Dismissed

Joy Prakash Jaiswal and 2 Ors. v. Central Bureau of Investigation

Gauhati HC6 Jan 2022Crl.Rev.P./53/2019

Case brief

AI extract

What is this about?

In revision petitions challenging RC 59/04 framing of charges without fresh hearing due to counsel withdrawal and successor order following predecessor 08-08-2014, court dismissed petitions. Held successor legally bound by prior order; no ground to reopen trial matter.

What did the court decide?

Petitioners directed to face trial without fail; interim order vacated.

Joy Prakash Jaiswal and 2 Ors. Vs Central Bureau… — Criminal Trial and Appeal | Gauhati HC (2022)

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GAHC010278932018

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : Crl.Rev.P./41/2019

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SMT. KIRAN JAISWAL W/O- LATE OM PRAKASH, R/O- 65, 3RD FLOOR, GT ROAD(NORTH), P.OSALKIA, HOWRAH, WEST BENGAL

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VERSUS

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CENTRAL BUREAU OF INVESTIGATION REP. BY THE SC, CBI

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Advocate for the Petitioner : MS. B S GOYAL

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Advocate for the Respondent : SC, CBI

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Linked Case : Crl.Rev.P./53/2019

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JOY PRAKASH JAISWAL AND 2 ORS. S/O LATE PANNALAL JAISWAL R/O 4 A PALM AVENUE PO BALLYGUNGE PS KARAYA DIST. KOLKATA (METRO) WEST BENGAL PIN-700019

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VERSUS

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CENTRAL BUREAU OF INVESTIGATION REPRESENTED BY SC CBI

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-----------Advocate for : MR K K MAHANTA Advocate for : SC CBI appearing for CENTRAL BUREAU OF INVESTIGATION

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BEFORE

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HON’BLE MRS. JUSTICE RUMI KUMARI PHUKAN

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O R D E R

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06.01.2022.

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Both the petitions are taken together as the matter pertains to the same case.

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The petitioners namely, Jayprakash Jaiswal, Sanjeev Jaiswal and Kiran Jaiswal, are the Directors of M/s J B Casting and Forging Pvt. Ltd., and Ghanashyam Jaiswal (partner of M/s BCEC), are facing trial pertaining to Special Case No. 59/2004, before the Court of Special Judge, CBI (Additional Court No. 2), wherein the learned trial Court has framed the charges vide order dated 16.11.2018 and challenging the aforesaid order the petitioners are before this Court.

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The RC 59/04 involved six FIRs pertaining to R.C. No. 13(A)/99, RC No. 8(A)99, R.C. 10(A)/99, RC 14(A)/99, RC 15(A)/99 and R.C. 16(A)/99, all the cases are clubbed together for trial as the matters are based on same facts.

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Facts of all above cases are almost similar that the officers of NF Railway, who were the public servants entered into a conspiracy with the present petitioners and some other firms and by making false payment to the firms in respect of freight charges for pig iron and double

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payment freight charges for supply of caste iron, slippers to various consignees in the NF Railway, for which the accused firm was not entitled from VSP. On completion of the investigation, charge sheet was laid against the present accused persons, along with the public servant for commission of the offence under Sections 120(B)/420 IPC, read with Section 13 (2) and Section 13 (1) (d) of the P C Act.

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The contention raised by the three petitioners is that on the very day of framing the charge the engaged counsel of the petitioner was not present and charge was framed against the petitioners without giving any opportunity of hearing. It is submitted that on 02.11.2018, the petitioners filed an application that their engaged senior counsel has withdrawn himself from the case for which they sought for time to engaged a new counsel. But despite the fact, the charge has been framed which is stated to be bad in law. It is further contended that further on 08.08.2014, order for charges has been made, hence, thereafter there cannot be any further order for framing charge on 16.11.2018. The further contention that has been raised as the learned trial Court has proceeded on motion that the purported order dated 08.08.2014, against the accused persons has already been ordered for charge and hence, framing of charge on 16.11.2018 is bad in law, that too without giving an opportunity of being heard by the engaged counsel.

