High Court discharged Krishna Kumar and Om Prakash Yadav in criminal revision petitions challenging rejection of their discharge petitions. The Court held that allegations of criminal conspiracy and excess land mutation could not be ruled out and the matter was triable. Discharge petitions were dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
1
IN THE HIGH COURT OF JHARKHAND, RANCHI
----
Cr. Revision No.238 of 2020
----
Krishna Kumar .... Petitioner -- Versus -- Union of India, through its S.P., C.B.I., E.O.W, Ranchi .... Opposite Party With Cr. Revision No.239 of 2020 ---- Krishna Kumar .... Petitioner -- Versus -- Union of India, through its S.P., C.B.I., E.O.W, Ranchi .... Opposite Party With Cr. Revision No.240 of 2020
----
Krishna Kumar .... Petitioner -- Versus -- Union of India, through its S.P., C.B.I., E.O.W, Ranchi .... Opposite Party With Cr. Revision No.255 of 2020 ---- Om Prakash Yadav .... Petitioner -- Versus -- Union of India, through C.B.I. .... Opposite Party With Cr. Revision No.253 of 2020 ---- Om Prakash Yadav .... Petitioner -- Versus -- Union of India, through C.B.I. .... Opposite Party With Cr. Revision No.298 of 2020 ---- Om Prakash Yadav .... Petitioner -- Versus -- Union of India, through C.B.I. .... Opposite Party
CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
For the Petitioners :- Mr. Rajendra Krishna, Advocate Mr. Jay Shankar Tiwary, Advocate Mr. Amit Sinha, Advocate Mr. Krishna Kumar, Advocate Mr. Pratyush Shounikya, Advocate ….. in Cr. Revision No.238 of 2020 Cr. Revision No.239 of 2020 Cr. Revision No.240 of 2020 Mr. Indrajit Sinha, Advocate Mr. Rajeev Kumar Sinha, Advocate ….. in Cr. Revision No.253 of 2020 Cr. Revision No.255 of 2020 Cr. Revision No.298 of 2020 For C.B.I. [in all cases] :- Mr. Anil Kumar, A.S.G.I. Ms. Chandana Kumari, A.C to A.S.G.I.
2
Mr. Nitish Parth Sarthi, A.C to A.S.G.I.
15 /C.A.V. On 25.07.2023 Pronounced On: 03 /08/2023
In all these criminal revision petitions arising out of common F.I.R as well as discharge order and that is why all these criminal revision petitions are heard together with consent of the parties.
3
met with one Sri Shyam Kishore Gupta, Director (Project) and Abdul Wahab, Administrative Officer but they did not provide him the possession and finally on 14.12.2011, the informant sent a Pleader Notice. Subsequently, the cheque has been issued by Shyam Kumar Gupta and Abdul Wahab on different dates given in the First Information Report. The aforesaid cheque was dishonored and the information for dishonor of cheque was given to the said persons by the informant. In the aforesaid manner, the informant has been cheated and a sum of Rs.6,85,000/- on the pretext of land as well as shop. Based on the aforesaid information, the First Information Report lodged in Lower Bazar Police Station and was numbered as FIR No. 120/12 dated 12.4.2012 for the offence under section 406,410 and 120B of the Indian Penal Code. The Investigating Officer (Police Officers) investigated the matter and the chargesheet has been submitted by the police after making complete investigation in which the petitioner was not charge-sheeted. The State Government thereafter took a decision for transferring the investigation relating to affairs of Sanjeeveni Buildcon, Ranchi to the C.B.I. and to that effect a Notification was issued on 15.1.2013 by the Government of Jharkhand under section 6 of the Delhi Special Police Establishment Act, 1946. Pursuant to the said notification, the S.P.,C.B.I., E.O.W., Ranchi has been re-registered a case vide R.C. Case No.7(S)/2013-EOWR dated 13.08.2013 and thereafter has taken up for the investigation.
4
No. B59, Deed No. 11401 dated 14.5.2010 at Pundag in the District of Ranchi and he has paid altogether 9 lakhs rupees but till the filing of the FIR neither the land was handed over to the complainant nor money was refunded. After hectic effort a sum of Rs. 4.5 lakhs was returned. There was a problem to refund the entire money along with interest but the said problem has not been fulfilled. The complainant was handed over two cheques of Rs.2 lakhs and one another cheque of Rs. 1,20,000/- but the said cheques represented in the bank which were dishonoured. The complainant thereafter approached the accused persons for refund of his money or for anything over the land in question but nothing was done by the accused persons. On the basis of the aforesaid complaint, the case has been lodged in Jagarnathpur Police Station. The aforesaid case has subsequently been transferred for investigation to the CBI, ACB, Ranchi by the State of Jharkhand vide Notification dated 15.1.2013 and accordingly the CBI has re-registered the said case vide Case No. RC 17 (s)/2013-R under section 406,420 and 34 of the IPC.
5
transfer of the said land persuaded the Informant to take back his money and subsequently returned Rs.4,50,000/- to the Informant and also issued different cheques of the remaining amount which could not be encashed due to insufficient fund in the account of the accused as such the Informant felt cheated and lodged the above F.I.R against Jayanti Lal Nandi Director Sanjivini Buildeon & Ors. It is further submitted that compliance of the order and Direction of Hon'ble High Court of Jharkhand in W.P (PIL) No. 3321/2012, the all matters having similar nature related with the above was referred to the Central Bureau of Investigation and accordingly the said case was also taken up by the CBI and registered as RC 17 (S)/2013-R.
