Dismissed

Aman Shah v. State Thru. CBI/AC-1, New Delhi

Allahabad HC17 Apr 2023/3601/2023

Case brief

AI extract

What is this about?

The High Court dismissed applications under Section 482 CrPC challenging orders rejecting discharge and framing charges for corruption. It held that at the stage of framing charges, the court need only see a prima facie case; intercepted call evidence need not be excluded at this stage. The trial will proceed.

What did the court decide?

Applications under Section 482 Cr.P.C. dismissed; trial court directed to proceed with trial expeditiously.

Aman Shah Vs State Thru. CBI/AC-1, New Delhi — Corruption | Allahabad HC (2023)

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High Court of Judicature at Allahabad Sitting at Lucknow

A.F.R.

Court No. - 16

Case :- APPLICATION U/S 482 No. - 3601 of 2023 Applicant :- Aman Shah Opposite Party :- State Thru. Cbi/Ac-1, New Delhi Counsel for Applicant :- Pranjal Krishna Counsel for Opposite Party :- Anurag Kumar Singh Case :- APPLICATION U/S 482 No. - 3602 of 2023

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Along with

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Case :- APPLICATION U/S 482 No. - 3602 of 2023

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Applicant :- Ajay Kumar Srivastava Opposite Party :- State Of U.P. Thru. C.B.I./Ac-1, New Delhi Counsel for Applicant :- Samarth Agarwal,Pranjal Krishna Counsel for Opposite Party :- Anurag Kumar Singh And.

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Case :- APPLICATION U/S 482 No. - 3603 of 2023

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Applicant :- Rajeev Singh Chandel Opposite Party :- State Thru. C.B.I. /Ac 1 New Delhi Counsel for Applicant :- Samarth Agarwal,Pranjal Krishna Counsel for Opposite Party :- Anurag Kumar Singh

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Hon’ble Subhash Vidyarthi J.

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1. Heard Sri S.C. Mishra Senior Advocate assisted by Sri Pranjal Krishna and Sri Samarth Agarwal Advocates, the learned Counsel for the applicants and Sri Anurag Kumar Singh Advocate, the learned counsel for the respondent/Central Bureau of Investigation.

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2. These three applications under Section 482 Cr.P.C. have been filed by three similarly situate applicants, challenging the order of rejection of their applications for discharge, the order framing charges against them and the criminal proceedings against them, on same grounds, hence these are being decided together.

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3. The instant application has been filed under Section 482 Cr.P.C. challenging the order dated 21.09.2019, passed by the Special Judge, Anti-Corruption, C.B.I. (Central), Lucknow rejecting separate applications filed by all the accused persons for their discharge in Criminal Case No.1326 of 2018; C.B.I. Vs. Sansar Chand and others, along with the order dated 22.10.2019 framing charges under Section 120-B I.P.C. read with Sections 7, 11, 12 and 13 (2) Prevention of Corruption Act and substantive charges of Sections 7, 13 (2) read with 13 (1) (a), (b) & (d) of the Prevention of Corruption Act, 1988 and the entire criminal prosecution against the applicant arising out of cognizance order dated 04.08.2018.

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4. Briefly stated, facts of the case are that the Central Bureau of Investigation lodged a First Information Report on 02.02.2018 in Police Station C.B.I./AC-I, New Delhi against ten named accused persons, including the applicants namely Aman Shan, Rajeev Singh Chandel and Ajay Kumar Srivastava, stating that an information was received from reliable source that Sansar Chand, Commissioner, GST & Central Excise, Kanpur is leading an organized and systematic collection of illegal gratification in lieu of various official acts in connection with matters pertaining to Central Excise Department in his jurisdiction. Superintendents Ajay Srivastava, Aman Shah, Rajeev Singh Chandel (the applicants) and Office Staff Saurabh Pandey, all public servants subordinate to Sansar Chand, are part of this organized and systematic collection of illegal gratification and they contact various private parties either directly or through middleman Amit Awasthi for extorting and putting pressure for payment of illegal gratification. The amount of illegal gratification made by private parties to the above mentioned public servants were being transferred systematically through hawala channel to Delhi through Aman Jain and Chander Prakash @ Monu for parking and further delivering it to Smt. Avinash Kaur, wife of Sansar Chand. Sansar Chand was in the habit of taking periodic updates from his Superintendents Ajay Srivastava, Aman Shah and R.S. Chandel (the applicants) regarding

