REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 216 of 2017
(arising out of SLP(Crl.) No. 3998 of 2011)
STATE OF RAJASTHAN ... APPELLANT
VERSUS
FATEHKARAN MEHDU ... RESPONDENT
With
Crl. Appeal No. 217 of 2017 @ SLP(Crl.)No. 3996 of 2011
J U D G M E N T
ASHOK BHUSHAN, J.
Leave granted.
2. These two appeals have been filed against the common judgment dated
16.11.2010 of the High Court of Judicature for Rajasthan at Jodhpur
allowing S.B. Criminal Revision Petition No. 592/2009 Fatehkaran Mehdu
versus State of Rajasthan and S.B. Criminal Revision Petition No. 598/2009
Kishan Singh Rawat versus State of Rajasthan. The High Court vide its
order, allowing the Criminal Revisions, set aside the order dated
05.05.2009 passed by the Special Judge Anti Corruption Cases, Udaipur,
framing charges against both the respondents under Section 13(1)(d) & 13(2)
of the Prevention of Corruption Act, 1988 read with Section 120B of IPC.
3. The brief facts of the case, as emerged from materials on record,
need to be noted for deciding the issueS raised in these appeals. Both the
appeals having arisen out of First Information Report No. 342/2001 and
order dated 05.05.2009 framing charges, the facts being common, it shall be
sufficient to refer the facts from Criminal Appeal No.......of 2017 @
SLP(Cr.) No. 3998 of 2011, State of Rajasthan versus Fatehkaran Mehdu.
4. The Respondent, Fatehkaran Mehdu was working as Mining Engineer at
Tehsil Bijolia, District Bhilwara, State of Rajasthan in the year 1997-98.
One Smt. Sushma Devi had submitted an application for the grant of quarry
licence for a mineral (Sand Stone) as per the Rajasthan Minor Mineral
Concession Rules, 1986 (hereinafter referred to as Rule 1986). The
application was made for grant of quarry licence for Khatedari land
situated at Nayanagar in different plots, including Plot No. 1181/124. She
deposited a banker's cheque of Rs. 1,75,000/- dated 23.4.1998 and the
quarry licence for 4.95 hectare (30 bigha and 12 biswas) was prepared in
the name of Smt. Sushma Devi Dhakad and Shri Manoj Kumar Sandhya on
06.05.1998. On noticing that the quarry licence issued on 06.05.1998
contained various cuttings, she contacted Fatehkaran Mehdu and handed him
the licence for issue of fresh licence. Shri Mehdu after taking all papers
from Smt. Sushma Devi did not issue her a fresh licence, whereas, Smt.
Sushma Devi had started mining operations. On 18.07.1998 one Shri K. K.
Boda, inspected the area and stopped the mining activities informing Smt.
Sushma Devi that no quarry licence was issued in her favour. On 11.08.1998,
Mining Engineer Fatehkaran Mehdu directed Smt. Sushma Devi to stop the
mining activities; Fatehkaran Mehdu was transferred in August 1998 out of
Tehsil Bigolia.
5. Aggrieved by non-issuance of quarry licence Sushma Devi filed a Writ
Petition No. 166 of 1999 before the High Court of Rajasthan which was
dismissed by order dated 08.03.1999 due to availability of alternate remedy
of filing an appeal under the Rules 1986. Smt. Sushma Devi filed an appeal
before the Appellate Authority and Appellate Authority vide order dated
29.04.1999 allowed the appeal and restored the quarry licence of Smt.
Sushma Devi.
6. On the other hand, Sri Kishan Singh Rawat, the respondent was also
granted quarry licence on gap-land in Block No. 263A and 264A which
contained a condition that the said approval shall not be effective outside
Plot No. 1345/1185/124. Plot No. 1185/124 was situated towards South of
Plot No. 1181/124, which was included in the quarry licence of Smt. Sushma
Devi.
7. Kishan Singh Rawat alongwith certain other persons had filed a suit
against the consenting party of Khatedari Land No. 1238/125 on 23.06.1998
for stopping Sushma Devi from carrying on mining operations. Another suit
No. 1181/24 was filed on 13.7.1998 by Kishan Singh against the Khatedars of
Plot No. 1181/124 restraining them from interfering in mining operation on
Plot No. 1345/1185/124 area 3 bigha.
8. After holding a Preliminary Enquiry No. 7 of 2000 against Fatehkaran
Mehdu, Deputy Superintendent of Police, Prevention of Corruption Bureau of
Udaipur, lodged a First Information Report against the Fatehkaran Mehdu and
Kishan Singh Rawat under Section 13(1)(d) and 13(2) of Prevention of
Corruption Act, 1988 and Section 120B of IPC.
9. After conducting the investigation, a chargesheet No. 208/2005 dated
24.10.2005 was submitted. The Special Judge, Prevention of Corruption Act,
Udaipur vide order dated 05.05.2009 framed charges against both the
Respondents under Section 13(1) (d) read with Section 13(2) of Prevention
of Corruption Act, 1988 and 120B IPC. Aggrieved by order dated 05.05.2009,
Fatehkaran Mehdu filed S.B. Criminal Revision Petition No. 592 of 2009 and
Kishan Singh Rawat filed S.B. Criminal Revision Petition No. 598 of 2009.
The High Court of Rajasthan vide its judgment and order dated 16.11.2010
set aside the order dated 05.05.2009 allowing the Revision against which
these two appeals have been filed by the State of Rajasthan.
10. We have heard learned counsel for the parties and perused the
records. Learned counsel for the appellant submits that there were
sufficient materials on record against the respondent, relying on which
learned Special Judge has framed the charges and the High Court committed
an error by interfering with the charges framed, in exercise of revisional
jurisdiction. It is submitted that there was no ground made out for
exercise of revisional jurisdiction under Section 397 Cr.P.C. for quashing
the charges framed. It was proved on the materials on record that the
Respondent Mehdu had facilitated Shri Kishan Singh Rawat to carry on
illegal mining by which, he obtained illegal benefits to the detriment of
State of Rajasthan as well as Smt. Sushma Devi. The quarry licence granted
to Sushma Devi was cancelled by Mehdu to facilitate Kishan Singh Rawat to
carry on illegal mining on the plot, which was included in the quarry
licence of Sushma Devi. Shri Mehdu being a public servant has committed an
offence under Section 13(1)(d) read with Section 13(2).
