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SUPREME COURT OF INDIA
DHANANJAYA Y. CHANDRACHUD, M.R. SHAH, JJ.
State of Rajasthan - Appellant
Versus
Ashok Kumar Kashyap - Respondent
Criminal Appeal No. 407 of 2021 (Arising from S.L.P.(Criminal) No. 3194 of 2021) Diary No. 8524 of 2020
Decided On : 13-04-2021
(A) Criminal Procedure Code, 1973 – Section 227 – Discharge of accused – At the stage of Section 227, Judge has merely to sift evidence in order to find out whether or not there is sufficient ground for proceeding against accused – Sufficiency of grounds would take within its fold nature of evidence recorded by police or documents produced before Court which ex facie disclose that there are suspicious circumstances against accused so as to frame a charge against him – If Judge comes to conclusion that there is sufficient ground to proceed, he will frame charge under Section 228 Cr.P.C., if not, he will discharge accused – While exercising its judicial mind to facts of case in order to determine whether a case for trial has been made out by prosecution, it is not necessary for court to enter into pros and cons of matter or into a weighing and balancing of evidence and probabilities which is really function of court, after trial starts. (Para 9.1)
(B) Prevention of Corruption Act, 1988 – Section 7 – Criminal Procedure Code, 1973 – Sections 227 and 228 – Illegal gratification – Discharge of accused – By impugned judgment and order, High Court in exercise of its revisional jurisdiction has set aside order passed by Special Judge framing charge against accused under Section 7 of PC Act and consequently has discharged accused for said offence – High Court has exceeded in its jurisdiction in exercise of revisional jurisdiction and has acted beyond scope of Section 227/239 Cr.P.C. – While discharging accused, High Court has gone into merits of case and has considered whether on basis of material on record, accused is likely to be convicted or not – At the stage of framing of charge, it has to be seen whether or not a prima facie case is made out and defence of accused is not to be considered – After considering material on record including transcript of conversation between complainant and accused, Special Judge having found that there is a prima facie case of alleged offence under Section 7 of PC Act, framed charge against accused for said offence – High Court materially erred in negating exercise of considering transcript in detail and in considering whether on the basis of material on record accused is likely to be convicted for offence under Section 7 of PC Act or not – High Court was required to consider whether a prima facie case has been made out or not and whether accused is required to be further tried or not – At the stage of framing of charge and/or considering discharge application, mini trial is not permissible – Defence on merits is not to be considered at the stage of framing of charge and/or at stage of discharge application – Impugned judgment and order passed by High Court discharging accused under Section 7 of PC Act is unsustainable in law and accordingly quashed and set aside and order passed by Special Judge framing charge against accused under Section 7 of PC Act restored – Now case is to be tried against accused by competent court for offence under Section 7 of PC Act, in accordance with law and its own merits. (Paras 8, 11, 12 and 13)
Facts of the case:
Feeling aggrieved and dissatisfied with the impugned judgment and order dated 12.09.2018 passed by the High Court of Rajasthan, Bench at Jaipur in S.B. Criminal Revision No. 1270 of 2018, by which High Court, in exercise of its revisional jurisdiction, has quashed order passed by Special Judge, Prevention of Corruption Act, Bharatpur dated 22.06.2018 framing the charge against respondent-accused for the offence under Section 7 of the Prevention of Corruption Act and consequently has discharged accused of the alleged offence under Section 7 of the PC Act, State has preferred the present appeal.
Findings of Court:
At the stage of framing of the charge and/or considering the discharge application, mini trial is not permissible. At this stage, it is to be noted that even as per Section 7 of the PC Act, even an attempt constitutes an offence. Therefore, High Court has erred and/or exceeded in virtually holding a mini trial at the stage of discharge application.
Result : Appeal allowed.
JUDGMENT :
M.R. SHAH, J.
1. In the facts and circumstances of the case and having heard the learned counsel for the respective parties, the delay caused in filing the special leave petition is hereby condoned. 1A. Leave granted.
2. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 12.09.2018 passed by the High Court of Rajasthan, Bench at Jaipur in S.B. Criminal Revision No. 1270 of 2018, by which the High Court, in exercise of its revisional jurisdiction, has quashed the order passed by the learned Special Judge, Prevention of Corruption Act, Bharatpur dated 22.06.2018 framing the charge against the respondent-accused for the offence under Section 7 of the Prevention of Corruption Act (for short, ‘PC Act’) and consequently has discharged the accused of the alleged offence under Section 7 of the PC Act, the State has preferred the present appeal.
3. That the respondent herein – original accused was serving as a Patwari. That the original complainant Jai Kishore and one another on 31.08.2010 submitted a written report before the Additional Superintendent of Police, Anti-Corruption Bureau, Bharatpur stating that for the purpose of issuing Domicile Certificate and OBC Certificate of his son, he has submitted an application enclosed with complete certificates before the accused – Patwari Ashok Kumar Kashyap for endorsing his report. However, the Patwari in lieu of endorsing his report over the said application demanded a bribe of Rs.2,800/-. Thereafter after conducting the investigation a chargesheet came to be filed by the investigating agency against the accused for the offence under Section 7 of the PC Act. That the learned Special Judge heard the prosecution as well as the defence at the time of framing of the charge. After hearing the prosecution as well as the counsel for the defence and considering the material on record which included the transcript of conversation recorded between the complainant and the accused and considering the other material on record and having found that there is a prima facie case made out and the defence of the accused is not to be considered at this stage, by order dated 22.06.2018 framed the charge against the accused for the offence under Section 7 of the PC Act.
4. Feeling aggrieved and dissatisfied with the order passed by the learned Special Judge framing the charge against the accused under Section 7 of the PC Act, the accused preferred revision application before the High Court by filing Criminal Revision No. 1270 of 2018.
4.1 Before the High Court, it was contended on behalf of the accused that no case is made out under Section 7 of the PC Act, even on the basis of the transcript recording the conversation between the complainant and the accused. It was submitted that it is borne out from the transcript that the accused in fact refused to give bonafide residence certificate and returned the form on 29.08.2010 and that no work was pending before him. It was also contended that on reading the entire transcript the factum of demand of Rs.2,800/-is not revealed.
4.2 The revision application was opposed by the learned Public Prosecutor. Heavy reliance was placed on the decision of this Court in the case of Chitresh Kumar Chopra v. State (Govt, of NCT of Delhi), AIR 2010 SC 1446 and it was submitted that as held by this Court that at the stage of framing of charge, 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 constituting the alleged offence. It was submitted that from the transcript it is evident that bribe was demanded from the complainant.
4.3 That by the impugned judgment and order, the High Court has allowed the said revision application and has quashed and set aside the order passed by the learned Special Judge framing the charge against the accused for the offence under Section 7 of the PC Act and consequently
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