Dr. Shailendra Kumar Tomatia vs Republic of India

A.S. Naidu, J.—The petitioner has filed this Criminal Misc. Case invoking inherent jurisdiction of this Court to quash the order dated 10.10.2001 passed by the Special Judge, C.B.I., Bhubaneswar in T.R. No. 151 of 1999 declining to discharge him in the said case as also the order dated 16.1.2003 framing charge against the petitioner for alleged commission of offence u/s 13(1)(e) of the Prevention of Corruption Act.

The case has a chequered career, inasmuch as the selfsame orders impugned in this case were challenged before this Court by the petitioner in a Writ Petition registered as OJC No. 14747 of 2001 under Articles 226 and 227 of the Constitution of India. The petitioner had also filed a Criminal Misc. Case before this Court u/s 482, Cr.P.C. registered as Cri.M.C. No. 10091 of 2001 for quashing of the very same orders which came up for admission first. Learned counsel for the petitioner sought permission of the Court to withdraw the said Criminal Misc. Case by filing a Memo, to that effect and on the basis of the said Memo., the Criminal Misc. Case (No. 10091 of 2001) was disposed of with the following order :

"Order No. 5 dated 14.3. 2003 :

Learned counsel for the petitioner seeks permission to withdraw the Criminal Misc. Case. A Memo, to that effect has been filed. The Criminal Misc. Case is accordingly as withdrawn."

Thereafter, the Writ Petition (OJC No. 14747 of 2001) came up before the Board and the same was disposed of with the following order:

"Order No. 4 dated 21.4.2003 :

Heard both sides :

After hearing proceeded to some extent, learned counsel for the petitioner submits that he does not like to press this Writ Petition and he may be allowed to withdraw the same with liberty to seek appropriate remedy as may be available under law including the remedy u/s 482 of the Code of Criminal Procedure. The Petition is accordingly dismissed as not pressed with the aforesaid liberty to the petitioner."

Thereafter the present Criminal Misc. Case (No. 996 of 2003) has been filed once again invoking the inherent jurisdiction of this Court u/s 482, Cr.P.C. At the time of admission, with consent of learned counsel for both sides the matter was heard for final disposal.

Before dealing with the position of law, some facts, bereft of unnecessary details, are to be noticed at this stage.

The Central Bureau of Investigation (CBI) lodged prosecution against the petitioner who was the Director of National Aluminium Company Limited (NALCO) u/s 13(1)(e) of the Prevention of Corruption Act, 1988 for possession of disproportionate assets amounting to Rs. 9,86,421.53. The check period to which the prosecution relates is from January, 1982 to July, 1986. After investigation, the prosecution submitted chargesheet along with all relevant documents relating to income of the petitioner from all sources, expenditure and assets at the beginning of the check period and at its end. According to the petitioner, some documents explaining the source of his income were produced by him before the investigating agency, but while submitting chargesheet the investigating agency did not bother to take note of the same. It is alleged that after submission of chargesheet against the petitioner, the petitioner filed a petition u/s 227 read with Section 39 of the Code of Criminal Procedure before the Special Judge, C.B.I., Bhubaneswar with a prayer to discharge him in the case basically on the plea that no prima facie case of possession of disproportionate assets to the known source of income of the petitioner was made out on the materials on record and in support of the stand of the petitioner he had also filed a number of documents before the court below. The grievance of the petitioner is that the court below did not look into the documents filed by him on the ground that the documents produced by defence could not be considered to find out the correctness of the prosecution case at that stage. This observation/according to the learned counsel for the petitioner, is not in consonance with law and the impugned orders should be quashed.

In support of the contention, Mr. J. Pattnaik, learned Senior Advocate appearing for the petitioner, relied upon a decision of this Court in the case of Janakiballav Pattnaik v. State of Orissa, (1994) 7 OCR 867. In the said decision, the facts of which were more or less similar to the facts of the present case, this Court observed as follows :

"Usually, when a Court frames charge after hearing the parties, the law must be allowed to take its own course and self-restraint on the part of the High Court should be the rule, unless there is glaring injustice staring the Court in the face. It is in the trial, the guilt of (sic) the innocence of the accused will be determined and not at the time of framing of charge and, therefore, an elaborate enquiry in sifting and weighing the material is not to be undertaken, nor is it necessary to delve deep into various aspects, as has been indicated by their Lordships of the Supreme Court in the case of Stree Atyachar Virodhi Parishad Vs. Dilip Nathumal Chordia and Another, But at the same time, in a case coming u/s 13(1)(e) of the Act, if the prosecution ignores a material source of income of the accused which the prosecution was aware of and that income would have a vital bearing in the matter of framing of charge, then the evaluation made by the Court for satisfying itself that all the ingredients constituting the alleged offence exist, becomes vitiated and in such a case, calling upon the accused to face trial would be a travesty of justice."

Mr. Pattnaik also relied upon a decision of this Court in the case of Debendranath Padhi v. State, (2000) 19 OCR 517, wherein relying upon the decision in Janakiballav Pattnaik case (supra) this Court quashed the order of cognizance and subsequent order of framing charges against the accused and remitted the matter back to the court below.

