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TMI Blog2023 (8) TMI 402X X X X Extracts X X X X X X X X Extracts X X X X ..... at they have done excess mutation of the plot in question. The question remains that as to whether in absence of their connivance along with M/s Sanjeevani Buildcon Pvt. Ltd. the said mutation can be done or not? It appears that Circle Inspectors have also been charge sheeted which suggest that all were in connivance of such excess mutation of the plot in question. The discharge petition was the subject matter before the Hon ble Supreme Court in the case of STATE OF T. NADU TR. INSP. OF POLICE AND STATE REP. BY DEPUTY SUPDT. OF POLICE VIGILANCE AND ANTI-CORRUPTION VERSUS N. SURESH RAJAN ORS. AND K. PONMUDI ORS. [ 2014 (1) TMI 553 - SUPREME COURT ], wherein it was held that 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 conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage. The settled law does not permit a mini trial at the stage of discharge and facts are there that can be only subject matter of trial. The purpose of framing charge is to intimate the ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the area of the land and inspite of that they have mutated the excess land. Revision dismissed. - HON BLE MR. JUSTICE SANJAY KUMAR DWIVEDI For the Petitioners :- Mr. Rajendra Krishna, Advocate Mr. Jay Shankar Tiwary, Advocate Mr. Amit Sinha, Advocate Mr. Krishna Kumar, Advocate Mr. Pratyush Shounikya, Advocate .. in Cr. Revision No. 238 of 2020 Cr. Revision No. 239 of 2020 Cr. Revision No. 240 of 2020 Mr. Indrajit Sinha, Advocate Mr. Rajeev Kumar Sinha, Advocate .. in Cr. Revision No. 253 of 2020 Cr. Revision No. 255 of 2020 Cr. Revision No. 298 of 2020 For the C.B.I. [in all cases] :- Mr. Anil Kumar, A.S.G.I. Ms. Chandana Kumari, A.C to A.S.G.I. 2 Mr. Nitish Parth Sarthi, A.C to A.S.G.I. In all these criminal revision petitions arising out of common F.I.R as well as discharge order and that is why all these criminal revision petitions are heard together with consent of the parties. 2. The argument was concluded on 25.07.2023 and on that date, the judgment was reserved after hearing Mr. Rajendra Krishna, the learned counsel appearing on behalf of the petitioner-Krishna Kumar and Mr. Indrajit Sinha, the learned counsel appearing on behalf of the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter making complete investigation in which the petitioner was not charge-sheeted. The State Government thereafter took a decision for transferring the investigation relating to affairs of Sanjeeveni Buildcon, Ranchi to the C.B.I. and to that effect a Notification was issued on 15.1.2013 by the Government of Jharkhand under section 6 of the Delhi Special Police Establishment Act, 1946. Pursuant to the said notification, the S.P., C.B.I., E.O.W., Ranchi has been re-registered a case vide R.C. Case No. 7(S)/2013-EOWR dated 13.08.2013 and thereafter has taken up for the investigation. 5. In Cr. Revision No. 239 of 2020, the prayer is made for setting aside the order dated 31.01.2020 by which the discharge petition filed by the petitioner in relation to R.C.No. 17(S)/13-R dated 06.08.2013 (CNRJHRN-01-000132- 2020) was rejected by the learned Special Judge, C.B.I in Miscellaneous Criminal Application No. 21 of 2020, pending in that learned court. 6. The F.I.R was registered alleging therein that-, based on a complaint written by Abbhishek Kumar in which it has been stated that he has purchased 2000 square ft, of land from Khata No. 155, Plot No. 841, Sub-Plot No. B59, Deed No. 1140 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the Informant felt cheated and lodged the above F.I.R against Jayanti Lal Nandi Director Sanjivini Buildeon Ors. It is further submitted that compliance of the order and Direction of Hon'ble High Court of Jharkhand in W.P (PIL) No. 3321/2012, the all matters having similar nature related with the above was referred to the Central Bureau of Investigation and accordingly the said case was also taken up by the CBI and registered as RC 17 (S)/2013-R. 9. In Cr. Revision No. 240 of 2020, the prayer is made for setting aside the order dated 31.01.2020 by which the discharge petition filed by the petitioner in relation to R.C. Case No. 3(S)/2013-EOW-R dated 07.08.2013 (CNRJHRN-01- 000108-2020) was rejected by the learned Special Judge, C.B.I in Miscellaneous Criminal Application No.15 of 2020, pending in that learned court. 