Partly allowed

Padam Data S/O Shri Ram Vilas Data B/C Mahajan v. State of Rajasthan through Pp

Rajasthan HC23 May 2024CRLR/147/2019

Case brief

AI extract

What is this about?

The High Court partly allowed the revision petitions, holding that the Special Judge framed the charge without application of mind. The order was quashed and the matter remanded to the trial court to pass a reasoned speaking order in accordance with Section 228 CrPC.

What did the court decide?

Impugned order dated 11.10.2018 quashed; matters remitted to the trial court to pass a fresh reasoned order.

Padam Data S/O Shri Ram Vilas Data B/C Mahajan Vs State of… — Corruption | Rajasthan HC (2024)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Criminal Revision Petition No. 2263/2018

¶3

Ramesh Tomar S/o Late Charan Singh, R/o 4-Ta-22 Jawahar Nagar Jaipur

¶4

----Petitioner

¶5

Versus

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State Of Rajasthan Through Pp, Raj.

¶7

----Respondent

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Connected With

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S.B. Criminal Revision Petition No. 147/2019

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Padam Data S/o Shri Ram Vilas Data, Ramjikripa Kherthal Ward No 7 Kherthal Dist. Alwar

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----Petitioner

¶12

Versus

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State Of Rajasthan Through PP, Raj.

¶14

----Respondent

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For Petitioner(s) : Mr. Dinesh Kala For Respondent(s) : Mr. Imran Khan, PP

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HON'BLE MR. JUSTICE ANOOP KUMAR DHAND

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Order

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23/05/2024

¶19

Both these petitions are arising out of the impugned order dated 11.10.2018 passed by the Special Judge, Prevention of Corruption Act, Alwar in Criminal Case No.12/2017 by which charges framed against the petitioners for the offence under Section 13(1)(D) and 13(2) of the Prevention of Corruption Act read with Section 120B IPC.

¶20

[CRLR-2263/2018]

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(2 of 12)

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With the consent of counsel for the parties, both these matters are taken up together and are being decided by this common order.

¶23

Learned counsel for the petitioner submits that while framing charges against the petitioner Ramesh Tomar it has been alleged that he was holding the post of Environment Engineer at the time of alleged incident. Counsel submits that petitioner was not holding the post of Environment Engineer while he was holding the post of Regional Officer in the Rajasthan State Pollution Control Board even otherwise also, the ingredients of the alleged offence under Section 13 of the Prevention of Corruption Act are not made out looking to the evidence collected by the Investigating Agency. Counsel submits that without application of mind and without passing reasoned and speaking order, impugned order has been passed in casual way without recording specific finding that in what manner the charges under Section 13 of the Prevention of Corruption Act and Section 120B IPC is made out against the petitioners for proceeding against them for the above offences. In support of his contentions, he has placed reliance upon the judgment passed by the Hon’ble Apex Court in the case of CK Jaffar Sharief vs. State reported in 2012 (10) SCR 1079 and Neeraj Dutta vs. State (Govt. of NCT of Delhi) reported in 2023 (2) SCR 997. Counsel submits that under these circumstances, interference of this Court is warranted.

¶24

[CRLR-2263/2018]

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(3 of 12)

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Per contra, learned Public Prosecutor opposed the prayer and submitted that looking to the offence committed by the accused petitioners and looking to the evidence collected against them, the trial Court has rightly framed charges against them for the offence under Section 13 of the Prevention of Corruption Act read with Section 120B IPC. Counsel submits that at the stage of framing of charge only prima facie case is required to be seen and at this stage the Court is not expected to meticulously appreciate the evidence available on the record, hence under these circumstances, a cogent order has been passed by the trial Court which requires any interference of this Court.

¶27

Heard and considered the submissions made at Bar and perused the material available on the record.

¶28

After going through the order impugned dated 11.10.2018 and the formal order of framing charge against the petitioner Ramesh Tomar, this fact has come into the notice of this Court that the petitioner Ramesh Tomar was holding the post of Regional Officer in Rajasthan State Pollution Control Board while passing the formal order of framing charge against the petitioner his post has been mentioned as Environment Engineer. In the considered opinion of this Court, the charge order is defective and the same has been passed without application of mind.

