Kishor Kumar Saw @APPELLANT@Hash State of Jharkhand through C.B.I

I.A. No.6244 of 2016

Through this application prayer has been made for amendment in paragraph No.1 and prayer portion of the main application and for incorporating an

additional prayer in this revision application.

Learned counsel for the petitioner submitted that during the pendency of the instant criminal revision, the court below has framed charge upon the

petitioner on 09.05.2016 due to which the required amendment has become necessary.

Also heard counsel for the C.B.I.

Instant interlocutory application is allowed. Necessary amendment be carried out in the main revision application.

Cr. Rev. No. 381 of 2016

Heard learned counsel for the petitioner and learned counsel for the C.B.I.

Instant Criminal Revision application has been filed for setting aside the order dated 14.03.2016 passed by Sri M.P. Yadav, Special Judge, CBI,

Dhanbad in R.C. Case No. 2(A)/2009-AHD-R whereby and whereunder the prayer for discharge of the petitioner under Section 239 Cr.P.C. was

rejected.

The short fact of the case is that the petitioner while working as Post Master, HSG-1, Giridih Head Office, has acquired assets during the period

from 10.03.1983 to March, 2009 which he could not satisfactorily explain and the same was held disproportionate to his known sources of income.

Counsel for the petitioner submitted that although the C.B.I., after completing the investigation, submitted charge-sheet against this petitioner, but

has not taken care of the assets acquired by the wife of this petitioner.

Though the list of documents submitted in the case mentioned copy of the income tax return filed by Smt. Asha Saw, wife of accused, but those

documents were not taken into consideration. He also submitted that by not taking into consideration the income of the wife who was working as

Teacher in a school, the agency has erred in coming to the finding of disproportionate asset of this accused. He further submitted that the court below

has also not considered these points while considering the application of this petitioner for discharge from this case and resultantly rejected the prayer

for discharge. He relied on the decisions of the Hon’ble Supreme Court rendered in the case of Adarsh Kumar Batra Vs. State of Punjab

reported in 1991 Cr.L.J. 118, in the case of Ananda Bezbaruah Vs. Union of India reported in 1994 Cr.L.J. 12 and in the case of State of Madhya

Pradesh Vs. Mohan Lal Soni reported in 2000 Cr.L.J. 3504.

Mr. Prasad appearing on behalf of C.B.I. submitted that the petitioner has approached this Court in its revisional jurisdiction as the prayer for

discharge has been rejected by the court below. He further submitted that through supplementary affidavit it has been brought on record about the

framing of charge upon this petitioner on 09.05.2016 which has been made Annexure-9 of this application. He also submitted that at the stage of

framing of charge, the court is concerned not with the proof of the allegation rather it has to focus on the material and form an opinion whether there

is strong suspicion that the accused has committed an offence, which if put to trial, could prove his guilt. He also submitted that the meticulous

examination of voluminous material is not at all required while considering the prayer for discharge or hearing at the stage of charge. Counsel for the

C.B.I. relied on a decision relating to State of Rajasthan Vs. Fatehkaran Mehdu reported in (2017) 3 SCC 198. He also relied on a decision of Asian

Resurfacing of Road Agency Pvt. Ltd. & Anr. Vs. Central Bureau of Investigation reported in 2018 (2) JLJR 320 (SC). Lastly he submitted that the

court below after due consideration of the material available on record has rejected the prayer of petitioner. Now the trial has already started and the

petitioner would have opportunity to defend himself.

Considering the above submission of the parties, it appears that the grievance of the petitioner was that although certain documents were seized by

the C.B.I. during investigation which show not only the income of petitioner but also the income of wife of the petitioner and which were shown to

have utilized in acquiring the property, but those documents were not taken into consideration while quantifying the disproportionate asset of this

petitioner. Even the Investigating Agency has not taken into consideration that the wife was a working lady and both were residing together. On the

other hand, counsel for the C.B.I. has strongly opposed the above plea on the ground that the court has to form an opinion on the basis of the material

available on record and the court should form an opinion about the guilt of committing an offence. The relevant paragraph of the judgment in the case

of State of Rajasthan Vs. Fatehkaran Mehdu (Supra) relied upon by the counsel for the C.B.I. is quoted below :-

“26. The scope of interference and exercise of jurisdiction under Section 397 Cr.P.C. has been time and again explained by this Court. Further, the

scope of interference under Section 397 Cr.P.C. at a stage, when charge had been framed, is also well settled. At the stage of framing of charge, the

court is concerned not with the proof of the allegation rather it has to focus on the material and form an opinion whether there is strong suspicion that

the accused has committed an offence, which if put to trial, could prove his guilt. The framing of charge is not a stage, at which stage final test of guilt

is to be applied. Thus, to hold that at the stage of framing the charge, the court should form an opinion that the accused is certainly guilty of committing

an offence, is to hold something which is neither permissible nor is in consonance with the scheme of the Code of Criminal Procedureâ€​.

In the case of Asian Resurfacing of Road Agency Pvt. Ltd. & Anr. Vs. Central Bureau of Investigation (Supra) the Hon’ble Supreme Court in

paragraph 32 has held as under :-

“32. … … … Consideration of the challenge against an order of framing charge may not require meticulous examination of voluminous material

which may be in the nature of mini trial. Still, the Court is at time called upon to do so in spite of law being clear that at the stage of charge the Court

has only to see as to whether material on record reasonably connects the accused with the crime. … … …â€​.

Counsel for the petitioner has relied on the judgments of Adarsh Kumar Batra Vs. State of Punjab (Supra), Ananda Bezbaruah Vs. Union of India

(Supra) and State of Madhya Pradesh Vs. Mohan Lal Soni (Supra) mainly on the seized documents which were material in quantifying the

disproportionate asset of petitioner, but were not looked into and were not considered otherwise the result would have been different. Here the

petitioner had initially challenged rejection of his discharge application and has enlarged its ambit when the charge was framed against him. The

revisional court has very limited jurisdiction. The court below has passed a speaking order detailing the material collected against this petitioner and

has rejected the prayer of the petitioner on the basis of material available on the record. The petitioner had taken the plea that income of his wife has

not been considered while arriving at a decision but the court below, after considering all these aspects, found prima facie case against the petitioner

and therefore rejected his prayer for discharge. The Hon’ble Supreme Court has also held that consideration of the challenge against an order of

framing of charge may not require meticulous examination of voluminous material which may be in the nature of mini trial, therefore, the court below

has rightly discussed all the aspects and on the basis of the available material, has come to the finding that the petitioner has disproportionate asset and

rejected his prayer for discharge and later on, after hearing the accused, framed charge upon him.

In this situation, finding no illegality or irregularity in the impugned order dated 14.03.2016, instant revision application is dismissed.