10. The F.I.R was registered alleging therein that-, on the basis of the written complaint by one Mr. Manoj Shrivastava on 5.1.2012. It has been stated that the complainant/informant has paid a sum of Rs. 51,000/- to M/s Sanjeevni BuildCon Pvt. Ltd. For purchase of a Plot No. 841 situated at Pundag, Ranchi having Khata No. 155 and total area of the flat is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cordingly, the complainant as alleged that he has been cheated by Mr. Jayant Lal Nandi for the amount of Rs. 5,37,000/-. On the basis of the aforesaid complaint, the FIR initially has been lodged in the Lower Bazar Police Station being P.S.Case No. 6 of 2012 dated 5.1.2012 under sections 406,420 and 120B of the IPC and Section 138 of the N.I. Act. 11. In Cr. Revision No.253 of 2020, the prayer is made for setting aside the order dated 04.01.2020 by which the discharge petition filed by the petitioner in relation to R.C.No.03(S)/2013-EOW-R dated 04.01.2020 was rejected by the learned Special Judge, C.B.I in Miscellaneous Criminal Application No.12 of 2020, pending in that learned court. 12. The F.I.R was registered alleging therein that-, the Informant namely Shri. Manoj Srivastava in Lower Bazar P.S Case No. 06/12 against Jayant Dayal Nandi Shyam Kishore Gupta both Directors of Sanjeevni Buildcon Pvt. Ltd. which was registered u/sec 120 (B), 406 420 of the Indian Penal Code and Under Section 138 of the N. I Act. According to the said F.I.R. it has been alleged that accused persons mentioned above conspired among themselves and in pursuant to the said criminal conspiracy t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to make inducement with innocent persons amongst the public at large in regard of providing suitable Plots of land at very reasonable rate at different locations within the district of Ranchi. Further alleged that Sujit Kumar and witness Ramesh Kumar Singh and Anjani Kumar by registration a Plot of land which was either not in existence or not in their Physical possession in lieu of payment of Rs. 3.5 lakhs. It is further submitted that in compliance of the order and Direction of Hon'ble High Court of Jharkhand in W.P (PIL), all matters having similar nature related with the above was referred to the Central Bureau of Investigation and accordingly the said case was also taken up by the CBI and registered as RC 09 (S)/2013-R. 15. Mr. Rajendra Krishna, the learned counsel appearing on behalf of the petitioner-Krishna Kumar in three criminal revision petitions submitted that in Cr. Revision No. 238 of 2020 is arising out of R.C. Case No. 7(S)/13-EOWR, Cr. Revision No. 239 of 2020 arising out of R.C. Case No. 17(S)/13-R and Cr. Rev. No. 240 of 2020 arising out of R.C. Case No. 3(S)/2013-EOW-R. He submitted that the learned Special Judge, C.B.I., Ranchi has taken cognizance by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no allegation of taking any bribe and the connivance is not made out and in view of that section 120B of the I.P.C is not attracted. He submitted that there is no allegation of connivance from the very beginning and section 420 I.P.C is not attracted. In this background, he submitted that it is a fit case that this Court may exercise its power and discharge the petitioner and to buttress his such argument, he relied in the case of C.K.Jaffer Sharief v. State (Through CBI), (2013) 1 SCC 205. Replying on the judgment he submitted that the discharge petition was allowed arising out of Prevention of Corruption Act and based on that, in one of the case, Jharkhand High Court in Cr.M.P. No. 2741 of 2013 by order dated 14.11.2014 the cognizance order has been pleased to be quashed. He submitted that on this background, the petitioner s case is fit to be allowed. He further submitted that in R.C. Case No. 17(S)/2023, the power of attorney was made for 40 decimals of land and three sale deeds, however, by the total 75.55 decimals land was transferred by M/s Sanjeevani Buildcon Pvt. Ltd. and total are of mutation is 117.89 decimals in favour of 27 different persons. In the charge sheet, it ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purchasers in the revenue records and wrongly excess mutation of 3.94 decimals is said to be done. He further submitted that the transfer made by Sri Arbind Kumar Singh, pursuant to registered power of attorney holder authorizing to sell 40 decimals of land situated at Mauza-Pundag, khata no.155, plot no.851 whereby he has transferred more than 40 decimals of land by registered sale deed. Thereafter the purchasers have applied for mutation by 10 different applications before the Circle Officer Ratu, the post which the petitioner was holding. He submitted that the petitioner after following the procedure under the said Act, mutated the land and it is alleged that excess mutation of 3.27 decimal has been made. He submitted that thus, excess mutation of 7.21 decimal of land is alleged to be ordered by the petitioner. He submitted that the learned court has already framed the charge against the petitioner. He submitted that no case is made out under the Prevention of Corruption Act as well as under the sections of I.P.C