REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPEALLATE JURISDICTION
CRIMINAL APPEAL NO. 407 OF 2021
(Arising from S.L.P.(Criminal) No. 3194 of 2021)
Diary No. 8524/2020
State of Rajasthan …Appellant
Versus
Ashok Kumar Kashyap …Respondent
J U D G M E N T
M.R. SHAH, J.
1. 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.
2. 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. 1270 of 2018, 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
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respondent-accused for the offence under Section 7 of the Prevention of
Corruption Act (for short, ‘PC Act’) and consequently has discharged the
accused of the alleged offence under Section 7 of the PC Act, the State
has preferred the present appeal.
3. 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
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stage, by order dated 22.06.2018 framed the charge against the
accused for the offence under Section 7 of the PC Act.
4. 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. 1270 of 2018.
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. State (Govt, of NCT of Delhi), AIR
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
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the transcript it is evident that bribe was demanded from the
complainant.
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 (U.P.), 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
him.
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.”
5. 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
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Special Judge, in exercise of its revisional jurisdiction, the State has
preferred the present appeal.
6. 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.
6.1 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.
6.2 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
permissible.
6.3 It is further submitted by the learned Advocate appearing on behalf
of the State that in the present case even otherwise from the transcript
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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
revisional jurisdiction.
6.4 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, (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.
7. 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
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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.
7.1 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.
7.2 It is submitted that at the time of conversation two persons were
present, (1) the complainant – Jai Kishore; and (2) Devi 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
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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
accused.
7.3 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, (2002) 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
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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.
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9.1 In the case of P.Vijayan (supra), 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
starts.
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9.2 In the recent decision of this Court in the case of M.R. Hiremath
(supra), one of us (Justice D.Y. Chandrachud) speaking 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.
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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
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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.
13. 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
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by the competent court for the offence under Section 7 of the PC Act, in
accordance with law and its own merits.
………………………………………..J.
[Dr. Dhananjaya Y. Chandrachud]
New Delhi; ………………………………………..J.
April 13, 2021. [M.R. Shah]
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