6
the complainant. It has further been alleged that after making the entire payment towards the flat, the petitioner contacted Mr. Jayant Dayal Nandi at his office time and again and several times one Mr. Nandi and another employee Shyam Kumar Gupta assured to the complainant that the said work shall be done as soon as possible. M/s Sanjeevni Buildcon Pvt. Ltd. has issued an allotment letter which was handed over to the complainant on 08.06.2010 and the complainant was told that the sale deed has already been executed vide Deed No. 4232 dated 26.2.2010 for the Khata No. 155, R.S. Plot No. 841, Sub Plot No. B-75. The complainant has also been assured that the mutation shall be done within 10 days and thereafter the complainant shall be given the documents relating to the deed of mutation. The complainant waited for 2/3 months but M/s Sanjeevni Buildcon Pvt. Ltd. did not give him the sale deed or the documents for mutation and when the complainant/informant approached the office of M/s Sanjeevni Buildcon Pvt. Ltd. at Church Complex there he met Sri Jayant Dayal Nandi who again assured the complainant that the entire relevant document shall be handed over within a week. The complainant again visited the office of M/s Sanjeevni Buildcon Pvt. Ltd. in the month of November 2011 for the aforesaid document relating to the sale deed and mutation and there he met one Sri Shyam Kumar Gupta who finally told him (complainant) that the said land can not be sold to the complainant therefore M/s Sanjeevni Buildcon Pvt. Ltd. would return the money and accordingly three cheques were issued on different dates for different amount. The complainant has deposited the aforesaid two cheques in the Corporation Bank but the said cheques can not be encashed due to non-availability of fund. Accordingly, the complainant as alleged that he has been cheated by Mr. Jayant Lal Nandi for the amount of Rs. 5,37,000/-. On the basis of the aforesaid complaint, the FIR initially has been lodged in the Lower Bazar Police Station being P.S.Case No. 6 of 2012 dated 5.1.2012 under sections 406,420 and 120B of the IPC and Section 138 of the N.I. Act.
7
8
in relation to R.C.No.9(S)/2013-EOW-R dated 04.12.2019 was rejected by the learned Special Judge, C.B.I in Miscellaneous Criminal Application No.1279 of 2019, pending in that learned court.
9
Cr.Rev.No. 240 of 2020 arising out of R.C. Case No.3(S)/2013-EOW-R. He submitted that the learned Special Judge, C.B.I., Ranchi has taken cognizance by order dated 18.08.2015 against several persons including the petitioners for offence under section 13(2) read with section 1(d) of the Prevention of Corruption Act, 1988 and other sections of the I.P.C, particularly, section 420 and 120B of the I.P.C. He submitted that in these cases, cognizance was taken inspite of no evidence was found during investigation against the petitioners. By way of referring to charge sheet he submitted that one Sri Arvind Singh of Sanjeevani Buildcon Pvt. Ltd. has been given power of attorney of 15 decimals of land by Sri Mahesh Sahu and Ramdhani Sahu belongs to plot no.841, khata no.155, thana no.228 deed no.337 dated 20.02.2010. The said Sri Arvind Singh has sold the land to the persons giving in the chart at sl.no.1 to 12 initially and total land which was sold to the persons at sl.1 to 11 at page no.9 of the charge sheet, comes to 45.35 decimals and the aforesaid land has been mutated by the petitioners and admittedly there is no illegality in mutation of the said land. He submitted that thereafter the land sold to the persons at sl.no.12 and thereafter except 50 decimals of land of which Arvind Singh has been given power of attorney. The petitioner thereafter mutated the land at sl.no.13, 23 and 24 of the charge sheet which constituted total 11.71 decimals land. He submitted that in view of this fact, it is crystal clear that the petitioner has mutated total land admeasuring 57 decimals and admittedly Arvind Singh was authorized to sell only 50 decimals of land of khata no.155, plot no.841. He submitted that the said mutation was in light of sale deed executed. He submitted that in view of this fact the petitioner was only required to follow the procedure prescribed under section 14 of the Bihar Tenants Holding (Maintenance of Records) Act, 1973. He submitted that by way of following the procedure prescribed therein under the said sections, the petitioner has looked into the registered deed and record and found that the lands are there and that is why the petitioner has mutated the land. He submitted that in two
10
of the cases, the petitioner found that the land is not there, he has rejected the mutation. He further submits that the Karamchari has given the report and the Circle Inspector has forwarded to the petitioner and the petitioner has mutated the land. There is no illegality. He submitted that even there is no allegation of taking any bribe and the connivance is not made out and in view of that section 120B of the I.P.C is not attracted. He submitted that there is no allegation of connivance from the very beginning and section 420 I.P.C is not attracted. In this background, he submitted that it is a fit case that this Court may exercise its power and discharge the petitioner and to buttress his such argument, he relied in the case of C.K.Jaffer Sharief v. State (Through CBI), (2013) 1 SCC 205 . Replying on the judgment he submitted that the discharge petition was allowed arising out of Prevention of Corruption Act and based on that, in one of the case, Jharkhand High Court in Cr.M.P. No.2741 of 2013 by order dated 14.11.2014 the cognizance order has been pleased to be quashed. He submitted that on this background, the petitioner’s case is fit to be allowed. He further submitted that in R.C.Case No.17(S)/2023, the power of attorney was made for 40 decimals of land and three sale deeds, however, by the total 75.55 decimals land was transferred by M/s Sanjeevani Buildcon Pvt. Ltd. and total are of mutation is 117.89 decimals in favour of 27 different persons. In the charge sheet, it has been stated that total land of 77.55 decimals includes 40 decimals from the power of attorney and 35.55 decimals from two sale deeds out of 75.55 decimals and in view of 117.89 decimals of land has been mutated. He submitted that in R.C.Case No.3(S)/2013, the power of attorney no.513 dated 19.02.2010 was for 40 decimals of land which was the subject matter, however, the total area of mutation is 73.81 decimals in favour of 17 persons and the aforesaid 17 persons are also included in R.C.Case No.17(S)/2013. On these grounds, he submitted that the discharge petition so far as the petitioner is concerned has passed the order of mutation only in the official capacity and he has followed the procedure, which
11
is also admitted in charge sheet and in view of that, the petitioner may kindly be discharged.
