Dismissed

Sanjeev Jaiswal v. Central Bureau of Investigation (F)

Gauhati HC6 Jan 2022Crl.Rev.P./81/2019

Case brief

AI extract

What is this about?

The Gauhati High Court dismissed a revision petition challenging the framing of charges against the petitioner by the Special Judge CBI. The court held that the trial court had conducted a proper judicial exercise, the petitioner caused long delays, and the high court found no infirmity in the impugned orders.

What did the court decide?

Revision petition dismissed; direction to petitioner to face trial regularly; interim order vacated.

Sanjeev Jaiswal Vs Central Bureau of Investigation… — 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./81/2019

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SANJEEV JAISWAL S/O LATE PANNA LAL JAISWAL R/O 4A 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 (F) REP. BY SC CBI

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-----------Advocate for : MR K K MAHANTA Advocate for : SC

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CBI appearing for CENTRAL BUREAU OF INVESTIGATION (F)

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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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The petitioner, herein, Sanjeev Jaiswal is facing a trial pertaining to Special Case No. 62/2004, 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

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order the petitioner is before this Court.

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An FIR being RC 9 (A)/2000-SHG, dated 07.08.2000, was registered by the CBI on the basis of secret information that M/s Kona Iron & Steel Company in a criminal conspiracy with some officials of Railway Department, during the period of 1994-95, cheated the Railway to the tune of Rs. 11,78,666/-, by making and receiving payment of freight charges of VSP, by misinterpreting the Railway Board Circular dated 15.07.1993 and the case was registered under Sections 120(B)/420 IPC read with Section 13(2) and Section 13(1)(d) of the PC Act, against the petitioner and others. On completion of the investigation, charge sheet was laid against 6 (six) accused persons, including the petitioner under said sections of law. The petitioner is one of the partners of M/s Kona Iron & Steel Company.

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The learned trial Court took cognizance of the offence and framed charges against the petitioner on 16.11.2018, on the basis of the order dated 02.11.2018, passed by the Court. Challenging both orders of framing charge, the present revision petition is preferred.

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The contention raised by the petitioner is that on the very day of framing the charge, the engaged counsel of the petitioner was not present and the charge was framed against the petitioner without giving any opportunity of hearing. It is submitted that on 02.11.2018, the petitioner filed an application stating that his engaged senior counsel has withdrawn himself from the case, for which he sought for time to engage 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 the learned predecessor in office, vide order dated 29.01.2015, has ordered the charges to be framed. Hence, the learned trial Court erred in law as well as facts, rendering the impugned order dated 02.11.2018 and 16.11.2018, by framing charge, which is not sustainable and liable to be set aside.

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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 in office, which he has referred in the order.

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I have heard the submissions of the learned counsel for the petitioner and also the

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learned standing counsel for the CBI and gone through the LCR including the impugned order dated 02.11.2018 and 16.11.2018.

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For proper appreciation of the matter, both the orders dated 02.11.2018 as well as 16.11.2018 is to be appreciated along with other matters on record.

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The present case initially registered in the year 2003. Subsequently, it was reregistered in the year 2004 and there are several accused persons and on most of the occasions many of the accused persons remained absent for which it took time to complete the appearance and as well as to frame the charges.

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On perusal of the order dated 02.11.2018, it reveals that the earlier order of framing charge dated 29.01.2015, on being challenged before the High Court, vide Crl. Revision Petition No. 69/2015, this Court directed the learned trial Court to frame the charge afresh, by giving the opportunity of being heard to both the parties. Accordingly, the Court had taken up the matter for consideration of charge on 02.11.2018 and on that day, the learned trial Court on the basis of the materials on record and after analysis of the documents/statements etc., passed a detailed order, holding that there is a prima facie case against the accused public servants of NF Railway and partners of M/s Kona Iron & Steel Company, represented by the accused petitioner Sanjeev Jaiswal & Ors. and as the accused person, Sanjeev Jaiswal was absent on that day, the Court could not frame the charge and directed for his appearance on 16.11.2018, to answer the charge. Record reveals that subsequent to the passing of the order, a petition was filed on behalf of accused, assigning reasons for his absence and also submitting that his engaged counsel decided to withdraw from the case and hence, sought for adjournment. The learned trial Court, however, rejected the same as the order has already been passed.

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On the very next day i.e., on 16.11.2018, on appearance of the accused petitioner, Sanjeev Jaiswal, in terms of the order dated 02.11.2018, charge was framed against the accused petitioner under Sections 120(B)/420 IPC. On careful examination of both the orders

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dated 02.11.2018 and 16.11.2018, it reveals that the learned trial Court has recorded its observation that none of the Advocates for the accused persons have submitted on the question of charge, despite availing sufficient opportunities and on earlier occasion also, the accused petitioner challenged the charge far back in the year 2015 and remained absent even after knowing about the matter and hence, decided to proceed with the matter on the basis of the materials on record and after hearing the learned counsel for the CBI, the Court has rendered its opinion about the prima facie materials against the accused persons to frame the charge. It is to be noted that the learned trial Court has discussed in detail, every aspect on record, submitted along with charge sheet and gave its findings. No irregularity and illegality is reflected. The accused petitioner on earlier occasion also challenged the charge on similar grounds and further leniency cannot be bestowed upon him, as he himself remained absent at the relevant point of time.

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On perusal of the aforesaid order, it is found that the learned trial Court has appreciated the complicity of each of the accused persons in detailed manner, which continued upto several pages, discussing all about the factual matrix and found prima facie case against each of the accused persons, to frame the charge.

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The submission made before this Court that no opportunity was given to the defence side for hearing, deserves no consideration as the petitioner wilfuly delayed the proceeding for long long years, as a result of which, the Court could frame the charge only after 18 years of the filing of the case. Once, the Court formed an opinion for framing of charge with a direction to the accused persons to appear before the Court to answer the charge, there remains no any occasion on the part of the Court to hear the matter again and again at the whims of the accused person. I found no any substance in the submission that the charge was framed on the basis of earlier findings/opinion, without giving a fresh opportunity of being heard.

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In the fitness of the matter, the petitioner could have preferred a revision before the Court of competent jurisdiction against the order dated 02.11.2018, but same was not done and nothing has been explained in this regard. Such an approach by the accused petitioner cannot be encouraged nor maintainable in law.

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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 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

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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 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.

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Resultantly, the petition stands dismissed, with a direction to the petitioner 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

Sanjeev Jaiswal v. Central Bureau of Investigation (F)

Case brief

What is this about?

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Sanjeev Jaiswal v. Central Bureau of Investigation (F)

Case brief

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