Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.22-23 OF 2014
(@SPECIAL LEAVE PETITION(CRL.)NOs.3810-3811 of 2012)
STATE OF TAMILNADU BY INS.OF POLICE
VIGILANCE AND ANTI CORRUPTION … APPELLANT
VERSUS
N.SURESH RAJAN & ORS. …RESPONDENTS
With
CRIMINAL APPEAL NO.26-38 OF 2014
(@SPECIAL LEAVE PETITION(CRL.)NOs. 134-146 of 2013)
STATE REP. BY DEPUTY SUPDT. OF POLICE
VIGILANCE AND ANTI CORRUPTION … APPELLANT
VERSUS
K.PONMUDI & ORS. …RESPONDENTS
JUDGMENT
J U D G M E N T
CHANDRAMAULI KR. PRASAD, J.
CRIMINAL APPEAL NO.22-23 OF 2014 (@SPECIAL
LEAVE PETITION(CRL.)Nos.3810-3811 of 2012)
The State of Tamil Nadu aggrieved by the
th
order dated 10 of December, 2010 passed by the
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Madras High Court in Criminal R.C.No.528 of 2009
and Criminal M.P.(MD) No.1 of 2009, setting aside
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the order dated 25 of September, 2009 passed by
the learned Chief Judicial Magistrate-cum-Special
Judge, Nagercoil (hereinafter referred to as ‘the
Special Judge’), whereby he refused to discharge
the respondents, has preferred these special
leave petitions.
Leave granted.
Short facts giving rise to the present
appeals are that Respondent No. 1, N. Suresh
Rajan, during the period from 13.05.1996 to
14.05.2001, was a Member of the Tamil Nadu
Legislative Assembly as also a State Minister of
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Tourism. Respondent No. 2, K. Neelkanda Pillai
is his father and Respondent No. 3, R.Rajam, his
mother. On the basis of an information that N.
Suresh Rajan, during his tenure as the Minister
of Tourism, had acquired and was in possession of
pecuniary resources and properties in his name
and in the names of his father and mother,
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disproportionate to his known sources of income,
Crime No. 7 of 2002 was registered at Kanyakumari
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Vigilance and Anti Corruption Department on 14
of March, 2002 against the Minister N. Suresh
Rajan, his father, mother, elder sister and his
bother-in-law. During the course of the
investigation, the investigating officer
collected and gathered informations with regard
to the property and pecuniary resources in
possession of N. Suresh Rajan during his tenure
as the Minister, in his name and in the name of
others. On computation of the income of the
Minister from his known sources and also
expenditure incurred by him, it was found that
the properties owned and possessed by him are
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disproportionate to his known sources of income
to the tune of Rs. 23,77,950.94. The
investigating officer not only examined the
accused Minister but also his father and mother
as also his sister and the brother-in-law.
Ultimately, the investigating agency came to the
conclusion that during the check period,
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Respondent No.1, N. Suresh Rajan has acquired and
was in possession of pecuniary resources and
properties in his name and in the names of his
father, K. Neelakanda Pillai (Respondent No. 2)
and mother R. Rajam (Respondent No. 3) and his
wife D.S. Bharathi for total value of Rs.
17,58,412.47. The investigating officer also came
to the conclusion that Minister’s father and
mother never had any independent source of income
commensurate with the property and pecuniary
resources found acquired in their names.
Accordingly, the investigating officer submitted
th
the charge-sheet dated 4 of July, 2003 against
Respondent No.1, the Minister and his father
(Respondent No.2) and mother (Respondent No.3)
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respectively, alleging commission of an offence
under Section 109 of the Indian Penal Code and
Section 13(2) read with Section 13(1)(e) of the
Prevention of Corruption Act. Respondents filed
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application dated 5 of December, 2003 under
Section 239 of the Code of Criminal Procedure,
1973 (hereinafter referred to as ‘the Code’),
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seeking their discharge. The Special Judge, by
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its order dated 25 of September, 2009 rejected
their prayer. While doing so, the Special Judge
observed as follows:
“At this stage it will be
premature to say that there are
no sufficient materials on the
side of the state to frame any
charge against them and the same
would not be according to law in
the opinion of this court and at
the same time this court has come
to know that there are basic
materials for the purpose of
framing charges against the 3
petitioners, the petition filed
by the petitioners is dismissed
and orders passed to that
effect.”
