Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2019 Supreme(SC) 262

SUPREME COURT OF INDIA
Abhay Manohar Sapre, Dinesh Maheshwari, JJ.
State Represented By The Deputy Superintendent Of Police Vigilance And Anti Corruption, Tamil Nadu – Appellant(s)
Versus
J. Doraiswamy Etc. – Respondent(s)
Criminal Appeal Nos. 445-446 of 2019 (Arising Out of SLP(Criminal) Nos. 5675-5676 of 2017)
Decided on : 07-03-2019

Advocates Appeared:
For the Appellant : Mr. M.Yogesh Kanna, AOR Mr. S.Partha Sarathi, Adv,
For the Respondent: Mr.S.Thananjayan, AOR Mr. Krishan Kumar, AOR

IMPORTANT POINT
Consideration of record for discharge purpose is one thing and consideration of record while deciding appeal by Appellate Court is another thing.

Headnote:Criminal Procedure Code, 1973 – Section 227 – Prevention of Corruption Act, 1988 – Section 7 read with Section 13(1) (d) – Discharge of accused – Consideration of record for discharge purpose is one thing and consideration of record while deciding appeal by Appellate Court is another thing – While considering case of discharge sought immediately after charge-sheet is filed, Court cannot become an Appellate Court and start appreciating evidence by finding out inconsistency in statements of witnesses as was done by High Court in impugned order – It is not legally permissible – There is no prime facie case made out for discharge of respondents at this stage of trial – They have to stand for trial on merits in light of the documents and contents of charge-sheet filed pursuant to order of Court – Impugned order set aside – As a consequence, applications filed by respondents under Section 227 of Cr.P.C. dismissed – Special Court(CJM) directed to proceed with trial. (Paras 16, 18, 19 and 20)
       Facts of Case:
       Present appeals are directed against the final judgment and order passed by High Court of Judicature at Madras in Crl. R.C. whereby High Court dismissed the revisions filed by appellant-State and affirmed order of Special Judge/Chief Judicial Magistrate by which respondents herein were discharged under Section 227 of the Criminal Procedure Code, 1973 from Criminal Proceedings filed against them in Special Case No.4 of 2014 under Prevention of Corruption Act, 1988. Short question which arises for consideration in these appeals, is whether Courts below were justified in allowing discharge applications filed by respondents under Section 227 of Cr.P.C.
       Findings of Court:
       All that we say while allowing these appeals is that there is no prime facie case made out for discharge of respondents at this stage of trial. They, therefore, have to stand for trial on merits in light of documents and contents of charge-sheet filed pursuant to order of Court. Special Court (CJM) should have, therefore, allowed State to adduce evidence on merits in support of charge-sheet to prove charges.
       Result : Appeals allowed.

JUDGMENT

Abhay Manohar Sapre, J.

Leave granted.

2. These appeals are directed against the final judgment and order dated 14.07.2016 passed bythe High Court of Judicature at Madras in Criminal R.C. Nos. 825 and 826 of 2015 whereby the High Court dismissed the revisions filed by the appellant-State and affirmed the order of the Special Judge/Chief Judicial Magistrate, Tiruvannamalai by which the respondents herein were discharged under Section 227 of the Criminal Procedure Code, 1973 (hereinafter referred to as "the Crl.P.C.") from the Criminal Proceedings filed against them in Special Case No. 4 of 2014 under the Prevention of Corruption Act, 1988 (hereinafter referred to as "the PC Act").

3. These appeals involve a short point as would be clear from the facts mentioned infra.

4. Respondents (A-1 and A-2) were working as Inspector of Police and Sub-inspector of Police respectively in the State Tamil Nadu Police Services. Both the respondents were prosecuted forcommission of the offences punishable under Section 7 read with Section 13(1) (d) of the PC Act in Crime Case No.3 of 2008/Special Case No. 4 of 2014 in the Court of Special Judge and Chief Judicial Magistrate, Tiruvannamalai.

5. On charge-sheet being filed by the State Prosecuting Agency against the respondents after obtaining necessary sanction as required in law, both of them filed applications under Section 227 of the Cr.P.C. (Crl. M.P. Nos.648 of 2014 & 113 of 2015) before the CJM praying therein for their discharge from the case. In substance, the respondents contended that no prime facie case is made out against them under the PC Act and in the charge-sheet hence both the respondents are liable to be discharged.

6. The Chief Judicial Magistrate, by order dated 29.06.2015, allowed the applications and discharged them from the case. The State felt aggrieved by the order dated 29.06.2015 passed by the Chief Judicial Magistrate and filed two revisions in the High Court. By impugned order, the High Court dismissed the revisions and affirmed the order of the Chief Judicial Magistrate, giving rise to filing of these appeals by the State by way of special leave in this Court.

7. So, the short question, which arises for consideration in these appeals, is whether the Courts below were justified in allowing the discharge applications filed by the respondents under Section 227 of the Cr. P.C.

8. Heard Mr. S. Partha Sarathi, learned counsel for the appellant and Mr. Neeraj Jain, learned Senior counsel and Mr. S. Thananjayan, learned counsel for the respondents.

9. Having heard the learned counsel for the parties and on perusal of the record of the case including the written submissions filed by the respondents, we are inclined to allow the appeals and while setting aside the impugned order, dismiss the applications filed by the respondents under Section 227 of the Cr.P.C. and remand the case to the Special Judge/CJM for its trial on merits in accordance with law.

10. We have gone through the record including the impugned order with a view to find out as to whether any prima facie case is made out against the respondents on the basis of documents filed by the State along with the charge-sheet.

11. Having gone through the documents, the contents of the charge-sheet and the impugned order, we are of the view that though the High Court referred to the law laid down by this Court on the subject in the case of Yogesh alias Sachin Jagdish Joshi vs. State of Maharashtra [(2008) (10) SCC 394), but erred in not properly applying the principles laid down therein thereby committed an error in allowing the applications filed by the respondents under Section 227 of the Cr.P.C. for their discharge.

12. We find that the High Court acted like an Appellate Court than as a Revisionary Court as if it was hearing the appeal against the final verdict of the Special Court.

13. It is clear from the perusal of the entire order including its concluding Para 14, which reads as under:

"14. That being so, when the charge

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2019 Supreme(SC) 262

IMPORTANT POINTConsideration of record for discharge purpose is one thing and consideration of record while deciding appeal by Appellate Court is another thing.

Cases Referred (1)

IMPORTANT POINT
Consideration of record for discharge purpose is one thing and consideration of record while deciding appeal by Appellate Court is another thing.