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Kanchan Kumar Vs. State of Bihar
[Criminal AppealCriminal Appeal Shankar Kerba Jadhav and others vs. The State of Maharashtra (AIR 1971 SC 840): "An appeal is a creature of a statute and the powers and jurisdiction of the appellate Court must be circumscribed by the words of the statute. At the same time a Court of appeal is a "Court of error" and its normal function is to correct the decision appealed from and its jurisdiction should be co-extensive with that of the trial Court. It cannot and ought not to do something which the trial Court was not competent to do. There does not seem to be any fetter to its power to do what the trial Court could do." No. 1562 of 2022 arising out of S.L.P. (Crl.) No. 9601 of 2016]
DATE: 14/09/2022
ACTS: Section 227 of the Code of Criminal Procedure
JUDGMENTJudgment The statement given by the Judge on the grounds of a decree or order - CPC 2(9). It contains a concise statement of the case, points for determination, the decision thereon, and the reasons for such decision - Order 20 Rule 4(2). Section 354 of CrPC requires that every judgment shall contain points for determination, the decision thereon and the reasons for the decision. Indian Supreme Court Decisions > Law declared by Supreme Court to be binding on all courts (Art 141 Indian Constitution) Civil and judicial authorities to act in aid of the Supreme Court (Art 144) Supreme Court Network On Judiciary – Portal > Denning: “Judges do not speak, as do actors, to please. They do not speak, as do advocates, to persuade. They do not speak, as do historians, to recount the past. They speak to give Judgment. And in their judgments, you will find passages, which are worthy to rank with the greatest literature….” Law Points on Judgment Writing > The judge must write to provide an easy-to-understand analysis of the issues of law and fact which arise for decision. Judgments are primarily meant for those whose cases are decided by judges (State Bank of India and Another Vs Ajay Kumar Sood SC 2022)
Pamidighantam Sri Narasimha J.
1. Leave granted.
2. This appeal is against the concurrent dismissals by the Trial (1) and the High CourtHigh Court High Court Judges in England and Wales handle complex and tough cases, sitting in London and traveling to court centers around the country. They preside over serious criminal and important civil cases, and support the Lord and Lady Justices in hearing appeals. High Court Judges are commonly referred to as ‘Mr/Mrs/Ms Justice surname’ and are given the prefix ‘The Honourable’. They are assigned to the King’s Bench Division, the Family Division, or the Chancery Division. The King’s Bench Division focuses on civil wrongs and judicial review, the Family Division deals with family law, and the Chancery Division handles various cases including company law and probate. Judges are appointed through a rigorous process overseen by the Judicial Appointments Commission.(2) of the application for discharge filed by the Appellant under Section 227 of the Code of Criminal Procedure, 1973 (3).
3. Facts leading to the filing of this Appeal:
The Appellant joined the Bihar State Financial CorporationCorporation A legally established entity that can enter into contracts, own assets and incur debt, as well as sue and be sued—all separately from its owner(s). The term covers both for-profit and nonprofit corporations and includes nonstock corporations, incorporated membership organizations, incorporated cooperatives, incorporated trade associations, professional corporations and, under certain circumstances, limited liability companies. 4 in the capacity of an Assistant General Manager on 19.07.1974. After a period of thirteen years, in 1987, a complaint came to be filed against the Appellant for having allegedly purchased three houses and two pieces of land in Bihar, which according to the complainant, was disproportionate to Appellant’s known sources of income. This complaint was inquired into, and after a detailed investigationInvestigation Purpose of all investigation is to reveal the unvarnished truth. The constitutional courts are duty bound to ensure that the truth is revealed., the allegations were found to be false. Except for a residential house in Patna, which the Appellant had purchased on 29.08.1988 for Rs. 2,26,500 with the help of a loan from the BSFC, no other assets could be traced to the ownership of the Appellant. However, despite finding no merit in the allegation, the investigation was kept pending.
4. In the meanwhile, life moved on and in 1996, the Appellant joined the Oil and Natural Gas Commission5 as Deputy General Manager on deputation, keeping his lien with the BSFC. Four years after joining ONGC, an FIR came to be registered against him on 21.02.2000, under Sections 13(l)(d) and 13(2) of the Prevention of Corruption Act, 19886, on the same allegation that he possessed assets disproportionate to his known sources of income. These alleged assets were purportedly acquired during his tenure with the BSFC, and consequently, the check period in the FIR was considered from the date he joined BSFC, i.e., 19.07.1974 to the date of registration of the residential house purchased by him, i.e., 29.08.1988. The Appellant wrote a letter to the Director General of Police (Vigilance), Patna, on 18.04.2002, raising a grievance that the calculations in the FIR undervalued his income and overvalued his assets, thus depicting a false and inflated account of his expenditure.