Aggrieved by the same, respondents filed
criminal revision before the High Court. The
High Court by the impugned judgment had set aside
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the order of the Special Judge and discharged the
respondents on its finding that in the absence of
any material to show that money passed from
respondent No. 1 to his mother and father, latter
cannot be said to be holding the property and
resources in their names on behalf of their son.
The High Court while passing the impugned order
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heavily relied on its earlier judgment in the
case of State by Deputy Superintendent of Police,
Vigilance and Anti Corruption Cuddalore
Detachment v. K. Ponumudi & Ors. (2007-1MLJ-CRL.-
100) , the validity whereof is also under
consideration in the connected appeals. The High
Court while allowing the criminal revision
observed as follows:
“ 12 .In the instant case, the
properties standing in the name
of the petitioners 2 and 3
namely, A2 and A3 could not be
held to be the properties or
st
resources belonging to the 1
accused in the absence of any
investigation into the individual
income resources of A2 and A3.
Moreover, it is not disputed that
A2 was a retired Head Master
receiving pension and A3 is
running a Financial Institution
and an Income Tax assessee. In
the absence of any material to
show that A1’s money flow into
the hands of A2 and A3, they
cannot be said to be holding the
properties and resources in their
name on behalf of the first
accused. There is also no
material to show that A2 and A3
instigated A1 to acquire
properties and resources
disproportionate to his known
source of income.”
JUDGMENT
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It is in these circumstances that the
appellant is before us.
CRIMINAL APPEAL NO.26-38 OF 2014
(@SPECIAL LEAVE PETITION(CRL.)Nos. 134-146 of 2013)
These special leave petitions are barred by
limitation. There is delay of 1954 days in
filing the petitions and 217 days in refiling the
same. Applications have been filed for condoning
the delay in filing and refiling the special
leave petitions.
Mr. Ranjit Kumar, learned Senior Counsel for
the petitioner submits that the delay in filing
the special leave petitions has occurred as the
Public Prosecutor earlier gave an opinion that it
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is not a fit case in which special leave
petitions deserve to be filed. The Government
accepted the opinion and decided not to file the
special leave petitions. It is pointed out that
the very Government in which one of the accused
was a Minister had taken the aforesaid decision
not to file special leave petitions. However,
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after the change of the Government, opinion was
sought from the Advocate General, who opined that
it is fit case in which the order impugned
deserves to be challenged. Accordingly, it is
submitted that the cause shown is sufficient to
condone the delay.
Mr. Soli J. Sorabjee, learned Senior Counsel
appearing for the respondents, however, submits
that mere change of Government would not be
sufficient to condone the inordinate delay. He
submits that with the change of the Government,
many issues which have attained finality would be
reopened after long delay, which should not be
allowed. According to him, condonation of huge
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delay on the ground that the successor
Government, which belongs to a different
political party, had taken the decision to file
the special leave petitions would be setting a
very dangerous precedent and it would lead to
miscarriage of justice. He emphasizes that there
is a life span for every legal remedy and
condonation of delay is an exception. Reliance
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has been placed on a decision of this Court in
the case of Postmaster General v. Living Media
India Ltd., (2012) 3 SCC 563 , and our attention
has been drawn to Paragraph 29 of the judgment,
which reads as follows:
“29. In our view, it is the right
time to inform all the government
bodies, their agencies and
instrumentalities that unless they
have reasonable and acceptable
explanation for the delay and
there was bona fide effort, there
is no need to accept the usual
explanation that the file was kept
pending for several months/years
due to considerable degree of
procedural red tape in the
process. The government
departments are under a special
obligation to ensure that they
perform their duties with
diligence and commitment.
