Exceeding jurisdiction under Section 227/239 by High Court while transcript of conversation in detail: Supreme Court of India
Transcript of the conversation between the complainant and the accused at the stage of framing the charge is not permissible. This honorable judgement was passed by Supreme Court of India in the case of State of Rajasthan vs. Ashok Kumar Kashyap [CRIMINAL APPEAL NO. 407 OF 2021] by The Hon’ble Dr. Justice D.Y. Chandrachud and The Hon’ble Mr. Justice M.R. Shah. In the facts and circumstances of the case, the delay caused in filing the special leave petition was condoned. Feeling aggrieved and dissatisfied with the impugned judgment and order was passed by the High Court of Rajasthan, had quashed the order passed by the learned Special Judge, Prevention of Corruption Act, Bharatpur, framed the charge against the respondent-accused for the offence under Section 7 of the Prevention of Corruption Act and consequently had discharged the accused of the alleged offence under Section 7 of the PC Act, the State had preferred the present appeal. The original accused was serving as a Patwari. The complainant submitted a written report before the police, Anti-Corruption Bureau, Bharatpur stating that for the purpose of issuing Domicile Certificate and OBC Certificate of his son, he had submitted an application enclosed with complete certificates before the accused for endorsing his report. In lieu of endorsing his report over the said application demanded a bribe of Rs.2,800/-. A charge sheet filed against the accused for the offence under Section 7 of the PC Act. It was found that there was a prima facie case made out and the defence of the accused is not to be considered at this stage. In high court it was also contended that on reading the entire transcript the factum of demand of Rs.2,800/- is not revealed. The learned council referred the case of P. Vijayan v. State of Kerana, (2010) 2 SCC 398; Srilekha Sentil Kumar v. Deputy Superintendent of Police, CBI, ACB, Chennai, (2019) 7 SCC 82; Asim Shariff v. National Investigation Agency (2019) 7 SCC 148; and State of Karnataka Lokayukta, Police Station, Bengaluru v. M.R. Hiremath, (2019) 7 SCC 515. The court opinioned that, “High Court has exceeded in its jurisdiction and has acted beyond the scope of Section 227/239 Cr.P.C. For the aforesaid, the High Court has considered in detail the transcript of the conversation between the complainant and the accused which exercise at this stage to consider the discharge application and/or framing of the charge is not permissible at all.”
IN THE CRIMINAL APPEALLATE JURISDICTION CRIMINAL APPEAL NO. 407 OF 2021 No. 31921 Diary No. 8524 2020 State of Rajasthan Ashok Kumar Kashyap JUDGMENT M.R. SHAH J 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 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. 12718 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 Actand consequently has discharged the accused of the alleged offence under Section 7 of the PC Act the State has preferred the present appeal 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 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. 12718. 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. StateAIR 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 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 discharged the accused from the alleged offence by observing in paragraphs 10 & 11 as under “10. In the present case in hand complainant himself when he moved to the Anti Corruption Department mentioned that petitioner had returned the form without making report. From the transcript which is available on record it is evident that some prior transactions pertaining to bank file was pending between the parties and matter pertained to Rs. 4 850 out of which as per the petitioner Rs. 4 000 was to be paid to the bank and in the transcript he has explained the total amount which was payable by the complainant. There is no specific demand for making a bonafide residence certificate rather petitioner had mentioned in the transcript that as the complainant and his son are residing in Agra a bonafide residence certificate cannot be issued. No trap proceedings were conducted in the case and the matter has remained pending with the Anti Corruption for a period of more than five years. There is no specific demand of money by petitioner and on the date of transcript no matter was pending before 11. In view of the same it is evident from bare reading of the transcript that offence under Section 7 of the Prevention of Corruption Act would not be made out against the petitioner.” Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court discharging the accused and quashing and setting aside the order of framing charge by the learned Special Judge in exercise of its revisional jurisdiction the State has preferred the present appeal Mr. Vishal Meghwal learned Advocate appearing on behalf of the State has vehemently submitted that in the facts and circumstances of the case the High Court has erred in discharging the accused of the charged offence when there is ample material and evidence on record against the accused and sufficient grounds are available for proceeding against the accused It is submitted that the High Court has failed to appreciate that at the stage of framing of charge and or consideration of an application for discharge the Court is to consider whether there is any prima facie case made out against the accused or not and at that stage the Court is required to evaluate the material and documents relied on by the prosecution only with a view to find out whether the facts emerging therefrom