11. Learned counsel for the Respondent, refuting the submission of
appellant contends that the High Court on valid grounds has set aside the
order framing the charge, since there was no allegation before the Special
Judge on which, it can be said that any offence under Section 13(1)(d) read
with 13(2) and 120B was made out. The allegation against Shri Mehdu that he
has granted quarry licence of 80,000 Sq. ft. to Kishan Singh Rawat, was
factually incorrect since Kishan Singh Rawat was sanctioned quarry licence
of only 25,000 Sq. ft. It is submitted that cancellation of licence of
Smt. Sushma Devi by Shri Mehdu cannot amount to any offence within the
meaning of aforesaid sections and the order of Appellate Authority, setting
aside the cancellation order does not lead to any presumption that an
offence was committed by Shri Mehdu.
12. Before we proceed to examine the respective contentions, it is
necessary to look into the chargesheet to find out the nature of
allegations made against the respondents. The chargesheet has been
brought on record as Annexure A-9. It is relevant to note some of the
allegations, as recorded in the chargesheet against the respondent. The
chargesheet notices the following:
"whereas it is also pertinent to mention here that area of plot No.
1345/1185/124 is three bigha 52272 Sq. ft. whereas, Shri Fatehkaran Mehdu
Mining Engineer, Bijolia has granted sanction of 80,000 Sq. ft. as gap fat.
Thus, Shri Fatehkaran Mehdu Mining Engineer in collusion with Shri Kishan
Singh Rawat granted sanction for 80,000 Sq. ft land as against 52272 Sq.
ft. available land, by which obviously proceeding for giving land to Shri
Kishan Singh Rawat out of plot No. 1181/124 of Smt. Sushma Devi situated
neighbouring has been done by collusion.”
13. Further, after noticing the facts, pertaining to grant of quarry
licence to Kishan Singh Rawat and Smt. Sushma Devi following was stated:
“By investigation it was also found that illegal mining was done on plot
No. 1185/124 of Shri Kishan Singh Rawat for years. In the year 1997 the
Mining Enginner in collusion under gap fat policy with view to provide
undue profit by back door got surrendered 3 bigha land out of 5 bigha in
favour of State Government and recorded without name so that gap fat could
be approved under above policy. Under rules lease can be granted only on
land of without name. To land so surrendered plot No. 1345/1185/124 was
given rest of two bigha land of khatedar property No. 1185/124 was given
which presently is recorded as khatedari land in name Dhiru son of Limbu
Bheel R/o Suradiya Tehsil Beawar in khata which is ancestral village of
Kishan Singh Rawat. Plot No. 1185/124 combined rakba 2 bigha land is also
recorded as khatedari therefore, gap fat permission can not be accorded
under gap fat policy but Mining Engineer in files of office accorded
approval of plot No. 1345/1185/124 rakba 3 bigha, entry in which regard was
made with special stipulation on quarry licence but in technical map told
about according approval on plot No. 1185/124 combined so that if anytime
measurement is carried out then same could be found according to technical
map and according to same Shri Kishan Singh Rawat could get illegal profit.
On spot Shri Kishan Singh Rawat in present time is also doing mining work
on plot No. 1185/124 com. Rakba 2 bigha land and whenever question for
measurement arises then he shows being approval on the basis of
department's technical map whereas, in quarry lincence and files permission
is accorded only to plot No. 1345/1185/124, total area of which comes to be
52472 Sq.ft whereas, according to technical map area 80,000 Sq. ft is
shown. Under khatedari policy Shri Fatehkaran Mehdu only with view to cause
loss to tenure holders of plot No. 1181/124 situated in south of plot No.
1185/124, called back issued quarry licence of Smt. Sushma Dhakad in name
of correcting same by violating all rules, cancelled quarry licence and
information in which regard was not given to licence holders.”
14. There was a clear allegation in the chargesheet that quarry licence
to Kishan Singh Rawat was given by Shri Mehdu in furtherance of object and
purpose of illegally benefitting Kishan Singh Rawat. It was further stated
that although, approval for quarry licence on Plot No. 1345/1185/124 area 3
bigha was granted, total area of which comes to only 52,272 Sq. ft.,
whereas in the technical map, area was shown 80,000 Sq. ft. dishonestly
benefiting Kishan Singh Rawat.
15. Considering the chargesheet and other materials on record, the
charges have been framed. In Para 1 of the order, the learned Special
Judge has noted the following facts:
"1. It is worth-mentioning that total area of land No. 1345/1185/124 is
total three bigha i.e. 52272 Sq. ft. while Fatehkaran Mehdu issued sanction
of 80,000 Sq. ft. in the form of gap fat area and thus, accused Fatehkaran
Mehdu connived with Kishan Singh Rawat, he connived in the proceedings for
getting alotted more land to Kishan Singh Rawat out of the land of
neighbour Sushma Devi, on which on establishing the prima facie case making
out, the then Additional Superintendent of Police of Prevention of
Corruption Bureau, Udaipur, sent an First Information Report without
numbering to the Headquarter, on which case First Information Report No.
342/01 was registered on 18.09.2001 and was received for investigation.”
16. Further in para 2, the order states:
“2. From the investigation it was established that Smt. Sushma Devi,
Manoj Kumar Sandhya and Jitmal Balai submitted application on 01.05.1998 in
prescribed form. Landowners of concerning khasra numbers expressed their
consent in favour of applicants, thereafter, on 06.05.1998 Shri Mehdu
granted approval for issuing quarry licence and licence were issued. Smt.