Condonation of delay is an
exception and should not be used
as an anticipated benefit for the
government departments. The law
shelters everyone under the same
light and should not be swirled
for the benefit of a few.”
JUDGMENT
Mr. Sorabjee further submits that the
Limitation Act does not provide for different
period of limitation for the Government in
resorting to the remedy provided under the law
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and the case in hand being not a case of fraud or
collusion by its officers or agents, the huge
delay is not fit to be condoned. Reliance has
also been placed on a decision of this Court in
the case of Pundlik Jalam Patil v. Executive
Engineer, Jalgaon Medium Project, (2008) 17 SCC
448 and reference has been made to Paragraph 31
of the judgment, which reads as follows:
“31. It is true that when the
State and its instrumentalities
are the applicants seeking
condonation of delay they may be
entitled to certain amount of
latitude but the law of limitation
is same for citizen and for
governmental authorities. The
Limitation Act does not provide
for a different period to the
Government in filing appeals or
applications as such. It would be
a different matter where the
Government makes out a case where
public interest was shown to have
suffered owing to acts of fraud or
collusion on the part of its
officers or agents and where the
officers were clearly at cross
purposes with it. In a given case
if any such facts are pleaded or
proved they cannot be excluded
from consideration and those
factors may go into the judicial
verdict. In the present case, no
such facts are pleaded and proved
though a feeble attempt by the
learned counsel for the respondent
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was made to suggest collusion and
fraud but without any basis. We
cannot entertain the submission
made across the Bar without there
being any proper foundation in the
pleadings.”
The contentions put forth by Mr. Sorabjee are
weighty, deserving thoughtful consideration and
at one point of time we were inclined to reject
the applications filed for condonation of delay
and dismiss the special leave petitions.
However, on a second thought we find that the
validity of the order impugned in these special
leave petitions has to be gone into in criminal
appeals arising out of Special Leave Petitions
(Criminal) Nos. 3810-3811 of 2012 and in the face
of it, it shall be unwise to dismiss these
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special leave petitions on the ground of
limitation. It is worth mentioning here that the
order impugned in the criminal appeals arising
out of Special Leave Petition (Criminal) Nos.
3810-3811 of 2012, State of Tamil Nadu by Ins. of
Police, Vigilance and Anti Corruption v. N.
Suresh Rajan & Ors. , has been mainly rendered,
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relying on the decision in State by Deputy
Superintendent of Police, Vigilance and Anti
Corruption Cuddalore Detachment vs. K. Ponmudi
and Ors.(2007-1MLJ-CRL.-100) , which is impugned
in the present special leave petitions. In fact,
rd
by order dated 3 of January, 2013, these
petitions were directed to be heard along with
the aforesaid special leave petitions. In such
circumstances, we condone the delay in filing and
refiling the special leave petitions.
In these petitions the State of Tamil Nadu
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impugns the order dated 11 of August, 2006
passed by the Madras High Court whereby the
revision petitions filed against the order of
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st
discharge dated 21 of July, 2004 passed by the
Special Judge/Chief Judicial Magistrate,
Villupuram (hereinafter referred to as ‘the
Special Judge’), in the Special Case No. 7 of
2003, have been dismissed.
Leave granted.
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Shorn of unnecessary details, facts giving
rise to the present appeals are that K. Ponumudi,
respondent No. 1 herein, happened to be a Member
of the State Legislative Assembly and a State
Minister in the Tamil Nadu Government during the
check period. P. Visalakshi Ponmudi (Respondent
No.2) is his wife, whereas P.Saraswathi
(Respondent No.3) (since deceased) was his
mother-in-law. A.Manivannan (Respondent No.4)
and A.Nandagopal (Respondent No.5) (since
deceased) are the friends of the Minister
(Respondent No.1). Respondent Nos. 3 to 5 during
their lifetime were trustees of one Siga
Educational Trust, Villupuram.