5. Eventually a charge sheet came to be filed on 11.09.2007, i.e., about seven years after the registration of the FIR, and in fact, twenty years after the complaint on this very allegation was found to be false by the authorities. Be that as it may, the charge-sheet filed against the Appellant indicated that he earned a total income of Rs. 3,01,561 and incurred an expenditure of Rs. 5,24,386 during the check period. In view of this, the charge against the Appellant was of having amassed Rs. 2,22,825, disproportionate to his known sources of income. The charge sheet indicated two components of his income, being i) savings of Rs. 1,13,081 (1/3rd of his salary), and ii) home and car loan from BSFC worth Rs. 1,88,480. On the other hand, the charge sheet included six components of his expenditure, being – i) payment of Rs. 2,26,500 towards the construction of his house, ii) general expenditure during the check period of Rs. 24,800, iii) amount in bank deposit worth Rs. 55,000, iv) loan repayment of Rs. 53,467, v) LIC deposit worth Rs. 6,057, and vi) estimated value of articles found during a searchSearch Google SEO: Meaning> Relevance> Quality> Usability> Context conducted on 21.02.2000, as being Rs. 1,58,562.
6. At the relevant stage, the Appellant applied for discharge under “Section 239” of the Cr.P.C (which should have been under Section 2277) before the Court of Special Judge (Vigilance), Patna, alleging that there were glaring errors in the calculation. However, the Court summarily dismissed the application by its order dated 28.03.2016, without analysing or examining the documents produced and the argumentsArguments It is not quarreling. It can be divided into Deductive, inductive, and conductive > Functional includes include: “because”, “since”, “for”, and “as”; typical conclusion indicators include “therefore”, “thus”, “hence”, and “so”. पंच अवयव तर्कः प्रतिज्ञा हेतू उदाहरणम् निगमनम् अवयवाः > premises to conclusion or conclusion to premises to Proof something. Proof is a derivation of a conclusion from premises through a valid argument. advanced. The Court held that:
“Perused the record and I find that there is sufficient materials against accused in this case at least prima facie at this stage to frame charge against the accused against whom there is allegation that he during the check period amassed. Although certain explanations have been advanced by the learned counsel for the petitioner but the same appears to be looked into and appreciated during the course of trial when the accused petitioner wife have a chance to prevents innocence producing his oral or documentary evidences. For the present I am not satisfied with the explanation so produced by the accused in his favour in support of his discharge application.
Considering the aforesaid facts and circumstances the charge petition of the accused petitioner namely Kanchan Kumar is hereby rejected. Put up on 22.04.2016 for framing of charge. The accused is directed to remaining physically present on the date so fixed by this court for framing of charge.”
7. Aggrieved by the dismissal of his application for discharge, the Appellant moved the High Court. After recounting the chronology of events, the High Court proceeded to quote judgment after judgment, and finally dismissed the revision application by merely holding that:
“15. In the aforesaid circumstances, even if considering the submissions made on behalf of petitioner, for argumentArguments It is not quarreling. It can be divided into Deductive, inductive, and conductive > Functional includes include: “because”, “since”, “for”, and “as”; typical conclusion indicators include “therefore”, “thus”, “hence”, and “so”. पंच अवयव तर्कः प्रतिज्ञा हेतू उदाहरणम् निगमनम् अवयवाः > premises to conclusion or conclusion to premises to Proof something. Proof is a derivation of a conclusion from premises through a valid argument.’s sake needs proper verification attracting roving enquiry which could be permissible only during course of trial.
16. Much emphasis has been laid at the end of the petitioner relating to valuation. With the cost of repetition, the contention of the petitioner is that as the raid was conducted on 21.02.2000, on account thereof, the valuation having been shown against the article so seized at the end of the Vigilance must be considered to be in consonance with the date of recovery. That argument happens to be fallacious in the background of the fact that from the case diary, it is evident that valuation has been estimated only. There happens to be complete absence of prima facie material whereupon one could infer that the value so affixed at that very moment was prevailing rate on the alleged date of seizure. Furthermore, to ascertain genuineness on this score will again attract roving enquiry which for the present stage is found forbidden.