12
the Circle Officer Ratu, the post which the petitioner was holding. He submitted that the petitioner after following the procedure under the said Act, mutated the land and it is alleged that excess mutation of 3.27 decimal has been made. He submitted that thus, excess mutation of 7.21 decimal of land is alleged to be ordered by the petitioner. He submitted that the learned court has already framed the charge against the petitioner. He submitted that no case is made out under the Prevention of Corruption Act as well as under the sections of I.P.C and inspite of that, the petitioner has not been discharged and the charge has been framed. He submitted that the said entries are made pursuant to fiscal purpose and subsequently right and title of ownership can only be decided by the competent civil court and to buttress his such argument, he relied in the case of Rajinder Singh v. State of Jammu and Kashmir and Others, (2008) 9 SCC 368. Paragraph no.17 of the said judgment is quoted below:
“ 17. It is well settled that revenue records confer no title on the party. It has been recently held by this Court in Suraj Bhan v. Financial Commr. [(2007) 6 SCC 186] that such entries are relevant only for “fiscal purpose” and substantive rights of title and of ownership of contesting claimants can be decided only by a competent civil court in appropriate proceedings.”
State of Madhya Pradesh and Others, 2021 SCC OnLine SC 802 .
Paragraph nos.7 and 8 of the said judgment are quoted below:
“ 7. Right from 1997, the law is very clear. In the case of Balwant Singh v. Daulat Singh (D) By Lrs., reported in (1997) 7 SCC 137, this Court had an occasion to consider the effect of mutation and it is observed and held that mutation of property in revenue records neither creates nor extinguishes title to the property nor has it any presumptive value on title. Such entries are relevant only for the purpose of collecting land revenue. Similar view has been expressed in the series of decisions thereafter.
8. In the case of Suraj Bhan v. Financial Commissioner, (2007) 6 SCC 186, it is observed and held by this Court that an entry in revenue records does not confer title on a person whose name appears in record-of-rights. Entries in the revenue records or jamabandi have only “fiscal purpose”, i.e., payment of land
13
revenue, and no ownership is conferred on the basis of such entries. It is further observed that so far as the title of the property is concerned, it can only be decided by a competent civil court. Similar view has been expressed in the cases of Suman Verma v. Union of India, (2004) 12 SCC 58; Faqruddin v. Tajuddin, (2008) 8 SCC 12; Rajinder Singh v. State of J&K, (2008) 9 SCC 368; Municipal Corporation, Aurangabad v. State of Maharashtra, (2015) 16 SCC 689; T. Ravi v. B. Chinna Narasimha, (2017) 7 SCC 342; Bhimabai Mahadeo Kambekar v. Arthur Import & Export Co., (2019) 3 SCC 191; Prahlad Pradhan v. Sonu Kumhar, (2019) 10 SCC 259; and Ajit Kaur v. Darshan Singh, (2019) 13 SCC 70.”
considering that if two views are possible; one of them gives rise to suspicion only, the petitioner can be discharged and to buttress his such argument, he
relied in the case of M.E. Shivalingamurthy v. C.B.I, (2020) 2 SCC 768 .
Paragraph nos.17 (i) to 17 (viii) of the said judgment are quoted below:
“ 17.1. If two views are possible and one of them gives rise
to suspicion only as distinguished from grave suspicion, the trial Judge would be empowered to discharge the accused.
17.2. The trial Judge is not a mere post office to frame the charge at the instance of the prosecution.
17.3. The Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding. Evidence would consist of the statements recorded by the police or the documents produced before the Court.
17.4. If the evidence, which the Prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, “cannot show that the accused committed offence, then, there will be no sufficient ground for proceeding with the trial”.
17.5. It is open to the accused to explain away the materials giving rise to the grave suspicion.
17.8. There must exist some materials for entertaining the strong suspicion which can form the basis for drawing up a charge and refusing to discharge the accused.
17.7. At the time of framing of the charges, the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution, has to be accepted as true.
17.6. The court has to consider the broad probabilities, the total effect of the evidence and the documents produced before the court, any basic infirmities appearing in the case and so on. This, however, would not entitle the court to make a roving inquiry
14
into the pros and cons.”
“ 33. Section 420IPC defines “cheating and dishonestly inducing delivery of property” which reads as under:
“ 420. Cheating and dishonestly inducing delivery of property .—Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”
35. To establish the offence of cheating in inducing the delivery of property, the following ingredients need to be proved:
(i) The representation made by the person was false. (ii) The accused had prior knowledge that the representation he made was false.
(iii) The accused made false representation with dishonest intention in order to deceive the person to whom it was made.
(iv) The act where the accused induced the person to deliver the property or to perform or to abstain from any act which the person would have not done or had otherwise committed.”
Narayana Rao, (2012) 9 SCC 512 . In this background, he submitted that
the allegations against the petitioner are only of mutating more land and this
15
has happened after following the procedure prescribed under Bihar Tenants Holding (Maintenance of Records), Act, 1973 on the basis of the report of Halka Karamchari and the Circle Inspector and in view of that, the criminality is not made out from the very beginning and there is no allegation that the connivance with M/s Sanjeevani Buildcon Pvt. Ltd of the petitioner was there, and in view of that, the petitioner may kindly be discharged.
