Amarendra Nath Ghosh vs C.B.I. and Others

Subrata Talukdar, J.—1. In this application being CRR 134 of 2014 (hereinafter referred to as the application) the petitioner challenges the order No. 244 dated 25th November, 2013 passed by the Ld. 1st Special Court, Alipore (hereinafter referred to as the Ld. Special Court only) in Special Case No. 7 of 1998 rejecting the petition filed by the petitioner under Section 239 of the Code of Criminal Procedure, 1973 (as amended up to date) (for short CrPC).

By the order impugned the Ld. Special Court was pleased to, inter alia, hold that the petitioner was first produced before the Ld. Special Court on 28th August, 2007 and, on perusal of the record it was found that there is are sufficient materials to proceed with the trial. The Ld. Special Court also observed that two Branch Managers of two Nationalised Banks who are co-accused in the said case have not filed any application for discharge under Section 239 CrPC. Additionally, the chargesheet also mentions criminal conspiracy amongst the accused persons to defraud a Nationalised Bank of around Rs. 10.84 crores thereby rendering all the accused liable to be prosecuted under Section 120B of the Indian Penal Code (for short IPC).

The Ld. Special Court further opined that at the relevant time when the offences were alleged to have been committed, the petitioner was very much present in this country and only subsequently left for abroad to pursue his business interests. It was again noticed that at the relevant point of time when the offences were in the process of being detected, the petitioner sought to delink his name from the directorship of the company in issue, M/s. Mafcon International Ltd. (for short the said company).

On a consideration of the contents of both the first chargesheet dated 13th November, 1998 and the supplementary chargesheet dated 20th August, 2008 the Ld. Special Court was of the view that there are enough grounds to proceed against the accused persons, including the petitioner, by holding trial.

Sri Sudipto Moitra, Ld. Counsel appearing for the petitioner emphatically submits as follows:-

"i) First that Section 409 IPC cannot be applied to the petitioner as he is not a public servant. Similarly, there can be no chargesheet against the petitioner under Section 13 read with 13(1)(c) and (d) of the Prevention of Corruption Act, 1988 (for short the PC Act).

ii) The petitioner made a prayer for supply of documents in his application before the Ld. Special Court under Section 91 of the CrPC. Till date such documents having not been supplied to the petitioner the framing of charges preparatory to proceeding with the trial stands vitiated.

iii) Taking this Court to page 49 of the application, Ld. Counsel for the petitioner argues that it has been the stand of the CBI-opposite parties (for short CBI-Ops) that at the relevant point of time the petitioner was a diplomat and there is no direct evidence against the petitioner. In view of the above noted statements made by CBI, Sri Moitra argues that the prosecuting agency has itself admitted that the petitioner cannot be proceeded against in the trial.

iv) Fourth, Sri Moitra argues that the petitioner was never a director in the said company at the material point of time since the petitioner retired from the said company in the year 1998. Therefore, taking this Court to page 48 of the application Sri Moitra points out that notice under Section 160 CrPC was served on the petitioner in his capacity as ex-chairman of the said company. Such notice is vindication of the fact that the petitioner was not a part of the company in respect of which the alleged fraudulent transaction through a Nationalised Bank had taken place.

v) Fifth, Section 409 IPC and Section 420 IPC are not cognate offences. Therefore, both the offences cannot be simultaneously levelled against the petitioner in the same chargesheet. In support of such submission Sri Moitra relies upon the judgments reported in , 1996 Cr LJ 300 (at Paras 7 and 8) and , 1990 (1) DMC 22 (at Para 4) in the matters of Vadivel vs. Packialakshmi and Sukhwinder Kaur & Anr. vs. Harjinder Kaur respectively.

vi) Sixth, the petitioner has already spent several years in judicial custody in the Federal Republic of Germany prior to being extradited to this country following an Interpol notice on the basis of an open warrant of arrest issued by the Ld. Special Court. Therefore, Sri Moitra argues that no useful purpose can be served by proceeding with the trial since the period of punishment prescribed in respect of each of the offences mentioned in the chargesheet has already been undergone by the petitioner in a jail in Germany.