Sushma Devi checked quarry licence on 08.05.1998, then came to know that
serious nature of lacunae were found. At the same time Smt. Sushma Devi
contacted Fatehkaran Mehdu, Mineral Engineer about the abovesaid, then he
issued directions for making correction the quarry licence and handed over
letters etc. to the Office Assistant Sohanlal. Stating excessive cuttings,
Shri Mehdu instead of taking all the papers from Smt. Sushma Devi for
issuing new quarry licence, with intentions to get other person Kishan
Singh unlawfully benefits, connived with him and malafide and issued
licence.”
17. In para 2, it has further been noted:
“2. Under the quarry licence passed by Shri Fatehkaran Mehdu, Shri Kishan
Singh undertook unauthorized mining work for years on five bigha land in
place of three bigha land due to which State Government suffered loss of
annual rent etc. and Kishan Singh earned unlawful profits. On account of
conspiracy hatched with him and connivance forgetting Kishan Singh
benefitted, it established that Shri Fatehkaran Mehdu allotted land to
Kishan Singh Rawat contrary to rules or in the form of gap & fat due to
which the present charge sheet under section 13(1)(d) read with section
13(2) Prevention of Corruption Act, 1988 and section 120 Indian Penal Code
was filed in which Kishan Singh Rawat, beneficiary was also made accused.”
18. The Special Judge after considering the contention putforth by the
learned counsel for the parties noted the charge that against the total
area of 52,272 Sq. ft. available, Shri Mehdu has issued sanction for 80,000
Sq. ft. in the form of 'gap area' to Kishan Singh Rawat to unduly benefit
him, and the same can be decided after recording oral and documentary
evidence. The Special Judge found, a clear prima facie case of framing
charges. It is relevant to extract the findings from Para 6 of the order.
In Para 6 of the order, following has been stated:
“Prima facie charge has been framed against accused persons that with the
intentions to cause loss to Khatedars of land No. 1181/124 situated in the
southern side of land No. 1185/124, on which licence issued to Smt. Sushma
Dhakar, Shri Fatehkaran Mehdu called for the same in the name of rectifying
the same, he canceled the quarry licence in violations of all the rules and
its information was not conveyed to the licence holders. Shri Mehdu did
not try to settle the disputes on the spot rather he issued licence to
parties without any acceptable demaraction and canceled without adopting
process. Dispute prevailing between land No. 1185/125 and 1181/124 could
have been settled earlier by carrying out measurement in detail through the
Department of revenue, but no any effort was made in this context,
consequently, Kishan Singh Rawat has undertaken unauthorized mining work on
five bigha area of land No. 1185/124 in place of three bigha land due to
which State Government has suffered loss of annual rent etc.. it also
established in the investigation that Fatehkaran Mehdu had got the
intentions behind cancelling of quarry licence of Smt. Sushma Dhakar that
Kishan Singh Rawat be benefited by allotting land to Kishan Singh Rawat
neighbour of Smt. Dhakar in the name of gap fat and Shri Mehdu has got
Kishan Singh Rawat financially benefitted unlawfully by allotting land in
the form of gap fat having misused his post and powers. It is universal
principle of law that court is supposed to see at the stage of framing of
charge as to whether prima facie case worth triable makes out on the basis
of evidence and the facts putforth by the prosecution or not. Final
disposal of the charges framed against accused on merits does not require
at the said stage.”
19. In view of what has been noted above, whether the High Court was
right in quashing the order framing charges by Special Judge on 05.05.2009,
is the question to be answered in these appeals. What is the basis for
quashing the charges by the High Court, has to be found out from the order
of the High Court, allowing the Criminal Revisions.
20. The High Court, after noticing the few allegations against the
respondent observed that there was no allegation made by the prosecution
against the respondent to the effect that by any corrupt or illegal means
Shri Mehdu obtained any valuable thing or pecuniary advantage for himself
or for any other person. With regard to alleged allotment of 80,000 Sq. ft.
in favour of Kishan Singh Rawat, it was held prima facie not to be correct
since concerned Mining Engineer had certified that there was no allotment
of 80,000 Sq. ft. by Mehdu to Kishan Singh Rawat. It is useful to extract
para 8 and 9 of the judgement of the High Court which is to the following
effect:
"8. Having gone through the aforesaid provision and judgments cited at
the bar and upon perusal of the order dated 5.5.2009, this Court does not
find any allegation made by the applicant or prosecution against the
present petitioner that by any corrupt or illegal means he obtained any
valuable thing or pecuniary advantage either for himself or for any other
person. Even alleged allotment of 80,000 Sq. ft. land in favour of
petitioner no. 2 Kishan Singh was prima facie found to be incorrect since
concerned Mining Engineer himself certified that there was no allotment of
80,000 sq. ft. area by the present petitioner in favour of petitioner No. 2
Kishan Singh and only allotment made was way back in 1997-98 of 25,000 sq.
ft. Mere fact that application Smt. Sushma Devi had to file appeal before
the competent authority under the Mining Act against the alleged illegal
cancellation of her quarry licence and succeeded therein does not amount to
any criminal charge against the present petitioner under the purview of
Section 13 (1) (d) of the Prevention of Corruption Act, 1988. Obviously,
these proceedings are quasi judicial in nature undertaken in exercise of
powers conferred upon the Mining Engineer under the said Act and any error
which can be corrected by appellate or revisional authority does not amount
to a criminal charge established against the said authority. This Court
does not find any allegation of taking bribe or any other allegation of
that nature which would come within the ambit of words employed in Section
13 (1) (d) namely; “by corruption or illegal means obtains for himself or
for any other person any valuable thing or pecuniary advantage.”
"9. In the absence of any such allegation, this court cannot appreciate
how the charge under Section 13(1) (d) and 13(2) of Prevention of
Corruption Act read with Section 120B IPC has been framed against the
present Petitioners.”
21. The High Court based its judgement for quashing the charges on the
aforesaid conclusion, as recorded in para 8 and 9. Section 13(1) (d) &
13(2) of the Prevention of Corruption Act, 1988 under which charges have
been framed, are to the following effect:
“13. Criminal misconduct by a public servant:
(1) A public servant is said to commit the offence of criminal misconduct,-
..... ....... .......