16
given and after being frustrated Dr. Uma Shankar Prasad Shrivastava asked Shyam Kishore Gupta to refund the whole amount and for that given allotment letter dated 02.08.2010 to Dr. Uma Shankar Prasad Shrivastava show allotment of plot no.B/86, at Aishwarya Residency, IInd Phase, Pundag at R.S. plot no.841, khata no.155, however, mutation of the said plot was not made. When Dr. Uma Shankar Prasad Shrivastava realized that false assurance is made, he visited several times and requested for refund of money. On 03.02.2011 he called Sri S.Nandi, Head of M/s Sanjeevani Buildcon Pvt. Ltd. and requested for refund of money. Sri Nandi assured to register another plot but all the assurance went in vein and legal notice was served on Sri Shyam Kishore Gupta by Dr. Uma Shankar Prasad Shrivastava. Responding to that legal notice, Sri Shyam Kishore Gupta handed over five post-dated cheques amounting to Rs.6,85,000/- on 20.12.2011 to Dr. Uma Shankar Prasad Shrivastava. All the original receipts of M/s Sanjeevani Buildcon Pvt. Ltd. was taken back by Sri Shyam Kishore Gupta and consequently the said cheques were bounced back due to insufficient balance. Finally, Dr. Uma Shankar Prasad Shrivastava has realized that the accused persons such as, Smt. Anamika Nandi, Sri Arvind Kumar Singh, Sri Shyam Kishore Gupta and Abdul Wahab have cheated him. He lodged the F.I.R on 12.04.2012 under section 120B, 406, 420 I.P.C under section 138 of Negotiable Instruments Act, 1882 with Lower Bazar Police Station, District Ranchi against the above mentioned accused persons. At the same time the cases under section 138 of the Negotiable Instruments Act, 1882 have been instituted against Sri Shyam Kishore Gupta and Abdul Wahab in Civil Court, Ranchi. He submitted that in these background, the case handed over to C.B.I and the C.B.I has investigated the matter and it was further found which has come in the charge sheet that Sri Mahesh Sahu and Ramdhani Sahu having share of each 54 decimals of land in the above plot in this way both were having total share of 1.08 acres of land, apart from Vanshawali Partition Suit No.30 of 2002 has
17
already been decided by the court of Sub-Judge-VI, Ranchi in this regard. In view of that, the Court’s order, Mahesh Sahu was given a share of 1.04 acres of land and Sri Ramdhani Sahu has been given a share of 1.03.50 acres of land in above plot. In view of that, Mahesh Sahu and brother Ramdhani Sahu who are having ownership of minimum 1.04 acres land each in above plot, however, Mahesh Sahu and Ramdhani Sahu gave power of attorney of 50 decimals of land belonging to plot no.841, khata no.155 to Sri Arvind Singh, s/o Ram Daresh Singh of M/s Sanjeevani Buildcon Pvt. Ltd. vide deed no.337 dated 10.02.2010. He submitted that Arvind Singh of M/s Sanjeevani Buildcon Pvt. Ltd in criminal conspiracy with Sri Shahdeo Mehra executed 57 sale deeds in the office of District Sub Registrar, Ranchi on the strength of power of attorney which has been disclosed in the judgment and Sri Arvind Singh in that way sold 245.97 decimals of land against the ownership of 50 decimals and after execution of 57 sale deeds in the name of different purchasers belong to the said plot 24 mutation order has been issued by Ratu, Nagri, Circle Officer which is disclosed in the charge sheet and in this way officials of Circle Officer, Ratu and Nagri issued mutation order for 105.32 decimals land against 50 decimals of land belonging to plot no.841, khata no.155, thana no.228, Mauza-Pundag. He submitted that details of the mutation order passed by the different officials are disclosed in the charge sheet. He further submitted that the officials concerned has issued 75 mutation orders covering total area of 3.33 acres land against total available area of 3.24 acres of land in plot no.841, khata no.155, thana no.228, Mauza-Pundag. He submitted that the other records of Circle Officer being maintained and in any case the area of mutation should not exceed the area of land if the area of mutation exceeds the area of land the respective Circle Officer, Circle Inspector and Rajasva Karamchari are fully responsible. In this background he submitted that criminal conspiracy with Anamika Nandi, Sri Jayant Dayal Nandi, Sri Arvind Kumar Singh and Sri Shyam Kishore Gupta in criminal conspiracy with each other and
18
also with Sri Pradip Xalxo, Sri Shyam Sunder Nath Rai, Sri Rajiv Ranjan and Sri Krishna Kumar and in pursuance thereof mutation order of a total area of 105.32 decimals lands was made against the permissible limit of 50 decimals land against Sri Pradeep Xalxo, Sri Shyam Sundar Nath Rai, Sri Rajiv Ranjan and Sri Krishna Kumar in criminal conspiracy with each other and also with Smt. Anamika Nandi, Sri Jayant Dayal Nandi with Navin Kumar Singh and Sri Shyam Kishore Gupta issued mutation order for a total area of 3.33 acres of land against the available area of 3.24 acres land and the criminal conspiracy to that effect so far Krishna Kumar is concerned is also made out. He being the Circle Officer of Nagri Circle ordered for mutation of 14 plots covering total area of 57.06 decimals land belonging to plot no.841, khata no.155, thana no. 228, Mauza-Pundag which was over and above the permissible limit of maximum 50 decimals land should have been mutated in the above plot. The area of mutation cannot exceed without connivance of the Circle Officer. He submitted that during 2009-2010 Sri Omprakash Yadav was posted and functioning as Circle Officer, Ratu. He has ordered mutation in 19 cases as against the actual holding of 35.55 decimals of land by Smt. Anamika Nandi of M/s Sanjeevani Buildcon Pvt. Ltd., Ranchi. Sri Omprakash Yadav has ordered mutation of 39.49 decimals land in plot no.841, khata no.155, Mauza-Pundag as against the actual holding of 40 decimals of land Sri Arvind Singh of M/s Sanjeevani Buildcon Pvt. Ltd, Sri Omprakash Yadav ordered mutation of 30.43 decimals land at plot no.841, khata no.155 which was excess. He further submitted that in other cases the identical is the situation and connivance of the petitioners who are Circle Officers are made out. He submitted that this is not a case that in absence of any connivance the excess mutation was made. He further submitted that the judgment relied by the learned counsel for the petitioners are on different facts and those are not helping the petitioners. He submitted that the learned court has already framed the charge and at this stage this Court may not interfere as they have earlier moved before this
19
Court before passing of the order taking cognizance and in some of the cases the petitioners have moved before this Court for quashing of the entire criminal proceeding including the order taking cognizance which was dismissed and pursuant to that the discharge petitions have been filed and the learned court has rightly rejected the same. He further submits that there are restrictions in discharging the petitioners under section 227 of the Cr.P.C and at this stage a roving enquiry is not required. He submitted that recently the Hon’ble Supreme Court has also held in the case of Ghulam Hassan Beigh
v. Mohammad Maqbool Magrey and Others [arising out of S.L.P.