vii) The seventh and next point argued by Sri Moitra is that the chargesheet has not been submitted as required under the CrPC. Sri Moitra argues that the first chargesheet dated 13th November, 1998 was filed before the Ld. Special Court by an Inspector of the CBI who is not the competent officer to file such chargesheet in view of provisions of the Section 173(2) CrPC. In support of such submission Sri Moitra relies upon the judgment of the Hon''ble Apex Court reported in , 2007 (1) SCC (Cri) 264 at Paragraph 31 in the matter of M.C. Mehta (Taj Corridor Scam) vs. Union of India & Ors.. Sri Moitra argues that according to the law chargesheet is required to be filed by the Officer-in-Charge (for short OC). In terms of the CBI manual, the SP, CBI is the OC of the dealing unit/department. Therefore, as per procedure provided by Section 173(2) CrPC the chargesheet dated 13th November, 1998 ought to have been filed by the SP, CBI and not by any Inspector. The second chargesheet dated 20th August, 2008 was also filed by the Inspector, CBI and such procedure of filing has been frowned upon by the Hon''ble Apex Court in the judgment of M.C. Mehta (Taj Corridor Scam) vs. Union of India & Ors. reported in , 2007 (1) SCC (Cri) 264 at Paras 13 and 31.

viii) The eighth point raised by Sri Moitra is that under the Delhi Special Police Establishment Act, 1946 (for short the 1946 Act) in the light of Sections 5 and 6 thereof it is incumbent to take the consent of the State Government before proceeding with the investigation of all such cases. Placing the notification of the Home Department (Police), Government of West Bengal dated 2nd August, 1989, Sri Moitra argues that except the offences under the PC Act connected to public servants the consent of the Governor is required to be extended for investigation by the CBI under the 1946 Act for the other types of offences as specified in the said notification dated 2nd August, 1989. According to Ld. Counsel for the petitioner it does not appear from the records that the formality of the consent mandated by Section 6 of the 1946 Act appears to have been followed in the present case. Sri Moitra argues that the consent cannot be given retrospectively. It is mandatory that the consent of the State should be obtained prior to proceeding with the investigation of the offences."

Elaborating further on all the points argued by him as aforementioned, Sri Moitra points out that the notice under Section 160 CrPC served on the petitioner is not a notice to a witness. It is strange, Sri Moitra emphasizes, that the CBI while admitting on the one hand that there is no direct evidence against the petitioner, on the other hand is serving him with a notice describing him as Ex-Chairman of the company, thereby altering its position and incorporating the name of the petitioner as an accused in the chargesheet.

According to Sri Moitra, such sudden alteration in the stand of the CBI is inexplicable without supported by any documentary evidence in the form of any cheque which was either deposited or withdrawn on the signature of the petitioner. Sri Moitra further points out that although bankers'' cheques were allegedly withdrawn from Allahabad Bank, not a single witness has been examined from the said Bank.

Sri Moitra therefore concludes by arguing that the impugned order rejecting the petition under Section 239 CrPC is liable to be set aside since there are no grounds to proceed with the trial against the petitioner.

Per contra, Sri Asraf Ali, Ld. Counsel appearing for the CBI-OPs argues the following points:-

"a) First, placing the First Information Report (FIR) registered on the basis of a complaint received by one Sri B.K. Dhir, the then Regional Manager, Allahabad Bank, Kolkata, Sri Ali argues that the time of occurrence of the alleged offences was in the years 1994 and 1995. From the FIR it is evident that a number of bankers'' cheques were fraudulently prepared and encashed by officials of the Allahabad Bank. Sri Ali points out that from the FIR it will be transparent that there was an elaborate fraudulent system in operation involving the bank officials and associates of the petitioner acting on behalf of the company.

