Dismissed

Anant Karn Srivastava v. State of U.P. and Anr.

Allahabad HC3 Feb 2020CRLR/287/2020

Case brief

AI extract

What is this about?

This court dismissed a criminal revision filed to set aside an order rejecting a discharge application. The bench held that the trial court did not err in finding a prima facie case based on available evidence, distinguishing between charge-framing and trial stages.

What did the court decide?

The criminal revision is dismissed; the order rejecting the discharge application is upheld.

Anant Karn Srivastava Vs State of U.P. and Anr. — Corruption | Allahabad HC (2020)

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Court No. - 66

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Case :- CRIMINAL REVISION No. - 287 of 2020

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Revisionist :- Anant Karn Srivastava Opposite Party :- State Of U.P. And Anr. Counsel for Revisionist :- Rajeev Chaddha Counsel for Opposite Party :- G.A.

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Hon'ble Rajul Bhargava,J.

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The present Criminal Revision has been preferred against the judgment and order dated 25.10.2019 passed by learned Additional Session Judge/Special Judge (Prevention of Corruption Act), Court No. 5, Gorakhpur, in Special Session Trial No. 404 of 2015 (State vs. Anant Karn Srivastava), arising out of Case Crime No.969 of 2015, under Sections 7/13 (1)d, 13 (2) of Prevention of Corruption Act, P.S. Purandarpur, District Maharajaganj, whereby the discharge application filed by the revisionist has been rejected.

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From the record, it appears that initially the revisionist had approached this Court by means of Criminal Revision No. 72 of 2019 (Anant Karn Srivastava vs. State of U.P. and Another) challenging the order dated 17.10.2018 passed by the concerned court below, whereby the court below rejected the earlier discharge application filed by the revisionist. The said criminal revision was disposed of vide order dated 07.02.2019 by this Court while remanding back the matter to the concerned Court below with direction to pass fresh order on the discharge application of the revisionist.

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In pursuance of the aforesaid order, the revisionist moved an application for discharge on which the impugned order has been passed. Feeling dissatisfied with the order rejecting his application for discharge, the instant revision has been filed by the applicant stating that the impugned order deserves to be set-aside being perverse and contrary to the law settled in this regard.

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I have perused the materials and documents on record. Heard the arguments of learned counsel for the revisionist as well as learned counsel for opposite party no.2 and the learned A.G.A. for the State.

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Learned counsel for the revisionist has contended that there is no sufficient or reliable evidence on record against the revisionist to frame charges under the aforesaid Sections. Learned counsel for the revisionist has challenged the impugned order mainly on the following grounds, which are as under:-

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(i) That the entire trap proceedings as alleged by the prosecution are in fact absolutely false and concocted. No such recovery of tainted notes was made from the applicant. Much stress has been laid on the ground that according to pre-trap memo and the trap memo the treatment as required under law to the currency notes was of Rs. 1000 denomination. However, when the revisionist was taken to the police station along with the recovered tainted notes and in this regard an entry has been made in the General Diary that the envelope containing the tainted notes allegedly recovered from the applicant were of 500 denomination and as such on this ground alone the entire prosecution case falls to the ground.

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(ii) Admittedly, the prosecution did not complete the formalities of recovery on the spot but the applicant was taken to the police station where other formalities were done at the police station including the preparation of the recovery memo which clearly indicates the false implication of the revisionist and the mala fide on the part of the police.

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(iii) The revisionist was posted as a tangia teacher and it was none of his duties entrusted by the department who could have helped the complainant in getting the work done, thus, there was no question for demand of illegal gratification from him.