(d) if he,-
(i) by corrupt or illegal means, obtains for himself or for any other
person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or
for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any
valuable thing or pecuniary advantage without any public interest; or
..... ....... ......
(2) Any public servant who commits criminal misconduct shall be punishable
with imprisonment for a term which shall be not less than one year but
which may extend to seven years and shall also be liable to fine.”
22. What are the allegations against Mehdu to frame charge under Section
13(1) (d) read with 13(2) has to be found out from the Chargesheet and
other materials. We have already extracted the relevant allegations, made
against Shri Mehdu in the chargesheet as well as the facts noticed by the
learned Special Judge. While framing the charge, the substance of the
allegation against Mehdu is that he has granted a quarry licnece to Kishan
Singh Rawat on three bigha area of plot No. 1345/1185/124, total area of
which comes to 52,272 Sq. ft. whereas, he was sanctioned 80,000 Sq.ft.
Further allegation is that Mehdu permitted Kishan Singh Rawat to indulge in
unauthorised mining over the larger area than that of granted to him
putting the Government as well as Smt. Sushma Devi to loss. The High Court
in its order has observed that it has been certified by the present Mining
Engineer that Mehdu had never sanctioned alleged 80,000 Sq.ft. in favour of
Kishan Singh Rawat for which observation, the High Court based a letter
dated 13.11.2009 filed as Annexure A-11 in the appeal, which was also taken
on the record by the High Court. The said letter was addressed to
Fatehkaran Mehdu in reply to his querry, as to whether, Kishan Singh Rawat
was granted quarry licence for 80,000 Sq. ft. The answer given in the said
letter dated 03.11.2009 is to the following effect:
"As per the information sought with regard to the captioned subject, as per
the record available in the office no licence of 80,000 Sq. ft. has been
granted to Shri Kishan Singh Rawat in Arazi No. 1185/124 Mauza village
Nayanagar, Tehsil Bijoliya, District – Bhilwara. In the circumstances, it
is not possible to give the copy. In the year 1997-1998, the quarry licence
holder in Plot No. 263 A and 264 A of Arazi No. 1185/124 Shri Gopal Singh
Rawat S/o Shri Anna Singh Rawat R/o Suradia Tehsil Byawar, District Ajmer
(Rajasthan) was granted permission and quarry licence of total 12500-12500
Sq. ft. The said quarry licence was transferred in the name of Kishan Singh
Rawat S/o Devi Singh Rawat resident of Suradia, Tehsil Byawar District
Ajmer (Rajasthan), which is not effective at present.”
23. The Respondents have brought on record the copy of the quarry licence
granted to Kishan Singh Rawat as Annexure A-3 and A-4 which indicates that
two quarry licences were for 12500 Sq. ft each. It appears that the High
Court failed to advert the substance of allegation against Shri Mehdu, as
we have already noticed from the chargesheet that Shri Mehdu although,
granted quarry licence only for three bigha gap land in Plot No.
1345/1185/124, but technical map issued by Shri Mehdu was to an area of
80,000 Sq. ft, which was a source for Kishan Singh Rawat to carry on
unauthorised mining over the larger area than that of actually allotted to
him.
24. In the chargesheet following has been specifically noted :
"....On spot Shri Kishan Singh Rawat in present time is also doing mining
work on plot No. 1185/124 com. Rakba 2 bigha land and whenever question for
measurement arises then he shows being approval on the basis of
department's technical map whereas, in quarry lincence and files permission
is accorded only to plot No. 1345/1185/124, total area of which comes to be
52472 Sq.ft whereas, according to technical map area 80,000 Sq. ft is
shown.”
25. As noted above, learned Special Judge had observed that final
adjudication of charge cannot be made unless oral and documentary evidence
are received. The High Court has not adverted to the technical map which
mentions 80,000 Sq. Ft. and without adverting to that allegation, has
erroneously observed that there is no allegation which may come within the
meaning of 13 (1) (d) read with 13(2) of the Act. Both chargesheet and
order of the learned Special Judge have specifically noted the allegations,
which clearly makes out an offence under Section 13(1)(d) and 13(2) of
Prevention and Corruption Act, 1988 and Section 120B I.P.C.
26. The scope of interference and exercise of jurisdiction under Section
397 of Cr.P.C. has been time and again explained by this Court. Further,
the scope of interference under Section 397 Cr.P.C. at a stage, when charge
had been framed, is also well settled. At the stage of framing of a charge,
the court is concerned not with the proof of the allegation rather it has
to focus on the material and form an opinion whether there is strong
suspicion that the accused has committed an offence, which if put to trial,
could prove his guilt. The framing of charge is not a stage, at which
stage final test of guilt is to be applied. Thus, to hold that at the stage
of framing the charge, the court should form an opinion that the accused is
certainly guilty of committing an offence, is to hold something which is
neither permissible nor is in consonance with scheme of Code of Criminal
Procedure.
27. Now, reverting to the limit of the scope of jurisdiction under
Section 397 Cr. P.C., which 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 or the perversity which has crept in the
proceeding.
28. It is useful to refer to judgment of this Court in Amit Kapoor and
Ramesh Chander and Another, (2012) 9 SCC 460, where scope of Section 397
Cr. P.C. have been succinctly considered and explained. Para 12 and 13 are
as follows:
"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 scrutinize 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 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.”
29. The Court in para 27 has recorded its conclusion and laid down
principles to be considered for exercise of jurisdiction under Section 397
particularly in context of quashing of charge framed under Section 228 Cr.
P. C. Para 27, 27(1), (2), (3), (9), (13) are extracted as follows:
"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 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 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.”
30. Applying the above tests, we are of the considered opinion that High
Court erred in quashing the charges framed by the order dated 05.05.2009.
In result, both the appeals are allowed. The order of the High Court is
set aside and the order dated 05.05.2009 is restored. The learned Special
Judge may proceed with the trial in accordance with the law expeditiously.