b) Sri Ali also takes this Court to the statements of bank officials of the Punjab National Bank as well as the statements of the employees associated with the Chartered Accountancy Firm of one B.P. Jhunjhunwala which throws light on the fact that the withdrawee of the bankers'' cheques, one Manik Chand Dey (since deceased) used to visit Punjab National Bank with the petitioner and also collect the documents and the money. Ld. Counsel for the CBI points out that it has since transpired upon investigation that the said Manik Chand Dey was an employee of the petitioner and associated with the company.

c) Third, placing the order impugned dated 25th November, 2013 Sri Ali argues that it is a well reasoned order demonstrating the presence of sufficient materials to proceed with the framing of charge for the trial.

d) Fourth, Sri Ali argues that the common charge against all the accused is also one of criminal conspiracy warranting punishment under Section 120B IPC. In view of Section 120B IPC the petitioner, although not being a public servant, is subject to trial with the bank officials under a common chargesheet which includes Section 13 of the PC Act.

e) Fifth, on the point raised by Sri Moitra that the charges under Sections 406 IPC and Section 420 IPC are mutually exclusive and cannot co-exist in a single chargesheet, by way of reply Sri Ali relies upon Section 221 CrPC.

Section 221 CrPC reads as follows:-

"221. Where it is doubtful what offence has been committed.-

(1) If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences.

(2) If, in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of sub-section (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it."

Sri Ali particularly relies upon illustration (a) of Section 221 CrPC which reads as follows:-

"221. Where it is doubtful what offence has been committed.-

Illustrations

(a) A is accused of an act which may amount to theft, or receiving stolen property, or criminal breach of trust or cheating. He may be charged with theft, receiving stolen property, criminal breach of trust and cheating, or he may be charged with having committed theft, or receiving stolen property, or criminal breach of trust or cheating."

Therefore, Sri Ali argues that there is no illegality or infirmity in all the charges clubbed together for a single trial. Since the applicability of each of the changes qua the accused individually shall be assessed finally in the wisdom of the Ld. Trial Court which maintains the jurisdiction to impose punishments under appropriate sections to the accused or, in the alternative, retains the jurisdiction to even acquit.

f) Countering Sri Moitra''s submission that the filing of the chargesheet is vitiated in view of the non-compliance with Section 173(2) CrPC, Sri Ali argues that the language of Section 173(2)(i) is as follows:-

"173. Report of police officer on completion of investigation.-

(2) (i) As soon as it is completed, the officer-in-charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating-

(a) the names of the parties;

(b) the nature of the information;

(c) the names of the persons who appear to be acquainted with the circumstances of the case;

(d) whether any offence appears to have been committed and, if so, by whom;

(e) whether the accused has been arrested;

(f) whether he has been released on his bond and, if so, whether with or without sureties;

(g) whether he has been forwarded in custody under section 170.

[(h) whether the report of medical examination of the woman has been attached where investigation relates to an offence under section 376, 376A, 376B, 376, [376D or 376E] of the Indian Penal code (45 of 1860).]"

Therefore, according to Sri Ali, in view of the specific use of the expression ''forward'', all steps have been taken to place the chargesheet before the Ld. Special Court with the approval of the OC, meaning thereby the SP, CBI as provided under Section 173(2) CrPC. Sri Ali further argues that in respect of placing the chargesheet before the Ld. Special Court, Chapter 19 of the CBI Manual and particularly, 19.6 thereof has been followed.

19.6 of the CBI Manual reads as follows:-

"19.6 the comments of the Supervisory Officer (SP) are to be recorded under the following columns:-

(1) Case No. and date of registration

(2) (i) Recommendations of the I.O.

(ii) Recommendations of the Law Officer.

(3) Comments (allegation-wise).

(4) Recommendations of SP (allegation-wise).

NOTE: (i) The SP''s comments and recommendations must be clear and specific.

(ii) In case the SP differs from the recommendations of the I.O. and/or the Law Officer, grounds thereof should be furnished."