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The basic grievances that has been raised by the petitioner’s side is that the learned trial Court cannot frame the charges on the basis of the opinion rendered by the predecessors, which he has referred in the order.

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I have heard submissions of the learned counsel for the petitioners and also the learned standing counsel for the CBI and gone through the LCR including the impugned orders dated 08.08.2014 and 16.11.2018.

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The Presiding Officer, who passed the order dated 08.08.2014, on being transferred, successor in office subsequently, framed the charge on 16.11.2018, on the basis of the findings made by his predecessor. In between, as all the accused persons did not turn up, for

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which the Court could not frame the charge. Now, the petitioner contends that only on the basis of the findings/opinion of the learned predecessor in office dated 08.08.2014, the framing of charge dated 16.11.2018 by the successor is not legally sustainable, inasmuch, as the Court did not consider the prayer on behalf of the three petitioners, namely, Jay Prakash, Sanjiv and Ghanashyam that their engaged counsel is unable to appear and argue the matter on charge on 16.11.2018. On the other hand, according to the accused petitioner, Kiran Jaiswal, the learned trial Court has not considered her petition under Section 227 of CrPC, for her discharge and hence, the aforesaid order is bad in law. As has been contended by the other accused petitioners, it is also assailed that the aforesaid order only on the basis of the order dated 08.08.2014, is not sustainable.

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It is to be noted that while preferring the present petition, the petitioners have only annexed the order dated 16.11.2018 and the copy of order dated 08.08.2014 was not filed. Hence, this Court feel it appropriate to call for the record along with the said order dated 08.08.2014, which is accordingly received.

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For proper appreciation of the matter, both the orders dated 08.08.2014 as well as 16.11.2018 is to be appreciated and the other matters on record.

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The present case was initially registered in the year 2003. Subsequently, it was registered in the year 2004 and there are several accused persons and on most of the occasions many of the persons remained absent for which it took time to complete the appearance and as well as to frame the charges. Considering the long pendency of the matter the learned trial Court passed an order dated 08.08.2014. In the said order the Court gave findings against each of the accused persons and finding prima facie materials for framing charge, directed the accused persons to appear before the Court to answer the charges on next day and unfortunately due to absence of all accused, charges could not be framed since then.

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On 16.11.2018, the learned trial Court considered the submissions of learned counsel

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for both parties and has made an observation that due to absence of some of the accused persons, order of framing charge could not be made and despite giving sufficient opportunities to the defence side to make their submissions on the point of framing charge. The learned Court also observed that the learned Senior Counsel also did not turn up for making their submissions, hence, there is no option, but to proceed with the matter.

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The Court also took up the petition under Section 227 CrPC, filed by the petitioner, Kiran Jaiswal and has dealt with the matter in its order dated 16.11.2018 and that once the Court decides to frame charge under Section 228 CrPC finding a prima facie case, there is no question of discharging them at a later stage. While taking up the petition, the Court has discussed all details about the merit of the case and the provision under Section 227 and Section 228 CrPC and also the earlier findings given by the predecessor, dated 08.08.2014 and observed that by order dated 08.08.2014, the Court has already ordered to frame the charge under Section 228 CrPC and if the parties are aggrieved by the said order of framing charges, then the parties should have preferred a revision petition against such order before the High Court, but instead, has filed the petition for reconsideration and discharge and because of such approach, it has become practically impossible to proceed with the trial. Thus, the Court held that there is prima facie case against the aforesaid 4 (four) accused persons under Sections 120(B)/420 IPC.

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On the other hand, in its order dated 08.08.2014, apart from passing the main order, the learned trial Court has recorded its detailed reasons for framing charge against the accused persons, in separate sheet, which, however, the petitioners’ side has not brought on record. On perusal of the aforesaid order written separately, it is found that the learned trial Court has appreciated the complicity of each of the accused persons in every case (Six in number) in detailed manner, continued upto several pages, discussing about the factual matrix as well as legal aspect and found prima facie case against each of the accused persons.