¶29

It is settled proposition of law that at the time of framing of charge, the Court below is expected to pass reasoned and cogent order on the basis of the evidence

¶30

[CRLR-2263/2018]

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(4 of 12)

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available on the record. In the instant case, without looking into the material collected by the Investigating Agency, straightway the order impugned has been passed.

¶33

A prima facie opinion is required to be noted for passing the order impugned by passing a reasoned and speaking order.

¶34

This Court while dealing with the issue of hearing on the point of charge, has passed an order in the matter H.G. Grover Vs. State of Rajasthan (S.B. Criminal Revision Petition No.1356/2022 decided on 08.12.2022) . The relevant part ofthe order is being reproduced as under:-

¶35

The charges are proposed to be framed on the relevant material available on record. It is not to be seen that whether the evidence produced on record is sufficient to record conviction or not, thus, probative value of defence is not required to be seen but at the very least, application of mind to see the sufficiency of material on record is required so as to put the accused to face the rigour of trial. Neither the evidence is required to be discussed in detail nor is the same required to be appreciated.

¶36

The stage of framing of charge is a very significant step in a criminal case and it is the duty of the court to frame a charge against the accused in accordance with the statutory terms stipulated in Section 228 of CrPC. Section 227 of the Code provides that if it is the consideration of the judge, post careful weighing of the record of the case and the documents submitted there with and after hearing the submissions of the prosecution as well as the accused on this count, that there is lack of adequacy in the grounds on the basis of which the proceedings can move forward against the

¶37

[CRLR-2263/2018]

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(5 of 12)

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accused, then the judge shall discharge the accused and record his reasons for said discharge.

¶40

The provision under Section 228 begins with the phrase ‘after such consideration and hearing as aforesaid’ which means that similar to the consideration and hearing done before discharging an accused under Section 227, before framing a charge as well, the judge is required to hear the contentions proffered by both the sides as well as consider the record of the case as well as the documents submitted therewith. It is further laid down under Section 228 that after such consideration and hearing, if the judge has formed an opinion that there is ground for ‘presuming’ that the accused has committed a noffence, then the judge shall frame the charge. The judge shall frame the charge in writing if the offence is exclusively triable by Court of Session and if the case is not exclusively triable by Court of Session, then the judge may frame the charge and order the transfer of the case for trial to the appropriate Magisterial Court.

¶41

Another mandatory requirement as per Section 228 is that if the judge framed the charge for offence exclusively triable by him/her/them, then the charge shall not just be read but explained to the accused and the accused shall be questioned whether he pleads guilty or claims to be tried. Thus, the language of the aforesaid provisions makes it luculent that the step of framing of charge is a vital role to be played by the judge after due application of mind and not just a mere solemnity to be done on behalf of a Sessions judge as he is not supposed to be a simpleton onlooker. The intention of the legislature is also evident in the words that it has chosen to use purposefully. For instance, the word ‘presuming’ used in Section 228 has not just been strewn randomly but it conveys a specific meaning as it is a wellentrenched rule of statutory interpretation that there is an objective attributable to

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(6 of 12)

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[CRLR-2263/2018]

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employing the use of any word or phrase in the language of a statute.

¶45

Framing of charge is a determinative action taken by the judge as subject to the decision of framing of the charge against an accused or discharging an accused of the charges leveled against him, two outcomes are generated; either the prosecution (State or complainant) gets a point to moot, i.e. to challenge the order of discharge or the accused is made to face the trial. If the charges are framed without there being even a scruple of the ingredients or circumstances required to constitute an offence under the Sections alleged against the accused, then the accused is made to face the rigour of the trial which may prove to be deleterious to him as he may finally be acquitted of the charges so framed against him. The word 'presuming' must be read ejusdem generis to the opinion of a judge that there is a ground; the ground to form the opinion on the basis of the record of the case and the documents submitted therewith that an individual has committed an offence and thus, he shall be accused with the charge under that offence. To as light extent, if a plea of defence is raised that the criminal proceedings are barred by any other statutory provision, then it needs to be considered and a provisional opinion needs to formed. Thus, it can safely be inferred that the process of framing of charge is an exercise that requires solemn consideration on the point of forming a tentative opinion whether there are ingredients and facts which are enough to constitute the offence for which charge is being framed against the accused or not.