Therefore, Sri Ali argues that the first chargesheet dated 13th November, 1998 was forwarded with the report of the SP, CBI in compliance with Clause 19.6 of the CBI Manual (supra). Thereafter, the supplementary chargesheet was forwarded by the OC meaning thereby the SP, CBI by letter of the same date 20th August, 2008.

Accordingly, Sri Ali emphasizes that there is no procedural shortcoming with regard to compliance with the provisions of Section 173(2) CrPC.

g) Next, Sri Ali points out that the argument advanced by the Ld. Counsel for the petitioner on the point that the petitioner has already spent several years in custody in the Federal Republic of Germany and such custody must be deemed to be considered to have exhausted the full punishment period in the event the petitioner stood guilty in the trial, is specious at this stage on the ground that the set off in respect of the duration of the custody period can only be claimed under Section 428 CrPC. Section 428 CrPC reads as follows:-

"428. Period of detention undergone by the accused to be set off against the sentence of imprisonment.- where an accused period has, on conviction, been sentenced to imprisonment for a term, [not being imprisonment in default of payment of fine], the period of detention, if any, undergone by him during the investigation, inquiry of trial of the same case and before the date of such conviction, shall be set off against the term of imprisonment imposed on him on such conviction, and the liability of such person to undergo imprisonment on such conviction shall be restricted to the remainder, if any, of the term of imprisonment imposed on him.

[Provided that in cases referred to in section 433A, such period of detention shall be set off against the period of fourteen years referred to in that section.]

Ins. By the Code of Criminal Procedure (Amendment) Act, 1978 (45 of 1978), sec. 31.

Proviso added by the Code of Criminal Procedure (amendment) Act, 2005 (25 of 2005) [w.e.f. 23.06.2006 vide Notification No. S.O. 923 (E) , dated 21.06.2006]."

Provisions of Section 428 CrPC (supra), Sri Ali argues, does not entitle the petitioner to any set off qua the period of custody undergone by him in a jail in Germany and such argument advanced by the petitioner is an argument in desperation.

h) Last, Sri Ali argues that the present application is not maintainable since following the dismissal of the petition under Section 239 CrPC the Ld. Special Court has already proceeded to frame charges by order dated 25th November, 2013. Therefore, the order rejecting the discharge petition is no more relevant for adjudication and, in support of his submission Sri Ali relies upon the decision reported in , 2012 (9) SCC 460 at Paragraph 17 in the matter of Amit Kapoor vs. Ramesh Chander & Anr.."

In support of the above arguments Sri Ali also relies upon the decision reported in 2013 (1) C Cr LR (Cal) 128 in the matter of Somanth Guin vs. Monaj Kumar Senapati & Anr.. Sri Ali argues that the point under Section 6 of the 1946 Act connected to the consent of the State Government has been settled In Re: Somnath Guin (supra) and the investigation by the CBI was not quashed.

However, replying to Sri Ali''s argument connected to In Re: Somnath Guin (supra), Sri Moitra produces before this Court order dated 6th May, 2013 passed by the Hon''ble Apex Court in Special Writ Petition-CRLMP No. 1871 of 2013 to demonstrate that the judgment in Somanth Guin (supra) has been stayed.

Having heard the parties and considering the materials on record this Court arrives at the following findings:-

"A. This Court finds that the first chargesheet was filed on the 13th of November, 1998. Soon thereafter summons were served on the petitioner on the 4th of January, 1999. This Court also notices that at the material point of time the petitioner quietly left India. Also at the material point of time the mother of the petitioner, Swati Ghosh filed an application under Section 205 CrPC claiming exemption from personal appearance of the petitioner. However, such application was rejected.

B. At paragraph 24 (ix) of the present application the petitioner claims to be ignorant about the criminal proceeding since he claimed to be outside the country occupied with engagements as a diplomat of the Republic of Vanuatu.

To the mind of this Court such plea of the petitioner at paragraph 24 (ix) of the present application runs contrary to his own pleading that his mother moved an application under Section 205 CrPC claiming exemption from the personal appearance of the petitioner in Court.