17. Consequent thereupon, the instant petition is found devoid of merit and is, accordingly, rejected.”
8. It is against the aforesaid order that the Appellant has approached this Court.
9. Submissions of parties:
The Ld. Senior Counsel Shri Sunil Kumar has submitted that the basic objection relating to the calculation and wrongful inclusion of certain items was sufficient for the Trial CourtTrial court Court of original Jurisdiction > the court which examines the evidences for the first time. to discharge the Appellant. In a simple and straight forward submission, he took us through certain glaring errors that were evident from the record of the case before the Special Judge (Vigilance). In support of his submissions, he also referred to the decisions of this Court in Union of India v. Prafulla Kumar Samal and Anr.8 and Ghulam Hassan Beigh v. Mohammad Maqbool Magrey9.
10. The counsel for the Respondent Shri Abhinav Mukerji AOR, has contended that the Trial Court was right in dismissing the discharge application. He submitted that the Courts could not have conducted a roving inquiry while adjudicating an application under Section 239 of the Cr.P.C.
11. Issue: The short question arising for consideration is whether the Appellant is entitled to be discharged of the proceedings initiated against him under the PC Act.
12. Legal provision and precedents: Section 227 of the Cr.P.C relating to discharge is as under:
“227. Discharge –If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.”
13. The threshold of scrutiny required to adjudicate an application under Section 227 of the Cr.P.C., is to consider the broad probabilities of the case and the total effect of the material on record, including examination of any infirmities appearing in the case. In Prafulla Kumar Samal (supra), it was noted that:
“10. Thus, on a consideration of the authorities mentioned above, the following principles emerge:
(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidenceEvidence All the means by which a matter of fact, the truth of which is submitted for investigation, is established or disproved. Bharatiya Sakshya (Second) Adhiniyam 2023 for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.
(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
(4) That in exercising his jurisdictionJurisdiction Authority by which courts receive and decide cases. Limited Jurisdiction: the authority over only particular types of cases, or cases under a prescribed amount in controversy, or seeking only certain types of relief, the District Court is a court of limited jurisdiction. Original Jurisdiction: Jurisdiction of the first court to hear a case. under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a Post Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.”
(emphasis supplied)
14. In Sajjan Kumar v. Central Bureau of Investigation(10), the Court cautioned against accepting every document produced by the prosecution on face value, and noted that it was important to sift the evidence produced before the Court. It observed that:
“21. On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge:
…
(v) At the timeTime Where any expression of it occurs in any Rules, or any judgment, order or direction, and whenever the doing or not doing of anything at a certain time of the day or night or during a certain part of the day or night has an effect in law, that time is, unless it is otherwise specifically stated, held to be standard time as used in a particular country or state. (In Physics, time and Space never exist actually-“quantum entanglement”) of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mindConciousness Through it, a living being exists. It exists even at the molecular level. Mind is not able to control it. The mind is an internal organ that exists separate from consciousness. The mind (depending on bio-electricity) can not work without memory and information, but consciousness can. Dreams come from consciousness. Read: Mind is man. on the material placed on record and must be satisfied that the commission of offence by the accused was possible. (vi) At the stage of Sections 227 and 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospelGospel A conscious evangelical fixation (NT)for inner consumption, legalised by Constantine after acceptance of several Egyptian myths. Why there are four Gospels instead of one, seems to validate the fixation by saying that four independent communities produced the same. Paul was Constantine's shadow, and Peter was his inner consciousness, who did not know Jesus during the trial period. Facts on Jesus were so few that the bookbinder had a problem 'call it a book' compared to Homar, or any Latin book available for reading in or around 325 CE. truthTruth Mathematical 'truth' may not be agreeable with the philosophical 'truth.' A question may be asked on propositional 'truth' on the grounds of physics, that space and time actually don't exist. Vedic injunction Satyam Param Dhimahi, technically Satya is none other than Brahman. For Madhymic Buddhists there is nothing as such to be called 'truth', as all the corresponding facts are only mental projections. Apart from Bio-neuroelectricity nothing exists for Biological Cognition. So-called religious truths are nothing more than a marketing strategy. even if it is opposed to common sense or the broad probabilities of the case…”
(emphasis supplied)
15. Summarising the principles on discharge under Section 227 of the Cr.P.C, in Dipakbhai Jagdishchandra Patel v. State of Gujarat,11 this Court recapitulated:
“23. At the stage of framing the charge in accordance with the principles which have been laid down by this Court, what the court is expected to do is, it does not act as a mere post office. The court must indeed sift the material before it. The material to be sifted would be the material which is produced and relied upon by the prosecution. The sifting is not to be meticulous in the sense that the court dons the mantle of the trial Judge hearing arguments after the entire evidence has been adduced after a fullfledged trial and the question is not whether the prosecution has made out the case for the conviction of the accused.