JUDGMENT
In the present appeals, we have to examine
the validity of the order of discharge passed by
the Special Judge as affirmed by the High Court.
Hence, we consider it unnecessary to go into the
details of the case of the prosecution or the
defence of the respondent at this stage. Suffice
it to say that, according to the prosecution, K.
Ponmudi (Respondent No.1), as a Minister of
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Transport and a Member of the Tamil Nadu
Legislative Assembly during the period from
13.05.1996 to 30.09.2001, had acquired and was in
possession of pecuniary resources and properties
in his name and in the names of his wife and
sons, which were disproportionate to his known
sources of income. Accordingly, Crime No. 4 of
2002 was registered at Cuddalore Village, Anti-
th
Corruption Department on 14 of March, 2002 under
Section 109 of the Indian Penal Code read with
Section 13(2) and Section 13(1)(e) of the
Prevention of Corruption Act, hereinafter
referred to as ‘the Act’. During the course of
investigation it transpired that between the
period from 13.05.1996 to 31.03.2002, the
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Minister had acquired and possessed properties at
Mathirimangalam, Kaspakaranai, Kappiampuliyur
villages and other places in Villupuram Taluk, at
Vittalapuram village and other places in
Thindivanam Taluk, at Cuddalore and Pondicherry
Towns, at Chennai and Trichy cities and at other
places. It is alleged that respondent No.1-
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Minister being a public servant committed the
offence of criminal misconduct by acquiring and
being in possession of pecuniary resources and
properties in his name and in the names of his
wife, mother-in-law and also in the name of Siga
Educational Trust, held by the other respondents
on behalf of Respondent No. 1, the Minister,
which were disproportionate to his known sources
of income to the extent of Rs.3,08,35,066.97.
According to the prosecution, he could not
satisfactorily account for the assets and in this
way, the Minister had committed the offence
punishable under Section 13(2) read with Section
13(1)(e) of the Act.
JUDGMENT
In the course of investigation, it further
transpired that during the check period and in
the places stated above, other accused abetted
the Minister in the commission of the offence by
him. Respondent No. 2, the wife of the Minister,
aided in commission of the offence by holding on
his behalf a substantial portion of properties
and pecuniary resources in her name as well as in
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the name of M/s. Visal Expo, of which she was the
sole Proprietor. Similarly, Respondent No. 3,
the mother-in-law, aided the Minister by holding
on his behalf a substantial portion of properties
and pecuniary resources in her name as well as in
the name of Siga Educational Trust by purporting
to be one of its Trustees. Similarly, Respondent
No. 4 and Respondent No. 5 aided the Minister and
held on his behalf a substantial portion of the
properties and pecuniary resources in the name of
Siga Educational Trust by purporting to be its
Trustees. It is relevant here to mention that
during the course of investigation, the statement
of all other accused were taken and in the
opinion of the investigating agency, after due
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scrutiny of their statements and further
verification, the Minister was not able to
satisfactorily account for the quantum of
disproportionate assets. Accordingly, the
Vigilance and Anti Corruption Department of the
State Government submitted charge-sheet against
the respondents under Section 109 of the Indian
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Penal Code and Section 13(2) read with Section
13(1)(e) of the Act.