In view of the fact that such an application under Section 205 CrPC was moved on behalf of the petitioner during his purported absence abroad, the plea taken by the petitioner on oath at paragraph 24 (ix) (supra) of ignorance of the pending criminal proceeding appears to be, on the face of it, false.

C. This Court is also required to notice the defence taken by the petitioner that he was no longer active in the service of the company at the material point of time. It appears from the record before this Court that the petitioner claimed to have disassociated himself from the directorship of the company vide a resolution of its Board dated 11th December, 1995. The said resolution dated 11th December, 1995 was purportedly communicated to the Registrar of Companies on 5th of January, 1996.

This Court also notices that the CBI claimed that both the petitioner and his late father were permanent directors of the company and therefore they could never claim to be retired from their directorships. The ROC, West Bengal vide its letter dated 30th March, 2011/1st April, 2011 filed its report on the directorship of the petitioner with the company. The report of the ROC was placed before the Ld. Special Court on 26th of July, 2011. In its report it could not be confirmed by the ROC to the CBI that the mandatory requirement for retiring from the directorship by filing Form 32 of the Companies Act was deposited by the petitioner or not.

D. This Court further notices that by order dated 26th July, 2011 the Ld. Special Court directed production of the Register of the company in order to settle the fact with regard to the association of the petitioner as a director of the company. This Court further notices that the petitioner was quick enough to challenge the order dated 26th July, 2011 by filing a criminal revisional application before this Hon''ble Court being CRR 2606 of 2011, which is still pending.

To the mind of this Court the steps taken by the petitioner to restrain the Ld. Special Court from inspecting the Register of the company with the purpose of settling the issue of the association of the petitioner with the said company speaks of a calculated approach of avoidance of due process. This Court cannot be unmindful of the fact that both in respect of the feigned ignorance of the petitioner with respect to the pendency of the criminal proceeding on the ground that he was abroad and, his attempts to prove that he was never associated with the company point to an absence of bona fides combined with the creation of an elaborate smokescreen of technicalities to stymie the legal process.

E. This Court also notices that, on the one hand, the petitioner is claiming that there are no grounds to proceed against him in the trial, while in the same breath, the petitioner is also claiming and, such has been discussed above in this judgment, that he was not associated with the company or, with the transactions which are the subject matter of the criminal proceeding since at the relevant point of time the petitioner was abroad. Such claims of the petitioner for dropping the charges and/or for discharge on the ground of non-involvement (supra) is inconsistent with his prayer made before the Ld. Special Court under Section 91 CrPC that relevant documents be supplied before him. By order No. 145 dated 5th June, 2009 such prayer of the petitioner was allowed. The petitioner has also taken a ground in the present application that the statements under Section 161 CrPC be also made available to him.

F. From the above noted discussion this Court is of the view that the stand of the petitioner in the present application is deliberately ambivalent. While on the one hand the petitioner has pleaded that there are no grounds to proceed against him in the trial, on the other hand the petitioner has pleaded that the documents collected during investigation be supplied to him. In view of the adoption of the second ground in the present application this Court is of the view that the petitioner does consider himself amenable to trial subject to disclosure of documents. In such view of the matter the simultaneous prayer of the petitioner for discharge under Section 239 CrPC is not sustainable.

G. This Court is also required to notice the material averments in the application filed by the petitioner under Section 239 CrPC. The material paragraphs, meaning thereby the grounds on which the application for discharge is founded, are Paragraphs XI to XV. The above noted paragraphs of the application under Section 239 CrPC read as follows:-

"XI) FOR THAT the learned Special Trial court omitted to consider that on the basis of the allegations in the complaint, a prima facie case against your Petitioner is not made out;

XII) FOR THAT there is no evidence to justify that your Petitioner was at all involved with instant criminal case and there is no reason to reject the Petition under Section 239 of the Code of Criminal Procedure, 1973;

