Full Judgment Text
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REPORTABLE
2023INSC894
IN THE SUPREME COURT OF INDIA
CRIMINAL APPEALLATE JURISDICTION
CRIMINAL APPEAL NO.2504 OF 2023
STATE OF GUJARAT .... APPELLANT
VERSUS
DILIPSINH KISHORSINH RAO .…RESPONDENT
J U D G M E N T
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
Signature Not Verified
him by filing an application for discharge on the ground of
Digitally signed by
NEETA SAPRA
Date: 2023.10.10
17:44:48 IST
Reason:
investigating officer (hereinafter referred to as ‘IO’)
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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.
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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 charge-
sheet 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.
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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
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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;
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(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 amount to the
accused as loan is also a question of fact which is
to be decided during the trial;
(d) The fact of accused informing with regard to
purchase of property to the department under
the Gujarat Civil Services rules does not gave
him a clean chit with regards to his income. This
can merely be said to be complying with the
rules and regulations of service, however, this
does not give him a seal of authenticity with
regards to the value of consideration which is
disproportionate to the known source of income.
(e) The explanation given by the accused with
regard to disproportionate income is also taken
into consideration while filing the charge-sheet
against the accused and also while granting
sanction.
(f) Necessary sanction has been obtained and
hence, the question where sanction is given
without application of mind is also a question of
fact to be decided at the time of trial.
(g) The bulk of records placed on record by
way of charge-sheet papers prima facie shows
that if they are taken at their face value if
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discloses all the ingredients of disproportionate
income with the known source of income;
(h) Even considering the broad principles
whatever defence the accused is taking, even if
the same are considered, it cannot be said that
the ingredients constituting the alleged offence
are not attracted.
(i) There does not seems to be any basis
infirmities prima facie on record which nullifies
the case of prosecution. Even if two views are
possible, present case papers clearly creates
grave a suspicion against the accused with
regards to the loan amount taken from his
brother, father, mother and other friends and
also with regards to the income of his son, who
was residing at Australia and his agricultural
income and there are sufficient grounds for
proceeding against the accused.
(5) Considering the facts recorded
hereinabove emerging from the documents on
record, it cannot be said that the accused is liable
to be discharged since this Court is not required
to make roving inquiry into pros and cons of the
matter and weighing the evidence as if the trial is
conducted. Even otherwise the allegations with
regards to the disproportionate assets against
the known source of income is a subject matter
which cannot be decided at the outset without
conducting full fledge trial, more particularly,
when it is the accused who has the knowledge
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with regard to the source of income from while
purchase of the properties both movable and
immovable are made by him and the Court at this
juncture is able to see prima facie case against
the accused. Under the circumstances, the
application is substance less and hence the
following order is passed.”
and for the aforesaid reasons dismissed the application by
order dated 13.04.2016 (Annexure P-30).
6 . Being aggrieved by the above said order respondent
herein carried the same in revision before the High Court.
As already noticed hereinabove the High Court by
impugned order allowed the Revision Application by
perusing the material on record placed by the respondent
-accused and arrived at a conclusion that trial court had
committed an error in dismissing the application and
accepting the plea of the respondent which was virtually by
way of defence and discharged the respondent.
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DISCUSSION AND FINDINGS
7 . It is trite law that application of judicial mind being
necessary to determine whether a case has been made out
by the prosecution for proceeding with trial and it would
not be necessary to dwell into the pros and cons of the
matter by examining the defence of the accused when an
application for discharge is filed. At that stage, the trial
judge has to merely examine the evidence placed by the
prosecution in order to determine whether or not the
grounds are sufficient to proceed against the accused on
basis of charge sheet material. The nature of the evidence
recorded or collected by the investigating agency or the
documents produced in which prima facie it reveals that
there are suspicious circumstances against the accused,
so as to frame a charge would suffice and such material
would be taken into account for the purposes of framing the
charge. If there is no sufficient ground for proceeding
against the accused necessarily, the accused would be
discharged, but if the court is of the opinion, after such
consideration of the material there are grounds for
presuming that accused has committed the offence which is
triable, then necessarily charge has to be framed.
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8. At the time of framing of the charge and taking
cognizance the accused has no right to produce any
material and call upon the court to examine the same. No
provision in the Code grants any right to the accused to file
any material or document at the stage of framing of charge.
The trial court has to apply its judicial mind to the facts of
the case as may be necessary to determine whether a case
has been made out by the prosecution for trial on the basis
of charge-sheet material only.
9 . If the accused is able to demonstrate from the charge-
sheet material at the stage of framing the charge which
might drastically affect the very sustainability of the case, it
is unfair to suggest that such material should not be
considered or ignored by the court at that stage. The main
intention of granting a chance to the accused of making
submissions as envisaged under Section 227 of the Cr.P.C.
is to assist the court to determine whether it is required to
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proceed to conduct the trial. Nothing in the Code limits the
ambit of such hearing, to oral hearing and oral arguments
only and therefore, the trial court can consider the material
produced by the accused before the I.O.