(Criminal) No.4599 of 2021] . He further submitted that discharge petition was again considered by the Hon’ble Supreme Court in the case of State,
through Deputy Superintendent of Police v. R. Soundirarasu, etc.,
2022 0 AIR (SC) 4218 and the law on this point has been considered in that case. He referred to the paragraph nos.61, 72, 75, 76 and 81 of the said judgment which are quoted below:
“ 61. Section 239CrPC lays down that if the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused. The word “groundless”, in our opinion, means that there must be no ground for presuming that the accused has committed the offence. The word “groundless” used in Section 239CrPC means that the materials placed before the court do not make out or are not sufficient to make out a prima facie case against the accused.
72. The ambit and scope of exercise of power under Sections 239 and 240CrPC, are therefore fairly well-settled. The obligation to discharge the accused under Section 239 arises when the Magistrate considers the charge against the accused to be “groundless”. The section mandates that the Magistrate shall discharge the accused recording reasons, if after : (i) considering the police report and the documents sent with it under Section 173, (ii) examining the accused, if necessary, and (iii) giving the prosecution and the accused an opportunity of being heard, he considers the charge against the accused to be groundless i.e. either there is no legal evidence or that the facts are such that no offence is made out at all. No detailed evaluation of the materials or meticulous consideration of the possible defences need be undertaken at this stage nor any exercise of weighing materials in golden scales is to be undertaken at this stage — the only
20
consideration at the stage of Sections 239/240 is as to whether the allegation/charge is groundless.
75. Thus, the revisional power cannot be exercised in a casual or mechanical manner. It can only be exercised to correct manifest error of law or procedure which would occasion injustice, if it is not corrected. The revisional power cannot be equated with the appellate power. A Revisional Court cannot undertake meticulous examination of the material on record as it is undertaken by the trial court or the appellate court. This power can only be exercised if there is any legal bar to the continuance of the proceedings or if the facts as stated in the charge-sheet are taken to be true on their face value and accepted in their entirety do not constitute the offence for which the accused has been charged. It is conferred to check grave error of law or procedure.
76. Thus, the revisional power cannot be exercised in a casual or mechanical manner. It can only be exercised to correct manifest error of law or procedure which would occasion injustice, if it is not corrected. The revisional power cannot be equated with the appellate power. A Revisional Court cannot undertake meticulous examination of the material on record as it is undertaken by the trial court or the appellate court. This power can only be exercised if there is any legal bar to the continuance of the proceedings or if the facts as stated in the charge-sheet are taken to be true on their face value and accepted in their entirety do not constitute the offence for which the accused has been charged. It is conferred to check grave error of law or procedure.
81. In the overall view of the matter, we are convinced that the impugned orders passed by the High Court are not sustainable in law and deserve to be set aside. The circumstances emerging from the record of the case, prima facie, indicate the involvement of the accused persons in the alleged offence. Having regard to the materials on record, it cannot be said that the charge against the accused persons is groundless. There are triable issues in the matter. If there are triable issues, the court is not expected to go into the veracity of the rival versions.”
21
conspiring with the others including the petitioners which has been revealed in the charge sheet. In the charge sheet the action of the petitioners have been discussed elaborately in all the cases and the learned counsel for the petitioners have also admitted in their argument that they have done excess mutation of the plot in question. The question remains that as to whether in absence of their connivance along with M/s Sanjeevani Buildcon Pvt. Ltd. the said mutation can be done or not? It appears that Circle Inspectors have also been charge sheeted which suggest that all were in connivance of such excess mutation of the plot in question. The discharge petition was the subject matter before the Hon’ble Supreme Court in the case of State of Tamilnadu, by
Inspector of Police in Vigilance and Anti Corruption v. N. Suresh
Rajan and Others, (2014) 11 SCC 709, wherein paragraph no.29, 32.4, 33
and 34 has held as under:
“ 29. We have bestowed our consideration to the rival submissions and the submissions made by Mr Ranjit Kumar commend us. True it is that at the time of consideration of the applications for discharge, the court cannot act as a mouthpiece of the prosecution or act as a post office and may sift evidence in order to find out whether or not the allegations made are groundless so as to pass an order of discharge. It is trite that at the stage of consideration of an application for discharge, the court has to proceed with an assumption that the materials brought on record by the prosecution are true and evaluate the said materials and documents with a view to find out whether the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage.
