Madras High Court
Pramod Kumar vs State on 23 November, 2023
Crl.R.C.Nos.2194 and 2195 of 2023 IN THE HIGH COURT OF JUDICATURE AT MADRAS Reserved on 26.04.2024 Delivered on 07.06.2024 CORAM THE HONOURABLE MR.JUSTICE VIVEK KUMAR SINGH Crl.R.C.Nos.2194 & 2195 of 2023 and Crl.M.P.Nos.19769 & 19772 of 2023 Pramod Kumar ... Petitioner in both Revisions Vs. State, CBI, The Additional Superintendent of Police, CBI, E.O.W., Shastri Bhavan, Chennai. ... Respondent in both Revisions PRAYER IN CRL.R.C.No.2194 of 2023: Criminal Revision Petition filed under Section 397 r/w.401 of Criminal Procedure Code, 1973, to set aside the order dated 23.11.2023 passed by the learned II Additional District Judge for CBI Cases, Coimbatore in Crl.M.P.No.1527 of 2023 in C.C. No.2 of 2013. PRAYER IN CRL.R.C.No.2195 of 2023: Criminal Revision Petition filed under Section 397 r/w.401 of Criminal Procedure Code, 1/113 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.2194 and 2195 of 2023 1973, to set aside the order dated 28.11.2023 passed by the learned II Additional District Judge for CBI Cases, Coimbatore in C.C. No.2 of 2023 wherein charges were framed against the petitioner and consequently discharge the petitioner/first accused from all offences charged in the Charge Sheet dated 28.11.2013 in C.C.No.2 of 2013 pending on the file of the learned II Additional District Judge for CBI Cases, Coimbatore. For Petitioner : Mr.C.Mani Shankar Senior Counsel for Mr.Arun C Mohan in Crl.R.C.No.2194 of 2023 Mr.A.Ramesh Senior Counsel for Mr.Arun C Mohan in Crl.R.C.No.2195 of 2023 For Respondent : Mr.R.Sankara Narayanan Senior Counsel Special Counsel for CBI & Mr. K.Srinivasan Senior Counsel Special Public Prosecutor for CBI Assisted by Ms.Vrinda Ramesh (in both petitions) COMMON ORDER
Challenging the order passed by the learned II Additional
District Judge for CBI Cases, Coimbatore in Crl.M.P.No.1527 of 2023
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in C.C. No.2 of 2013 dated 23.11.2023 and as against the charges
framed against the petitioner herein through his order dated
28.11.2013, the present Criminal Revision Petitions have been filed
by the petitioner herein/first accused.
2.The gist and kernel of the case which leads to the filing of
these revision petitions are as follows:
i)The petitioner in both the Criminal Revision Cases is the first
accused in RC ME1 2001 E 0013 registered by the respondent police
against him along with the other named accused persons for the
alleged offences under Sections 120-B r/w 347, 384, 506 (i) of IPC
and Sections 8, 10 and 13 (2) r/w. 13(1)(d) of the Prevention of
Corruption Act, 1988. After completion of investigation, the same
was taken cognizance by the learned II Additional District Judge for
CBI Cases, Coimbatore in C.C.No.2 of 2013.
ii)The petitioner is a member of the Indian Police Service,
allotted to the State of Tamil Nadu. While he was functioning as
Inspector General of Police, West Zone, based at Coimbatore, a
complaint was registered in Crime No.26 of 2009 by the Central
Crime Branch (CCB) Tiruppur, against the Directors of Paazee Forex
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Crl.R.C.Nos.2194 and 2195 of 2023Trading India Ltd., under the provisions of Prize Chits and Monies
Circulation Scheme (Banning) Act, 1978 and Section 420 of IPC.
Subsequently, Tiruppur North Police registered a case in Cr.No.3068
of 2009 for “Woman Missing” pursuant to a complaint that
Mrs.Komalavalli Arumugham, one of the Directors of Paazee Forex
Trading India Ltd., was found missing.
iii)Since police failed to take any action against the Directors of
Paazee Forex Trading India Ltd., inspite of cancellation of the
anticipatory bail to them, one of the depositors and the association
of depositors of Paazee Forex Trading India Ltd., moved this Court
in Crl.O.P.Nos.2691 and 5358 of 2011 with a prayer for transfer of
investigation from the State Police to Central Bureau of
Investigation (CBI). The petitioner was not an accused at that point
of time. This Court has passed an order dated 19.04.2011
transferring the investigation of both the crimes from the State
Police to CBI.
