Kashi Prasad Dubey vs The State of Madhya Pradesh

Rajendra Mahajan, J.—As counsel for both the parties expressed their willingness to argue the matter at the stage of motion hearing itself, we heard them.

The applicant has preferred this criminal revision under Section 397 r/w. 401 of the Cr.P.C. being aggrieved by the order dated 04.03.2015 passed by the Court of Special Judge, Rewa constituted under the Prevention of Corruption Act in Special Case No. 1/2008, whereby the charges are laid against him for the offences punishable under Sections 120-A, 467, 468, 471 and 201 of the I.P.C. and 13(1)(d) r/w. 13(2) of the Prevention of Corruption Act, 1988 (for short '' the Act'')

Short facts of the case are that the respondent/prosecutor charge-sheeted the applicant and 11 others accused alleging that having entered into criminal conspiracy the accused persons, who are the government employees have mutated the lands of ownership of the State Government situated in Rewa District in the name of the accused persons who are private persons.

The applicant filed an application in the Trial Court under Section 307 and 308 of the Cr.P.C. His application was allowed by the trial Court vide order dated 24.01.2013. Feeling aggrieved by this order, accused Satish Neeraj challenged this order by filing Criminal Revision No. 739/2013 Neeraj Vs. State of M.P. and another in this Court. This criminal revision was decided vide order dated 14.09.2014, whereby the order dated 24.01.2013 was set aside directing the trial Court to decide the application of respondent No. 2, who is the applicant herein, afresh after extending the opportunity of hearing to all parties of the case (see para 15 of the order). Whereupon, having heard all the parties of the case upon the application of the applicant under Sections 306 and 307 of the Cr.P.C., the trial Court dismissed the application vide order dated 30.10.2014.

Vide the impugned order, the trial Court framed charges against the applicant as stated in para 2 of this order.

Learned counsel for the applicant argued that the impugned order deserves to be set aside on two grounds, firstly for non-compliance of provisions of Section 308 of the Cr.P.C. by the respondent, for which reliance is placed upon a decision rendered in the case of State of Mysore Vs. H. Gundappa Honnappa Gowda and Others, (1972) CriLJ 191 and secondly there is no material on record against the applicant for framing the charges as framed by the impugned order. Moreover, all the 11 accused persons of the case were acquitted of the offences for which they were charged vide judgment dated 27.12.2014. Hence, the trial Court committed an error of law by framing the charge of Section 120-B of the I.P.C.

Per contra, learned counsel for the respondent argued that vide order 30.10.2014 the trial Court rejected the applicant''s application under Sections 306 and 307 of the Cr.P.C. This order was not challenged by the applicant before the competent Court. Hence, this order had attained finality. Since the trial Court refused to tender the pardon to the applicant in the case under the circumstances there was no need of complying the provisions of Section 308 of the Cr.P.C. on the part of the respondent. It is also argued by him that there is enough evidence against the applicant. Hence, the trial Court has not committed any error either of law or facts by framing the charges against the applicant. It is further argued by him that if the trial Court has committed error in framing the charges against the applicant, the same may be corrected by the trial Court exercising power under Section 216 of the Cr.P.C.

We have considered the rival submissions and perused the impugned order and the material available on record.

Since the trial Court vide order dated 30.10.2014 had rejected the applicant''s application under Section 306 r/w. 307 of the Cr.P.C. and ordered the prosecution of the applicant''s, there is no need on the part of the respondent for the compliance of provisions of Section 308 of the Cr.P.C. The law laid down in the case of State of Mysore Vs. Gundappa Honnappa Gowda and others (supra) is not applicable in the fact situation of the case.

In the case of Sajjan Kumar Vs. Central Bureau of Investigation, (2010) 10 JT 413 : (2010) 10 SCALE 22 : (2010) 9 SCC 368 , the Supreme Court has culled out the following principles on the considerations of its earlier authorities with regard to scope of Section 227 and 228 of the Cr.P.C. providing for discharge and framing of charges:-

(i) While considering the question of framing the charges under Section 227 of the Cr.P.C. the Judge 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. The test to determine prima facie case would depend upon the facts of each case.

(ii) 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.

(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 of the Cr.P.C. 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 their face value discloses the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.

(vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal.

In the light of aforesaid propositions of law, we perused the entire material available against the applicant and have come to the conclusion that the applicant has prima facie committed offences under Sections 467, 468 and 471 of the I.P.C. and 13(1)(d) r/w. 13(2) of the Act. Hence, the trial Court has not committed any error by framing the above charges against the applicant vide the impugned order. However, it has erred by framing charge under Section 120-B of the I.P.C. because all the 11 accused of the case had been acquitted of the charges levelled against them including the charge under Section 120-B of the I.P.C. vide judgment dated 27.12.2014 passed in the case. However, this error committed by the trial Court will not be a ground to discharge the applicant under the provisions of Section 227 of the Cr.P.C. because the case is at the stage of trial and the trial Court has power under Section 216 of the Cr.P.C. to alter or add the charges before the pronouncement of the judgment. The view of this Court is fortified by the law laid down by the Supreme Court in the case of Hasanbhai Valibhai Qureshi Vs. State of Gujarat and Others, AIR 2004 SC 2078 : (2004) CriLJ 2018 : (2004) 4 JT 305 : (2004) 4 SCALE 174 : (2004) 5 SCC 347 : (2004) 3 SCR 762 : (2004) 2 UJ 1027 : (2004) AIRSCW 2063 : (2004) 3 Supreme 71 which is given below:-

"Therefore, if during trial, the trial Court on a consideration of broad probabilities of the case based upon total effect of the evidence and documents produced is satisfied that any addition or alteration of the charge is necessary, it is free to do so, and there can be no legal Bar to appropriately act as the exigencies of the case warrant or necessitate."

In the light of above discussions, we are not inclined to interfere with the impugned order. Hence, this revision is dismissed being devoid of merits and substance.

A copy of this order be sent without delay to the trial Court for information.