9911796707
TMI Blog2023 (10) TMI 1346X X X X Extracts X X X X X X X X Extracts X X X X ..... or an error of jurisdiction or law or the perversity which has crept in such proceedings. The revisional court cannot sit as an appellate court and start appreciating the evidence by finding out inconsistency in the statement of witnesses and it is not legally permissible. The High Courts ought to be cognizant of the fact that trial court was dealing with an application for discharge. The plea or the defence when requiring to be proved during course of trial is itself sufficient for framing the charge. In the instant case, the learned Trial Judge has noticed that explanation provided by the respondent accused pertaining to purchase of shop No.7 of Suman City Complex of plot No.19, Sector-11 from the loan borrowed and paid by the respondent was outside the check period and hence the explanation provided by respondent is a mere eye wash. This is an issue which has to be thrashed out during the course of the trial and at the stage of framing the charge mini trial cannot be held. That apart the explanation offered by the respondent accused with regard to buying of Maruti Wagon-R car, Activa scooter, purchase of house etc., according to the prosecution are all the subject matter o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion and based on corrupt practices had acquired assets in his and his wife s name to the tune of Rs.1,15,35,319/- which was beyond his known source of income and it was disproportionate to the tune of Rs.32,68,258/- which is more than 40% of his known source of income. 4. An application for discharge (Annexure P-29) came to be filed under Section 227 read with Section 228 of Cr.P.C. contending inter alia that during investigation, the IO had failed to consider the written statement dated 13.08.2014 and the permission obtained by him to visit Australia and also the details of the purchase of movable and immovable properties furnished to the department on every occasion of his investment, and yet, the IO had failed to consider the same in proper perspective. It was also contended that sanction granted by the department for purchase of the property has also not been taken into account by the I.O. It was further contended, that error in calculation of disproportionate asset though brought to the notice of the investigating agency, same had not been considered as also the statement of the witnesses who had loaned amounts to the respondent. It was further urged that the sanctioning au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he ingredients constituting the alleged offence are not attracted. (i) There does not seems to be any basis infirmities prima facie on record which nullifies the case of prosecution. Even if two views are possible, present case papers clearly creates grave a suspicion against the accused with regards to the loan amount taken from his brother, father, mother and other friends and also with regards to the income of his son, who was residing at Australia and his agricultural income and there are sufficient grounds for proceeding against the accused. (5) Considering the facts recorded hereinabove emerging from the documents on record, it cannot be said that the accused is liable to be discharged since this Court is not required to make roving inquiry into pros and cons of the matter and weighing the evidence as if the trial is conducted. Even otherwise the allegations with regards to the disproportionate assets against the known source of income is a subject matter which cannot be decided at the outset without conducting full fledge trial, more particularly, when it is the accused who has the knowledge with regard to the source of income from while purchase of the properties both ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... necessary to determine whether a case has been made out by the prosecution for trial on the basis of charge-sheet material only. 9. If the accused is able to demonstrate from the chargesheet material at the stage of framing the charge which might drastically affect the very sustainability of the case, it is unfair to suggest that such material should not be considered or ignored by the court at that stage. The main intention of granting a chance to the accused of making submissions as envisaged under Section 227 of the Cr.P.C. is to assist the court to determine whether it is required to proceed to conduct the trial. Nothing in the Code limits the ambit of such hearing, to oral hearing and oral arguments only and therefore, the trial court can consider the material produced by the accused before the I.O. 10. It is settled principle of law that at the stage of considering an application for discharge the court must proceed on an assumption that the material which has been brought on record by the prosecution is true and evaluate said material in order to determine whether the facts emerging from the material taken on its face value, disclose the existence of the ingredients n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eed not be gone into. This Court by referring to its earlier decisions in the State of Maharashtra Vs. Som Nath Thapa (1996) 4 SCC 659 and the State of MP Vs. Mohan Lal Soni (2000) 6 SCC 338 has held the nature of evaluation to be made by the court at the stage of framing of the charge is to test the existence of prima-facie case. It is also held at the stage of framing of charge, the court has to form a presumptive opinion to the existence of factual ingredients constituting the offence alleged and it is not expected to go deep into probative value of the material on record and to check whether the material on record would certainly lead to conviction at the conclusion of trial. 13. The power and jurisdiction of Higher Court under Section 397 Cr.P.C. which vests the court with the power to call for and examine records of an inferior court is for the purposes of satisfying itself as to the legality and regularities of any proceeding or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept in such proceedings. It would be apposite to refer to the judgment of this court in Amit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. 27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same as defence evidence and examining the truthfulness of its contents even before trial could be commenced or held. Thirdly, the High Court has proceeded to examine the pros and cons of defense by weighing the defence-evidence and probabilities of the conclusion that may ultimately be arrived at, as the basis for exercising the revisional jurisdiction which was impermissible. Fourthly, the purported loans said to have been obtained by the respondent accused from his mother, brother and father are all question of facts which requires adjudication and this could be done only during trial and the explanation relating to borrowing of large sums raises a reasonable suspicion, which has been termed by the Investigating Agency as strong material to file the charge sheet and based on such material the sanctioning authority also recorded its satisfaction under sanction order dated: 05.03.2015 to prosecute the respondent-accused. Hence, raising reasonable suspicion cannot be held or construed at the primary stage for discharging the accused. 17. The plea or the defence when requiring to be proved during course of trial is itself sufficient for framing the charge. In the instant ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