All that is required is, the court must be satisfied that with the materials available, a case is made out for the accused to stand trial. A strong suspicion suffices. However, a strong suspicion must be founded on some material. The material must be such as can be translated into evidence at the stage of trial. The strong suspicion cannot be the pure subjective satisfaction based on the moralMorality Mental frame. It can be high morality or low morality, savage morality or civilised morality or Christian morality, or Nazi morality. Decent Behaviour is acceptable norms of the nations. Christian morality starts with the belief that all men are sinners and that repentance is the cause of divine mercy. Putting Crucified Christ in between is the destruction of Christian morality and logic. Now morality shifted to the personal choice of Jesus. What Jesus did is 'good'. The same would be the case of Ram, Krishna, Muhammad, Buddha, Lenin, etc. Pure Human Consciousness degraded to pure followership. There exists no proof the animals are devoid of morality. notions of the Judge that here is a case where it is possible that the accused has committed the offence. Strong suspicion must be the suspicion which is premised on some material which commends itself to the court as sufficient to entertain the prima facie view that the accused has committed the offence.”
(emphasis supplied)
16.1 Analysis: Without getting into too many details, we consider it to be appropriate and in fact sufficient to confine our inquiry to three heads of expenditure indicated in the charge-sheet itself. This limited inquiry will also satisfy the requirements of Section 227 of the Cr.P.C.
16.2 The first objection pertains to the inclusion an amount of Rs. 55,000, recorded as the balance amount in the Appellant’s bank account during the check period, and accordingly counted as an expenditure in the charge sheet. However, the Bank Passbook filed by the Appellant, which was available to the Investigation Officer and the Special Judge (Vigilance), evidently records a balance amount of only Rs. 11,998 during the checkperiod. The difference in the figures was not explained by the Prosecution. Accordingly, the Special Judge (Vigilance) and the High Court failed to reconcile such a simple and straightforward inconsistency in the Prosecution’s evidence. We are of the opinionOpinion A judge's written explanation of a decision of the court. In an appeal, multiple opinions may be written. The court’s ruling comes from a majority of judges and forms the majority opinion. A dissenting opinion disagrees with the majority because of the reasoning and/or the principles of law on which the decision is based. A concurring opinion agrees with the end result of the court but offers further comment possibly because they disagree with how the court reached its conclusion. that only an amount of Rs. 11,998, recorded in the Appellant’s Bank Passbook during the checkperiod as the balance amount, is validly admissible as expenditure under this head.
16.3 The second objection relates to the inclusion of an amount of Rs. 53,467 as expenditure towards repayment of the loan from the BSFC. However, the amount repaid towards loan instalments was already deducted from Appellant’s gross salary, and the deducted figure was recorded as the total disposable income with the Appellant during the check period. Hence, the loan repayment cannot be separately counted as an expenditure yet again. This is a glaring mistake. The Special Judge (Vigilance) as well as the High Court did not consider this objection on the ground that a roving inquiry is not permissible the stage of discharge.
16.4 The third objection relates to the inclusion of Rs. 1,58,562 as the value of the articles found during a search conducted in Appellant’s house on 21.02.2000, twelve years after the check period of 1974 to 1988. There is nothing to indicate, even prima facie, that these articles found during the search in the year 2000 were acquired during the check period. In the absence of any material to link these articles as having been acquired during the check period, it is impermissible to include their value in the expenditure. We are therefore of the opinion that the Appellant’s objection about inclusion of this amount in the list of expenditure is fully justified. Unfortunately, even this objection, which did not require much scrutiny of the material on record, was not considered by the Special Judge (Vigilance) or the High Court.