........................J
(Ranjan Gogoi)
........................J
(Ashok Bhushan)
New Delhi
February 03, 2017
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 216 of 2017
(arising out of SLP(Crl.) No. 3998 of 2011)
STATE OF RAJASTHAN ... APPELLANT
VERSUS
FATEHKARAN MEHDU ... RESPONDENT
With
Crl. Appeal No. 217 of 2017 @ SLP(Crl.)No. 3996 of 2011
J U D G M E N T
ASHOK BHUSHAN, J.
Leave granted.
2. These two appeals have been filed against the common judgment dated
16.11.2010 of the High Court of Judicature for Rajasthan at Jodhpur
allowing S.B. Criminal Revision Petition No. 592/2009 Fatehkaran Mehdu
versus State of Rajasthan and S.B. Criminal Revision Petition No. 598/2009
Kishan Singh Rawat versus State of Rajasthan. The High Court vide its
order, allowing the Criminal Revisions, set aside the order dated
05.05.2009 passed by the Special Judge Anti Corruption Cases, Udaipur,
framing charges against both the respondents under Section 13(1)(d) & 13(2)
of the Prevention of Corruption Act, 1988 read with Section 120B of IPC.
3. The brief facts of the case, as emerged from materials on record,
need to be noted for deciding the issueS raised in these appeals. Both the
appeals having arisen out of First Information Report No. 342/2001 and
order dated 05.05.2009 framing charges, the facts being common, it shall be
sufficient to refer the facts from Criminal Appeal No.......of 2017 @
SLP(Cr.) No. 3998 of 2011, State of Rajasthan versus Fatehkaran Mehdu.
4. The Respondent, Fatehkaran Mehdu was working as Mining Engineer at
Tehsil Bijolia, District Bhilwara, State of Rajasthan in the year 1997-98.
One Smt. Sushma Devi had submitted an application for the grant of quarry
licence for a mineral (Sand Stone) as per the Rajasthan Minor Mineral
Concession Rules, 1986 (hereinafter referred to as Rule 1986). The
application was made for grant of quarry licence for Khatedari land
situated at Nayanagar in different plots, including Plot No. 1181/124. She
deposited a banker's cheque of Rs. 1,75,000/- dated 23.4.1998 and the
quarry licence for 4.95 hectare (30 bigha and 12 biswas) was prepared in
the name of Smt. Sushma Devi Dhakad and Shri Manoj Kumar Sandhya on
06.05.1998. On noticing that the quarry licence issued on 06.05.1998
contained various cuttings, she contacted Fatehkaran Mehdu and handed him
the licence for issue of fresh licence. Shri Mehdu after taking all papers
from Smt. Sushma Devi did not issue her a fresh licence, whereas, Smt.
Sushma Devi had started mining operations. On 18.07.1998 one Shri K. K.
Boda, inspected the area and stopped the mining activities informing Smt.
Sushma Devi that no quarry licence was issued in her favour. On 11.08.1998,
Mining Engineer Fatehkaran Mehdu directed Smt. Sushma Devi to stop the
mining activities; Fatehkaran Mehdu was transferred in August 1998 out of
Tehsil Bigolia.
5. Aggrieved by non-issuance of quarry licence Sushma Devi filed a Writ
Petition No. 166 of 1999 before the High Court of Rajasthan which was
dismissed by order dated 08.03.1999 due to availability of alternate remedy
of filing an appeal under the Rules 1986. Smt. Sushma Devi filed an appeal
before the Appellate Authority and Appellate Authority vide order dated
29.04.1999 allowed the appeal and restored the quarry licence of Smt.
Sushma Devi.
6. On the other hand, Sri Kishan Singh Rawat, the respondent was also
granted quarry licence on gap-land in Block No. 263A and 264A which
contained a condition that the said approval shall not be effective outside
Plot No. 1345/1185/124. Plot No. 1185/124 was situated towards South of
Plot No. 1181/124, which was included in the quarry licence of Smt. Sushma
Devi.
7. Kishan Singh Rawat alongwith certain other persons had filed a suit
against the consenting party of Khatedari Land No. 1238/125 on 23.06.1998
for stopping Sushma Devi from carrying on mining operations. Another suit
No. 1181/24 was filed on 13.7.1998 by Kishan Singh against the Khatedars of
Plot No. 1181/124 restraining them from interfering in mining operation on
Plot No. 1345/1185/124 area 3 bigha.
8. After holding a Preliminary Enquiry No. 7 of 2000 against Fatehkaran
Mehdu, Deputy Superintendent of Police, Prevention of Corruption Bureau of
Udaipur, lodged a First Information Report against the Fatehkaran Mehdu and
Kishan Singh Rawat under Section 13(1)(d) and 13(2) of Prevention of
Corruption Act, 1988 and Section 120B of IPC.
9. After conducting the investigation, a chargesheet No. 208/2005 dated
24.10.2005 was submitted. The Special Judge, Prevention of Corruption Act,
Udaipur vide order dated 05.05.2009 framed charges against both the
Respondents under Section 13(1) (d) read with Section 13(2) of Prevention
of Corruption Act, 1988 and 120B IPC. Aggrieved by order dated 05.05.2009,
Fatehkaran Mehdu filed S.B. Criminal Revision Petition No. 592 of 2009 and
Kishan Singh Rawat filed S.B. Criminal Revision Petition No. 598 of 2009.
The High Court of Rajasthan vide its judgment and order dated 16.11.2010
set aside the order dated 05.05.2009 allowing the Revision against which
these two appeals have been filed by the State of Rajasthan.
10. We have heard learned counsel for the parties and perused the
records. Learned counsel for the appellant submits that there were
sufficient materials on record against the respondent, relying on which
learned Special Judge has framed the charges and the High Court committed
an error by interfering with the charges framed, in exercise of revisional
jurisdiction. It is submitted that there was no ground made out for
exercise of revisional jurisdiction under Section 397 Cr.P.C. for quashing
the charges framed. It was proved on the materials on record that the
Respondent Mehdu had facilitated Shri Kishan Singh Rawat to carry on
illegal mining by which, he obtained illegal benefits to the detriment of
State of Rajasthan as well as Smt. Sushma Devi. The quarry licence granted
to Sushma Devi was cancelled by Mehdu to facilitate Kishan Singh Rawat to
carry on illegal mining on the plot, which was included in the quarry
licence of Sushma Devi. Shri Mehdu being a public servant has committed an
offence under Section 13(1)(d) read with Section 13(2).