To substantiate his submission, Mr. Pattnaik further relied upon a decision of the Supreme Court in the case of Satish Mehra Vs. Delhi Administration and Another, wherein the Supreme Court has made the following observations :

"The object of providing such an opportunity as is envisaged in Section 227 of the Code is to enable the court to decide whether it is necessary to proceed to conduct the trial. If the case ends there it gains a lot of time of the court and saves much human efforts and cost. If the materials produced by the accused even at that early stage would clinch the issue, why should the court shut it out saying that such documents need be produced only after wasting a lot more time in the name of trial proceedings. Hence, we are of the view that Sessions Judge would be within his powers to consider even materials which the accused may produce at the stage contemplated in Section 227 of the Code."

In the alternative, Mr. Pattnaik relying upon the decision in Hemanta Dhasmana v. CBI (2001) 6 Sup 217, submitted that as the investigating agency, namely CBI, has not taken into consideration the documents produced by the petitioner while submitting final report, it is a fit case where an order for re-investigation should be directed.

Mr. S. K. Padhi, learned counsel for the Republic of India, opposite party, while not raising any issue with regard to the facts of the case, submitted that under the scope of Sections 227 and 228 of the Code of Criminal Procedure, Court is only required to consider the documents filed by the prosecution at the time of framing of charge or dealing with the petition u/s 227 of the Code for discharge of the petitioner. Accordingly, the court below has acted in accordance with law and has not committed any illegality or irregularity. He also submitted that the accused-petitioner with an avowed oblique motive of protracting the litigation has been filing petition after petition with similar prayer, one after another, and withdrawing the same when Court is not inclined to accept the submissions made. He also submitted that the petitioner has been only taking chances, inasmuch as after withdrawing his petition filed u/s 482. Cr.P.C., the petitioner moved this Court by a writ petition and when a Division Bench of this Court was not inclined to accept the submissions made on behalf of the petitioner, permission for withdrawal of the Writ Petition was sought with liberty to the petitioner to seek appropriate remedy as might be available to him under law including the remedy u/s 482, Cr.P.C., and has now come up with the present Criminal Misc. Case which is identical to the one filed earlier by the petitioner, i.e. Cri.M.C. No. 10091 of 2001, disposed of on 14.3,2003 by this Court.

Mr. Padhi, answering the submissions made by Mr. Pattnaik, submitted that the source of income now ought to be introduced by way of interest earned from the different Fixed Deposits is a disputed question of fact, inasmuch as the amounts invested in Fixed Deposits are also materials which are to be considered in calculating the disproportionate assets. This being a controversial question of fact, I am not inclined to enter into this arena, as the same may amount to pre-judging the issue.

The present case reflects and demonstrates an endeavour of the accused-petitioner, to protract commencement of the trial against him as long as possible. In the case at hand, it is submitted that in course of investigation the CBI took into consideration all the materials available with it and after completion of investigation submitted chargesheet against the petitioner. After considering the materials produced or pointed out by the investigating agency, and on being satisfied that a prima facie case was made out against the petitioner, cognizance of the offence was taken by the court below by order dated 20.10.2001. Thereafter, a petition was filed u/s 227 of the Code for discharging the accused in the case. The trial court dealt with all the arguments addressed before it and by a reasoned order held that there was prima facie materials to frame charge against the accused, by order dated 16.1.2003.

Section 227, Cr.P.C. provides that if upon consideration of record of the case and the documents submitted therewith, the Judge considers that there is no sufficient therewith, the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and he is required to record his reasons for so doing. But then, no reasons are required to be recorded when the charges are framed against the accused.

The Supreme Court in the case of Kanti Bhadra Shah and Another Vs. The State of West Bengal, has held that there is no legal requirement that the trial court should write an order showing reasons for framing a charge. At the stage of passing the order, in terms of Section 227. Cr.P.C., the Court has merely to peruse the evidence in order to find out whether or not there is a sufficient ground for proceeding against the accused. If upon consideration the Court is satisfied that a prima facie case is made out against the accused, the Judge must proceed to frame charge in terms of Section 228 of the Code. Only in a case where it is shown that the evidence which the prosecution proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by defence evidence cannot show that the accused committed the crime, then and then alone the Court can discharge the accused. The Court is not required to enter into meticulous consideration of the evidence and materials placed before it at this stage.

In the case of Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia (1989) 1 SCC 15, the Supreme Court cautioned the High Courts to be loathe in interfering at the stage of framing of charges against the accused. It was said that self-restraint on the part of High Court should be the Rule unless there is glaring injustice staring the Court in the face. Generally, it would be appropriate for the High Courts to allow the trial to proceed.

In the case of State of Bihar Vs. Ramesh Singh, the Supreme Court while dealing with the scope of Sections 227 and 228 of the Code of Criminal Procedure and the limitations imposed upon the Court at the initial stage of framing charge, observed as follows :

"Reading the two provisions together in juxta-position, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at this stage of deciding the matter u/s 227 or Section 228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. 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, if any, cannot show that the accused committed the offence, there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order u/s 227 or Section 228, then in such a situation ordinarily and generally the order Which will have to be made will be one u/s 228 and not u/s 227."