10 . It is settled principle of law that at the stage of
considering an application for discharge the court must
proceed on an assumption that the material which has been
brought on record by the prosecution is true and evaluate
said material in order to determine whether the facts
emerging from the material taken on its face value, disclose
the existence of the ingredients necessary of the offence
alleged. This Court in State of Tamil Nadu Vs. N. Suresh
Rajan And Others (2014) 11 SCC 709 adverting to the
earlier propositions of law laid down on this subject has
held:
“29. We have bestowed our consideration to the
rival submissions and the submissions made by
Mr. Ranjit Kumar commend us. True it is that at
the time of consideration of the applications for
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discharge, the court cannot act as a mouthpiece
of the prosecution or act as a post office and may
sift evidence in order to find out whether or not
the allegations made are groundless so as to pass
an order of discharge. It is trite that at the stage
of consideration of an application for discharge,
the court has to proceed with an assumption that
the materials brought on record by the
prosecution are true and evaluate the said
materials and documents with a view to find out
whether the facts emerging therefrom taken at
their face value disclose the existence of all the
ingredients constituting the alleged offence. 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.”
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11 . The defence of the accused is not to be looked into
at the stage when the accused seeks to be discharged. The
expression “the record of the case” used in Section 227
Cr.P.C. is to be understood as the documents and articles,
if any, produced by the prosecution. The Code does not
give any right to the accused to produce any document at
the stage of framing of the charge. The submission of the
accused is to be confined to the material produced by the
investigating agency.
12. The primary consideration at the stage of framing of
charge is the test of existence of a prima-facie case, and at
this stage, the probative value of materials on record need
not be gone into. This Court by referring to its earlier
decisions in the State of Maharashtra Vs. Som Nath
Thapa (1996) 4 SCC 659 and the State of MP Vs. Mohan
Lal Soni (2000) 6 SCC 338 has held the nature of evaluation
to be made by the court at the stage of framing of the
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charge is to test the existence of prima-facie case. It is also
held at the stage of framing of charge, the court has to form
a presumptive opinion to the existence of factual
ingredients constituting the offence alleged and it is not
expected to go deep into probative value of the material
on record and to check whether the material on record
would certainly lead to conviction at the conclusion of trial.
13 . The power and jurisdiction of Higher Court under
Section 397 Cr.P.C. which vests the court with the power
to call for and examine records of an inferior court is for
the purposes of satisfying itself as to the legality and
regularities of any proceeding or order made in a case.
The object of this provision is to set right a patent defect or
an error of jurisdiction or law or the perversity which has
crept in such proceedings. It would be apposite to refer to
the judgment of this court in Amit Kapoor Vs. Ramesh
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Chandra (2012) 9 SCC 460 where scope of Section 397 has
been considered and succinctly explained as under:
“12. Section 397 of the Code vests the court with
the power to call for and examine the records of
an inferior court for the purposes of satisfying
itself as to the legality and regularity of any
proceedings or order made in a case. The object
of this provision is to set right a patent defect or
an error of jurisdiction or law. There has to be a
well-founded error and it may not be
appropriate for the court to scrutinise the orders,
which upon the face of it bears a token of careful
consideration and appear to be in accordance
with law. If one looks into the various judgments
of this Court, it emerges that the revisional
jurisdiction can be invoked where the decisions
under challenge are grossly erroneous, there is
no compliance with the provisions of law, the
finding recorded is based on no evidence,
material evidence is ignored or judicial
discretion is exercised arbitrarily or perversely.
These are not exhaustive classes, but are merely
indicative. Each case would have to be
determined on its own merits.
13. Another well-accepted norm is that the
revisional jurisdiction of the higher court is a
very limited one and cannot be exercised in a
routine manner. One of the inbuilt restrictions is
that it should not be against an interim or
interlocutory order. The Court has to keep in
mind that the exercise of revisional jurisdiction
itself should not lead to injustice ex facie. Where
the Court is dealing with the question as to
whether the charge has been framed properly
and in accordance with law in a given case, it
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may be reluctant to interfere in exercise of its
revisional jurisdiction unless the case
substantially falls within the categories
aforestated. Even framing of charge is a much
advanced stage in the proceedings under the
CrPC.”
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. This Court in the aforesaid judgement has also laid
down principles to be considered for exercise of
jurisdiction under Section 397 particularly in the context of
prayer for quashing of charge framed under Section 228
Cr.P.C. is sought for as under:
“27. Having discussed the scope of jurisdiction
under these two provisions i.e. Section 397 and
Section 482 of the Code and the fine line of
jurisdictional distinction, now it will be
appropriate for us to enlist the principles with
reference to which the courts should exercise
such jurisdiction. However, it is not only difficult
but is inherently impossible to state with
precision such principles. At best and upon
objective analysis of various judgments of this
Court, we are able to cull out some of the
principles to be considered for proper exercise
of jurisdiction, particularly, with regard to
quashing of charge either in exercise of
jurisdiction under Section 397 or Section 482 of
the Code or together, as the case may be:
27.1. Though there are no limits of the powers of
the Court under Section 482 of the Code but the
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more the power, the more due care and caution
is to be exercised in invoking these powers. The
power of quashing criminal proceedings,
particularly, the charge framed in terms of
Section 228 of the Code should be exercised
very sparingly and with circumspection and that
too in the rarest of rare cases.