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receipt of illegal gratification from various private parties. These payments were taken on monthly or quarterly basis protection money for omission of action against the private parties by the Central Excise Department. The F.I.R. further states that Sansar Chand got in touch with the applicants and inquired about the payment status of various private parties, including one from ‘Shishu’, which pertains M/s Shishu Soap and Chemical Private Limited took further updates regarding payment from the aforesaid Company from Amit Awasthi. The applicants and Amit Awasthi further engaged Manish Sharma, Director of M/s Shishu Soap and Chemicals Private Limited who assured both of them that he would shortly make the payment of the agreed periodical illegal gratification for the months of February, 2018 to April, 2018. The applicants and Amit Awasthi confirmed the same to Sansar Chand. It has further been alleged in the F.I.R. that the source had revealed that when the illegal gratification was not received, Sansar Chand started pursuing it with the applicants and Amit Awasthi and he instructed the applicants to contact Manish Sharma. The applicants and Amit Awasthi contacted Manish Sharma for payment of illegal gratification. Manish Sharma informed Amit Awasthi and the applicants that he was facing a problem of notices from the Central Excise Department and needed relief in this regard. Finally, Amit Awasthi called Manish Sharma to his office and asked him at the instance of Sansar Chand to make an immediate payment of Rs.1,50,000/- and Manish Sharma arranged this amount for delivering in the office of Commissioner, G.S.T., Kanpur through anyone of the above mentioned Superintendents for onward payment to Sansar Chand on 12.02.2018.

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5. The F.I.R. further states that R.S. Chandel was playing a coordinating role along with the applicants and Aman Shah, for giving effect to the ongoing criminal conspiracy. It further states that the source had informed that Manish Sharma was likely to deliver an illegal gratification of Rs.1,50,000/- to anyone of the above mentioned Superintendents of Sansar Chand in the office of the Commissioner,

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G.S.T. Kanpur or Sri Saurabh Pandey for onward payment to Sansar Chand.

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6. In furtherance of the aforesaid F.I.R. the C.B.I. carried out investigation and a charge sheet was submitted on 30.03.2018 against as many as 15 persons, including the applicants.

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7. Sri S. C. Mishra Senior Advocate appearing for the applicants has submitted that the F.I.R. has purportedly been lodged on the basis of information received from the intercepted telephone calls which calls were made on 02.02.2018 at about 4.46 p.m. whereas the F.I.R. has been lodged on 9.50 a.m. on the aforesaid date which indicates that the F.I.R. has been ante dated. He has further submitted that an order for interception of the telephone calls can only be made in accordance with the provisions contained in Section 5 of Indian Telegraph Act, 1885 on the occurrence of any public emergency or in the interest of the public safety, if the government is satisfied that it is necessary or expedient so to do in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of an offence and no such contingency had arisen in the present case as would justify invocation of the powers conferred by Section 5 of the Indian Telegraph Act. He has placed reliance upon a decision of Hon’ble Supreme Court in the case of People’s Union of Civil Liberties (PUCL) Vs. Union of India (UOI) and others : AIR 1997 SC 568, which has been affirmed by Hon’ble Supreme Court in the case of K. S. Puttaswamy Vs. Union of India, (2017) 10 SCC 1, wherein the Hon’ble Supreme Court has held as follows: -

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“18. The right to privacy-by itself-has not been identified under the Constitution. As a concept it may be too broad and moralistic to define it judicially. Whether right to privacy can be claimed or has been infringed in a given case would depend on the facts of the said case. But the right to hold a telephone conversation in the privacy of one’s home or office without interference can certainly be claimed as “right to privacy”. Conversations on the telephone are often of an intimate and confidential character. Telephone-conversation is a part of modern man’s life. It is

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considered so important that more and more people are carrying mobile telephone instruments in their pockets. Telephone conversation is an important facet of a man’s private life. Right to privacy would certainly include telephone-conversation in the privacy of one’s home or office. Telephone-tapping would, thus, infract Article 21 of the Constitution of India unless it is permitted under the procedure established by law.”

