IMPORTANT POINT
As different views are taken in 1979(4) SCC 274 and 1996(9) SCC 766 by 3-Judge Benches on the question whether there is any statutory requirement compelling or permitting the trial Court to take into consideration the material produced by defence at the stage of cognizance or framing a charge, the matter should be referred to a larger Bench.

Headnote:Criminal Procedure Code, 1973-Sections 227, 228, 240 and 482-Whether there is any statutory requirement compelling or permitting the trial Court to take into consideration the material produced by defence at the stage of cognizance or framing a charge (as in this case under Section 13(1)(e) and 13(2) of Prevention of Corruption Act, 1988)? (No) but different views in 1979(4) SCC 274 and 1996(9) SCC 766-Result-Matter should be referred to a larger Bench.
       Held : From the above judgments referred to by the learned counsel for the appellant, it is clear that all that the court has to do at the time of framing a charge is to consider the question of sufficiency of ground for proceeding against the accused on a general consideration of the materials placed before it by the investigating agency. There is no requirement in law that the court at that stage should either give an opportunity to the accused to produce evidence in defence or consider such evidence the defence may produce at that stage. (Para 11)
       However, the judgments relied upon by the learned counsel for the respondent, namely, G.L. Didwania & Anr. v. Income Tax Officer & Anr. (supra), Secretary, Hailakandi Bar Association (supra); Uttam Chand & Ors. v. Income Tax Officer, Central Circle, Amritsar (supra) seem to support the stand of the learned counsel for the respondent. Though the judgment relied upon by the learned counsel for the appellant set out in the case of Anil Kumar Bhunja (supra) is a judgment of 3-Judge Bench and all other judgments are of 2-Judge Bench, still in view of the fact that in the case of Satish Mehra v. Delhi Admn. & Anr. (1996(9) SCC 766), the Bench had taken notice of the 3-Judge Bench judgment of this Court in the case of Anil Kumar Bhunja (supra) and despite the same, the latter Bench had taken somewhat different view, we think it appropriate that this matter should be referred to a larger Bench. For the reasons stated above, we direct the Registry to place this matter before Hon ble the Chief Justice of India for further orders. (Paras 12 and 13)

ORDER

In this appeal, the State of Orissa has challenged the two orders made by the High Court of Orissa at Cuttack; the first one dated 21.6.1999 and the second one dated 12.9.2000 made in Crl. Miscellaneous Case No. 2374 of 1995.

2. In its order dated 21.6.1999, the High Court considered a petition filed by the respondent herein seeking quashing of the charges framed against him by the Special Judge, Vigilance, Bhubaneshwar under Section 13(1)(e) and 13(2) of the Prevention of Corruption Act, 1988 (for short the Act ). By the said order, the High Court set aside the order of the Special Court dated 13.9.1993 taking cognizance of the offence as also the subsequent order dated 2.11.1993 framing charges against the respondent herein. By the said order, the learned Judge remitted the matter to the learned Special Judge with a direction to first call upon the prosecution to examine its case against the respondent herein, keeping in view the findings and observations made by the Commissioner of Income Tax in favour of the respondent herein and after giving an opportunity of hearing to the said respondent. There was a further direction to the trial Court to decide the matter by the end of July, 1999.

3. The High Court by its second order dated 12.9.2000 made on another application in the very same case, held, that since the Special Judge who was directed by the earlier order to re-examine the matter by the end of July, 1999 having failed to do so, the proceedings before the trial Court amounted to harassment to the respondent herein, therefore, in the interest of justice, quashed the entire proceedings on the file of the Special Judge. It also made an order directing the release of the articles seized from the respondent herein and other persons within a fortnight of the said order.

4. In the composite SLP challenging both the said orders before this Court, this Court after issuing notice to the respondent granted leave as also stay of the operation of the orders of the High Court.

5. In this appeal, Mr. Mukul Rohatgi, learned Additional Solicitor General appearing for the State of Orissa, has very seriously contended that it was not permissible for the High Court acting under Section 482 of the Code to direct the Special Judge to examine any material which was not available to the court at the time when either the cognizance was taken or when the charge was framed. He contended that at that stage the only material the court could take into consideration was the complaint and any other material produced by the prosecution and, that apart, there is no scope for the defence to produce any evidence in rebuttal. It is the contention of the learned counsel that if defence is permitted to produce evidence at that stage then it would amount to directing the court to conduct a mini trial at that stage which is not the scheme of the Act. Learned counsel relied upon the following judgments in support of his contention : Supdt. and Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja & Ors. (1979(4) SCC 274), Stree Atyachar Virodhi Parishad etc. v. Dilip Nathumal Chordia & Anr. (1989(1) SCC 715), Niranjan Singh Karam Singh Punjabi, Advocate etc. v. Jitendra Bhimraj Bijjayya & Ors. (1990(4) SCC 76), Chandra Deo Singh v. Prokash Chandra Bose & Anr. (1964(1) SCR 639); and Nirmaljit Singh Hoon v. The State of West Bengal & Anr. (1973(2) SCR 66).

6. Per contra, Mr. U.U. Lalit, learned counsel appearing for the respondent, contended that the High Court was justified in taking the view it took in the impugned orders because in view of the material available before the court, if taken into consideration there can be no conviction because the very basis of the complaint may not exist if such material produced by the defence is considered. Therefore, in the interest of justice as held by this Court in various judgments, it was necessary that the court taking cognizance or framing charges should took into such material also as may be produced by

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2003 Supreme(SC) 160

Cases Referred (10)