iv)In the meanwhile, the petitioner herein was interrogated in
connection with Crime No.3068 of 2009 on 06.04.2011 and on
investigation, it was found that he abused his official position as
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Inspector General of Police and inter-alia was involved in extorting
money from the Directors of M/s Paazee Forex. This Court by an
order dated 19.04.2011, transferred the investigation in Crime No.3
of 2010 (originally Crime No.26 of 2009) to CBI. Thereafter, the
petitioner had filed an application for bail, which was rejected by
this Court on 20.04.2012 and was arrested. The Principal Secretary
to Government of Tamil Nadu by an order dated 10.05.2012 placed
the petitioner under suspension with effect from 02.04.2012 in
terms of Sub Rule 2 of Rule 3 of the All India Service (Discipline and
Appeal) Rules, 1969, until further orders.
v)Thereafter, the petitioner had filed a Writ Petition in
W.P.No.21801 of 2012 before this Court forbearing the respondents
from proceeding further with conducting enquiry or investigation in
FIR in RC No.13(E)/2011/CBI/EOW/Chennai and the same was
dismissed by this Court. In the meanwhile, the decision to initiate a
disciplinary proceeding against the petitioner was approved by the
Disciplinary Authority on 05.04.2013. Pursuant to which, a charge
memo was issued to him on 29.10.2013. This Court by an order
dated 19.04.2011 in Crl.O.P.Nos.2691 of 2011 and 5356 of 2011
had transferred the investigation in Crime No.26 of 2009 and Crime
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No.3068 of 2009 to CBI, which was challenged before the Hon’ble
Supreme Court by way of SLP and the same was disposed of and
this Court also clarified in the order dated 19.04.2011 that it will not
stand in the way of the petitioner herein while disposing of the
matter afresh.
vi) The petitioner filed O.A.No.165 of 2016 before the Central
Administrative Tribunal, Madras Bench, for quashing the order of
suspension dated 10.05.2013 and the charge memo dated
29.10.2013 and also sought for reinstatement with all consequential
benefits. The Central Administrative Tribunal, Madras Bench,
refused to interfere with the charge memo, however, directed
revocation of suspension by holding that there was no material to
indicate that the petitioner had tampered with the evidence and
influenced the witnesses. Aggrieved by the direction issued by the
Central Administrative Tribunal to reinstate the petitioner, the State
of Tamil Nadu filed a Writ Petition before this Court. This Court by a
judgment dated 12.01.2017, upheld the judgment of the Tribunal
pertaining to revocation of suspension. Further, this Court quashed
the disciplinary proceedings on the ground that the charge memo
was not approved by the disciplinary authority. Against the same,
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the State of Tamil Nadu had filed a Civil Appeal before the Hon’ble
Supreme Court and the Hon’ble Supreme Court by relying on the
decision of Ajay Kumar Choudhary Vs. Union of India reported
in (2015) 7 SCC 291 and on the basis of the material available on
record, convinced that no useful purpose would be served by
continuing the petitioner under suspension any longer and that his
reinstatement would not be a threat to a fair trial and also
reiterated the observation of this Court that the State has the
liberty to appoint the petitioner in a non sensitive post. By an order
dated 02.11.2021, in a batch of Writ Petitions and Criminal Original
Petitions, this Court had finally dismissed all the petitions preferred
by the petitioner herein, as well as by the other accused. As against
the dismissal order, the petitioner had preferred SLP before the
Hon’ble Supreme Court in SLP.No.8901-8904/2021 and the Hon’ble
Supreme Court had dismissed the SLP with liberty to the petitioner
to raise all the grounds raised therein before the appropriate Court,
if and when the charges are framed against the petitioner.
vii)Thereafter, the petitioner had preferred Crl.M.P.No.1527 of
2023 seeking discharge from the proceedings in C.C.No.2 of 2013
and the trial Court has dismissed the discharge petition on
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23.11.2023. Pursuant to which, charges were framed against the
petitioner on 28.11.2023. Aggrieved over the said orders, the
petitioner has filed the present revisions before this Court. This
Court by an order dated 20.12.2023 granted interim stay of all
further proceedings in C.C.No.2 of 2013 till 11.03.2024 and also
personal appearance of the petitioner has been dispensed with.