¶46

It is needless to state that it is not expected from the court to form an opinion regarding the guilt of the accused at the stage of framing of charge. It is imperative to consider the evidence presented by the prosecution at this stage as presumption is a feeble phenomenon which would cover in its orbit, cases where there is insufficiency of evidence or some lacuna which can be thought of getting covered during the course of trial. At the step of charge-framing, it is not of the essence to be thorough with the examination of evidence or

¶47

[CRLR-2263/2018]

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(7 of 12)

¶49

material available on record or hearing of the arguments to the extentthat there should be detailed, lexical deliberation of each of the ingredients of the offence supported by precise facts. It is sufficient if there is substantial conformity to the statutory stipulations of the relevant Sections for which charge is being framed.

¶50

What a marrow is to the bones, charge is to the procedure of a criminal proceeding. The metaphoric use of the word ‘marrow’ is apt to denote that a charge, if framed against an accused, it is a formal accusation which sets the statutory stage for the offences that the accusedwill be prosecuted for and he would have to defend during the trial.

¶51

In addition to the germination of a right of the accused to have the charges framed against him after consideration of the material available on record and hearing the arguments of the parties, there is a fundamental right of the accused to life and personal liberty which is threatened if charges are framed without due application of mind and a certain required amount of consideration, thus, legitimate reasons have to be assigned before compelling an individual to face the trial. The word required has been deliberately used herein above to express due caution that the intent of law as well as this Court is not to imply that a mini trial be conducted at the stage of framing of charge. It is obvious that at the step, where charge is being framed, the court is not supposed to delve so deep into the matter so as to propel conduct of a full-fledged trial. A balance needs to be struck between framing charge without non-application of mind or due consideration and conducting a miniature trial before the actual one. If the matter is examined in too much detail or with excessive precision, exercised without there being any need for the same at the stage of charge-framing, then it will defeat the purpose of having a trial. There should

¶52

[CRLR-2263/2018]

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(8 of 12)

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not be a roving inquiry though existence of ingredients sufficient enough to draw a presumption in favour of commission of crime is required.

¶55

While discussing the concept of charge, the judgment delivered by Hon’ble the Supreme Court in State of Orissa Vs. Debendra Nath Padhi , reported in AIR 2005 SC 359 cannot go undiscussed. In this judgment, a Division Bench of three judges overruled Satish Mehra Vs.Delhi Administration and Anr . [(1996) 9 SCC766] and it was held that the accused does not have a right to produce any material or document in evidence to prove his defence at the stage of framing of charge and the same is granted only at the stage of trial. It was also opined that the submissions of the accused made on the record of the case are considered only with respect to the evidence and documents submitted therewith by the prosecution. In addition, it was observed that there cannot be two trials; one prior to framing of charge and one pursuant to framing of charge. In Satish Mehra (supra), it was held, contrary to Padhi (supra), that if the accused is able to produce clinching and unimpeachable evidence that can prove to be fatal to the very survival of the case of the prosecution at the stage of framing of charge, then it would be unjust and unfair to not look into it before passing the or derof framing of charge. It was further observed that the time of the court is also saved by considering such evidence of sterling worth at the stage of framing of charge as the trial court is able to decide whether to proceed further and frame the charge and continue with the trial or discharge the accused on the basis of incontrovertible evidence shaking the very foundation on the basis of which the case of the prosecution stands. This court is not concerned with the observation regarding admissibility of evidence produced by accused at the stage of charge-framing in

¶56

[CRLR-2263/2018]

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(9 of 12)

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the present matter but the two aforementioned judicial pronouncements of the Apex Court are imperative in establishing the fact that it is indeed vital to consider the evidence and documents available on record supplied by the prosecution as well as the arguments advanced by the counsel appearing for the parties, that is, it is vital to apply one’s mind to the extent of finding substantial evidence to support framing of charge of offences alleged against an accused.

