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SUPREME COURT OF INDIA
S. Ravindra Bhat, Aravind Kumar, JJ.
State of Gujarat - Appellant
Versus
Dilipsinh Kishorsinh Rao – Respondent
Criminal Appeal No.2504 of 2023
Decided On : 09-10-2023
(A) Prevention of Corruption Act, 1988 – Section 7 – Criminal Procedure Code, 1973 – Sections 227, 228 and 397 – Acquisition of assets beyond known source of income – Discharge of accused – All questions of facts which require adjudication could be done only during trial and explanation relating to borrowing of large sums raises a reasonable suspicion which has been termed by Investigating Agency as strong material to file charge-sheet and based on such material sanctioning authority also recorded its satisfaction under sanction order to prosecute respondent-accused – Raising reasonable suspicion cannot be held or construed at primary stage for discharging accused – Plea or defence when requiring to be proved during course of trial is itself sufficient for framing charge – Revisional court cannot sit as an appellate court and start appreciating evidence by finding out inconsistency in statement of witnesses and it is not legally permissible – High Court had committed a serious error in interfering with well-reasoned order passed by trial court – Trial court shall proceed with trial. (Paras 5, 16, 17 and 18)
(B) Criminal Procedure Code, 1973 – Sections 227 and 228 – Discharge of accused – Application of judicial mind being necessary to determine whether a case has been made out by prosecution for proceeding with trial and it would not be necessary to dwell into pros and cons of matter by examining defence of accused when an application for discharge is filed – At that stage, trial Judge has to merely examine evidence placed by prosecution in order to determine whether or not grounds are sufficient to proceed against accused on basis of charge-sheet material – Nature of evidence recorded or collected by investigating agency or documents produced in which prima facie it reveals that there are suspicious circumstances against accused, so as to frame charge would suffice and such material would be taken into account for the purposes of framing charge – At the time of framing of charge and taking cognizance accused has no right to produce any material and call upon the court to examine the same. (Paras 7 and 8)
(C) Criminal Procedure Code, 1973 – Section 227 – Framing of charge – At the stage of considering application for discharge court must proceed on assumption that material which has been brought on record by prosecution is true and evaluate said material in order to determine whether facts emerging from material taken on its face value, disclose existence of ingredients necessary of offence alleged – Primary consideration at stage of framing of charge is test of existence of a prima-facie case – At this stage, probative value of materials on record need not be gone into. (Paras 10 and 12)
Facts of the case:
Sole question that arises for consideration is whether order of sanctioning authority is liable to be set aside and consequently, charge-sheet filed by Anti-Corruption Bureau, is liable to be quashed?
Findings of Court:
Trial court shall proceed with the trial having regard to the fact that charge-sheet has been filed in year 2015 and shall conclude trial expeditiously and preferably within a period of one year.
Result : Appeal allowed.
Key Points: - There is no provision in the Code granting the accused a right to file material or documents at the stage of framing of charge (!) (!) . - At the stage of framing charge, the court must proceed on the assumption that the prosecution material is true and evaluate whether it discloses ingredients of the alleged offence (!) (!) . - The primary consideration at the framing stage is the test of existence of a prima-facie case; probative value of materials need not be gone into (!) (!) . - A revisional court cannot sit as an appellate court and appreciate evidence or find inconsistencies in witness statements; such examination is not legally permissible (!) (!) . - Raising reasonable suspicion based on loan amounts or explanations does not justify discharge at the primary stage; these are matters to be adjudicated during trial (!) (!) (!) . - The High Court erred in weighing defence evidence and probabilities, which is impermissible at the revisional stage (!) (!) (!) . - Charge-sheet filed after considering written submissions and evidence does not become unsustainable; trial court should proceed with the trial (!) (!) (!) . - Trial court shall conclude the trial expeditiously, preferably within one year, having regard to the charge-sheet filed in 2015 (!) (!) .
JUDGMENT :
Aravind Kumar, J.
1. The proceedings initiated under the Prevention of Corruption Act, 1988 (hereinafter referred to as ‘Act’) against the respondent herein came to be questioned by him by filing an application for discharge on the ground of investigating officer (hereinafter referred to as ‘IO’) having failed to consider the written explanation offered by him with supporting documents and the conclusion reached by the sanctioning authority was also without considering the same reflecting non-application of mind and thereby the conclusion reached by the sanctioning authority that respondent accused possessed assets disproportionate to his known source of income is erroneous and the charge-sheet material do not reveal any circumstances or evidence to arrive at a conclusion that accused had disproportionate source of income. The said application having been rejected by the trial court by order dated 13.04.2016, respondent moved the High Court under Section 397 read with Section 401 of Cr.P.C. by filing Criminal Revision Application No.387 of 2016 and same having been allowed by the impugned order dated 11.01.2018, the State has approached this Court.
2. The sole question that arises for our consideration is whether the order of the sanctioning authority dated 05.03.2015 is liable to be set aside and consequently, the charge-sheet filed by Anti-Corruption Bureau, Anand Police Station on 17.06.2015 is liable to be quashed?
3. The case of the prosecution as laid in the chargesheet filed against the respondent is to the effect that during the period 2005 to 2011 the respondent by misuse of his power while discharging his duties as Sub-Inspector of Borsad Town Police Station and based on corrupt practices had acquired assets in his and his wife’s name to the tune of Rs.1,15,35,319/- which was beyond his known source of income and it was disproportionate to the tune of Rs.32,68,258/- which is more than 40% of his known source of income.
4. An application for discharge (Annexure P-29) came to be filed under Section 227 read with Section 228 of Cr.P.C. contending inter alia that during investigation, the IO had failed to consider the written statement dated 13.08.2014 and the permission obtained by him to visit Australia and also the details of the purchase of movable and immovable properties furnished to the department on every occasion of his investment, and yet, the IO had failed to consider the same in proper perspective. It was also contended that sanction granted by the department for purchase of the property has also not been taken into account by the I.O. It was further contended, that error in calculation of disproportionate asset though brought to the notice of the investigating agency, same had not been considered as also the statement of the witnesses who had loaned amounts to the respondent. It was further urged that the sanctioning authority had failed to consider the documentary proof furnished for purchase of properties from various sources of income and investigating agency had failed to take into consideration the amount which was obtained under loans from friends and family members which was duly supported by documentary evidences. Hence, contending that charge-sheet material does not disclose the commission of offence alleged, respondent pleaded in the application for being discharged.
5. Trial Court taking into consideration the principles enunciated by this Court in catena of judgments and applying the ratio laid down to the facts on hand observed as under:
“(4) xxxxx
Thus, from the afore-stated settled principles and record of the case, the following aspects emerges from the record.
(a) Whether the accused has taken loan from his brother, mother and father is a question of fact which is to be decided during the trial;
(b) The fact of Rs.10 lacs as loan from the friends is also a question of fact which is to be decided during the trial;
(c) Other two friends namely, Iliyashbhai and Niteshbahai who have given amou
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