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SUPREME COURT OF INDIA
SANJAY KISHAN KAUL, K.M. JOSEPH, JJ.
M.E. Shivalingamurthy – Appellant
Versus
Central Bureau of Investigation, Bengaluru – Respondent
Criminal Appeal No. 957 of 2017
Decided On : 07-01-2020
(A) Criminal Procedure Code, 1973 – Section 227 – Discharge of accused – Parameters – If two views are possible and one of them gives rise to suspicion only as distinguished from grave suspicion, Trial Judge would be empowered to discharge accused – Trial Judge is not a mere Post Office to frame charge at instance of prosecution – Judge has merely to sift evidence in order to find out whether or not there is sufficient ground for proceeding – Evidence would consist of statements recorded by Police or documents produced before Court – It is open to accused to explain away materials giving rise to grave suspicion – Defence of accused is not to be looked into at the stage when accused seeks to be discharged under Section 227 of Cr.P.C. – Court has to consider broad probabilities, total effect of evidence and documents produced before court, any basic infirmities appearing in case and so on – This, however, would not entitle court to make a roving inquiry into pros and cons – Defence of accused is not to be looked into at the stage when accused seeks to be discharged under Section 227 of the Cr.P.C. – Code does not give any right to accused to produce any document at the stage of framing of charge – At the stage of framing of charge, submission of accused is to be confined to material produced by Police. (Paras 14 and 15)
(B) Indian Penal Code, 1860 – Sections 120B, 420, 379, 409, 447, 468, 471 and 477A – Prevention of Corruption Act, 1988 – Sections 13(2) and 13(1)(c) and 13(1)(d) – Mines and Minerals (Development and Regulation) Act, 1957 – Section 26(2) – Mineral Concession Rules, 1960 – Rule 37 – Criminal Procedure Code, 1973 – Section 227 – Cheating and forgery by public servant – Discharge of accused – Appellant was Director of Mines and Geology in State of Karnataka at relevant time – Accused can only rely on materials which are produced by prosecution – Grave suspicion, if it is established on the materials, should be explained away only in terms of materials made available by prosecution – Accused may appeal to broad probabilities to the case to persuade court to discharge him – There may not be any other material to link appellant with various other acts and omissions which have been alleged against first accused in particular along with fifth accused and other accused – However, if defence of appellant is not to be looked into, which included practice obtaining in past whenever firm was reconstituted, and also version of the appellant that he did in fact speak with Deputy Director (Legal) and acted on his advice and further that this fact would be established if Deputy Director (Legal) was questioned in his presence, they would appear to be matter which may not be available to appellant to press before court considering the application under Section 227 of Cr.P.C. – View taken by High Court upheld. (Paras 28, 29 and 30)
Facts of the case:
Present appeal is directed against Order of the High Court setting aside the Order passed by the Magistrate allowing the application filed by the appellant to discharge him.
Findings of Court:
If defence of appellant is not to be looked into, which included practice obtaining in past whenever firm was reconstituted, and also the version of appellant that he did in fact speak with Deputy Director (Legal) and acted on his advice and further that this fact would be established if the Deputy Director (Legal) was questioned in his presence, they would appear to be matter which may not be available to the appellant to press before the court considering the application under Section 227 of Cr.P.C.
Result : Appeal dismissed.
Key Points: - If two views are possible and one gives rise only to suspicion (not grave suspicion), the trial judge may discharge the accused (!) . - The trial judge is not a mere post office; the judge must sift the evidence to find sufficient ground for proceeding (!) (!) . - The accused cannot rely on defence materials at the discharge stage, only explanations using prosecution materials (!) (!) . - Grave suspicion must be explained away only in terms of materials produced by the prosecution (!) . - The court must consider broad probabilities and the total effect of evidence, but not make a roving inquiry (!) . - At the framing stage, the court must accept the prosecution’s material as true and is not meant to decide guilt (!) (!) . - There must be some material supporting strong suspicion to refuse discharge (!) . - The accused’s version and practices (e.g., past reconstitution of firm) may be relevant if not examined at the discharge stage (!) . - The decision on discharge does not prejudice the court’s further considerations (!) . - The burden on the court is to ensure there is sufficient material to proceed, not to try the case (!) (!) .
JUDGMENT :
K.M. JOSEPH, J.
1. The appeal is directed against the Order of the High Court setting aside the Order passed by the Magistrate allowing the application filed by the appellant to discharge him.
2. The charge-sheet came to be filed on the basis of a FIR dated 01.10.2011. The appellant was Director of Mines and Geology in the State of Karnataka at the relevant time. There was a partnership firm by the name M/s Associated Mineral Company (‘AMC’, for short). The offences are alleged to revolve around the affairs of the said firm. First accused is the husband of the second accused. They became partners of the firm (AMC) in 2009. Appellant was arrayed as the third accused. There was reference in the charge-sheet to a conspiracy between the first accused and the second accused. It is alleged, inter alia, that they obtained an undated letter from one Shri K.M. Vishwanath, the Ex-Partner, which is after his retirement with effect from 01.08.2009 from the firm, which was addressed to the appellant, seeking directions to the Deputy Director of Mines and Geology, Hospet in Karnataka to issue the Mineral Dispatch Permit (‘MDP’ for short) to the new partners, viz., the first accused and the second accused. It is further averred that the investigation revealed that the appellant marked the said letter to the Case Worker who put up the note seeking orders for referring the matter for legal opinion which was also approved and recommended by the Additional Director and put up to the appellant for orders. Appellant is alleged to have acted in pursuance to the criminal conspiracy and abused his official position with a dishonest and fraudulent intention to cheat the Government of Karnataka and knowingly made a false note in the file that he had discussed this matter with the Deputy Director (Legal) and directed Deputy Director, Mines and Geology, Hospet for issue of MDPs to the new partners, viz., the first accused and the second accused by violating Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter referred to as ‘the Act’, for short) and Mineral Concession Rules, 1960 (hereinafter referred to as ‘the Rules’, for short). There are various allegations regarding other accused. As far as appellant is concerned, it is alleged further in the charge-sheet that the acts of the accused, seven in number, including the third accused (appellant), constitutes criminal offences punishable under Sections 120B, 420, 379, 409, 447, 468, 471, 477A of the Indian Penal Code, 1860 (hereinafter referred to as ‘the IPC’, for short) and Sections 13(2) and 13(1)(c) and 13(1)(d) of the Prevention of Corruption Act, 1988. No doubt, the origin of this investigation is to be traced to an Order passed by this Court dated 29.03.2011 in Special Leave Petition (Criminal) No. 7366-7367 of 2010 and connected matters ordering investigation into the illegalities into the matter of Mining Lease No. 2434 of AMC. The allegations include the allegation that the accused conspired to commit theft of Government property, i.e., mineral ore. They allegedly trespassed into the forest area and other areas of Bellary District: carried out illegal mining and transported it. Though, second accused (A2) to seventh accused(A7) filed applications under Section 227 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.PC’, for short) seeking discharge, by Order dated 08.10.2015, the Trial Court discharged the second accused and the appellant. It is this Order which has been set aside by the High Court by the impugned Order.
APPLICATION BY THE APPELLANT SEEKING DISCHARGE
3. It is, inter alia, stated as follows:
Appellant is known for his honesty and dignity as a public servant. He earned his name as an excellent and honest Officer in all the places where he was posted. He was not issued a single article of charges while discharging his duties. Though, he started as a Member of the Karnataka State Civil Service, he was promoted to the Cadre of Indian Admini
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