¶59

A strong suspicion in certain cases with regard to presence of ingredients required to compose commission of an offence is enough; finding of infallible or fool-proof evidence to constitute an offence is suggested neither by the spirit nor by the letter of law.

¶60

In Union of India (UOI) vs. PrafullaKumar Samal and Ors ., reported in (1979) 3SCC 4, Hon’ble the Supreme Court propounded certain principles on the subject of charge. The relevant paragraph of the afore-said judgment is as follows:

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“10. Thus, on a consideration of the authorities mentioned above, the following principles emerge:

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(1) That the Judge while considering the question of framing the charges under Section227 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:

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(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.

¶64

(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 largo however if

¶65

[CRLR-2263/2018]

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(10 of 12)

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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.

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(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a Post Office or a mouth-piece 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.”

¶69

The Apex Court has supplied authority to this legal premise through a plethora of judgments. The recent imprimatur of Hon’ble the Supreme Court of the aforesaid aspect can be found in Ghulam Hassan Beigh Vs.Mohammad Maqbool Magrey & Ors. [Criminal Appeal No. 1041 of 2022 (Arising out of S.L.P.(Criminal) No. 4599 of 2021)], wherein Hon’ble the Apex Court has held that as the trial court only considered the medical evidence on record, more particularly only the post-mortem report of the deceased, for the purpose of framing of charge against the accused and not the entire evidence, thus, the trial court was not correct in its approach and the matter was remanded back. It was further held that a mere endorsement of the charge sheet submitted by the investigating agency without applying its mind or recording any reasons in support of its opinion is nonfulfillment of its duty by the trial court and the same is not countenanced by law.

¶70

This Court is of the opinion that the phrase ‘formal application of mind’ has a

¶71

[CRLR-2263/2018]

¶72

(11 of 12)

¶73

wide meaning which is to be construed parallel to the stage at which the trial is going on at the moment. For instance, ‘formal application of mind’ at the stage of trial would include to see, to observe, to ponder, to appreciate the material available on record minutely, with a fine-tooth comb, consider the arguments advanced before the dias and then reach on a legitimate conclusion. ‘Formal application of mind’ at the stage of taking cognizance of an offence would be limited to the purpose of proceeding further in the matter;‘formal application of mind’ at the stage of framing of charge would include dealing with those things in the order, which are at the very least, necessary to constitute the offence alleged. There needs to be a presumption with regard to sufficient grounds for want of frame of charge and not the sufficiency of evidence for the purpose of recording conviction.

¶74

The charges are proposed to be framed onthe relevant material available on record. It is not to be seen that whether the evidence produced on record is sufficient to record conviction or not, thus, probative value of defence is not required to be seen but at the very least, application of mind to see the sufficiency of material on record is required so as to put the accused to face the rigour of trial. Neither the evidence is required to be discussed in detail nor is the same required to be appreciated. In view of the point of law discussed above, this Court is of the firm opinion that the matter is required to be remanded back to the learned trial court for apt consideration of the material brought by the prosecution.”

¶75

Accordingly, both the revision petitions stand partly allowed. The impugned order dated 11.10.2018 passed by the Special Judge, Prevention of Corruption Act,

¶76

[CRLR-2263/2018]

¶77

(12 of 12)

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Cases stands quashed and set aside. The matters are remitted back to the trial Court with directions to pass appropriate fresh order, strictly in accordance with law by passing a reasoned speaking order, without being influenced by the earlier order passed by it.

¶79

Stay applications and all pending applications, if any, also stand disposed of.

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(ANOOP KUMAR DHAND),J

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KuD/307-308

Padam Data S/O Shri Ram Vilas Data B/C Mahajan v. State of Rajasthan through Pp

Case brief

What is this about?

What did the court decide?

Padam Data S/O Shri Ram Vilas Data B/C Mahajan v. State of Rajasthan through Pp

Case brief

What is this about?

What did the court decide?

What the court decided

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