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.

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

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