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8. Sri Mishra has submitted that telephonic conversation that was recorded on 02.02.2018 and which forms the basis of initiation of criminal prosecution of the applicants and co-accused persons, was intercepted illegally and therefore the same is not admissible in evidence and no prosecution can rest on the basis of such an illegally collected and inadmissible evidence. To support this contention Sri Mishra has placed reliance a judgment of the Bombay High Court in the case of Vinit Kumar Vs. C.B.I. , Writ Petition No.2367 of 2019 decided on 22.10.2019, where in the Bombay High Court held as follows:

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“16. We are of the view that as per Section 5 (2) of the Act, an order for interception can be issued on either the occurrence of any public emergency or in the interest of the public safety. The impugned three interception orders were issued allegedly for the reason of ‘public safety’. As held in PUCL (supra), unless a public emergency has occurred or the interest of public safety demands, the authorities have no jurisdiction to exercise the powers under the said section. The expression “Public Safety” as held in PUCL (supra) means the state or condition of freedom from danger or risk for the people at large. When either of two conditions are not in existence, it was impermissible to take resort to telephone tapping.

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17. The Hon’ble Supreme Court in PUCL case (supra) has observed that neither the occurrence of public emergency nor the interest of public safety are secretive conditions or situations. Either of the situations would be apparent to the reasonable person.

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18. Even at this stage, from the affidavits filed by the Respondents or the charge-sheet, the Respondents could not justify any ingredients of risk to the people at large or interest of the public safety, for having taken resort to the telephonic tapping by invading the right to privacy. Neither from the impugned orders nor from the record any situation showing interest of public safety is borne out.

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19. We are satisfied that in peculiar fact of the instant case, the impugned three interception orders neither have sanction of law nor issued for legitimate aim, as sought to be suggested. The impugned three interception orders could not satisfy the test of “Principles of proportionality and legitimacy” as laid down by the nine judges’ constitution bench decision in K. T. Puttaswamy (supra). We, therefore, have no hesitation in holding that all three impugned orders are liable to be set aside. Accordingly, we quash and set aside the same.”

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9. A supplementary affidavit has been filed on behalf of the applicants annexing therewith the interception order dated 17.10.2017, passed by Secretary, Ministry of Home Affairs, New Delhi which states that the order shall remain in force for a period not exceeding sixty days from the date of issue. As the authorization for interception of telephone calls automatically stood lapsed on 15.12.2017, the interception of calls on 02.02.2018 was absolutely without any authority.

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10. Sri Mishra has next submitted that Rule 419 A (16) of the Indian Telegraph Rules, as amended by the Indian Telegraph (Amendment) Rules, 2007, provides that the Central and the State Government, as the case may be, shall constitute a Review Committee. The Review Committee shall meet at least once in two months and record its findings whether the directions issued under sub-rule (1) are in accordance with the provisions of sub-section (2) of Section 5 of the said Act. When the Review Committee is of the opinion that the directions are not in accordance with the provisions referred to above it may set aside the directions and orders for destruction of the copies of the intercepted message or class of messages.