32.4. While passing the impugned orders [N. Suresh Rajan v. Inspector of Police, Criminal Revision Case (MD) No. 528
22
of 2009, order dated 10-12-2010 (Mad)] , [State v. K. Ponmudi, (2007) 1 MLJ (Cri) 100] , the court has not sifted the materials for the purpose of finding out whether or not there is sufficient ground for proceeding against the accused but whether that would warrant a conviction. We are of the opinion that this was not the stage where the court should have appraised the evidence and discharged the accused as if it was passing an order of acquittal. Further, defect in investigation itself cannot be a ground for discharge. In our opinion, the order impugned [N. Suresh Rajan v. Inspector of Police, Criminal Revision Case (MD) No. 528 of 2009, order dated 10-12-2010 (Mad)] suffers from grave error and calls for rectification.
33. Any observation made by us in this judgment is for the purpose of disposal of these appeals and shall have no bearing on the trial. The surviving respondents are directed to appear before the respective courts on 3-2-2014. The Court shall proceed with the trial from the stage of charge in accordance with law and make endeavour to dispose of the same expeditiously.
34. In the result, we allow these appeals and set aside the order of discharge with the aforesaid observations.”
“ 10. Thus, on a consideration of the authorities mentioned
above, the following principles emerge:
(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.
(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.
23
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a Post Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.”
SCC 368 , wherein at paragraph no.21 it has been held as under:
“ 21. On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge:
(i) The Judge while considering the question of framing the charges under Section 227 CrPC has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case.
(ii) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing a charge and proceeding with the trial.
(iii) The court cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
(iv) If on the basis of the material on record, the court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.
(v) At the time of framing of the charges, the probative value
24
of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.
(vi) At the stage of Sections 227 and 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.
(vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal.”
Investigation Agency, (2019) 7 SCC 148 , that mini trial is not expected by the trial court for the purpose of marshaling the evidence on record at the time of framing of record. It has been held at paragraph no.18 of the said judgment as under:
“ 18. Taking note of the exposition of law on the subject laid down by this Court, it is settled that the Judge while considering the question of framing charge under Section 227 CrPC in sessions cases (which is akin to Section 239 CrPC pertaining to warrant cases) has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; where the material placed before the court discloses grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing the charge; by and large if two views are possible and one of them giving rise to suspicion only, as distinguished from grave suspicion against the accused, the trial Judge will be justified in discharging him. It is thus clear that while examining the discharge application filed under Section 227 CrPC, it is expected from the trial Judge to exercise its judicial mind to determine as to whether a case for trial has been made out or not. It is true that in such proceedings, the court is not supposed to hold a mini trial by marshalling the evidence on record.”
application for discharge the court must proceed on the assumption that the
25
materials which have been brought on record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the materials taken on its face value discloses the existence of the ingredients or not as has been held in the case of State of Karnataka v. M.R. Hiremath, (2019) 7 SCC 515. In view of the above the trial court is required to apply its mind at the time of framing of charge and will not act as mere post office and at the same time the court is also not required to made a mini trial and if the satisfaction to that effect is there that there are materials to frame the charge, the discharge petition is not to be maintained. It is further well settled that defence on merit is not to be considered at the time of stage of framing of charge and that cannot be a ground of discharge. A reference may be made to the case of State of Rajasthan v. Ashok Kumar Kashyap, (2021) 11 SCC 191 . Paragraph no.10 to 17 of the said judgment are quoted below:
“ 10. By the impugned judgment [Ashok Kumar Kashyap v. State of Rajasthan, 2018 SCC OnLine Raj 3468] and order, the High Court in exercise of its revisional jurisdiction has set aside the order passed by the learned Special Judge framing the charge against the accused under Section 7 of the PC Act and consequently has discharged the accused for the said offence. What has been weighed with the High Court while discharging the accused is stated in paras 10 and 11 of the impugned judgment [Ashok Kumar Kashyap v. State of Rajasthan, 2018 SCC OnLine Raj 3468] and order, which are reproduced hereinabove.
11. While considering the legality of the impugned judgment [Ashok Kumar Kashyap v. State of Rajasthan, 2018 SCC OnLine Raj 3468] and order passed by the High Court, the law on the subject and few decisions of this Court are required to be referred to.
11.1. In P. Vijayan [P. Vijayan v. State of Kerala, (2010) 2 SCC 398 : (2010) 1 SCC (Cri) 1488] , this Court had an occasion to consider Section 227 CrPC What is required to be considered at the time of framing of the charge and/or considering the discharge application has been considered elaborately in the said decision. It is observed and held that at the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. It is observed that in other words, the sufficiency of grounds would take within its fold the nature of the evidence recorded by the
26
police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him. It is further observed that if the Judge comes to a conclusion that there is sufficient ground to proceed, he will frame a charge under Section 228 CrPC, if not, he will discharge the accused. It is further observed that while exercising its judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution, it is not necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the court, after the trial starts.