3.Heard Mr.A.Ramesh and Mr.C.Manishankar, learned Senior
Counsels appearing on behalf of the petitioner in Crl.R.C.No.2194 of
2023 and Crl.R.C.No.2195 of 2023 respectively as well as
Mr.R.Sankaranarayanan, learned Senior counsel and
Mr.K.Srinivasan, learned Special Public Prosecuor appearing for the
respondent/CBI.
4.Since the issue involved in these revisions are one and the
same, a common order is being passed in these Criminal Revision
Petitions.
5.Arguments made on behalf of the petitioner:
5.1. Mr.A.Ramesh, learned Senior counsel in
Crl.R.C.No.2195 of 2023 submitted that the Directors of Paazee
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Crl.R.C.Nos.2194 and 2195 of 2023Forex Trading Pvt. Ltd., [for the sake of brevity, hereinafter referred
to as “Paazee Trading”] collected deposits in the form of ponzi
scheme from the public and failed to repay the amount to the
depositors and thereby committed a huge scam. A complaint was
filed in this regard and on a direction of this Court, a Committee
was established to oversee that the amount has been refunded to
the depositors by the Directors of Pazee Trading. However, certain
depositors, who were dissatisfied with the progress of investigation,
approached this Court by way of filing petitions seeking transfer of
investigation from the State Police to CBI in Crl.O.P.Nos.2691 and
5336 of 2011.
5.2. At this juncture, it was stated by the State that along
with Crime No.26 of 2009 (Paazee case), another FIR was filed
relating to this case which was originally registered as a “woman
missing case”, who was one of the directors of Paazee Trading and
on investigation, it came to light that it was “kidnapping and
extortion case” involving police officers investigating the Paazee
scam. In view of the same, this Court by its order dated 19.04.2011
in Crl.O.P.Nos.2691 and 5336 of 2011 directed transfer of
investigation of both Crime No.26 of 2009 (Paazee Case) and Crime
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Crl.R.C.Nos.2194 and 2195 of 2023No.3068 of 2009 (Woman Missing Case) to the CBI. CBI had taken
over the woman missing case from CBCID, Vellore which was the
then investigating agency and thereafter registered an FIR wherein
the petitioner herein was arrayed as A6. It is pertinent to note that
until CBI’s FIR dated 15.06.2011, the petitioner herein was no way
connected or investigated in the woman missing case until the
matter was transferred and taken up by CBI.
5.3. The respondent had filed the charge sheet on 13.05.2013
before the learned II Additional District Judge for CBI Cases,
Coimbatore and in the meantime, the petitioner herein had initiated
proceedings to challenge investigation against him without
according sanction for investigation as contemplated under Section
6A of the Delhi Special Police Establishment (DSPE) Act. When the
matter was taken up to the Hon’ble Supreme Court in Civil Appeal
No.3062 of 2015, the Court by order dated 17.03.2015 had set
aside and remanded back the matter to this Court and had also
directed to remand of Crl.O.P.Nos.2691 and 5336 of 2011 since the
petitioner was not made a party or heard therein.
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5.4. This Court heard the matters afresh and vide its order
dated 02.11.2021 was pleased to uphold the transfer of
investigation and directed the trial Court to proceed in the manner
known to law. The petitioner preferred a quash petition in
Crl.O.P.No.19442 of 2022 which was subsequently dismissed on
28.11.2023 and in the interim, when the petitioner was directed to
appear before the learned trial Court as Non Bailable Warrant
issued, he preferred a discharge petition which was dismissed on
23.11.2023. Aggrieved over the same, Crl.R.C.No.2194 of 2023 has
been filed and also that the petitioner has preferred
Crl.R.C.No.2195 of 2023 as against the framing of charges dated
28.11.2023.
5.5. It is strenuously contended by the learned Senior counsel
for the petitioner that the bare perusal of the charges framed
against the petitioner vide order dated 28.11.2023 would show that
the same are defective, vague and ought to be set aside as the
same are not comprehendible and would result in great prejudice to
the petitioner. On a perusal of the first charge framed against
the petitioner for the offence of criminal conspiracy under Section
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120-B IPC would reveal that the same runs to about 14 pages by
enunciating various facts, dates and time and particularly, in
various places when the said charge is read out, the same is
incomprehensible. It is vital to point out that the first charge
running to 14 pages has various material facts not concerning to
the petitioner but concerning other accused in the case, however all
being put together as one, has rendered the charges meaningless
and groundless. In respect of the charges 4, 7 and 8, the trail
Court has conveniently charged the petitioner for the said offence
therein for his actions committed in the date, time and place as
mentioned in the first charge. The fourth charge is without any
basic details pointing to the first charge with regard to time, place
etc. The first charge has more than 25 dates and 3 different places
viz., Coimbatore, Tiruppur and Chennai. The charge for 506(i) IPC
should mention threat to cause death or grievous hurt or with an
intent to cause alarm, which is absent in the present charge.