XIII) FOR THAT the learned Special Trial Court erroneously arrived at the decision that the 2 (two) accused persons who are the public servant as they were Branch Managers of the Nationalized Bank and entered into a criminal conspiracy with all other accused persons including your Petitioner to commit the above offence and the Learned Special Trial Court involved your Petitioner into the conspiracy for committing the offences is in excess of jurisdiction and not in concurrent with finding of the f acts;

XIV) FOR THAT the decision of the Learned Special Court that the alleged charges against your Petitioner is not groundless amounts to refusal to exercise the jurisdiction and the same is made in clear violation of natural justice;

XV) FOR THAT it is prima facie evident that your Petitioner is not at all involved with the Messrs. Mafcon International Limited since he resigned from the said Company on and from 11.12.1995. As such no amount of quibbling would be sufficient and to substantiate that your Petitioner is at present Chairman-cum-Managing Director of the Company, Messrs. Mafcon International Limited."

Therefore, from a plain reading of the material paragraphs of the application under Section 239 CrPC (supra) it can be safely concluded that the grounds for the relief of discharge are simply general or omnibus and, do not qualify for applying the provisions of Section 239 CrPC.

This Court can also not be mindful of the fact that the grounds argued by Ld. Counsel for the petitioner in support of the present application being CRR 134 of 2014 are not reflected in the averments in the application under Section 239 CrPC.

From the conspectus of the above noted facts and circumstances this Court is of the considered view that the facts surrounding the role of the petitioner qua the alleged offences require to be examined at the trial.

H. This Court is further required to notice the observations of the Ld. Special Court to the effect that the petitioner has repeatedly attempted to stall the trial by citing one purported procedural flaw after another. The petitioner has questioned the direction of the Ld. Special Court to produce the Register of the company by filing CRR 2606 of 2011. The petitioner has also taken a stand at Ground No. XXI of the present CRR that there may be conflict of justice in hearing the present CRR since CRR 2606 of 2011 is already pending adjudication.

However, this Court records that at the stage of final hearing both the Ld. Counsel for the petitioner and for the CBI-OPs did not express any reservation with regard to the analogous hearing of both the CRRs 134 of 2014 and 2606 of 2011 with the rider that the present CRR, that is 134 of 2014, being the parent CRR, be taken up for consideration first.

I. With further reference to the above noted discussion this Court also notices that the petitioner applied for exemption from personal appearance at a moment of time when both the investigative and judicial process were live. The contentions of the petitioner by citing his so-called diplomatic assignments abroad as well as his attempt to disassociate himself from the company appear, to the mind of this Court, to be an exercise in desperation to bury the tale of his activities qua the alleged offences. This Court is therefore of the firm view that the truth can only be unravelled at the trial.

J. This Court also observes the statements of several witnesses as well as the opinion of the handwriting experts regarding the association of the petitioner with the alleged offences. It is trite law that in exercise of its revisional powers this Court is only required to examine whether the Ld. Special Court has correctly appreciated the facts while disposing of the application under Section 239 CrPC as emanating from the records before the Ld. Special Court. The law relating to adjudication of an application under Section 239 CrPC is, by now, well settled.

In Sheoraj Singh Ahlawat & Ors. vs. State of U.P. & Anr. reported in , 2013 (11) SCC 476 at Paragraphs 14 to 21 the Hon''ble Apex Court was pleased to, inter alia, hold as follows:-

"14. The ambit of Section 239 Cr.P.C. and the approach to be adopted by the Court while exercising the powers vested in it under the said provision fell for consideration of this Court in Onkar Nath Mishra and Ors. v. State (NCT of Delhi) and Anr. , (2008) 2 SCC 561. That too was a case in which a complaint under Sections 498-A and 406 read with Section 34 of the I.P.C. was filed against the husband and parents-in-law of the complainant-wife. The Magistrate had in that case discharged the accused under Section 239 of the 10 Page 11 Cr.P.C, holding that the charge was groundless. The complainant questioned that order before the Revisional Court which directed the trial Court to frame charges against the accused persons. The High Court having affirmed that order, the matter was brought up to this Court.