and inspite of that, the petitioner has not been discharged and the charge has been framed. He submitted that the said entries are made pursuant to fiscal purpose and s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18. He submitted that the case of the petitioner is fit to be allowed considering that if two views are possible; one of them gives rise to suspicion only, the petitioner can be discharged and to buttress his such argument, he relied in the case of M.E. Shivalingamurthy v. C.B.I, (2020) 2 SCC 768. Paragraph nos. 17 (i) to 17 (viii) of the said judgment are quoted below: 17.1. If two views are possible and one of them gives rise to suspicion only as distinguished from grave suspicion, the trial Judge would be empowered to discharge the accused. 17.2. The trial Judge is not a mere post office to frame the charge at the instance of the prosecution. 17.3. The Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding. Evidence would consist of the statements recorded by the police or the documents produced before the Court. 17.4. If the evidence, which the Prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed offence, then, there will be n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proved: (i) The representation made by the person was false. (ii) The accused had prior knowledge that the representation he made was false. (iii) The accused made false representation with dishonest intention in order to deceive the person to whom it was made. (iv) The act where the accused induced the person to deliver the property or to perform or to abstain from any act which the person would have not done or had otherwise committed. 20. On the point of criminal conspiracy, he relied in the case of C.B.I v. K. Narayana Rao, (2012) 9 SCC 512. In this background, he submitted that the allegations against the petitioner are only of mutating more land and this has happened after following the procedure prescribed under Bihar Tenants Holding (Maintenance of Records), Act, 1973 on the basis of the report of Halka Karamchari and the Circle Inspector and in view of that, the criminality is not made out from the very beginning and there is no allegation that the connivance with M/s Sanjeevani Buildcon Pvt. Ltd of the petitioner was there, and in view of that, the petitioner may kindly be discharged. 15. On the other hand, Mr. Anil Kumar, the learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice was served on Sri Shyam Kishore Gupta by Dr. Uma Shankar Prasad Shrivastava. Responding to that legal notice, Sri Shyam Kishore Gupta handed over five post-dated cheques amounting to Rs. 6,85,000/- on 20.12.2011 to Dr. Uma Shankar Prasad Shrivastava. All the original receipts of M/s Sanjeevani Buildcon Pvt. Ltd. was taken back by Sri Shyam Kishore Gupta and consequently the said cheques were bounced back due to insufficient balance. Finally, Dr. Uma Shankar Prasad Shrivastava has realized that the accused persons such as, Smt. Anamika Nandi, Sri Arvind Kumar Singh, Sri Shyam Kishore Gupta and Abdul Wahab have cheated him. He lodged the F.I.R on 12.04.2012 under section 120B, 406, 420 I.P.C under section 138 of Negotiable Instruments Act, 1882 with Lower Bazar Police Station, District Ranchi against the above mentioned accused persons. At the same time the cases under section 138 of the Negotiable Instruments Act, 1882 have been instituted against Sri Shyam Kishore Gupta and Abdul Wahab in Civil Court, Ranchi. He submitted that in these background, the case handed over to C.B.I and the C.B.I has investigated the matter and it was further found which has come in the charge sheet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iracy with each other and also with Sri Pradip Xalxo, Sri Shyam Sunder Nath Rai, Sri Rajiv Ranjan and Sri Krishna Kumar and in pursuance thereof mutation order of a total area of 105.32 decimals lands was made against the permissible limit of 50 decimals land against Sri Pradeep Xalxo, Sri Shyam Sundar Nath Rai, Sri Rajiv Ranjan and Sri Krishna Kumar in criminal conspiracy with each other and also with Smt. Anamika Nandi, Sri Jayant Dayal Nandi with Navin Kumar Singh and Sri Shyam Kishore Gupta issued mutation order for a total area of 3.33 acres of land against the available area of 3.24 acres land and the criminal conspiracy to that effect so far Krishna Kumar is concerned is also made out. He being the Circle Officer of Nagri Circle ordered for mutation of 14 plots covering total area of 57.06 decimals land belonging to plot no. 841, khata no.155, thana no. 228, Mauza-Pundag which was over and above the permissible limit of maximum 50 decimals land should have been mutated in the above plot. The area of mutation cannot exceed without connivance of the Circle Officer. He submitted that during 2009-2010 Sri Omprakash Yadav was posted and functioning as Circle Officer, Ratu. He has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed in Section 239CrPC means that the materials placed before the court do not make out or are not sufficient to make out a prima facie case against the accused. 