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11. Sri Mishra has next relied upon the judgment of Delhi High Court in the case of Jatinder Pal Singh Vs. Central Bureau of Investigation, 2022 SCC Online Del 135, wherein the Delhi High Court held that as per Section 5 (2) of Telegraph Act, an order for interception can be issued on either occurrence of any public emergency or in the interest of public safety as per law laid down by Hon’ble Supreme Court in the case of PUCL (Supra). As per Rule 419 A, the order of the Home Secretary granting permission to intercept the telephonic conversation

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is to be forwarded to the Review Committee within seven days of passing the order for the purpose of being reviewed by the Committee. The Delhi High Court recorded that “after the perusal of the records, this Court is satisfied that in peculiar facts of the instant case, the mandatory requirements laid down by law for placing reliance on such audio conversations, have not been fulfilled. It is an admitted position that Rule 419 A (17), which provides for destruction of intercepted message, also adopt the said directions. The court below while passing the impugned orders has also ignored the settled legal positions and directions of the Hon’ble Supreme Court.”

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12. Sri Mishra has next relied upon a decision of Hon’ble Supreme Court in the case of State through Central Bureau of Investigation Vs. Dr. Anup Kumar Srivastava , (2017) 15 SCC 560, wherein the Hon’ble Supreme Court has held as under: -

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“18. In view of the above, it can be easily gauged from the case of the CBI that the case solely rests upon 96 conversations recorded between 23.12.2011 to 02.01.2012 by the Special Unit (SU), CBI, New Delhi on the basis of the legal technical surveillance.

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25. Framing of charge is the first major step in a criminal trial where the court is expected to apply its mind to the entire record and documents placed therewith before the court. Taking cognizance of an offence has been stated to necessitate an application of mind by the court but framing of charge is a major event where the court considers the possibility of discharging the accused of the offence with which he is charged or requiring the accused to face trial. There are different categories of cases where the court may not proceed with the trial and may discharge the accused or pass such other orders as may be necessary keeping in view the facts of a given case. In a case where, upon considering the record of the case and documents submitted before it, the court finds that no offence is made out or there is a legal bar to such prosecution under the provisions of the Code or any other law for the time being in force and there exists no ground to proceed against the accused, the court may discharge the accused. There can be cases where such record reveals the matter to be so predominantly of a civil nature that it neither leaves any scope for an element of criminality nor does it

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satisfy the ingredients of a criminal offence with which the accused is charged. In such cases, the court may discharge him or quash the proceedings in exercise of its powers under the provisions.

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26. Similarly, the law on the issue emerges to the effect that conspiracy is an agreement between two or more persons to do an illegal act or an act which is not illegal by illegal means. The object behind the conspiracy is to achieve the ultimate aim of conspiracy. For a charge of conspiracy means knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has not to establish that a particular unlawful use was intended, so long as the goods or service in question could not be put to any lawful use. Finally, when the ultimate offence consists of a chain of actions, it would not be necessary for the prosecution to establish, to bring home the charge of conspiracy, that each of the conspirators had the knowledge of what the collaborator would do.

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30. We have no doubt to hold that in Call No. 48, the respondent herein was not at all in picture and even in Call No. 51 he was talking to Hemant Gandhi but it is not proved that they were talking about the same raid as they have used certain other cryptic codes as mentioned above which makes the Call highly improbable for connecting the respondent herein in commissioning of the offence. Even otherwise, in Call No. 51, the benefit of doubt must go to the respondent herein where the language of the call is dubious and no logical understanding of the actual conversation can be drawn. Further, in the absence of any details with regard to the amount of ‘six zero’, we are of the view that Call No. 48 categorically brings out that the respondent herein did not have any knowledge of the alleged criminal conspiracy and Call No. 51 is also unable to prove the complicity of the accused in the crime because of its out of the context conversation. In view of the above, we are of the considered opinion that Call Nos. 48 and 51, heavily relied upon by the prosecution, lack object and purpose to prove the complicity of the respondent herein in the crime.”

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13. Per contra, Sri Anurag Kumar Singh, the learned counsel appearing on behalf of the C.B.I. has submitted that the charge-sheet in the present case was filed way back on 30.03.2018 and the learned trial court had passed the order taking cognizance of the case on 04.08.2018 and the

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court had summoned the accused persons to face trial. The accused persons had filed separate discharge applications, all of which were rejected by means of the order dated 21.09.2019 and the Court had framed charges on 22.10.2019. The applicants did not challenge the charge sheet with reasonable promptitude and he has challenged the charge-sheet submitted on 04.08.2018 alongwith the summoning order and the order dated 21.09.2019 by filing the instant application on 12.04.2023.