17. The three heads of expenditure discussed hereinabove must be excluded from Appellant’s total alleged expenditure during the check period. First, the Appellant’s actual balance amount reflected in the Bank Passbook, i.e., Rs. 11,998, as against the purported account balance of Rs. 55,000, must be taken into account. Further, the second and third amounts, as indicated above, must be excluded from Appellant’s total expenditure mentioned in the chargesheet. Accordingly, the total expenditure comes only to Rs. 2,69,355, and not Rs. 5,24,386, which is based on certain mistakes that we have indicated hereinabove. It is this expenditure of Rs. 2,69,355 which is to be contrasted with the income of Rs. 3,01,561 during the checkperiod. These facts clearly demonstrate that there is no prima facie case made out by the prosecution and therefore the Appellant was entitled to be discharged.
18. The conclusions that we have drawn are based on materials placed before us, which are part of the case record. This is the same record that was available with the Special Judge (Vigilance) when the application under Section 227 of the Cr.P.C. was taken up. Despite that, the Special Judge (Vigilance) dismissed the discharge application on the simple ground that a roving inquiry is not permitted at the stage of discharge. What we have undertaken is not a roving inquiry, but a simple and necessary inquiry for a proper adjudication of an application for discharge. The Special Judge (Vigilance) was bound to conduct a similar inquiry for coming to a conclusion that a prima facie case is made out for the Appellant to stand trial. Unfortunately, the High Court committed the same mistake as that of the Special Judge (Vigilance).
19. Apart from the above analysis, we would note with great distress that the allegation relating to Appellant’s disproportionate income in the period between 1974 and 1988 was levelled in an FIR filed twelve years after the said period concluded. The charge-sheet came to be filed seven years after the registration of the FIR. The application for discharge came to be dismissed on 28.03.2016, almost after a decade of filing of the charge sheet. The dismissal was affirmed by the High Court seven months thereafter, i.e., on 05.10.2016. Finally, and most unfortunately, the present SLP has been pending before this Court for the last six years. In the meanwhile, the Appellant superannuated from service in 2010, but had no option except to contest the case. He is now 72 years. Continuation of the prosecution, apart from the illegality as indicated hereinabove, would also be unjust.
20. For the reasons stated above, we allow the Criminal Appeal arising out of SLP (Crl) No. 9601 of 2016, and set aside the judgment and order of the High Court of Patna in CRLM No. 23031 of 2016 dated 05.10.2016, and that of the Court of Special Judge (Vigilance), Patna in Special Case No. 09 of 2000, dated 28.03.2016, and discharge the Appellant.
21. No order as to costsCosts Subject to any written law, costs are at the discretion of the Court, and the Court has the power to determine all issues relating to the costs of or incidental to all proceedings, including by whom and to what extent the costs are to be paid, at any stage of the proceedings or after the conclusion of the proceedings. Generally “Costs” includes charges, disbursements, expenses, fees, and remuneration. Costs in any matter are payable from the date of the order of the Court unless the parties otherwise agree. The costs of a third-party funding contract are not recoverable as part of the costs of, or costs..
J. [B.R. GAVAI]
J. [PAMIDIGHANTAM SRI NARASIMHA]
NEW DELHINew Delhi Indraprastha, the capital of Emperor Yudhisthira and Pandavas constructed by Mayasura, where Rajasuya Yagna was performed under the guidance of Krishna Dvaipayana and the protection of Vasudeva Krishna in the present-day Raja Ghat area. Prtvi Rajaj was the last Hindu king of Delhi.;
SEPTEMBER 14, 2022
1 Special Judge (Vigilance), Patna, in Special Case No. 9 of 2000 dated 28.03.2016.
2 High Court of Judicature at Patna, in Criminal Miscellaneous No. 23031 of 2016 dated 05.10.2016.
3 hereinafter referred to as the ‘Cr.P.C.’
4 hereinafter referred to as ‘the BSFC’.
5 hereinafter referred to as ‘the ONGC’.
6 hereinafter referred to as the ‘PC Act’.
7 Though the Appellant stated that the application is under Section 239 of the Cr.P.C., as Special Judges appointed under the PC Act are deemed to be Court of Session, the discharge application should have been filed under Section 227 of the Cr.P.C., and not under Section 239 therein. The Ld counsel for the Appellant Shri Sunil Kumar, Senior Advocate clarified this position of law while making his submissions.
8 (1979) 3 SCCSCC Supreme Court Cases 4.
9 2022 SCC OnLine SC 913.
10 (2010) 9 SCC 368.
11 (2019) 16 SCC 547.