It is relevant here to state that the
offences punishable under the scheme of the Act
have to be tried by a Special Judge and he may
take cognizance of the offence without commitment
of the accused and the Judge trying the accused
is required to follow the procedure prescribed by
the Code for the trial of warrant cases by the
Magistrate. The Special Judge holding the trial
is deemed to be a Court of Sessions. The
respondents filed petition for discharge under
Section 239 of the Code inter alia contending
that the system which the prosecution had
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followed to ascertain the income of the accused
is wrong. Initially, the check period was from
10.05.1996 to 13.09.2001 which, during the
investigation, was enlarged from 13.05.1996 to
31.03.2002. Not only this, according to the
accused, the income was undervalued and the
expenditures exaggerated. According to
Respondent No. 1, the Minister, income of the
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individual property of his wife and that of his
mother-in-law and their expenditure ought not to
have been shown as his property. According to
him, the allegation that the properties in their
names are his benami properties is wrong. It was
also contended that the valuation of the
properties has been arrived at without taking
into consideration the entire income and
expenditure of Respondent No. 1. Respondents
have also alleged that the investigating officer,
who is the informant of the case, had acted
autocratically and his action is vitiated by
bias. The Special Judge examined all these
st
contentions and by order dated 21 of July, 2004
discharged Respondents on its finding that the
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investigation was not conducted properly. The
Special Judge further held that the value of the
property of Respondent Nos. 2 to 5 ought not to
have been clubbed with that of the individual
properties and income of Respondent No. 1 and by
doing so, the assets of Respondent No. 1 cannot
be said to be disproportionate to his known
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sources of income. On the aforesaid finding the
Special Judge discharged all the accused.
Aggrieved by the same, the State of Tamil Nadu
filed separate revision petitions and the High
Court, by the impugned order, has dismissed all
the revision petitions. The High Court, while
affirming the order of discharge, held that the
prosecution committed an error by adding the
income of other respondents, who were assessed
under the Income Tax Act, in the income of
Respondent No.1. In the opinion of the High
Court, an independent and unbiased scrutiny of
the entire documents furnished along with the
final report would not make out any ground of
framing of charges against any of the accused
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persons. While doing so, the High Court has
observed as follows:
“ 18 . The assets which admittedly,
do not belong to Accused 1 and
owned by individuals having
independent source of income
which are assessed under the
Income Tax Act, were added as the
assets of Accused -1. Such a
procedure adopted by the
prosecution is not only
unsustainable but also illegal.
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An independent and unbiased
scrutiny of the entire documents
furnished along with the final
report would not make out any
ground for framing of charge as
against any of the accused
persons. The methodology adopted
by the prosecution to establish
the disproportionate assets with
reference to the known source of
income is absolutely erroneous.
xxx xxx xxx
The theory of Benami is totally
alien to the concept of trust and
it is not legally sustainable to
array the accused 3 to 5 as
holders of the properties or that
they are the benamies of the
accused. The benami transaction
has to be proved by the
prosecution by producing legally
permissible materials of a bona
fide character which would
directly prove the fact of benami
and there is a total lack of
materials on this account and
hence the theory of benami has
not been established even
remotely by any evidence. On a
prima-facie evidence it is
evident that the other accused
are possessed of sufficient funds
for acquiring their properties
and that A1 has nothing to do
with those properties and that he
cannot be called upon to explain
the source of income of the
acquisition made by other
persons.
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19 ……… Admittedly the accused are
not possessed of the properties
standing in the name of Trust and
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controlled by the Accused A3 to
A5. The trust is an independent
legal entity assessed to income
tax and owning the properties.
Only to boost the value of the
assets the prosecution belatedly
arrayed the Trustees of the Trust
as accused 3 to 5 in order to
foist a false case as against A1.
xxx xxx xxx
21 ………All the properties acquired
by A2 and A3 in their individual
capacity acquired out of their
own income have been shown in the
Income Tax Returns, which fact
the prosecution also knows and
also available in the records of
the prosecution. The prosecution
has no justification or reason to
disregard those income tax
returns to disallow such income
while filing the final report.
The documents now available on
record also would clearly
disprove the claim of benami
transaction.”
The High court ultimately concluded as
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follows:
“ 24 …………Therefore, the trial court
analyzing the materials and
documents that were made
available at the stage of framing
charges and on their face value
arrived at the right conclusion
that charges could not be framed
against the respondents/accused.”
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Now we proceed to consider the legal position
concerning the issue of discharge and validity of
the orders impugned in these appeals in the
background thereof. Mr. Ranjit Kumar submits
that the order impugned suffers from patent
illegality. He points out that at the time of
framing of the charge the scope is limited and
what is to be seen at this stage is as to whether
on examination of the materials and the documents
collected, the charge can be said to be
groundless or not. He submits that at this
stage, the court cannot appraise the evidence as
is done at the time of trial. He points out that
while passing the impugned orders, the evidence
has been appraised and the case of the
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prosecution has been rejected, as is done after
the trial while acquitting the accused.