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14. Sri. Singh has submitted that the trial is proceeding and as many as 12 witnesses have already been examined and it would not be proper to entertain the application for quashing of the chargesheet at this stage.

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15. Sri. Anurag Kumar Singh has submitted that the ground of illegality of interception of telephone calls would also not make the chargesheet bad as that is not the solitary evidence against the accused persons and apart from the telephone call interception, further evidence is also there against the accused persons. Moreover, his submission is that the order of interception of telephone calls has not been challenged by any of the accused persons and that order stands exhausted also. He has submitted that although only gist of conversations between the accused persons are a part of the charge-sheet, the C.B.I. has with it the entire conversations and the same will be produced before the trial Court when the prosecution evidence is led.

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16. Before proceeding to examine the rival submissions made by the learned counsel for the parties, it would be appropriate to have a look on the statutory provisions regarding discharge of accused persons and framing charges against them, as contained in sections 227 and 228 of the Criminal Procedure Code, which are being reproduced below: –

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“227. 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

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proceeding against the accused, he shall discharge the accused and record his reasons for so doing.

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228. Framing of charge .— (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which

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(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate shall try the offence in accordance with the procedure for the trial of warrant cases instituted on a police report;

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(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.

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(2) Where the Judge frames any charge under clause (b) of subsection (1), the charge shall be read and explained to the accused, and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.”

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17. The difference between the approach with which the Court should examine the matter in the aforesaid sections has been explained by the Hon’ble Supreme Court in Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460, in the following words: -

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“17. Framing of a charge is an exercise of jurisdiction by the trial court in terms of Section 228 of the Code, unless the accused is discharged under Section 227 of the Code. Under both these provisions, the court is required to consider the “record of the case” and documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. Once the facts and ingredients of the section exists, then the court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. This presumption is not a presumption of law as such. The satisfaction of the court in relation to the existence of constituents of an offence and the facts leading to that offence is a sine qua non for exercise of such jurisdiction. It may even be weaker than a prima facie case. There is a fine distinction between the language of Sections 227 and 228 of the Code. Section 227 is the expression of a definite opinion and judgment

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of the Court while Section 228 is tentative. Thus, to say that at the stage of framing of charge, the Court should form an opinion that the accused is certainly guilty of committing an offence, is an approach which is impermissible in terms of Section 228 of the Code.

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30. We have already noticed that the legislature in its wisdom has used the expression “there is ground for presuming that the accused has committed an offence”. This has an inbuilt element of presumption once the ingredients of an offence with reference to the allegations made are satisfied, the Court would not doubt the case of the prosecution unduly and extend its jurisdiction to quash the charge in haste. A Bench of this Court in State of Maharashtra v. Som Nath Thapa (1996) 4 SCC 659 referred to the meaning of the word “presume” while relying upon Black’s Law Dictionary. It was defined to mean “to believe or accept upon probable evidence”; “to take as proved until evidence to the contrary is forthcoming”. In other words, the truth of the matter has to come out when the prosecution evidence is led, the witnesses are cross-examined by the defence, the incriminating material and evidence is put to the accused in terms of Section 313 of the Code and then the accused is provided an opportunity to lead defence, if any. It is only upon completion of such steps that the trial concludes with the court forming its final opinion and delivering its judgment. Merely because there was a civil transaction between the parties would not by itself alter the status of the allegations constituting the criminal offence.

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18. Thus the law regarding the approach to be adopted by the court while considering an application for discharge of the accused persons under Section 227 and approach while framing charges under Section 228 of the Code, is that while considering an application for discharge of the accused under Section 227 of the Code, the Court has to form a definite opinion, upon consideration of the record of the case and the documents submitted therewith, that there is not sufficient ground for proceeding against the accused. However, while framing charges, the Court is not required to form a definite opinion that the accused is guilty of committing an offence. The truth of the matter will come out when evidence is led during the trial. Once the facts and ingredients of the section exist, the court would presume that there is ground to

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proceed against the accused and frame the charge accordingly and the Court would not doubt the case of the prosecution.