Seventh charge for Section 10 of the Prevention of Corruption Act
(PC Act) does not specify the offence for framing charges against
the petitioner. Since Section 10 of the PC Act requires Section 8 or
9 to be committed as a pre-requisite, which is absent in the present
case as against the petitioner.
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5.6. The learned Senior counsel referred to Section 464 of
Cr.P.C., and the same reads as follows:
464. Effect of omission to frame, or
absence of, or error in, charge-
1)No finding sentence or order by a Court
of competent jurisdiction shall be deemed invalid
merely on the ground that no charge was framed
or on the ground of any error, omission or
irregularity in the charge including any misjoinder
of charge, unless, in the opinion of the Court of
appeal, confirmation or revision, a failure of
justice has in fact been occasioned thereby.
2)If the Court of appeal, confirmation or
revision is of opinion that a failure of justice has
in fact been occasioned, it may-
(a)in the case of an omission to frame a
charge, order that a charge be framed and that
the trial be recommenced from the point
immediately after the framing of the charge;
(b)in the case of an error, omission or
irregularity in the charge, direct a new trial to be
had upon a charge framed in whatever manner it
thinks fit:
Provided that if the Court is of opinion that
the facts of the case are such that no valid
charge could be preferred against the accused in
respect of the facts proved, it shall quash the13/113
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Crl.R.C.Nos.2194 and 2195 of 2023conviction.
5.7. In the present case on hand, Section 464 of Cr.P.C., has
not been followed and submitted that it is the duty of the Court to
step in when there is an error in framing a charge and set aside the
same for want of fresh charges to be framed as not being so would
gravely prejudice the petitioner at the time of trial.
5.8. He placed reliance on Chapter 17 of the Code of Criminal
Procedure, more specifically on Sections 211 to 215, wherein
contents of a charge and the manner in which the same ought to
have been framed and the effect of an error in a charge are
illustrated. For useful reference, Sections 211 to 215 of Cr.P.C.,
have been extracted and the same reads as follows:
211.Contents of charge.—
(1) Every charge under this Code shall
state the offence with which the accused is
charged.
(2) If the law which creates the offence
gives it any specific name, the offence may be
described in the charge by that name only.
(3) If the law which creates the offence
does not give it any specific name, so much of
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the definition of the offence must be stated as to
give the accused notice of the matter with which
he is charged.
(4) The law and section of the law against
which the offence is said to have been
committed shall be mentioned in the charge.
(5) The fact that the charge is made is
equivalent to a statement that every legal
condition required by law to constitute the
offence charged was fulfilled in the particular
case.
(6) The charge shall be written in the
language of the Court. (7) If the accused,
having been previously convicted of any offence,
is liable, by reason of such previous conviction,
to enhanced punishment, or to punishment of a
different kind, for a subsequent offence, and it is
intended to prove such previous conviction for
the purpose of affecting the punishment which
the Court may think fit to award for the
subsequent offence, the fact, date and place of
the previous conviction shall be stated in the
charge; and if such statement has been omitted,
the Court may add it at any time before
sentence is passed.
212.Particular as to time, place and
person.—
(1) The charge shall contain such
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particulars as to the time and place of the
alleged offence, and the person (if any) against
whom, or the thing (if any) in respect of which,
it was committed, as are reasonably sufficient to
give the accused notice of the matter with which
he is charged.
(2) When the accused is charged with
criminal breach of trust or dishonest
misappropriation of money or other movable
property, it shall be sufficient to specify the
gross sum or, as the case may be, describe the
movable property in respect of which the offence
is alleged to have been committed, and the
dates between which the offence is alleged to
have been committed, without specifying
particular items or exact dates, and the charge
so framed shall be deemed to be a charge of one
offence within the meaning of section 219:
Provided that the time included between
the first and last of such dates shall not exceed
one year.
213. When manner of committing offence
must be stated.—When the nature of the case is
such that the particulars mentioned in sections
211 and 212 do not give the accused sufficient
notice of the matter with which he is charged,
the charge shall also contain such particulars of
the manner in which the alleged offence was
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committed as will be sufficient for that purpose.