Mr. Sorabjee as also Mr. N.V. Ganesh
appearing on behalf of the respondents-accused,
however, submit that when the court considers the
applications for discharge, it has to examine the
materials for the purpose of finding out as to
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whether the allegation made is groundless or not.
They submit that at the time of consideration of
an application for discharge, nothing prevents
the court to sift and weigh the evidence for the
purpose of ascertaining as to whether the
allegations made on the basis of the materials
and the documents collected are groundless or
not. They also contend that the court while
considering such an application cannot act merely
as a post-office or a mouthpiece of the
prosecution. In support of the submission,
reliance has been placed on a decision of this
Court in the case of Sajjan Kumar v. CBI, (2010)
9 SCC 368 and our attention has been drawn to
Paragraph 17(4) of the judgment, which reads as
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follows:
“17. In Union of India v.
Prafulla Kumar Samal & Anr., 1979
(3) SCC 4, the scope of Section
227 CrPC was considered. After
adverting to various decisions,
this Court has enumerated the
following principles:
xxx xxx xxx
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( 4 ) That in exercising his
jurisdiction 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.”
Yet another decision on which reliance has
been placed is the decision of this Court in the
case of Dilawar Balu Kurane v. State of
Maharashtra, (2002) 2 SCC 135 , reference has
been made to the following paragraph of the said
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judgment:
“12. Now the next question is
whether a prima facie case has
been made out against the
appellant. In exercising powers
under Section 227 of the Code of
Criminal Procedure, the settled
position of law is that the Judge
while considering the question of
framing the charges under the
said section has the undoubted
power to sift and weigh the
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evidence for the limited purpose
of finding out whether or not a
prima facie case against the
accused has been made out; 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; by and large 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 justified to discharge the
accused, and in exercising
jurisdiction under Section 227 of
the Code of Criminal Procedure,
the Judge 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 but
should not make a roving enquiry
into the pros and cons of the
matter and weigh the evidence as
if he was conducting a trial.”
JUDGMENT
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
discharge, the court cannot act as a mouthpiece
of the prosecution or act as a post-office and
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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
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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
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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. Reference in this connection can be
made to a recent decision of this Court in the
case of Sheoraj Singh Ahlawat & Ors. vs. State of
Uttar Pradesh & Anr., AIR 2013 SC 52 , in which,
after analyzing various decisions on the point,
this Court endorsed the following view taken in
Onkar Nath Mishra v. State (NCT of Delhi), (2008)
2 SCC 561 :
“ 11 . It is trite 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 there from, taken
at their face value, disclosed
the existence of all the
ingredients constituting the
alleged offence. At that stage,
the court is not expected to go
deep into the probative value of
the material on record. What
needs to be considered is whether
there is a ground for presuming
that the offence has been
committed and not a ground for
convicting the accused has been
made out. At that stage, even
strong suspicion founded on
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material which leads the court to
form a presumptive opinion as to
the existence of the factual
ingredients constituting the
offence alleged would justify the
framing of charge against the
accused in respect of the
commission of that offence."
Now reverting to the decisions of this Court
in the case Sajjan Kumar (supra) and Dilawar Balu
Kurane (supra), relied on by the respondents, we
are of the opinion that they do not advance their
case. The aforesaid decisions consider the
provision of Section 227 of the Code and make it
clear that at the stage of discharge the Court
can not make a roving enquiry into the pros and
cons of the matter and weigh the evidence as if
it was conducting a trial. It is worth
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mentioning that the Code contemplates discharge
of the accused by the Court of Sessions under
Section 227 in a case triable by it; cases
instituted upon a police report are covered by
Section 239 and cases instituted otherwise than
on a police report are dealt with in Section 245.
