Important Points
1. In revision against an order under Section 239 Cr.P.C. refusing to discharge accused, the High Court cannot scan and scrutinize evidence and materials produced by the prosecution as if sitting in appeal against an order of conviction.
2. A non-public servant can be prosecuted for offence under Prevention of Corruption Act.

Judgment

Pattanaik, J.-Leave granted.

2. The State of U.P. is in appeal against the Judgment of the High Court of Allahabad, Lucknow Bench in Criminal Revision No. 177 of 1998 and Criminal Revision No. 225 of 1998. By the impugned Judgment, the High Court allowed both the revisions, filed by the accused and dis­charged the accused persons.

3. Accused Udai Narain is an officer of the Customs Department and accused Reshamwala is a private individual. It is alleged by the prosecution that the Customs Authorities at Jaipur seized a sum of Rs. 21, 23,050/- from said Reshamwala and on that score the matter is pending before the Collector, Customs and Central Excise. Accused Udai Narain is the Additional Collector of Customs at Lucknow. It is fur­ther alleged that on 8.11.93 Reshamwala arrived at Lucknow Airport by Indian Airlines’ Flight. The Police had received an information that some illegal transaction is going to be made between Reshamwala and Udai Narain and, therefore, the D.S.P. had arranged a trap. As soon as, Reshamwala came out of the aircraft and entered the airport lobby, he was received by Udai Narain and then there was some conversation between them which was heard by some persons in the vicinity, who have been examined by the prosecution. It is further alleged that Reshamwa­la went in the personal Fiat Car of Udai Narain, whereas the official car of Udai Narain was occupied by the other officials. The Fiat Car, being driven to by Udai Narain and having Reshamwala with him was intercepted by the Police authorities and when the Brief case of said Reshamwala was opened, a sum of Rs. two lacs was recovered. It was the prosecution case that Udai Narain earlier had telephoned Reshamwala and told him to come with necessary case papers and a sum of Rs. two lacs, so that his pending case at Jaipur could be settled. On these allegations, after completion of investigation, charge sheet was filed against both the accused persons under Sections 8, 10, 13(2) read with Section 13(1)(d) of Prevention of Corruption Act and Section 120-B of the Indian Penal Code. The accused persons moved application under Section 239 of the Code of Criminal Procedure for discharge, before the learned Special Judge, Anti Corruption. The said learned Special Judge rejected that petition by order dated 13th May, 1998. Against the said order, the accused persons moved the High Court in revision. The High Court by the impugned order having allowed both the revisions and having discharged the accused persons, the State has come up in appeal.

4. Mr. Altaf Ahmed, the learned Additional Solicitor General, appear­ing for the prosecution, contended that at the stage of considering an application for discharge, it is not open for the Court to shift the evidence and come to a conclusion one way or the other about the guilt of the accused persons. The Court at that stage will not be in a position to decide the trust-worthiness of the witnesses and discard the same by shifting and scanning, as a Court does in trial. This Court has already indicated the parameters of the powers of the Court to discharge an accused, before framing of charge and the impugned Judgment runs contrary to the same. According to the learned Addl. Solicitor General, an elaborate examination of the statements recorded during investigation and forming an opinion after scanning and shift­ing of the same is not warranted under law.

5. Mr. Rakesh Dwivedi, the learned Senior Counsel, appearing for accused Udai Narain and Mr. Krishnan, the learned Senior Counsel, appearing for the accused Reshamwala on the other hand contended that if the Court is fairly certain that there is no prospect of the case ending in conviction on consideration of the materials produced by the prosecu­tion, then the valuable time of the Court should not be wasted for holding a trial only for the purpose of formally completing the proce­dure to pronounce the conclusion on a future date and adjudged from that stan