72. The ambit and scope of exercise of power under Sections 239 and 240CrPC, are therefore fairly well-settled. The obligation to discharge the accused under Section 239 arises when the Magistrate considers the charge against the accused to be groundless . The section mandates that the Magistrate shall discharge the accused recording reasons, if after : (i) considering the police report and the documents sent with it under Section 173, (ii) examining the accused, if necessary, and (iii) giving the prosecution and the accused an opportunity of being heard, he considers the charge against the accused to be groundless i.e. either there is no legal evidence or that the facts are such that no offence is made out at all. No detailed evaluation of the materials or meticulous consideration of the possible defences need be undertaken at this stage nor any exercise of weighing materials in golden scales is to be undertaken at this stage the only consideration at the stage of Sections 239/240 is as to whether the allegation/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned order and finds that the allegations against the petitioners who happened to be Circle Officers are there of mutating more lands of the plots in question. A large number of innocent public have been cheated by M/s Sanjeevani Buildcon Pvt. Ltd. in conspiring with the others including the petitioners which has been revealed in the charge sheet. In the charge sheet the action of the petitioners have been discussed elaborately in all the cases and the learned counsel for the petitioners have also admitted in their argument that they have done excess mutation of the plot in question. The question remains that as to whether in absence of their connivance along with M/s Sanjeevani Buildcon Pvt. Ltd. the said mutation can be done or not? It appears that Circle Inspectors have also been charge sheeted which suggest that all were in connivance of such excess mutation of the plot in question. The discharge petition was the subject matter before the Hon ble Supreme Court in the case of State of Tamilnadu, by Inspector of Police in Vigilance and Anti Corruption v. N. Suresh Rajan and Others, (2014) 11 SCC 709 , wherein paragraph no.29, 32.4, 33 and 34 has held as under: 29. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bservation made by us in this judgment is for the purpose of disposal of these appeals and shall have no bearing on the trial. The surviving respondents are directed to appear before the respective courts on 3-2-2014. The Court shall proceed with the trial from the stage of charge in accordance with law and make endeavour to dispose of the same expeditiously. 34. In the result, we allow these appeals and set aside the order of discharge with the aforesaid observations. 23. The settled law does not permit a mini trial at the stage of discharge and facts are there that can be only subject matter of trial. The purpose of framing charge is to intimate the accused about clear unambiguous and precise nature of acquisition and the accused is called upon to meet the course of trial. The scope of enquiry by a Judge is required to be considered at the question of framing of charge and this aspect of the matter has been considered in the case of Union of India v. Prafulla Kumar Samal and Another, (1979) 3 SCC 4, wherein at paragraph no. 10 the following principles have been enumerated: 10. Thus, on a consideration of the authorities mentioned above, the following principles e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceeding with the trial. (iii) The court cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. (iv) If on the basis of the material on record, the court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. (v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. (vi) At the stage of Sections 227 and 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng from the materials taken on its face value discloses the existence of the ingredients or not as has been held in the case of State of Karnataka v. M.R. Hiremath, (2019) 7 SCC 515 . In view of the above the trial court is required to apply its mind at the time of framing of charge and will not act as mere post office and at the same time the court is also not required to made a mini trial and if the satisfaction to that effect is there that there are materials to frame the charge, the discharge petition is not to be maintained. It is further well settled that defence on merit is not to be considered at the