Sri Rajendra Kumar Pati vs Union Of India
Court- Orissa High Court
Case No. – 161 of 2014
Case Type- CRLMC
Justice- S.C Parija
Date of Judgement- 06/01/2015
Facts of the case-
While working as a Superintending Geologist in CMPDI Ltd., Bhubaneswar, a subsidiary of Coal India Ltd., the petitioner was tasked with leading a team of two officers from the Indian Bureau of Mines, Nagpur, to check and measure the coal stock of Mahanadi Coalfields Ltd. (‘MCL’ for short), Talcher. While the petitioner and two other team members were camping at MCL’s Jagannath Area Guest House in Talcher and conducting coal stock measurements at various collieries since 15.7.2009, the Superintendent of Police, (I/C), C.B.I., Bhubaneswar, received information from a reliable source that the petitioner and two other team members had obtained cash and valuable items as illegal gratification from unknown MCL officials by threatening them with showing short supply.
Based on this information, an F.I.R. was filed under Sections 7, 11, and 13(2) r/w Sections 13(1)(d) of the Prevention of Corruption Act (‘P.C. Act’, for short) and Section 120-B I.P.C.
During the investigation, C.B.I. personnel searched Room No.3 (Godavari) of Jagannath Guest House, MCL, Talcher, which was occupied by the petitioner, in the presence of two independent witnesses on 08.8.2009. During the search, one envelop containing Rs.50,000/- in cash was seized from the petitioner’s suitcase, for which he could not provide a convincing explanation. Following the completion of the investigation, the C.B.I. filed a charge-sheet against the present petitioner under Section 13(1)(d) and (e) r/w Section 13(2) of the P. C. Act for possessing cash in the amount of Rs.29,550/- that was disproportionate to his known sources of income during the check period from 09.7.2009 to 08.8.2009, after obtaining necessary sanction from the competent authority.
Being aggrieved by the registration of the F.I.R. and submission of charge-sheet, the petitioner moved this Court under Section 482 Cr.P.C., in CRLMC No.493 of 2012, praying for quashing of the same on the ground that the petitioner had withdrawn an amount of Rs.1,03,000/- from his bank account just prior to the search and seizure, which fact had not been taken into consideration by the C.B.I., while submitting charge-sheet against him. This Court vide order dated 04.2.2013, disposed of the application (CRLMC No.493 of 2012), giving liberty to the petitioner to raise all such points at the time of framing of charge, which shall be considered by the learned trial Court by passing a speaking order, taking into consideration all such points raised by the petitioner. The petitioner accordingly filed an application under Section 227 Cr.P.C., along with the bank statement of account before the learned Special Judge, C.B.I.-I, Bhubaneswar, praying for discharge on the ground that the accused petitioner had withdrawn an amount of Rs.1,03,000/- during the month of July 2009 from his savings bank account, prior to the date of search and seizure, which fact has not been taken into consideration by the C.B.I., while filing the charge- sheet against him.
ARGUMENTS-
The prosecution, according to learned counsel for the accused-petitioner, has purposefully ignored the fact that the petitioner withdrew Rs.1,03,000/- from his bank account just prior to the search and seizure of Rs.50,000/- from him, and thus the registration of the F.I.R. and submission of the charge-sheet is tainted with mala fide. In this regard, learned counsel for the accused-petitioner cited a Division Bench decision of this Court in Janaki Ballav Patnaik v. State of Orissa, 1995 CRI.L.J. 1110, in which this Court held that when a source of income of the accused or his wife was known to the prosecution and the prosecution failed to take that source into consideration, and that income would have a vital bearing on the framing of charge, the Court would be fully justified in refusing.
Learned counsel for the accused-petitioner further submitted that the C.B.I.’s action in determining the check period from 09.7.2009 to 08.8.2009 is grossly mala fide, as the check period must be such as to enable a true and comprehensive picture of the public servant’s known sources of income and pecuniary resources and property in possession of the public servant either by himself or through any other person on his behalf, which are alleged to be so disproportionate,
Accordingly, learned counsel for the petitioner submitted that as the material on record clearly goes to show that the petitioner had withdrawn Rs.1,03,000/- from his bank account just prior to the search and seizure, which fact had not been taken into consideration at the time of framing of charge, the petitioner is entitled to be discharged and the criminal proceeding initiated against him is liable to be quashed. In this regard, learned counsel for the petitioner has relied upon a decision of the apex Court in Rukmini Narvekar v. Vijaya Satardekar & Ors., 2009 AIR SCW 118, wherein the Hon’ble Court had observed that there may be some very rare and exceptional cases where some defence materials, when shown to the trial Court, would convincingly demonstrate that the prosecution version is totally absurd or preposterous and in such very rare cases, the defence materials can be looked into by the Court, at the time of framing of the charges.