This Court partly allowed the appeal qua the parents-in-law while dismissing the same qua the husband. This Court explained the legal position and the approach to be adopted by the Court at the stage of framing of charges or directing discharge in the following words:

"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 factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence."

(emphasis supplied).

Support for the above view was drawn by this Court from earlier decisions rendered in State of Karnataka v. L. Muniswamy , 1977 Cri.LJ 1125, State of Maharashtra & Ors. v. Som Nath Thapa and Ors. , 1996 Cri.LJ 2448 and State of M.P. v. Mohanlal Soni , 2000 Cri.LJ 3504. In Som Nath''s case (supra) the legal position was summed up as under:

"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 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."

(emphasis supplied)

So also in Mohanlal''s case (supra) this Court referred to several previous decisions and held that the judicial opinion regarding the approach to be adopted for framing of charge is that such charges should be framed if the Court prima facie finds that there is sufficient ground for proceeding against the accused. The Court is not required to appreciate evidence as if to determine whether the material produced was sufficient to convict the accused. The following passage from the decision in Mohanlal''s case (supra) is in this regard apposite:

"7. The crystallized judicial view is that at the stage of framing charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused."

In State of Orissa v. Debendra Nath Pandhi , (2005) 1 SCC 568, this Court was considering whether the trial Court can at the time of framing of charges consider material filed by the accused. The question was answered in the negative by this Court in the following words:

"18. We are unable to accept the aforesaid contention. The reliance on Articles 14 and 21 is misplaced...Further, at the stage of framing of charge roving and fishing inquiry is impermissible. If the contention of the accused is accepted, there would be a mini trial at the stage of framing of charge. That would defeat the object of the Code. It is well-settled that at the stage of framing of charge the defence of the accused cannot be put forth. The acceptance of the contention of the learned counsel for the accused would mean permitting the accused to adduce his defence at the stage of framing of charge and for examination thereof at that stage which is against the criminal jurisprudence. By way of illustration, it may be noted that the plea of alibi taken by the accused may have to be examined at the stage of framing of charge if the contention of the accused is accepted despite the well settled proposition that it is for the accused to lead evidence at the trial to sustain such a plea. The accused would be entitled to produce materials and documents in proof of such a plea at the stage of framing of the charge, in case we accept the contention put forth on behalf of the accused. That has never been the intention of the law well settled for over one hundred years now. It is in this light that the provision about hearing the submissions of the accused as postulated by Section 227 is to be understood. It only means hearing the submissions of the accused on the record of the case as filed by the prosecution and documents submitted therewith and nothing more. The expression ''hearing the submissions of the accused'' cannot mean opportunity to file material to be granted to the accused and thereby changing the settled law. At the stage of framing of charge hearing the submissions of the accused has to be confined to the material produced by the police.

As a result of aforesaid discussion, in our view, clearly the law is that at the time of framing charge or taking cognizance the accused has no right to produce any material."

(emphasis supplied)

Even in Smt. Rumi Dhar v. State of West Bengal & Anr. , (2009) 6 SCC 364, reliance whereupon was placed by counsel for the appellants the tests to be applied at the stage of discharge of the accused person under Section 239 of the Cr.P.C., were found to be no different. Far from readily encouraging discharge, the Court held that even a strong suspicion in regard to the commission of the offence would be sufficient to justify framing of charges. The Court observed:

"17....While considering an application for discharge filed in terms of Section 239 of the Code, it was for the learned Judge to go into the details of the allegations made against each of the accused persons so as to form an opinion as to whether any case at all has been made out or not as a strong suspicion in regard thereto shall subserve the requirements of law."

To the same effect is the decision of this Court in Union of India v. Prafulla Kumar Samal and Anr. v. , (1979) 3 SCC 4, where this Court was examining a similar question in the context of Section 227 of the Code of Criminal Procedure. The legal position was summed up as under:

"10. Thus, on a consideration of the authorities mentioned above, the following principles emerge:

(1) That the Judge while considering the question of framing the charges under Section 227 of the Code 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:

(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.