27.2. The Court should apply the test as to
whether the uncontroverted allegations as made
from the record of the case and the documents
submitted therewith prima facie establish the
offence or not. If the allegations are so patently
absurd and inherently improbable that no
prudent person can ever reach such a conclusion
and where the basic ingredients of a criminal
offence are not satisfied then the Court may
interfere.
27.3. The High Court should not unduly
interfere. No meticulous examination of the
evidence is needed for considering whether the
case would end in conviction or not at the stage
of framing of charge or quashing of charge.
27.9. Another very significant caution that the
courts have to observe is that it cannot examine
the facts, evidence and materials on record to
determine whether there is sufficient material on
the basis of which the case would end in a
conviction; the court is concerned primarily with
the allegations taken as a whole whether they
will constitute an offence and, if so, is it an abuse
of the process of court leading to injustice.
27.13. Quashing of a charge is an exception to
the rule of continuous prosecution. Where the
offence is even broadly satisfied, the Court
should be more inclined to permit continuation
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of prosecution rather than its quashing at that
initial stage. The Court is not expected to marshal
the records with a view to decide admissibility
and reliability of the documents or records but is
an opinion formed prima facie.”
15 . The revisional court cannot sit as an appellate court
and start appreciating the evidence by finding out
inconsistency in the statement of witnesses and it is not
legally permissible. The High Courts ought to be cognizant
of the fact that trial court was dealing with an application for
discharge.
16 . In the teeth of the above analysis of law when the
impugned order of the High Court is perused, it would not
detain us for too long to brush aside the contentions raised
by the respondent-accused for reasons more than one.
Firstly , the charge-sheet has been filed after taking into
consideration the written submissions filed by the accused
before the Investigating Authority which included the
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documentary evidences tendered by the respondent
accused. Secondly , the statement of friends and
acquaintances from whom loans of large amounts had been
borrowed by the accused which had been relied upon by
the accused to stave off the prosecution in his written
submissions filed before the Investigating Authority and
which material had persuaded the High Court to accept the
same on its evaluation to be true, is nothing but short of
accepting the same as defence evidence and examining the
truthfulness of its contents even before trial could be
commenced or held. Thirdly , the High Court has
proceeded to examine the pros and cons of defense by
weighing the defence-evidence and probabilities of the
conclusion that may ultimately be arrived at, as the basis for
exercising the revisional jurisdiction which was
impermissible. Fourthly , the purported loans said to have
been obtained by the respondent accused from his mother,
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brother and father are all question of facts which requires
adjudication and this could be done only during trial and
the explanation relating to borrowing of large sums raises a
reasonable suspicion, which has been termed by the
Investigating Agency as strong material to file the charge
sheet and based on such material the sanctioning authority
also recorded its satisfaction under sanction order dated:
05.03.2015 to prosecute the respondent-accused. Hence,
raising reasonable suspicion cannot be held or construed at
the primary stage for discharging the accused.
17 . The plea or the defence when requiring to be proved
during course of trial is itself sufficient for framing the
charge. In the instant case, the learned Trial Judge has
noticed that explanation provided by the respondent
accused pertaining to purchase of shop No.7 of Suman City
Complex of plot No.19, Sector-11 from the loan borrowed
and paid by the respondent was outside the check period
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and hence the explanation provided by respondent is a
mere eye wash. This is an issue which has to be thrashed
out during the course of the trial and at the stage of framing
the charge mini trial cannot be held. That apart the
explanation offered by the respondent accused with regard
to buying of Maruti Wagon-R car, Activa scooter, purchase
of house etc., according to the prosecution are all the
subject matter of trial or it is in the nature of defence which
will have to be evaluated after trial.
18 . In the afore-stated circumstances we are of the
considered view that High Court had committed a serious
error in interfering with the well-reasoned order passed by
the trial court. Hence, the impugned judgment dated
11.01.2018 passed in Criminal Revision Application No.387
of 2016 setting aside the trial court order dated 13.04.2016
requires to be set aside and accordingly it is set aside and
appeal is allowed. The trial court shall proceed with the trial
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having regard to the fact that charge-sheet has been filed
in the year 2015 and shall conclude the trial expeditiously
and preferably within a period of one year.
……………………………J.
[S. RAVINDRA BHAT]
……………………………J.
[ARAVIND KUMAR]
NEW DELHI;
October 09, 2023