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19. When the record of the case is examined in light of the aforesaid legal position, what appears at this stage is that the C.B.I. has conducted investigation and has submitted a charge-sheet, which states that after investigation it was found that Sansar Chand was Commissioner, C.G.S.T. and Central Excise, Kanpur, Ajay Srivastava, Aman Shan and Rajeev Singh Chandel (the present applicants) were Superintendents in the aforesaid office and Saurabh Pandey was P.A. to Commissioner Sansar Chand and all of them were public servants. In October, 2017, Sansar Chand had demanded Rs.3,00,000/quarterly as bribe from Manish Sharma, a Director of Shishu Soap and Chemicals Private Limited for giving relief in tax payment by giving him more time to deposit the same and to differ the action of seizure of products and bank accounts. After bargaining, the bribe amount was settled at Rs.1,50,000/- quarterly and thereafter Sansar Chand directed his officials to go slow on recovery of dues. The first installment of Rs.1,50,000/- was delivered to Aman Shah in November, 2017 and the second installment was due in the first week of February, 2018. Sansar Chand started pressurizing Manish Sharma for payment of the second installment by getting notices of attachment of properties issued by his subordinates and he pursued the matter through the Ajay Kumar Srivastava, Aman Shah and Rajeev Singh Chandel as well as through Amit Awasthi, Director of M/s Shishu Soap and Chemicals Private Limited. Manish Sharma agreed to pay Rs.1,50,000/- to Sansar Chand on 02.02.2018 and he handed over the amount to his employee Suresh Kumar Singh @ Gorey and directed him to deliver the same to Aman Shah and since he was not present in the office, the same was delivered to Saurabh Pandey, P.A. of Sansar Chand for onward transmission to Sansar Chand. The charge sheet states that the C.B.I. has intercepted some calls of the accused persons and a gist of some telephonic conversations between the accused persons has been annexed with the charge-sheet. It has further been

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revealed during investigation that Sansar Chand had pressurized one Prakash Veer Tyagi for supply of a refrigerator while he was posted as Additional Commissioner, Customs and Central Excise, Faridabad during 2010-14 and the refrigerator was purchased on 04.11.2017 and Sansar Chand, his wife Avnish Kaur and Vijay Kumar, brother in law of Sansar Chand were present at the time of purchase and invoices were issued in the name of Vijay Kumar, but the payment for the refrigerator was made by Prakash Veer Tyagi on the directions of Sansar Chand. The refrigerator was delivered to Vijay Kumar and it was found physically available at his residence. Sansar Chand and his wife Avnish Kaur had demanded and accepted valuable things without consideration from one Yogesh Agarwal of M/s Rimjhim Ispat Limited and they had obtained a refrigerator and an air purifier from him. There are some further allegations of obtaining valuable things from certain other persons also. The charge-sheet records that the intercepted calls show that these collections were being mostly coordinated by the applicants, who used to hand over the collected amount to one Deepak Agarwal who in turn used to hand it over to Chandra Prakash @ Monu or Nitin, an employee of Aman Jain, on directions of Chandra Prakash @ Monu. Thereafter these collected amounts were delivered to Smt. Avinash Kaur at her residence at Delhi. On 29.01.2018, Yogesh Agarwal of M/s Rimjhim Ispat Limited had paid Rs.5,00,000/- to Sansar Chand through one Aman Jain. Aman Jain used to maintain an account of all such cash dealings made on the request of Chandra Prakash @ Monu on behalf of Avinash Kaur wife of Sansar Chand in a tally account maintained on a regular basis in a pen-drive which was seized by the C.B.I.

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20. Thus it appears that the call recording by interception of the calls is not the only material available against the accused persons.

