the material on record as it is undertaken by the trial court or the appellate court. This power can only be exercised if there is any legal bar to the continuance of the proceedings or if the facts as stated in the charge-sheet are taken to be true on their face value and accepted in their entirety do not constitute the offence for which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn to the prosecution and not the sources known to the Accused and within the knowledge of the Accused. It is for the Accused to account satisfactorily for the money/assets in his hands. The onus in this regard is on the Accused to give satisfactory explanation. The Accused cannot make an attempt to discharge this onus upon him at the stage of Section 239 of the Code of Criminal Procedure. At the stage of Section 239 of the Code of Criminal Procedure, the Court has to only look into the prima facie case and decide whether the case put up by the prosecution is groundless. 81. In the overall view of the matter, we are convinced that the impugned orders passed by the High Court are not sustainable in law and deserve to be set aside. The circumstances emerging from the record of the case, prima facie, indicate the involvement of the Accused persons in the alleged offence. Having regard to the materials on record, it cannot be said that the charge against the Accused persons is groundless. There are triable issues in the matter. If there are triable issues, the Court is not expected to go into the veracity of the rival versions. 82. In the result, both the appeals succeed and are ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