11. Learned counsel for the Respondent, refuting the submission of
appellant contends that the High Court on valid grounds has set aside the
order framing the charge, since there was no allegation before the Special
Judge on which, it can be said that any offence under Section 13(1)(d) read
with 13(2) and 120B was made out. The allegation against Shri Mehdu that he
has granted quarry licence of 80,000 Sq. ft. to Kishan Singh Rawat, was
factually incorrect since Kishan Singh Rawat was sanctioned quarry licence
of only 25,000 Sq. ft. It is submitted that cancellation of licence of
Smt. Sushma Devi by Shri Mehdu cannot amount to any offence within the
meaning of aforesaid sections and the order of Appellate Authority, setting
aside the cancellation order does not lead to any presumption that an
offence was committed by Shri Mehdu.
12. Before we proceed to examine the respective contentions, it is
necessary to look into the chargesheet to find out the nature of
allegations made against the respondents. The chargesheet has been
brought on record as Annexure A-9. It is relevant to note some of the
allegations, as recorded in the chargesheet against the respondent. The
chargesheet notices the following:
"whereas it is also pertinent to mention here that area of plot No.
1345/1185/124 is three bigha 52272 Sq. ft. whereas, Shri Fatehkaran Mehdu
Mining Engineer, Bijolia has granted sanction of 80,000 Sq. ft. as gap fat.
Thus, Shri Fatehkaran Mehdu Mining Engineer in collusion with Shri Kishan
Singh Rawat granted sanction for 80,000 Sq. ft land as against 52272 Sq.
ft. available land, by which obviously proceeding for giving land to Shri
Kishan Singh Rawat out of plot No. 1181/124 of Smt. Sushma Devi situated
neighbouring has been done by collusion.”
13. Further, after noticing the facts, pertaining to grant of quarry
licence to Kishan Singh Rawat and Smt. Sushma Devi following was stated:
“By investigation it was also found that illegal mining was done on plot
No. 1185/124 of Shri Kishan Singh Rawat for years. In the year 1997 the
Mining Enginner in collusion under gap fat policy with view to provide
undue profit by back door got surrendered 3 bigha land out of 5 bigha in
favour of State Government and recorded without name so that gap fat could
be approved under above policy. Under rules lease can be granted only on
land of without name. To land so surrendered plot No. 1345/1185/124 was
given rest of two bigha land of khatedar property No. 1185/124 was given
which presently is recorded as khatedari land in name Dhiru son of Limbu
Bheel R/o Suradiya Tehsil Beawar in khata which is ancestral village of
Kishan Singh Rawat. Plot No. 1185/124 combined rakba 2 bigha land is also
recorded as khatedari therefore, gap fat permission can not be accorded
under gap fat policy but Mining Engineer in files of office accorded
approval of plot No. 1345/1185/124 rakba 3 bigha, entry in which regard was
made with special stipulation on quarry licence but in technical map told
about according approval on plot No. 1185/124 combined so that if anytime
measurement is carried out then same could be found according to technical
map and according to same Shri Kishan Singh Rawat could get illegal profit.
On spot Shri Kishan Singh Rawat in present time is also doing mining work
on plot No. 1185/124 com. Rakba 2 bigha land and whenever question for
measurement arises then he shows being approval on the basis of
department's technical map whereas, in quarry lincence and files permission
is accorded only to plot No. 1345/1185/124, total area of which comes to be
52472 Sq.ft whereas, according to technical map area 80,000 Sq. ft is
shown. Under khatedari policy Shri Fatehkaran Mehdu only with view to cause
loss to tenure holders of plot No. 1181/124 situated in south of plot No.
1185/124, called back issued quarry licence of Smt. Sushma Dhakad in name
of correcting same by violating all rules, cancelled quarry licence and
information in which regard was not given to licence holders.”
14. There was a clear allegation in the chargesheet that quarry licence
to Kishan Singh Rawat was given by Shri Mehdu in furtherance of object and
purpose of illegally benefitting Kishan Singh Rawat. It was further stated
that although, approval for quarry licence on Plot No. 1345/1185/124 area 3
bigha was granted, total area of which comes to only 52,272 Sq. ft.,
whereas in the technical map, area was shown 80,000 Sq. ft. dishonestly
benefiting Kishan Singh Rawat.
15. Considering the chargesheet and other materials on record, the
charges have been framed. In Para 1 of the order, the learned Special
Judge has noted the following facts:
"1. It is worth-mentioning that total area of land No. 1345/1185/124 is
total three bigha i.e. 52272 Sq. ft. while Fatehkaran Mehdu issued sanction
of 80,000 Sq. ft. in the form of gap fat area and thus, accused Fatehkaran
Mehdu connived with Kishan Singh Rawat, he connived in the proceedings for
getting alotted more land to Kishan Singh Rawat out of the land of
neighbour Sushma Devi, on which on establishing the prima facie case making
out, the then Additional Superintendent of Police of Prevention of
Corruption Bureau, Udaipur, sent an First Information Report without
numbering to the Headquarter, on which case First Information Report No.
342/01 was registered on 18.09.2001 and was received for investigation.”
16. Further in para 2, the order states:
“2. From the investigation it was established that Smt. Sushma Devi,
Manoj Kumar Sandhya and Jitmal Balai submitted application on 01.05.1998 in
prescribed form. Landowners of concerning khasra numbers expressed their
consent in favour of applicants, thereafter, on 06.05.1998 Shri Mehdu
granted approval for issuing quarry licence and licence were issued. Smt.