11.2. In the recent decision of this Court in M.R. Hiremath [State of Karnataka v. M.R. Hiremath, (2019) 7 SCC 515 : (2019) 3 SCC (Cri) 109 : (2019) 2 SCC (L&S) 380] , one of us (D.Y. Chandrachud, J.) speaking for the Bench has observed and held in para 25 as under : (SCC p. 526)
“25. The High Court [M.R. Hiremath v. State, 2017 SCC OnLine Kar 4970] ought to have been cognizant of the fact that the trial court was dealing with an application for discharge under the provisions of Section 239 CrPC. The parameters which govern the exercise of this jurisdiction have found expression in several decisions of this Court. It is a settled principle of law that at the stage of considering an application for discharge the court must proceed on the assumption that the material which has been brought on the record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary to constitute the offence. In State of T.N. v. N. SureshRajan [State of T.N. v. N. Suresh Rajan, (2014) 11 SCC 709 : (2014) 3 SCC (Cri) 529 : (2014) 2 SCC
(L&S) 721] , adverting to the earlier decisions on the subject, this Court held : (SCC pp. 721-22, para 29)
‘29. … At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage.’ ”
12. We shall now apply the principles enunciated above to the
27
present case in order to find out whether in the facts and circumstances of the case, the High Court was justified in discharging the accused for the offence under Section 7 of the PC Act.
13. Having considered the reasoning given by the High Court and the grounds which are weighed with the High Court while discharging the accused, we are of the opinion that the High Court has exceeded in its jurisdiction in exercise of the revisional jurisdiction and has acted beyond the scope of Section 227/239 CrPC. While discharging the accused, the High Court has gone into the merits of the case and has considered whether on the basis of the material on record, the accused is likely to be convicted or not. For the aforesaid, the High Court has considered in detail the transcript of the conversation between the complainant and the accused which exercise at this stage to consider the discharge application and/or framing of the charge is not permissible at all.
14. As rightly observed and held by the learned Special Judge at the stage of framing of the charge, it has to be seen whether or not a prima facie case is made out and the defence of the accused is not to be considered. After considering the material on record including the transcript of the conversation between the complainant and the accused, the learned Special Judge having found that there is a prima facie case of the alleged offence under Section 7 of the PC Act, framed the charge against the accused for the said offence. The High Court materially erred in negating the exercise of considering the transcript in detail and in considering whether on the basis of the material on record the accused is likely to be convicted for the offence under Section 7 of the PC Act or not.
15. As observed hereinabove, the High Court was required to consider whether a prima facie case has been made out or not and whether the accused is required to be further tried or not. At the stage of framing of the charge and/or considering the discharge application, the mini trial is not permissible. At this stage, it is to be noted that even as per Section 7 of the PC Act, even an attempt constitutes an offence. Therefore, the High Court has erred and/or exceeded in virtually holding a mini trial at the stage of discharge application.
16. We are not further entering into the merits of the case and/or merits of the transcript as the same is required to be considered at the time of trial. Defence on merits is not to be considered at the stage of framing of the charge and/or at the stage of discharge application.
17. In view of the above and for the reasons stated above, the impugned judgment [Ashok Kumar Kashyap v. State of Rajasthan, 2018 SCC OnLine Raj 3468] and order passed by the High Court
28
discharging the accused under Section 7 of the PC Act is unsustainable in law and the same deserves to be quashed and set aside and is accordingly hereby quashed and set aside and the order passed by the learned Special Judge framing charge against the accused under Section 7 of the PC Act is hereby restored. Now the case is to be tried against the accused by the competent court for the offence under Section 7 of the PC Act, in accordance with law and its own merits.”
Narayan and Another, (1999) 8 SCC 741. The essential ingredients for the offence of criminal conspiracy are-, (i) an agreement between two or more person, (ii) the agreement must relate to doing or causing to be done either-, (a) an illegal act, or (b) an act which is not illegal in itself, but is done by illegal means. Thus, the plain minds of two or more persons meeting for doing or causing to be done an illegal act or an act by illegal means is sine qua non of criminal conspiracy. It is extremely difficult to adduce direct evidence to prove conspiracy, existence of conspiracy and its objectives can be inferred from the surrounding circumstances and the conduct of the accused. On perusal of section 13(1)(d), (ii) and (iii) of the Prevention of Corruption Act it is crystal clear that if the elements of any of the three sub clauses are made, the same would be sufficient to constitute an offence of criminal misconduct undoubtedly all three wings of clause(d) of section 13(i) are independent, alternative and disjunctive. Thus, under section 13(1)(d)(i) of the P.C.Act obtaining any valuable thing or pecuniary advantage by corrupt or illegal means by a public servant itself would amount to criminal misconduct. On the same reasoning under section 13(1)(d)(ii) of the P.C.Act obtaining a valuable thing or pecuniary advantage by abusing his official position as a public servant either for himself or for any other person would amount to criminal
29
misconduct.
