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Judgment
This Criminal Revision Petition is preferred by the Lokayuktha police being aggrieved by the learned trial judge of the court below allowing the application filed by the Respondents u/s 227 of the Code of Criminal Procedure and discharging the accused.
Though the submission made by the learned Counsel for the parties requires to be answered by having regard to the provisions contained in Section 227 of the Code of Criminal Procedure, it may not be out. of place to at least make a passing reference to the facts in a nutshell.
The Respondents were charge sheeted for the offences punishable under Sections 7, 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 on the complaint allegations of one Ramesh Bhat to the effect that one Jayaram had lodged a complaint against him at Siddapura Police Station and in order to help the above said complainant Ramesh Bhat, the first Respondent police inspector (A-1) demanded Rs. 50,000/- from him and asked Rs. 10,000/- as token advance and the complainant paid the amount to the second Respondent head constable (A-2), who accepted it on behalf of A-1. On completion of the investigation, charge sheet was filed.
At. the stage of framing of charge, an Application was filed by the Respondents seeking discharge u/s 227 of the Code of Criminal Procedure The Respondents placed before the learned trial judge material concerning the departmental enquiry held against them and the enquiry report was also placed. The learned trial judge, after taking note of the enquiry proceedings and the report filed and the Respondents having been exonerated in the departmental enquiry, therefore, relying on the Apex Court decision in P.S. Rajya Vs. State of Bihar, , allowed the application and discharged the Respondents.
The main contention put forward by the learned Counsel Shri. S.G. Rajendra Redely for the Appellant Lokayuktha police is that, the trial court, at the stage of considering the application for discharge, cannot take into account any document or any material produced by the accused but, on the other hand, the court was required only to consider the material placed by the prosecution and nothing more and, therefore, the trial court erred in considering the material produced by the accused Since the Code of Criminal Procedure does not provide for the accused to file any material or document at the stage of framing of the charge, the impugned order, therefore, is unsustainable.
The next contention put forward is that, the trial court has virtually gone on to make observations on the merits of the case as if the evidence has already been let in by the parties. Therefore, the trial court was in error in making a detailed examination of the charge sheet material as if the entire evidence has been already placed by both sides and the said approach of the trial court also cannot be sustained in law.
To support his submission with regard to the accused not. having any right to file any document or material at. the stage of framing of the charge, she learned Counsel for the Petitioner relied on the Apex Court decision in the case of State of Orissa v. Debendra Math Padhi, reported 2005 SCC (Cri) 115. Therefore, the submission made is that, the impugned order be set aside.
On the other1 hand, learned Counsel Shri A.L. Premkumar for R-1 strongly contended that the trial court was justified in allowing the application filed for discharge and the reliance placed by the trial court on the Apex Court decision in P.S. Rajya''s case is also justified inasmuch as, when the Respondents have been exonerated in the departmental proceedings, no purpose would be served in allowing the criminal proceedings to go on. He also relied on another decision of the Apex Court laying down the very same proposition of law and it is in the case of Prakash @ Prakash K.Dongre v. State of Karnataka, (S.L.P.(Crl.)No. 3081/2009) wherein the Apex Court has observed that, when the Appellant has been found innocent in the departmental enquiry, it failed to see how he can be convicted in a criminal case where the standard of proof is higher.
Apart from the above two decisions, reliance was also placed on another Apex Court decision in the case of Rukmini Narvekar v. Vijaya Satardekm; reported in AIR 2009 SCW 118, to contend that, in the said decision, the Apex Court has considered the law laid down in State of Orissa v. Debendra Nath Padhi and has held that there may be circumstances where the defence material would convince the court that the prosecution version is totally absurd or preposterous and in the instant case, the defence material can be looked into by the court at the time of framing of charges or taking cognizance. Therefore, referring to paragraph-28 of the decision in Rukmini Narvekar''s case, the learned Counsel for R-1 argued that the impugned order does not call for any interference.
learned Counsel Shri B.J. Prakash Singh for R-2, apart from relying on the aforesaid decisions, supplemented by submitting that, as far as R-2 who is A-2 before the trial court, is concerned, he was not the person who demanded the bribe amount, but he only accepted the amount on behalf of A-1, that too only on the direction of A-1 and, therefore, no offence under the P.C. Act can be made out against R-2.
In the light of the aforesaid contentions put forward, the only point tor consideration is whether the trial court was justified in looking to the documents produced by the accused at the stage of framing of charge.
Section 227 of the Code of Criminal Procedure is as under:
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 no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.
A plain reading of the aforesaid provision of law would make it clear that the court is required to consider the record of the case and the documents submitted therewith. In other words, the said section does not. give room to take the view that, at the time of considering the application for discharge the trial court can also look into the documents or the material placed by the accused. This section also came up for interpretation before the Apex Court in the two decisions referred to by the learned Counsel for the parties.