Sushma Devi checked quarry licence on 08.05.1998, then came to know that
serious nature of lacunae were found. At the same time Smt. Sushma Devi
contacted Fatehkaran Mehdu, Mineral Engineer about the abovesaid, then he
issued directions for making correction the quarry licence and handed over
letters etc. to the Office Assistant Sohanlal. Stating excessive cuttings,
Shri Mehdu instead of taking all the papers from Smt. Sushma Devi for
issuing new quarry licence, with intentions to get other person Kishan
Singh unlawfully benefits, connived with him and malafide and issued
licence.”
17. In para 2, it has further been noted:
“2. Under the quarry licence passed by Shri Fatehkaran Mehdu, Shri Kishan
Singh undertook unauthorized mining work for years on five bigha land in
place of three bigha land due to which State Government suffered loss of
annual rent etc. and Kishan Singh earned unlawful profits. On account of
conspiracy hatched with him and connivance forgetting Kishan Singh
benefitted, it established that Shri Fatehkaran Mehdu allotted land to
Kishan Singh Rawat contrary to rules or in the form of gap & fat due to
which the present charge sheet under section 13(1)(d) read with section
13(2) Prevention of Corruption Act, 1988 and section 120 Indian Penal Code
was filed in which Kishan Singh Rawat, beneficiary was also made accused.”
18. The Special Judge after considering the contention putforth by the
learned counsel for the parties noted the charge that against the total
area of 52,272 Sq. ft. available, Shri Mehdu has issued sanction for 80,000
Sq. ft. in the form of 'gap area' to Kishan Singh Rawat to unduly benefit
him, and the same can be decided after recording oral and documentary
evidence. The Special Judge found, a clear prima facie case of framing
charges. It is relevant to extract the findings from Para 6 of the order.
In Para 6 of the order, following has been stated:
“Prima facie charge has been framed against accused persons that with the
intentions to cause loss to Khatedars of land No. 1181/124 situated in the
southern side of land No. 1185/124, on which licence issued to Smt. Sushma
Dhakar, Shri Fatehkaran Mehdu called for the same in the name of rectifying
the same, he canceled the quarry licence in violations of all the rules and
its information was not conveyed to the licence holders. Shri Mehdu did
not try to settle the disputes on the spot rather he issued licence to
parties without any acceptable demaraction and canceled without adopting
process. Dispute prevailing between land No. 1185/125 and 1181/124 could
have been settled earlier by carrying out measurement in detail through the
Department of revenue, but no any effort was made in this context,
consequently, Kishan Singh Rawat has undertaken unauthorized mining work on
five bigha area of land No. 1185/124 in place of three bigha land due to
which State Government has suffered loss of annual rent etc.. it also
established in the investigation that Fatehkaran Mehdu had got the
intentions behind cancelling of quarry licence of Smt. Sushma Dhakar that
Kishan Singh Rawat be benefited by allotting land to Kishan Singh Rawat
neighbour of Smt. Dhakar in the name of gap fat and Shri Mehdu has got
Kishan Singh Rawat financially benefitted unlawfully by allotting land in
the form of gap fat having misused his post and powers. It is universal
principle of law that court is supposed to see at the stage of framing of
charge as to whether prima facie case worth triable makes out on the basis
of evidence and the facts putforth by the prosecution or not. Final
disposal of the charges framed against accused on merits does not require
at the said stage.”
19. In view of what has been noted above, whether the High Court was
right in quashing the order framing charges by Special Judge on 05.05.2009,
is the question to be answered in these appeals. What is the basis for
quashing the charges by the High Court, has to be found out from the order
of the High Court, allowing the Criminal Revisions.
20. The High Court, after noticing the few allegations against the
respondent observed that there was no allegation made by the prosecution
against the respondent to the effect that by any corrupt or illegal means
Shri Mehdu obtained any valuable thing or pecuniary advantage for himself
or for any other person. With regard to alleged allotment of 80,000 Sq. ft.
in favour of Kishan Singh Rawat, it was held prima facie not to be correct
since concerned Mining Engineer had certified that there was no allotment
of 80,000 Sq. ft. by Mehdu to Kishan Singh Rawat. It is useful to extract
para 8 and 9 of the judgement of the High Court which is to the following
effect:
"8. Having gone through the aforesaid provision and judgments cited at
the bar and upon perusal of the order dated 5.5.2009, this Court does not
find any allegation made by the applicant or prosecution against the
present petitioner that by any corrupt or illegal means he obtained any
valuable thing or pecuniary advantage either for himself or for any other
person. Even alleged allotment of 80,000 Sq. ft. land in favour of
petitioner no. 2 Kishan Singh was prima facie found to be incorrect since
concerned Mining Engineer himself certified that there was no allotment of
80,000 sq. ft. area by the present petitioner in favour of petitioner No. 2
Kishan Singh and only allotment made was way back in 1997-98 of 25,000 sq.
ft. Mere fact that application Smt. Sushma Devi had to file appeal before
the competent authority under the Mining Act against the alleged illegal
cancellation of her quarry licence and succeeded therein does not amount to
any criminal charge against the present petitioner under the purview of
Section 13 (1) (d) of the Prevention of Corruption Act, 1988. Obviously,
these proceedings are quasi judicial in nature undertaken in exercise of
powers conferred upon the Mining Engineer under the said Act and any error
which can be corrected by appellate or revisional authority does not amount
to a criminal charge established against the said authority. This Court
does not find any allegation of taking bribe or any other allegation of
that nature which would come within the ambit of words employed in Section
13 (1) (d) namely; “by corruption or illegal means obtains for himself or
for any other person any valuable thing or pecuniary advantage.”
"9. In the absence of any such allegation, this court cannot appreciate
how the charge under Section 13(1) (d) and 13(2) of Prevention of
Corruption Act read with Section 120B IPC has been framed against the
present Petitioners.”
21. The High Court based its judgement for quashing the charges on the
aforesaid conclusion, as recorded in para 8 and 9. Section 13(1) (d) &
13(2) of the Prevention of Corruption Act, 1988 under which charges have
been framed, are to the following effect:
“13. Criminal misconduct by a public servant:
(1) A public servant is said to commit the offence of criminal misconduct,-
..... ....... .......