In response, learned counsel for the C.B.I. submitted that during search, an envelop containing cash of Rs.50,000/- was recovered from the suitcase of the petitioner, for which he could not give any satisfactory explanation. The plea now raised by the accused- petitioner that he had withdrawn Rs.1,03,000/- from his bank account just prior to the search and seizure of cash of Rs.50,000/- from him is a defence, which cannot be considered at this stage and in this regard, he has relied upon a decision of the apex Court in State of Madhya Pradesh v. Virender Kumar Tripathi, (2009) 15 SCC 533.
It is accordingly submitted by learned counsel for the C.B.I. that at the stage of framing of charge, the Court is not to examine and assess in detail the materials on record produced by the prosecution nor is it for the Court to consider the sufficiency of the materials to establish the offence alleged against the accused person. It is accordingly submitted that at the initial stage of framing of charge, the accused has no right to produce any material in support of his defence and a strong suspicion is sufficient to frame the charge and in that event, it is not open for the accused to say that there is no sufficient ground for proceeding against the accused.
Judgement-
At the stage of framing of charge roving and fishing inquiry is impermissible. If the contention of the accused is accepted, there would be a mini-trial at the stage of framing of charge. That would defeat the object of the code. It is well settled that at the stage of framing of charge the defence of the accused cannot be put forth. The acceptance of the contention of the learned counsel for the accused would mean permitting the accused to adduce his defence at the stage of framing of charge and for examination thereof at that stage which is against the criminal jurisprudence. By way of illustration, it may be noted that the plea of alibi taken by the accused may have to be examined at the stage of framing of charge if the contention of the accused is accepted despite the well- settled proposition that it is for the accused to lead evidence at the trial to sustain such a plea. The accused would be entitled to produce materials and documents in proof of such a plea at the stage of framing of the charge, in case we accept the contention put forth on behalf of the accused. That has never been the intention of the law well settled for over one hundred years now. It is in this light that the provision about hearing the submissions of the accused as postulated by section227 is to be understood. It only means hearing the submissions of the accused on the record of the case as filed by the prosecution and documents submitted therewith and nothing more. The expression “hearing the submissions of the accused” cannot mean opportunity to file material to be granted to the accused and thereby changing the settled law. At the stage of framing of charge hearing the submissions of the accused has to be confined to the material produced by the police.
In view of the above, the legal position which crystallizes is that reading sections 227 and 228Cr.P.C. together in juxtaposition at the initial stage, the Court is not to meticulously judge the evidence proposed to be adduced by the prosecution and not to see whether there is sufficient ground for conviction, nor is any weight to be attached to the probable defence. At that stage, even a very strong suspicion founded upon materials leading the Magistrate to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, may justify the framing of charges. The trial Court has to be satisfied whether there is “sufficient ground for proceeding” and not “whether there is sufficient ground for conviction”. At the stage of Section 227 Cr.P.C., the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclose the existence of all the ingredients of the offence. At that stage, the accused has no right to produce any material or summon any document or materials in addition to those collected by the investigating agency, or invite the Court to pass an order of discharge on the basis of such additional material. The Court may, for the limited purpose of framing charge, sift the evidence and if on the basis of materials on record, the Court comes to the conclusion that the commission of offence is probable consequence, a case of framing of charge exists and the order rejecting application for discharge is legal and valid.
In the present case, because the accused-petitioner’s plea regarding the withdrawal of Rs.1,03,000/- from his bank account just prior to the search and seizure of Rs.50,000/- from him is a defence that must stand the test of trial, it cannot be considered at the initial stage to discharge the accused. The learned trial Court, on the basis of the materials on record, came to the conclusion that there are sufficient elements to suppose that the accused committed the alleged offence and, as a result, denied the motion for discharge under Section 227 Cr.P.C., which cannot be faulted.
For the reasons as aforestated, I do not find any infirmity in the criminal proceeding initiated against the petitioner in T.R. No.24 of 2011, arising out of C.B.I. Bhubaneswar P.S. Case No.RC 015 2009 A 0020, dated 07.8.2009, pending in the Court of learned Special Judge, C.B.I.-I, Bhubaneswar, under Section 13(1)(d) and (e) r/w Section 13(2) of the P. C. Act and the order dated 07.12.2013 passed therein, rejecting the application of the petitioner under Section 227 Cr.pc
Written by Priyanka Davar an intern under Legal Vidhiya.