In the case of Rukmini Narvekar v. Vijaya Satardekar reported in AIR 2009 SCW 118, the Apex Court has observed thus at paragraph-9:
In my view, therefore, there is no scope for the accused to produce any evidence in support of the submissions made on his behalf at the stage of framing of charge and only such material as are indicated in Section 227, Code of Criminal Procedure can be taken into consideration by the learned magistrate at that stage. However, in a proceeding taken therefrom u/s 482, Code of Criminal Procedure the Court is free to consider material that may be produced on behalf of the accused to arrive at a decision whether the charge as framed could be maintained. Thus, in my view, appears to be the intention of the legislature in wording Sections 227 and 228 the way in which they have been worded and as explained in Debendra Nath Padhi''s case (supra) by the larger Bench to which the very same question had been referred.
Paragraph-28 of the aforesaid decision is as under:
We have carefully perused the decision of this Court in the State of Orissa v. Debendra Nath Padhi (supra). Though the observations in paragraph 16 of the said decision seems to support the view canvassed by Shri Rohatgi, it may be also pointed out that in paragraph 29 of the same decision it has been observed that the width of the powers of the High Court u/s 482 of Code of Criminal Procedure and Article 226 of the Constitution is unlimited whereunder in the interests of justice the High Court can make such orders as may be necessary to prevent abuse of the process of the court or otherwise to secure the ends of justice within the parameters laid down in Bhajan Lal v. case (supra). Thus we have to reconcile paragraphs 16 and 23 of the decision in State of Orissa v. Debendra Nath Padhi (supra). We should also keep in mind that it is well settled that a judgment of the Court has not to be treated as a Euclid formula vide Dr. Rajbir Singh Dalal Vs. Chaudhari Devi Lal University, Sirsa and Another, . As observed by the Court in Bharat Petroleum Corporation Ltd. and Anr. v. N.R. Vairamani and Anr. AIR 2004 SC 4778, observations of Courts are neither to be read as Euclid''s formula nor as provisions of the statute. Thus in our opinion while it is true that ordinarily defence material cannot be looked into by the Court while framing of the charge in view of D.N. Padhi''s case (supra), there may be some very rare and exceptional cases where some defence material when shown to the trial court would convincingly demonstrate that the prosecution version is totally absurd or preposterous, and in such very rare eases the defence material can be looked into by the Court at the time of framing of the charges or taking cognizance.
Further, in paragraph-29 of the said decision, the Apex Court has also laid down the circumstances under which (the defence can also produce some material i.e., where the material produced by the defence would convincingly establish that the whole prosecution version is totally absurd, preposterous or concocted.
In the case of State of Orissa v. Debendra Nath Padhi (2005 SCC (Cri) 415), which is a decision of a three judges Bench of the Apex Court, it has been held that, at the time of framing of the charge, the trial court can consider only the material produced by the prosecution and there is no provision in the Code of Criminal Procedure granting the accused any right to file any material or document at that stage. The Apex Court went on to further observe that such a right is granted only at the stage of trial.
Having carefully gone through the law laid down by the Apex Court in the three judges Bench decision in Debendra Math Padhi''s case and the later decision in Rukmini Narvekar''s case, in my view, the Apex Court, even in the subsequent decision in Rukmini Narvekar''s case has reiterated the law laid down by it in Debendra Nath Padhi''s case and this is clear from the observations made in paragraph-28 referred to earlier. At the cost of repetition, it. has to be mentioned that the Apex Court has observed in the said paragraph that ordinarily, the defence material cannot be looked into by the court while framing of the charge in view of D.N. Padhi''s case.
However in the subsequent case of Rukmini Narvekar, the Apex Court has carved out certain exceptions in the sense only in some of the rare and exceptional cases, the defence could be permitted to place material and the material so placed should convincingly establish that the whole prosecution version is totally absurd preposterous and concocted.
In the case on hand, the special circumstances referred to at paragraph-29 of the decision in Rukmini Narvekar''s case are not present and if cannot be said that the prosecution case is totally absurd or preposterous.
Therefore, in view of the aforesaid law laid down by the Apex Court in the two eases wherein Section 227 of the Code of Criminal Procedure came up for consideration the submission made by the learned Counsel for the Petitioner that, the trial court committed serious error in permitting the defence to place documents and material at the stage of framing of the charge has to be accepted and consequently, the order of the trial court will have to be set aside only on the score of the trial court having permitted the defence to place material at the time of framing of the charge, which is impermissible in the light of the provisions contained in Section 227 of the Code of Criminal Procedure.
It also has to be mentioned that while the Respondents cannot place any material in their defence at the time of framing of the charge, that will not conic in the way of the Respondents seeking any other remedy available to them in law.
For the aforesaid reasons, the petition is allowed and the impugned order of the trial court is set aside.