30
the criminality and corruption was not the subject matter and that judgment is not helping the petitioner. In the case of M.E. Shivalingamurthy (supra), the petitioner of that case was acted on the basis of past practice of the Department. He has spoken with the Deputy Director (Legal) and acted on his advice. The discharge petition was allowed by the learned trial court which was reversed by the High Court and the same was the subject matter before the Hon’ble Supreme Court and the Hon’ble Supreme Court has held that at that stage, in view of principle of discharge, the High Court has rightly setaside and the order of the High Court was affirmed and the said case was dismissed and for coming to the ratio of the case the entire facts of the case is required to be considered and the learned counsel has only relied on certain paragraphs of the said judgment which is not helping the petitioner. In the case relied by the learned counsel Mr. Indrajit Sinha, in Dipakbhai Jagdishchandra Patel (supra), it has also been held that all that is required the court must satisfy that on the materials available the case is made out for the accused to send for trial, a strong suspicion suffices, however, a strong suspicion must be founded on some material. In the case in hand, the materials are there in the charge sheet and in the facts of that case, the materials were not there and that is why the Hon’ble Supreme Court had discharged the petitioner. Thus, that judgment is not helping the petitioner. In the case of C.K.Jaffer Sharief (supra), relied by Mr. Rajendra Krishna as well as Mr. Indrajit Sinha, the learned counsels appearing on behalf of the petitioners, the Hon’ble Supreme Court found that four persons while in London had assisted the appellant of that case in performing certain task connected with the discharge of duties as a Minister and in that view of the matter, the Hon’ble Supreme Court found that it is difficult to visualize as to how in light of that facts demonstrated by the materials revealed in the course of investigation, the petitioner of that case can be construed to have adopted corrupt or illegal or to have abused his position as a public servant to obtain
31
any valuable thing or pecuniary advantage either for himself or for any of the four of the accused persons and in that view of the matter, that order has been passed which is not helping the petitioner. In Cr.M.P. No.2741 of 2012 relied by Mr. Rajendra Krishna, the learned counsel for the petitioner, the mutation was with regard to scheduled area under the Chotanagpur Tenancy Act. The Court found that had the petitioners would have recommended and forwarded with knowledge that the purchaser was not having any land in that area he would have certainly liable to be prosecuted with the criminal offence as in that event both the ingredients of a crime actus reus and mens rea would have been completed. Here only actus reus was found on the part of the petitioner and in view of that the cognizance order was quashed. In the case in hand after a detailed enquiry the connivance of the petitioners has come in the charge sheet and thereafter the learned court has rejected the discharge petition. The said case is also not helping the petitioners.
32
the principles of discharge, the Court is not inclined to interfere in all these criminal revision petitions. Further considering that the corruption has spread its tentacles in almost all the key areas of the State and it is an impediment to growth and development of the country. There has to be unrelenting stern action by all the concerns, particularly, in government and there should be public awareness against corruption.
( Sanjay Kumar Dwivedi, J.)
Jharkhand High Court, Ranchi Dated : 03/08/2023 A.F.R./SI,
3 issues framed by the court
Whether the High Court can interfere and allow discharge petitions at the stage of criminal revision under Section 439 Cr.P.C. when allegations of criminal conspiracy exist.
Whether the principle of 'mini trial' prohibits the High Court from setting aside the charge framing order while considering a criminal revision petition regarding mutation irregularities.
Whether the material on record discloses sufficient suspicion and prima facie case of criminal conspiracy and corruption against the petitioners justifying the dismissal of discharge petitions.
Colour shows how this judgement treated each authority
C.K. Jaffer Sharief v. State (Through CBI)Referred¶43
C.K. Jaffer Sharief v. State (Through CBI), (2013) 1 SCC 205 · Who else cites this
Rajinder Singh v. State of Jammu and Kashmir and OthersDistinguished¶48
Rajinder Singh v. State of Jammu and Kashmir and Others, (2008) 9 SCC 368 · Who else cites this
Jitendra Singh v. State of Madhya Pradesh and OthersDistinguished¶52
Jitendra Singh v. State of Madhya Pradesh and Others, 2021 SCC OnLine SC 802 · Who else cites this
M.E. Shivalingamurthy v. C.B.IDistinguished¶60
M.E. Shivalingamurthy v. C.B.I, (2020) 2 SCC 768 · Who else cites this
Dipakbhai Jagdishchandra Patel v. State of GujaratDistinguished¶61
Dipakbhai Jagdishchandra Patel v. State of Gujarat, (2019) 16 SCC 547 · Who else cites this
Vijay Kumar Ghai v. State of West BengalDistinguished¶61
Vijay Kumar Ghai v. State of West Bengal, (2022) 7 SCC 124 · Who else cites this
C.B.I v. K. Narayana RaoReferred¶80
C.B.I v. K. Narayana Rao, (2012) 9 SCC 512 · Who else cites this
Ghulam Hassan Beigh v. Mohammad Maqbool MagreyReferred¶94
Ghulam Hassan Beigh v. Mohammad Maqbool Magrey and Others
State through Deputy Superintendent of Police v. R. SoundirarasuReferred¶96
State through Deputy Superintendent of Police v. R. Soundirarasu, 2022 0 AIR (SC) 4218 · Who else cites this
State of Tamil Nadu v. N. Suresh Rajan and OthersApplied¶109
State of Tamil Nadu, by Inspector of Police in Vigilance and Anti Corruption v. N. Suresh Rajan and Others, (2014) 11 SCC 709
Union of India v. Prafulla Kumar Samal and AnotherReferred¶119
Union of India v. Prafulla Kumar Samal and Another, (1979) 3 SCC 4 · Who else cites this
Sajjan Kumar v. CBIReferred¶127
Sajjan Kumar v. CBI, (2010) 9 SCC 368 · Who else cites this
Asim Shariff v. National Investigation AgencyReferred¶139
Asim Shariff v. National Investigation Agency, (2019) 7 SCC 148 · Who else cites this
State of Karnataka v. M.R. HiremathApplied¶142
State of Karnataka v. M.R. Hiremath, (2019) 7 SCC 515 · Who else cites this
State of Rajasthan v. Ashok Kumar KashyapReferred¶145
State of Rajasthan v. Ashok Kumar Kashyap, (2021) 11 SCC 191 · Who else cites this
P. Vijayan v. State of KeralaReferred¶148
P. Vijayan v. State of Kerala, (2010) 2 SCC 398 · Who else cites this
State of Uttar Pradesh v. Uday Narayan and AnotherReferred¶165
State of Uttar Pradesh v. Uday Narayan and Another, (1999) 8 SCC 741 · Who else cites this
5 provisions across 3 enactments
Krishna Kumar
Om Prakash Yadav
Union of India
Sanjay Kumar Dwivedi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