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21. So far as the submission of Sri. S. C. Misra that the telephone calls were intercepted in an illegal manner and the evidence based thereon will not be admissible in evidence is concerned, this Court is not adjudicating this plea, leaving it open to be decided by the trial Court,

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as while deciding an application under Section 482 of the Code, this Court is not required to go into the admissibility, reliability or sufficiency of evidence. This view of the Court is supported by the view taken by the Honble Supreme Court in Amit Kapoor v. Ramesh Chander, where the Hon’ble Supreme Court reiterated that: -

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“27.1. Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.

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27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.

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27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.

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27.4. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers.

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27.5. Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused.

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27.6. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender.

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27.7. The process of the court cannot be permitted to be used for an oblique or ultimate/ulterior purpose.

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27.8. Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a “civil wrong” with no “element of criminality” and does not satisfy the basic ingredients of a criminal offence, the court may be justified in quashing the

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charge. Even in such cases, the court would not embark upon the critical analysis of the evidence.

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27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.

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27.10. It is neither necessary nor is the court called upon to hold a full-fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction.

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27.11. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained.

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27.12. In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed therewith by the prosecution.

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27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie.

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27.14. Where the charge-sheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge.

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27.15. Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that the interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae i.e. to do real and substantial justice for administration of which alone, the courts exist.

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27.16. These are the principles which individually and preferably cumulatively (one or more) be taken into consideration as precepts to exercise of extraordinary and wide plenitude and jurisdiction under Section 482 of the Code by the High Court. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the

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proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence.”

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(Emphasis supplied)

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22. In State through Central Bureau of Investigation Versus Dr. Anup Kumar Srivastava , (Supra) relied upon by Sri S. C. Mishra, the Hon’ble Supreme Court has recorded the factual position that “ the case solely rests upon 96 conversations recorded between 23.12.2011 to 02.01.2012 by the Special Unit (SU), CBI, New Delhi on the basis of the legal technical surveillance” and after examining through the solitary prosecution evidence in the shape of call records, the Supreme Court came to a conclusion that “we are of the view that Call No. 48 categorically brings out that the respondent herein did not have any knowledge of the alleged criminal conspiracy and Call No. 51 is also unable to prove the complicity of the accused in the crime because of its out of the context conversation. In view of the above, we are of the considered opinion that Call Nos. 48 and 51, heavily relied upon by the prosecution, lack object and purpose to prove the complicity of the respondent herein in the crime.”

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23. The aforesaid case was decided on the basis of its peculiar facts, which were different from the present case, where the call interception is not the only evidence and the C.B.I. has collected other evidence also, including the evidence of the account of payment of bribe money regularly maintained by a co-accused in a pen drive. Moreover, as many as 12 witnesses have already been examined by the C.B.I. in support of the charges. Therefore, the aforesaid case relied upon by Sri. Misra does not help the accused in the present case.

¶99

24. At this stage, the Court is not required to go into the correctness of the allegations and that will be done by the Trial Court after the parties are given an opportunity to lead evidence in support of their respective case. What prima facie appears from the material placed before the court at this stage is that the allegations levelled against the applicants in the charge sheet submitted by C.B.I. after carrying out investigation, prima facie indicate commission of cognizable offences, which need to be tried by the Court. This Court finds no illegality in

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the order dated 21.09.2019 passed by the trial Court rejecting the application for discharge of the applicants and the order dated 22.10.2019 framing charges as also in the proceedings against the applicants being continued in pursuance of the charges framed against him.

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25. In view of the above discussions, this Court is of the considered view that the applications under Section 482 Cr.P.C. lack merit and the same are accordingly dismissed .

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26. The trial Court is directed to proceed with the trial and conclude the same expeditiously, in accordance with the law, without being influenced by any observation made in this order.

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(Subhash Vidyarthi, J.)

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Order Date - 17.04.2023 Ram.

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Digitally signed by :- RAM SINGH High Court of Judicature at Allahabad, Lucknow Bench

Aman Shah v. State Thru. CBI/AC-1, New Delhi

Case brief

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Aman Shah v. State Thru. CBI/AC-1, New Delhi

Case brief

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