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The aforesaid order was passed after hearing the learned counsel for both the parties,

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so there can be no denial that the petitioners were unaware about the detailed order passed and annexed with the record, which was passed against all the accused persons that there is a prima facie case against all accused persons to proceed with the trial under Sections 120(B)/420 IPC, along with the public servants under Section 13 (2), read with Section 13 (1) (d) of PC Act.

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So far as regards the accused petitioner, Kiran Jaiswal, an argument was advanced that she was only a sleeping partner of the firm. Hence, she never participated in the day-to-day activities of the said firm and her signature was obtained by the employees and other partners (who are her brothers-in-law), whenever they desired, taking advantage of her husband being not there. Further, she contends that there is no material against her to sustain the charge.

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The trial Court, in its order dated 08.08.2014, after long drawn discussion in the separate order (this Court refrained from discussing all details), and also appreciating the ratio laid down by the Hon’ble Supreme Court in a catena of decisions, held that at the time of framing charge, even a very strong suspicion founded upon the materials before the Court, may lead to opinion as to the factual ingredients, constituting the offence alleged, may justify the framing of charges against the accused in respect of commission of that offence. The Court also took note of the position of law as regards the question of discharge under Section 227 CrPC, that the Judge can discharge the accused, when he considers that there is no sufficient ground for proceeding against the accused. It is in the trial, the guilt or innocence of the accused will be determined not at the time of framing of charge and the Court need not undertake and elaborate enquiry, at the time of framing charge and it can shift the materials on record to consider as to whether there is prima facie case.

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On perusal of the said order, it reveals that the learned trial Court has discussed the Case Diary and the materials on record elaborately and thereafter, held that there is sufficient material to frame charge against the accused persons. The submission made before this Court that no opportunity was given to the defence side for hearing, is apparently not proper,

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as the order was passed only after hearing of both the sides. Once, the Court formed an opinion for framing charge with a direction to the accused persons to appear before the Court to answer the charge, there remains no any occasion to hear the matter again and again by the successor in the office. I found no any substance in the submission that the successor cannot frame the charge on the basis of the findings/opinion, without giving a fresh opportunity of being heard. The contention of three petitioners that the learned trial Court did not give an opportunity to the learned engaged counsel to give his submission on 16.11.2018, is of no consequence. A Court is not bound to hear the matter after such conclusion of the hearing on 08.08.2014. Similarly, the petition filed by the accused Kiran Jaiswal under Section 227 CrPC on 13.08.2018, after the conclusive order on 08.08.2014, deserves no consideration, inasmuch as, her prayer for discharge at the time of earlier hearing was not considered by the learned trial Court. It is to be noted that the aforesaid order was passed in presence of both the parties and detailed order was also written and kept separately in the record. That being so, the submission of the learned counsel for the petitioner that they were not aware about the passing of separate order, is not acceptable, as there was a reference in the main order dated 08.08.2014 that a detailed order had been written separately and kept in record. This Court also found the same on record and the petitioner by suppressing the said detailed order has challenged the order dated 16.11.2018. There is no any illegality in the order so passed by the learned trial Court on 16.11.2018, while the successor in office has framed the charge in view of the findings of his predecessor. The order dated 08.08.2014 has now merged with the order dated 16.11.2018 and the same cannot be segregated as a different order.

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None of the petitioners has submitted anything about the order of 08.08.2014, which was final as regards the framing of charge and the natural consequence will be on the next date, charges will be framed against the accused persons. It is because of absence of all accused persons on subsequent period, the charge could not be framed and in the meantime, the Presiding Officer was transferred and the new incumbent framed the charge in terms of the order dated 08.08.2014. A successor in office is not bound to defy the order so passed by his predecessor, but it is the mandate of law that earlier order will be followed by the successor.