In the case of Supdt. and Remembrancer of Legal Affairs, West Bengal Vs. Anil Kumar Bhunja and Others, a three Judge Bench of the Supreme Court reiterated that at the initial stage of framing charges, prosecution evidence does not commence. The Court has, therefore, to consider the question of framing the charges on general consideration of the materials placed before it by the investigating agency. At this stage, the truth, veracity and the effect of the evidence which the prosecution proposes to adduce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied finally before finding an accused guilty or otherwise is not exactly to be applied at the stage of framing the charge. Even, on the basis of a strong suspicion founded on materials before it, the Court can form a presumptive opinion regarding the existence of factual ingredients constituting the offence alleged and in that event would be justified in framing the charges against the accused in respect of the offence alleged to have been committed.

In the case of Satish Mehra v. Delhi Administration (supra), the Supreme Court has observed :

"Considerations which should weigh with the Sessions Court at this stage have been well designed by Parliament through Section 227 of the Code of Criminal Procedure (for short ''the Code'') which reads thus :

Discharge : If upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.

Section 228 contemplates the stage after the case survives the stage envisaged in the former Section. When the Court is of opinion that there is ground to presume that the accused has committed an offence the procedure laid down therein has to be adopted. When those two sections are put in juxtaposition with each other the test to be adopted becomes discernible. Is there sufficient ground for proceeding against the accused ? It is axiomatic that the standard of proof normally adhered to at the final stage is not to be applied at the stage where the scope of consideration is where (sic) there is "sufficient ground for proceeding".

Law is thus no more res integra that at the stage of framing of charges meticulous consideration of framing of charges meticulous consideration of evidence and materials by Court is not required (see Mohd. Akbar Dar v. State of J & K, AIR 1981 SC 1542). In the case of Debendranath Padhi (supra) this Court relying upon the ratio of the decision in Janakiballav Pattnaik case (supra) quashed the cognizance. The said matter was carried to the Supreme Court. The Supreme Court in paragraph-II of its judgment reported in State of Orissa Vs. Debendra Nath Padhi, held as follows :

"From the above judgments referred to by the learned counsel for the appellant, it is clear that all that the court has to do at the time of framing a charge is to consider the question of sufficiency of ground for proceeding against the accused on a general consideration of the materials placed before it by the investigating agency. There is no requirement in law that the court at that stage should either give an opportunity to the accused to produce evidence in defence or consider such evidence as defence may produce at that stage."

But then, somewhat a different view having been taken in the Satish Mehra case (supra), the matter was referred to a larger Bench of the Supreme Court, It is pertinent to mention here that a Division Bench of the Supreme Court delivered the judgment in the case of State of Orissa v. Debendranath Padhi and so also in the case of Satish Mehra (supra).

Mr. Pattnaik forcefully submitted that the ratio of the decision of the Supreme Court in Satish Mehra case having not been varied or set aside, still holds the field and the view expressed in that decision is binding on the courts and it was therefore incumbent upon the court below to consider the materials produced by the accused-petitioner while framing the charge.

The discussions made above, clearly reveal that in a later decision, in the case of State of Orissa v. Debendranath Padhi, a Division Bench of the Supreme Court has taken a different view. Apart from the said fact, a three-Judge Bench of the Supreme Court in the case of Superintendent v. Anil (supra) has clearly and unambiguously held that at the stage of framing charge, prosecution evidence does not commence and the Court has, therefore, to form a presumptive opinion on general consideration of the materials placed before it by the investigating police officer. At that stage, even a very strong suspicion founded upon the materials placed before the Court, which leads it to form a presumptive opinion as to existence of factual ingredients constituting the offence alleged, may justify framing of charge against the accused in respect of commission of the offence.

In view of the authoritative pronouncement of the Supreme Court by a Bench consisting of three Judges, I have no hesitation to hold that the Court while framing charges is only to consider the materials produced before it by the investigating agency. The statutory obligation of the Court being not to interfere at the initial stage of framing charges, merely on hypothesis, imagination and other reasons, which in law amount to interdicting the trial against the accused, I also feel that a litigant should be discouraged from protracting the trial and preventing culmination of criminal cases by resorting to uncalled for litigations under the cloak of technicalities of law. I am, thus, not persuaded to accept the submissions of Mr. Pattnaik.

So far as the alternative submission of Mr. Pattnaik is concerned, taking into consideration the scope and ambit of the provisions of Sections 227 and 228 of the Code of Criminal Procedure, and in view of the fact that the investigating agency, after conducting the enquiry and perusing the materials produced before it by the petitioner, has submitted the chargesheet, there is no necessity to direct a re-investigation, more so in view of the submission that even before the investigating agency the documents now referred to were available. Thus all the contentions raised by Mr. Pattnaik fail.

In the result, the Criminal Misc. Case is dismissed. It is however made clear that while deciding the case finally, the trial court will not be influenced by any of the observations made in this judgment.