time of stage of framing of charge and that cannot be a ground of discharge. A reference may be made to the case of State of Rajasthan v. Ashok Kumar Kashyap, (2021) 11 SCC 191 . Paragraph no. 10 to 17 of the said judgment are quoted below: 10. By the impugned judgment [ Ashok Kumar Kashyap v. State of Rajasthan, 2018 SCC OnLine Raj 3468 ] and order, the High Court in exercise of its revisional jurisdiction has set aside the order passed by the learned Special Judge framing the charge against the accused under Section 7 of the PC Act and consequently has discharged t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication for discharge under the provisions of Section 239 CrPC. The parameters which govern the exercise of this jurisdiction have found expression in several decisions of this 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. SureshRajan [State of T.N. v. N. Suresh Rajan, (2014) 11 SCC 709 : (2014) 3 SCC (Cri) 529 : (2014) 2 SCC (L S) 721] , 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he stage of framing of the charge and/or considering the discharge application, the mini trial is not permissible. At this stage, it is to be noted that even as per Section 7 of the PC Act, even an attempt constitutes an offence. Therefore, the High Court has erred and/or exceeded in virtually holding a mini trial at the stage of discharge application. 16. We are not further entering into the merits of the case and/or merits of the transcript as the same is required to be considered at the time of trial. Defence on merits is not to be considered at the stage of framing of the charge and/or at the stage of discharge application. 17. In view of the above and for the reasons stated above, the impugned judgment [Ashok Kumar Kashyap v. State of Rajasthan, 2018 SCC OnLine Raj 3468] and order passed by the High Court discharging the accused under Section 7 of the PC Act is unsustainable in law and the same deserves to be quashed and set aside and is accordingly hereby quashed and set aside and the order passed by the learned Special Judge framing charge against the accused under Section 7 of the PC Act is hereby restored. Now the case is to be tried against the accused by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to be taken into account. Conspiracy as a whole is brought about in secrecy and the proof of the same, by adduction of evidence direct, is really an impossible feat in most of the cases, though in the rarest of rare occasion, the possibility of obtaining such evidence is there and in view of that the conspiracy may be proved in most of the cases, by process of inference or induction from relevant proved facts and circumstances which can be only by way of trial and not at the time of framing of charge and in that view of the matter, the discharge petitions cannot be allowed. 29. In view of the above, at this stage, the argument advanced by the learned counsels for the petitioners are the subject matter of trial which cannot be appreciated at this stage and the Court finds that the learned court has rightly rejected the discharge petition. 30. The judgment relied by Mr. Indrajit Sinha, the learned counsel appearing for the petitioner in the case of Rajinder Singh v. State of Jammu and Kashmir and Others(supra) purely arising out of a civil dispute and in that circumstance the said order was passed and there are provision of appeal and revision in the Bihar Tenants Holding (Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emonstrated by the materials revealed in the course of investigation, the petitioner of that case can be construed to have adopted corrupt or illegal or to have abused his position as a public servant to obtain any valuable thing or pecuniary advantage either for himself or for any of the four of the accused persons and in that view of the matter, that order has been passed which is not helping the petitioner. In Cr.M.P. No. 2741 of 2012 relied by Mr. Rajendra Krishna, the learned counsel for the petitioner, the mutation was with regard to scheduled area under the Chotanagpur Tenancy Act. The Court found that had the petitioners would have recommended and forwarded with knowledge that the purchaser was not having any land in that area he would have certainly liable to be prosecuted with the criminal offence as in that event both the ingredients of a crime actus reus and mens rea would have been completed. Here only actus reus was found on the part of the petitioner and in view of that the cognizance order was quashed. In the case in hand after a detailed enquiry the connivance of the petitioners has come in the charge sheet and thereafter the learned court has rejected the discharg ..... X X X X Extracts X X X X X X X X Extracts X X X X
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