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So far as the contention raised regarding the description of denomination of currency notes is concerned, it transpires that the basis of his argument is that notes of denomination of Rupees 1,000/- after chemical treatment were given to the revisionist, whereas entry in the GD indicates that the notes of denomination of Rupees 500 were recovered from him. This argument of the learned counsel cannot be sustained, firstly in view of the fact that there is no variation regarding the description of denomination of currency notes in the pre-trap memo and in the recovery memo because the same denomination of Rupees 1,000/- with some currency numbers is

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mentioned in both the memos. This argument also does not seem to be forceful because such variations are trivial in nature and can be accounted as human error. Besides it, I may record that there is no mention in the General Diary on which much stress is being laid by learned counsel for the revisionist there there is any wisper that the concerned Head Constable had also seen the currency notes kept in the envelope. It merely makes reference of an envelope and on the top ot it it is mentioned that one envelope has been deposited in which Rs.5,000/- is kept and it also mentions that the number and description of the currency notes is mentioned on the envelope. Learned counsel has not disputed that the numbers mentioned on the envelope do not tally with the numbers contained in the pre-trap memo and the memo of recovery. I further find from the General Diary that from the possession of the revisionist five currency notes of Rs.500/- and three of Rs.100/- were also recovered. The trial court has rightly recorded that these discrepancies can only be examined or scanned during trial and the same cannot form basis for discarding the entire prosecution version and discharge the revisionist.

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So far as the second limb of the argument that all the formalities were done at the police station and not at the spot is concerned, in the F.I.R. and also in the impugned order it has been recorded that the staff of forest department started assembling there and for the purposes of safety the revisionist was taken to Thana Purindarpur by Jeep where the hands of the revisionist and the complainant, Abul Hassan was treated with Sodiam Carbonate solution on account of which it turned red. I am of the considered opinion that merely because the recovery memo and the formalities were done at the police station itself will not be a ground to discharge the revisionist and its intrinsic worth is to be examined during trial.

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So far as the argument that the revisionist had no concern with the official work of seizure and release of the vehicle because he was posted as tangia teacher and his job was to give education to the poor children is concerned, this argument cannot be sustained because the bare perusal of F.I.R. and Fard prepared by the trap team has a clear mention that the revisionist was posted as Head Clerk ( Bade Babu ), which is sufficient enough to frame charges at such an initial stage of the trial. The dispute as

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to whether the revisionist was a Head Clerk ( Bade Babu ) or tangia teacher is matter of trial and it is not necessary to get it determined just for the purposes of framing of charges.

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From the perusal, it is clear that allegations against the revisionist are substantiated by the evidence forming prima facie case against the accused to proceed with the case. In the case of Onkar Nath Mishra and others vs. State of NCT of Delhi and Another (2008) 2 SCC 561 , the Hon'ble Supreme Court in paragraph 11 of the Judgment held as under: -

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"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."

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Moreover, in the case of Rajbir Singh Vs. State of U.P. & others 2006 (55) 308 SC , the Hon’ble Supreme Court held that the charges can be framed if the grave suspicious circumstances exits.

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Further in the case of State of M.P. Vs. Mohanlal Soni, (2000) 6 SCC 338 , the Hon'ble Supreme Court in paragraph 7 of the Judgment held that: -

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“The crystallised 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.”

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The another point of consideration which arises during framing of charges is that whether the trial court can at the time of framing of charges consider the evidence or material filed by the accused. The position on this point has been settled by the Hon’ble Supreme Court in the case of State of Orissa Vs. Debendra Nath Padhi (2005) 1 SCC 568 , wherein the Hon’ble Supreme Court in paragraph 18 of the Judgment, held that:-

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"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

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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 is 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."

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It is well settled that at the stage of framing of charge under section 228 Cr.P.C. or while considering the discharge petition filed under Section 227, it is not for the Magistrate or the Judge concerned to analyse all the materials including pros and cons, reliability or acceptability, etc. It is at the trial, the Judge concerned has to appreciate their evidentiary value, credibility or otherwise of the statement, veracity of various documents and is free to take a decision one way or the other.

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In view of the settled position of law, I am not inclined to accept the submissions of learned counsel for the revisionist.

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In the light, I find no illegality or perversity in the judgment and order dated 25.10.2019 passed by learned Additional Session Judge/Special Judge (Prevention of Corruption Act), Court No. 5, Gorakhpur.

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The present criminal revision is bereft of merits and the same is, accordingly, dismissed .

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Order Date :- 3.2.2020 Vikas

Anant Karn Srivastava v. State of U.P. and Anr.

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Anant Karn Srivastava v. State of U.P. and Anr.

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