(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.

(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced Judge 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 appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."

Coming then to the case at hand, the allegations made against the appellants are specific not only against the husband but also against the parents-in-law of the complainant-wife. Whether or not those allegations are true is a matter which cannot be determined at the stage of framing of charges. Any such determination can take place only at the conclusion of the trial. This may at times put an innocent party, falsely accused of commission of an offence to avoidable harassment but so long as the legal requirement and the settled principles do not permit a discharge the Court would find it difficult to do much, conceding that legal process at times is abused by unscrupulous litigants especially in matrimonial cases where the tendency has been to involve as many members of the family of the opposite party as possible. While such tendency needs to be curbed, the Court will not be able to speculate whether the allegations made against the accused are true or false at the preliminary stage to be able to direct a discharge. Two of the appellants in this case happen to be parents-in-law of the complainant who are senior citizens. Appellant 1 who happens to be the father-in-law of the complainant-wife has been a Major General, by all means, a respectable position in the Army. But the nature of the allegations made against the couple and those against the husband, appear to be much too specific to be ignored at least at the stage of framing of charges. The Courts below, therefore, did not commit any mistake in refusing a discharge."

This Court is of the considered view that the principles laid down In Re: Sheoraj Singh Ahlawat (supra) squarely apply to the facts of this case.

K. This Court finally notices that the application of the petitioner which was filed in the year 2010 was directed to be expeditiously disposed of by an Hon''ble Single Bench of this Court vide its order dated 12.01.2013 in CRR 2199 of 2013. The Hon''ble Single Bench was pleased to direct the Ld. Special Court to dispose of the prayer for discharge and take a decision on the matter relating to framing of charge positively on and by 25th November, 2013 without granting any unnecessary adjournment to either of the parties.

Therefore, by the order impugned dated 25th November, 2013 the Ld. Special Court finally decided the application under 239 CrPC. By a subsequent order of the same date the Ld. Special Court also framed charges against each of the accused persons.

L. With further reference to the above noted discussion this Court is of the opinion that each of the grounds available to the petitioner in the present CRR 134 of 2014 were also available to him at the stage of argument of CRR 2199 of 2013. Since CRR 2199 of 2013 was disposed of with a mandatory direction, it can be presumed in law that once the Ld. Special Court has been directed to dispose of the application under Section 239 CrPC with the additional direction to frame charges, the grounds canvassed at the hearing before this court in the present CRR can no longer be regarded as res integra. It is trite law that once charges have been framed the grounds extensively argued by the Ld. Counsel for the petitioner in the present CRR are barred by res judicata and principles analogous thereto.

In this connection the judgment relied upon by Sri Ali reported in 2012 (9) SSC 460 (supra) may be also usefully referred to."

For all the above reasons CRR 134 of 2014 fails. It is accordingly dismissed.

In view of the dismissal of CRR 134 of 2014 the connected application being CRAN 1436 of 2014 does not survive before this Court and is thus disposed of. The petitioner will be however eligible to urge his prayers in CRAN 1436 of 2014 before the Ld. Special Court, if advised.

Next, CRR 2606 of 2011, which is an analogous matter challenging the Order No. 201 dated 26th December, 2011 passed by the Ld. Special Court rejecting the prayer of the petitioner to record that he is no way connected with the company, also does not survive in view of the dismissal of CRR 134 of 2014 remanding the matter for trial before the Ld. Special Court. Such full-fledged trial would also include consideration of evidence connected with the cause of action sought to be espoused in CRR 2606 of 2011 which is accordingly disposed of.

In view of the long and chequered history of this litigation, the Ld. Special Court is requested, subject to its board, to expeditiously conclude the trial without giving unnecessary adjournments to any party and preferably within a period of eight months from the date of communication of this order.

Registry is directed to send a copy of this order to the Ld. Special Court forthwith.

Urgent certified photocopies of this judgement, if applied for, be given to the learned advocates for the parties upon compliance of all formalities.