From a reading of the aforesaid sections it is
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evident that they contain somewhat different
provisions with regard to discharge of an
accused. Under Section 227 of the Code, the
trial court is required to discharge the accused
if it “considers that there is not sufficient
ground for proceeding against the accused”.
However, discharge under Section 239 can be
ordered when “the Magistrate considers the charge
against the accused to be groundless”. The power
to discharge is exercisable under Section 245(1)
when, “the Magistrate considers, for reasons to
be recorded that no case against the accused has
been made out which, if not repudiated, would
warrant his conviction”. Section 227 and 239
provide for discharge before the recording of
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evidence on the basis of the police report, the
documents sent along with it and examination of
the accused after giving an opportunity to the
parties to be heard. However, the stage of
discharge under Section 245, on the other hand,
is reached only after the evidence referred in
Section 244 has been taken. Thus, there is
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difference in the language employed in these
provisions. But, in our opinion, notwithstanding
these differences, and whichever provision may be
applicable, the court is required at this stage
to see that there is a prima facie case for
proceeding against the accused. Reference in
this connection can be made to a judgment of this
Court in the case of R.S. Nayak v. A.R. Antulay,
(1986) 2 SCC 716 . The same reads as follows:
“43………………Notwithstanding this
difference in the position there
is no scope for doubt that the
stage at which the magistrate is
required to consider the question
of framing of charge under
Section 245(1) is a preliminary
one and the test of “prima facie”
case has to be applied. In spite
of the difference in the language
of the three sections, the legal
position is that if the Trial
court is satisfied that a prima
facie case is made out, charge
has to be framed.”
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Bearing in mind the principles aforesaid, we
proceed to consider the facts of the present
case. Here the allegation against the accused
Minister (Respondent No.1), K. Ponmudi is that
while he was a Member of the Tamil Nadu
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Legislative Assembly and a State Minister, he had
acquired and was in possession of the properties
in the name of his wife as also his mother-in-
law, who along with his other friends, were of
Siga Educational Trust, Villupuram. According to
the prosecution, the properties of Siga
Educational Trust, Villupuram were held by other
accused on behalf of the accused Minister. These
properties, according to the prosecution, in
fact, were the properties of K.Ponumudi.
Similarly, accused N. Suresh Rajan has acquired
properties disproportionate to his known sources
of income in the names of his father and mother.
While passing the order of discharge, the fact
that the accused other than the two Ministers
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have been assessed to income tax and paid income
tax cannot be relied upon to discharge the
accused persons particularly in view of the
allegation made by the prosecution that there was
no separate income to amass such huge properties.
The property in the name of an income tax
assessee itself cannot be a ground to hold that
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it actually belongs to such an assessee. In case
this proposition is accepted, in our opinion, it
will lead to disastrous consequences. It will
give opportunity to the corrupt public servants
to amass property in the name of known persons,
pay income tax on their behalf and then be out
from the mischief of law. While passing the
impugned orders, the court has not sifted the
materials for the purpose of finding out whether
or not there is sufficient ground for proceeding
against the accused but whether that would
warrant a conviction. We are of the opinion that
this was not the stage where the court should
have appraised the evidence and discharged the
accused as if it was passing an order of
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acquittal. Further, defect in investigation
itself cannot be a ground for discharge. In our
opinion, the order impugned suffers from grave
error and calls for rectification.
Any observation made by us in this judgment
is for the purpose of disposal of these appeals
and shall have no bearing on the trial. The
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surviving respondents are directed to appear
rd
before the respective courts on 3 of February,
2014. The Court shall proceed with the trial
from the stage of charge in accordance with law
and make endeavour to dispose of the same
expeditiously.
In the result, we allow these appeals and set
aside the order of discharge with the aforesaid
observation.
………………..……………………………….J.
(CHANDRAMAULI KR. PRASAD)
………………….……………………………………… J.
(M.Y. EQBAL)
NEW DELHI,
JANUARY 06, 2014.
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JUDGMENT
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