(d) if he,-
(i) by corrupt or illegal means, obtains for himself or for any other
person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or
for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any
valuable thing or pecuniary advantage without any public interest; or
..... ....... ......
(2) Any public servant who commits criminal misconduct shall be punishable
with imprisonment for a term which shall be not less than one year but
which may extend to seven years and shall also be liable to fine.”
22. What are the allegations against Mehdu to frame charge under Section
13(1) (d) read with 13(2) has to be found out from the Chargesheet and
other materials. We have already extracted the relevant allegations, made
against Shri Mehdu in the chargesheet as well as the facts noticed by the
learned Special Judge. While framing the charge, the substance of the
allegation against Mehdu is that he has granted a quarry licnece to Kishan
Singh Rawat on three bigha area of plot No. 1345/1185/124, total area of
which comes to 52,272 Sq. ft. whereas, he was sanctioned 80,000 Sq.ft.
Further allegation is that Mehdu permitted Kishan Singh Rawat to indulge in
unauthorised mining over the larger area than that of granted to him
putting the Government as well as Smt. Sushma Devi to loss. The High Court
in its order has observed that it has been certified by the present Mining
Engineer that Mehdu had never sanctioned alleged 80,000 Sq.ft. in favour of
Kishan Singh Rawat for which observation, the High Court based a letter
dated 13.11.2009 filed as Annexure A-11 in the appeal, which was also taken
on the record by the High Court. The said letter was addressed to
Fatehkaran Mehdu in reply to his querry, as to whether, Kishan Singh Rawat
was granted quarry licence for 80,000 Sq. ft. The answer given in the said
letter dated 03.11.2009 is to the following effect:
"As per the information sought with regard to the captioned subject, as per
the record available in the office no licence of 80,000 Sq. ft. has been
granted to Shri Kishan Singh Rawat in Arazi No. 1185/124 Mauza village
Nayanagar, Tehsil Bijoliya, District – Bhilwara. In the circumstances, it
is not possible to give the copy. In the year 1997-1998, the quarry licence
holder in Plot No. 263 A and 264 A of Arazi No. 1185/124 Shri Gopal Singh
Rawat S/o Shri Anna Singh Rawat R/o Suradia Tehsil Byawar, District Ajmer
(Rajasthan) was granted permission and quarry licence of total 12500-12500
Sq. ft. The said quarry licence was transferred in the name of Kishan Singh
Rawat S/o Devi Singh Rawat resident of Suradia, Tehsil Byawar District
Ajmer (Rajasthan), which is not effective at present.”
23. The Respondents have brought on record the copy of the quarry licence
granted to Kishan Singh Rawat as Annexure A-3 and A-4 which indicates that
two quarry licences were for 12500 Sq. ft each. It appears that the High
Court failed to advert the substance of allegation against Shri Mehdu, as
we have already noticed from the chargesheet that Shri Mehdu although,
granted quarry licence only for three bigha gap land in Plot No.
1345/1185/124, but technical map issued by Shri Mehdu was to an area of
80,000 Sq. ft, which was a source for Kishan Singh Rawat to carry on
unauthorised mining over the larger area than that of actually allotted to
him.
24. In the chargesheet following has been specifically noted :
"....On spot Shri Kishan Singh Rawat in present time is also doing mining
work on plot No. 1185/124 com. Rakba 2 bigha land and whenever question for
measurement arises then he shows being approval on the basis of
department's technical map whereas, in quarry lincence and files permission
is accorded only to plot No. 1345/1185/124, total area of which comes to be
52472 Sq.ft whereas, according to technical map area 80,000 Sq. ft is
shown.”
25. As noted above, learned Special Judge had observed that final
adjudication of charge cannot be made unless oral and documentary evidence
are received. The High Court has not adverted to the technical map which
mentions 80,000 Sq. Ft. and without adverting to that allegation, has
erroneously observed that there is no allegation which may come within the
meaning of 13 (1) (d) read with 13(2) of the Act. Both chargesheet and
order of the learned Special Judge have specifically noted the allegations,
which clearly makes out an offence under Section 13(1)(d) and 13(2) of
Prevention and Corruption Act, 1988 and Section 120B I.P.C.
26. The scope of interference and exercise of jurisdiction under Section
397 of Cr.P.C. has been time and again explained by this Court. Further,
the scope of interference under Section 397 Cr.P.C. at a stage, when charge
had been framed, is also well settled. At the stage of framing of a charge,
the court is concerned not with the proof of the allegation rather it has
to focus on the material and form an opinion whether there is strong
suspicion that the accused has committed an offence, which if put to trial,
could prove his guilt. The framing of charge is not a stage, at which
stage final test of guilt is to be applied. Thus, to hold that at the stage
of framing the charge, the court should form an opinion that the accused is
certainly guilty of committing an offence, is to hold something which is
neither permissible nor is in consonance with scheme of Code of Criminal
Procedure.
27. Now, reverting to the limit of the scope of jurisdiction under
Section 397 Cr. P.C., which 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 or the perversity which has crept in the
proceeding.
28. It is useful to refer to judgment of this Court in Amit Kapoor and
Ramesh Chander and Another, (2012) 9 SCC 460, where scope of Section 397
Cr. P.C. have been succinctly considered and explained. Para 12 and 13 are
as follows:
"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 scrutinize 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 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.”
29. The Court in para 27 has recorded its conclusion and laid down
principles to be considered for exercise of jurisdiction under Section 397
particularly in context of quashing of charge framed under Section 228 Cr.
P. C. Para 27, 27(1), (2), (3), (9), (13) are extracted as follows:
"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 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 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.”
30. Applying the above tests, we are of the considered opinion that High
Court erred in quashing the charges framed by the order dated 05.05.2009.
In result, both the appeals are allowed. The order of the High Court is
set aside and the order dated 05.05.2009 is restored. The learned Special
Judge may proceed with the trial in accordance with the law expeditiously.
........................J
(Ranjan Gogoi)
........................J
(Ashok Bhushan)
New Delhi
February 03, 2017