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In the fitness of the matter, the petitioners could have preferred a revision before the Court of competent jurisdiction against the order dated 08.08.2014, but same was not done and nothing has been explained in this regard. Such an approach by the accused petitioners cannot be encouraged nor maintainable in law.

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So far as regards the order dated 08.08.2014 (which is accepted by the learned successor in the office, again with details), it is found that the learned Court has discussed each and every case against the petitioner, on the basis of the materials on record, which is enough for the purpose of forming an opinion to frame the charge.

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The learned counsel for the respondent has referred to a decision of the Hon’ble Apex Court in State Represented by the Deputy Superintendent of Police Vigilance and AntiCorruption, Tamil Nadu –Vs- J Doraiswamy etc.; reported in (2019) 0 Supreme SC 262, wherein it has been held that consideration of record for discharge purpose is one thing and consideration of record while deciding appeal by appellate Court is another thing. While considering case of discharge sought immediately after charge sheet is filed, Court cannot become an Appellate Court and start appreciating evidence by finding out inconsistency in statements of witnesses. It is not legally permissible.

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In a recent decision (2020) 2 SCC 217, Bhawna Bai –Vs- Ghanashyam & Ors., the Hon’ble Apex Court has summarized the principles about the requirement and duties of the Court at the time of framing charge. It has been held that at the time of framing charge, the Court has to see if there is sufficient ground for proceeding against the accused person. While evaluating materials, strict standard of proof is not required, only prima facie case against the accused is to be seen. The Judge is not required to record detailed reasons as to why charge is framed. On perusal of record and hearing of parties, if the Judge is of the opinion that there is sufficient ground for presuming that the accused has committed the offence, he shall frame the charge against the accused. In that context, the earlier decision in Amit Kapoor – Vs- Ramesh Chander; (2012) 9 SCC 460, Dinesh Tiwari –Vs- State of UP; (2014) 13 3 SCC 137, is affirmed.

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It has been categorically held that at the initial stage of framing charge, the Court is concerned not with proof but with strong suspicion that the accused has committed an offence, which, if put to trial, could prove him guilty. All that the Court has to see that the materials on record and the facts of the case would be compatible with the innocence of the accused or not. The final test of guilt is not to be applied at this stage. Thus, it would only be a logical corollary that a judicial exercise of evaluation of the materials on record should be reflected in the order of framing charges by way of some reasons and explanation at least.

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Scope and ambit of revisional jurisdiction has been discussed in Amit Kapoor(supra) as below:-

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1. Framing of charge is a kind of tentative view that the trial Court forms in terms of Section 228, which is subject to final culmination of the proceedings. 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. The meaning of the word “presume” means “to believe or accept upon probable evidence”; “to take a proved until evidence to the contrary is forthcoming.

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1. Section 397 CrPC vests the Court with the power to call for and examine the records of an inferior Court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error and it may not be appropriate for the Court to scrutinize the orders, which upon the face of them bear a token of careful consideration and appear to be in accordance with law. Revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material

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evidence is ignored or judicial discretion is exercised arbitrarily or perversely.

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1. Another well-accepted norm is that the revisional jurisdiction of the higher Court is very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex-facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much advanced stage in the proceedings under the CrPC.”

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Turning to the case in hand, we found that there is judicial exercise of evaluation of materials on record by the learned trial Court, at the time of passing both the orders under challenge, we find no any infirmity in the orders passed by the learned trial Court to invoke the revisional jurisdiction.

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Resultantly, both the petitions stand dismissed. All the petitioners are directed to face the trial regularly without fail, as the matter is of old pending one. Interim order stands vacated.

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JUDGE

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Comparing Assistant

Joy Prakash Jaiswal and 2 Ors. v. Central Bureau of Investigation

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Joy Prakash Jaiswal and 2 Ors. v. Central Bureau of Investigation

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