if taken at their face value disclose the existence of all the ingredients constituting the alleged offence or not It is submitted that in the present case the High Court has committed a grave error in evaluating the transcript evidence on merits which at the stage of considering the application for discharge is not It is further submitted by the learned Advocate appearing on behalf of the State that in the present case even otherwise from the transcript recording the conversation between the complainant and the accused a case of demand of illegal gratification has been made out. It is submitted that the accused has been charged for the offence under Section 7 of the PC Act and therefore even an attempt is sufficient to attract the offence under Section 7 of the PC Act. It is submitted that therefore the High Court has erred in evaluating the evidence on record on merits at the stage of considering the discharge application which as such is impermissible and beyond the scope of the exercise of the Learned Advocate appearing on behalf of the State has heavily relied upon the decisions of this Court in the cases of P. Vijayan v. State of Kerana 2 SCC 398 Srilekha Sentil Kumar v. Deputy Superintendent of Police CBI ACB Chennai 7 SCC 82 Asim Shariff v. National Investigation Agency7 SCC 148 and State of Karnataka Lokayukta Police Station Bengaluru v. M.R. Hiremath 2019) 7 SCC 515 Learned Advocate appearing on behalf of the respondent accused has vehemently submitted that in the facts and circumstances of the case and as it was found from the transcript recording the conversation between the complainant and the accused that no case at all has been made out against the accused for the offence under Section 7 of the PC Act the High Court has rightly discharged the accused by quashing and setting aside the order passed by the learned Special Judge framing charge against the accused. It is vehemently submitted by the learned Advocate for the respondent accused that as such the accused refused to issue residence certificate and caste certificate having come to know about the complaint being the permanent resident of Agra. It is submitted that in fact the complainant wanted a false residence certificate and caste certificate illegally to be made in the State of Rajasthan though he was the permanent resident of Agra. It is submitted that in fact the respondent accused gave a report rejecting the request of the complainant on 29.08.2010 and therefore as such there was nothing pending before the accused and the decision regarding his application was already taken It is submitted that in fact even as per the case of the prosecution and even the complainant the trap failed and the accused refused to accept the bribe in the trap proceedings It is submitted that at the time of conversation two persons were present the complainant Jai Kishore andDevi Singh. It is submitted that there was a mixing of the conversation with the complainant as well as Devi Singh. It is submitted that so far as the complainant is concerned the accused categorically refused to accept any bribe. However it is submitted that the appellant has tried to confuse and mislead the Court by mixing the conversation of Devi Singh regarding his dues of Rs.4 850 to the bank against which he has paid Rs.2 000 and the remaining amount of Rs.2 850 was due to the bank It is submitted that therefore so far as the complainant is concerned neither there was any acceptance nor there was any demand of bribe and therefore having found on the basis of the material evidence on record that no case is made out against the accused for the offence under Section 7 of the PC Act the High Court has rightly discharged the Learned counsel appearing on behalf of the accused has heavily relied upon the decision of this Court in the case of Dilawar Balu Kurane v. State of Maharashtra 2 SCC 135 and has submitted that as held by this Court the Court while exercising powers under Section 227 Cr.P.C. and while considering the question of framing of the charge has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against accused is made out and where the material placed before the Court discloses grave suspicion against the accused which has not been properly explained the court will be fully justified in framing of the charge and proceeding with the trial however by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him will give rise to some suspicion but not grave suspicion against the accused he will be fully justified to discharge the accused. It is submitted that therefore in the present case the High Court was justified in evaluating the evidence on record to come to a conclusion whether there is any sufficient material evidence making out a case for the offence under Section 7 of the PC Act or not 7.4 Number of other submissions have been made by the learned counsel for the respective parties on merits after taking us in detail to the transcript recording the conversation between the complainant and the accused. However at the stage of framing of the charge and or while considering the discharge application we do not propose to go into in detail on merits of the allegations and the evidence on record as for the reasons stated hereinbelow the same is not permissible at this stage 8. We have heard the learned counsel for the respective parties By the impugned judgment and order the High Court in exercise of its revisional jurisdiction has set aside the order passed by the learned Special Judge framing the charge against the accused under Section 7 of the PC Act and consequently has discharged the accused for the said offence. What