Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL Nos.445446 OF 2019
(Arising out of S.L.P.(Crl.) Nos.56755676 of 2017)
State Represented by the
Deputy Superintendent of Police
Vigilance and Anti Corruption,
Tamil Nadu ….Appellant(s)
VERSUS
J. Doraiswamy Etc. ….Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1. Leave granted.
2. These appeals are directed against the final
Signature Not Verified
Digitally signed by
ASHOK RAJ SINGH
Date: 2019.03.07
17:29:09 IST
Reason:
judgment and order dated 14.07.2016 passed by
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the High Court of Judicature at Madras in Crl. R.C.
Nos.825 and 826 of 2015 whereby the High Court
dismissed the revisions filed by the appellantState
and affirmed the order of the Special Judge/Chief
Judicial Magistrate, Tiruvannamalai by which the
respondents herein were discharged under Section
227 of the Criminal Procedure Code, 1973
(hereinafter referred to as “the Crl.P.C.”) from the
Criminal Proceedings filed against them in Special
Case No.4 of 2014 under the Prevention of
Corruption Act, 1988 (hereinafter referred to as “the
PC Act”).
3. These appeals involve a short point as would
be clear from the facts mentioned .
infra
4. Respondents (A1 and A2) were working as
Inspector of Police and Subinspector of Police
respectively in the State Tamil Nadu Police Services.
Both the respondents were prosecuted for
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commission of the offences punishable under
Section 7 read with Section 13(1) (d) of the PC Act in
Crime Case No.3 of 2008/Special Case No. 4 of
2014 in the Court of Special Judge and Chief
Judicial Magistrate, Tiruvannamalai.
5. On chargesheet being filed by the State
Prosecuting Agency against the respondents after
obtaining necessary sanction as required in law,
both of them filed applications under Section 227 of
the Cr.P.C. (Crl.M.P.Nos.648/2014 & 113/2015)
before the CJM praying therein for their discharge
from the case. In substance, the respondents
contended that no prime facie case is made out
against them under the PC Act and in the charge
sheet hence both the respondents are liable to be
discharged.
6. The Chief Judicial Magistrate, by order dated
29.06.2015, allowed the applications and
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discharged them from the case. The State felt
aggrieved by the order dated 29.06.2015 passed by
the Chief Judicial Magistrate and filed two revisions
in the High Court. By impugned order, the High
Court dismissed the revisions and affirmed the
order of the Chief Judicial Magistrate, giving rise to
filing of these appeals by the State by way of special
leave in this Court.
7. So, the short question, which arises for
consideration in these appeals, is whether the
Courts below were justified in allowing the
discharge applications filed by the respondents
under Section 227 of the Cr. P.C.
8. Heard Mr. S. Partha Sarathi, learned counsel
for the appellant and Mr. Neeraj Jain, learned
Senior counsel and Mr. S. Thananjayan, learned
counsel for the respondents.
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9. Having heard the learned counsel for the
parties and on perusal of the record of the case
including the written submissions filed by the
respondents, we are inclined to allow the appeals
and while setting aside the impugned order, dismiss
the applications filed by the respondents under
Section 227 of the Cr.P.C. and remand the case to
the Special Judge/CJM for its trial on merits in
accordance with law.
10. We have gone through the record including the
impugned order with a view to find out as to
whether any prima facie case is made out against
the respondents on the basis of documents filed by
the State along with the chargesheet.
11. Having gone through the documents, the
contents of the chargesheet and the impugned
order, we are of the view that though the High Court
referred to the law laid down by this Court on the
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subject in the case of
Yogesh alias Sachin Jagdish
Joshi vs. State of Maharashtra [(2008) (10) SCC
394), but erred in not properly applying the
principles laid down therein thereby committed an
error in allowing the applications filed by the
respondents under Section 227 of the Cr.P.C. for
their discharge.
12. We find that the High Court acted like an
Appellate Court than as a Revisionary Court as if it
was hearing the appeal against the final verdict of
the Special Court.
13. It is clear from the perusal of the entire order
including its concluding Para 14, which reads as
under:
“14. That being so, when the charges which
are identical, could not be established in the
departmental proceedings, for the same set
of facts, for framing a charge in the criminal
proceedings, chance of conviction would be
very remote. At the same time, this Court is
also well aware of the legal position that
mere exoneration from the departmental
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proceedings, cannot be taken as a sole
ground to allow the discharge petition.
Therefore, it is necessary to see as to
whether any prime facie case has been made
out by the prosecution to frame charge
against an accused. In this case, the case of
the prosecution is mainly relied upon the
statement of witness/complaint sundarrajan
and his cousin brother Sekar. As observed by
the trial court, there are inconsistencies in
the statements of prosecution witnesses.
Moreover as observed by the trial court, the
prosecution has not produced any evidence
much less documentary evidence to show
that A1 and A2 were present in room No.4 of
the said Arunachala Lodge/Guest House.
Though it is the case of the prosecution that
the said sum of Rs.5 lakhs was paid in the
said Room No.4 in the said Lodge, in the
statement of Sekar recorded under section
161 Cr.P.C. on 14.09.2010 before Subbiah
Additional Superintendent of Police, DV &
AC, Special Investigation Team, Chennai, he
has referred to the date of payment of money
as 15.01.2004, but in the statement before
ADSPCrime (Vellore) – Juilan on 09.07.2004,
he has stated that the said amount was paid
one or two days before 15.02.2004.
Therefore, there is material contradiction,
more particularly with regard to the date of
the above said payment of Rs.5 Lakhs to A1
and A2. Except the ipsedixit statement of
the said Sekar, absolutely there is no other
material before this Court to prove the
demand of money by A1 and A2.”
14. In our view, such approach of the High Court
while deciding the discharge applications of the
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respondents (accused) is not legally correct and,
therefore, it cannot be upheld.
15. In our view, consideration of the record for
discharge purpose is one thing and the
consideration of the record while deciding the
appeal by the Appellate Court is another thing.
16. While considering the case of discharge sought
immediately after the chargesheet is filed, the
Court cannot become an Appellate Court and start
appreciating the evidence by finding out
inconsistency in the statements of the witnesses as
was done by the High Court in the impugned order
running in 19 pages. It is not legally permissible.
17. We have neither set out the facts and nor the
evidence (which is yet to be led and tested in the
trial) in detail and have also refrained ourselves
from recording any finding on the merits of the case,
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else it will cause prejudice to the rights of the
parties while prosecuting their case in the trial.
18. All that we say while allowing these appeals is
that there is no prime facie case made out for
discharge of the respondents at this stage of the
trial. They, therefore, have to stand for trial on
merits in the light of the documents and contents of
chargesheet filed pursuant to the order of the
Court. The Special Court (CJM) should have,
therefore, allowed the State to adduce the evidence
on merits in support of the chargesheet to prove
the charges.
19. In view of the foregoing discussion, the appeals
succeed and are accordingly allowed. The impugned
order is set aside. As a consequence, the
applications filed by the respondents under Section
227 of the Cr.P.C. are dismissed.
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20. The Special Court(CJM) is directed to proceed
with the trial and conclude it within six months in
accordance with law.
21. The Special Court will decide the case strictly
on the basis of evidence adduced by the parties in
the trial in accordance with law uninfluenced by
any observations made by the High Court and this
Court in these proceedings.
………...................................J.
[ABHAY MANOHAR SAPRE]
....……..................................J.
[DINESH MAHESHWARI]
New Delhi;
March 07, 2019.
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