has been weighed with the High Court while discharging the accused is stated in paragraphs 10 & 11 of the impugned judgment and order which are reproduced hereinabove 9. While considering the legality of the impugned judgment and order passed by the High Court the law on the subject and few decisions of this Court are required to be referred to In the case of P.Vijayan this Court had an occasion to consider Section 227 of the Cr.P.C. What is required to be considered at the time of framing of the charge and or considering the discharge application has been considered elaborately in the said decision. It is observed and held that at the stage of Section 227 the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. It is observed that in other words the sufficiency of grounds would take within its fold the nature of the evidence recorded by the police or the documents produced before the Court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him. It is further observed that if the Judge comes to a conclusion that there is sufficient ground to proceed he will frame a charge under Section 228 Cr.P.C. if not he will discharge the accused It is further observed that while exercising its judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution it is not necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the court after the trial In the recent decision of this Court in the case of M.R. Hiremath supra) one of usspeaking for the Bench has observed and held in paragraph 25 as under 25. The High Court ought to have been cognizant of the fact that the trial court was dealing with an application for discharge under the provisions of Section 239 CrPC. The parameters which govern the exercise of this jurisdiction have found expression in several decisions of this Court. It is a settled principle of law that at the stage of considering an application for discharge the court must proceed on the assumption that the material which has been brought on the record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material taken on its face value disclose the existence of the ingredients necessary to constitute the offence. In State of T.N. v. N. Suresh Rajan [State of T.N. v. N. Suresh Rajan (2014 11 SCC 709 adverting to the earlier decisions on the subject this Court held: (SCC pp. 721 22 para 29 “29. … At this stage probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value it can frame the charge though for conviction the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage.” 10. We shall now apply the principles enunciated above to the present case in order to find out whether in the facts and circumstances of the case the High Court was justified in discharging the accused for the offence under Section 7 of the PC Act 11. Having considered the reasoning given by the High Court and the grounds which are weighed with the High Court while discharging the accused we are of the opinion that the High Court has exceeded in its jurisdiction in exercise of the revisional jurisdiction and has acted beyond the scope of Section 227 239 Cr.P.C. While discharging the accused the High Court has gone into the merits of the case and has considered whether on the basis of the material on record the accused is likely to be convicted or not. For the aforesaid the High Court has considered in detail the transcript of the conversation between the complainant and the accused which exercise at this stage to consider the discharge application and or framing of the charge is not permissible at all. As rightly observed and held by the learned Special Judge at the stage of framing of the charge it has to be seen whether or not a prima facie case is made out and the defence of the accused is not to be considered. After considering the material on record including the transcript of the conversation between the complainant and the accused the learned Special Judge having found that there is a prima facie case of the alleged offence under Section 7 of the PC Act framed the charge against the accused for the said offence. The High Court materially erred in negating the exercise of considering the transcript in detail and in considering whether on the basis of the material on record the accused is likely to be convicted for the offence under Section 7 of the PC Act or not. As observed hereinabove the High Court was required to consider whether a prima facie case has been made out or not and whether the accused is required to be further tried or not. At the stage of framing of the charge and or considering the discharge application the 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 the High Court has erred and or exceeded in virtually holding a mini trial at the stage of discharge application 12. We are not further entering into the merits of the case and or merits of the transcript as the same is required to be considered at the time of trial. Defence on merits is not to be considered at the stage of framing of the charge and or at the stage of discharge application In view of the above and for the reasons stated above the impugned judgment and order passed by the High Court discharging the accused under Section 7 of the PC Act is unsustainable in law and the same deserves to be quashed and set aside and is accordingly hereby quashed and set aside and the order passed by the learned Special Judge framing charge against the accused under Section 7 of the PC Act is hereby restored. Now the case is to be tried against the accused by the competent court for the offence under Section 7 of the PC Act in accordance with law and its own merits Dr. Dhananjaya Y. Chandrachud New Delhi April 13 2021