214. Words in charge taken in sense of law
under which offence is punishable.—In every
charge words used in describing an offence shall
be deemed to have been used in the sense
attached to them respectively by the law under
which such offence is punishable.
215. Effect of errors.— No error in stating
either the offence or the particulars required to
be stated in the charge, and no omission to state
the offence or those particulars, shall be
regarded at any stage of the case as material,
unless the accused was in fact misled by such
error or omission, and it has occasioned a failure
of justice.
5.9. A cursory reading of the charges framed as against the
petitioner would show that none of the provisions as enumerated
above foreshadow the charges so framed thereby making the
charges wholly erroneous and thus, the learned Senior counsel
prayed to set aside the charges framed as against the petitioner.
5.10. In support of his contentions, the learned Senior
counsel drew the attention of this Court by placing reliance on the
following judgments:
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a)Krishnan Balakrishnan and Others Vs. State of Kerala,
1957 SCC Online Ker 215:-
7.Now, as we have already said, the charge
against each of the accused is a long rambling
document cluttered with irrelevant detail telling
him not merely what he himself but also what the
other accused persons did in the course of the
transaction, but at the same time failing to tell
him and it is here that the objection lies of the
matters making out the offences with which he
was eventually convicted. Taking first the charge
against the first accused, it is no doubt true that
Section 302 IPC is mentioned in charge in
addition to Section 302-149 IPC, but nowhere in
the charge is it said that the first accused was
being held liable for having himself caused that
death of the deceased.
b)Pitambar Dehury and Others Vs. State of Orissa, 1984
SCC Online Ori 226
“12.We would now examine the
correctness of the second submission of the
learned Counsel for the appellants. The Supreme
Court and various High Courts have considered
as to the effect of absence of a charge or defect
in charge how far vitiates the conviction. In one
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of the earliest cases (Willie (William) Slaney v.
State of Madhya Pradesh), it was held :
Sections 34, 114 and 149 of the Penal
Code provide for criminal liability viewed from
different angles as regards actual participants,
accessories and men actuated by a common
object or a common intention ; ‘and the charge
is a rolled-up one involving the direct liability’
without specifying who are directly liable and
who are sought to be made constructively liable.
In such a situation, the absence of a
charge under one or other of the various heads
of criminal liability for the offence cannot be said
to be fatal by itself, and before a conviction for
the substantive offence, without a charge, can be
set aside, prejudice will have to be made out. In
most of the cases of this kind, evidence is
normally given from the outset as to who was
primarily responsible for the act which brought
about the offence and such evidence is of course
relevant.
13.In this case in the majority judgment,
their Lordships explained and distinguished the
two earlier decisions of the Court (Nanakchand v.
State of Punjab) and (Surajpal v. State of U.P.).
14.In the case of K.C. Mathew v. State of
Travancore-Cochin , repelling a contention raised
on behalf of the accused that they have been19/113
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Crl.R.C.Nos.2194 and 2195 of 2023prejudiced for non-framing of a charge, the
Supreme Court held :
We are satisfied that the charge neither
caused, nor could have caused, prejudice. The
body of the charge set out the fact that the
accused 1-29 formed an unlawful assembly and
stated the common object ; and then the charge
specified in detail the part that each accused had
played. In the circumstances, each accused was
in a position to know just that was charged
against him because once the facts are
enumerated the law that applies to them can
easily be ascertained ; and in this particular case
it was just a matter of picking out the relevant
sections from among the ten mentioned.
There is nothing in this objection :….
In the very same judgment, the Court also
further observed :
“… but the fact that the objection was not
taken at an earlier stage, if it could and should
have been taken, is a material circumstance that
will necessarily weigh heavily against the
accused particularly when he has been
represented by counsel throughout…”
16.In the case of Khemasil Rout v. State of
Orissa (1974) 40 Cut LT 428, a learned Judge of
this Court examined the provisions of Sections
143 and 149 of the Penal Code and held :
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Crl.R.C.Nos.2194 and 2195 of 2023“The law is well settled that the only test to
decide whether a conviction can be sustained or
not is to find out whether the absence of such a
charge has resulted in prejudice to the accused
persons. Here, in this case, there was a specific
charge Under Section 148, Indian Penal Code.
The common object also has been specified. The
petitioners therefore cannot complain that they
had no notice of the ingredients of the offence
Under Section 149, Indian Penal Code. No
prejudice has therefore resulted to the accused-
petitioners. …”
c) Selvam and Others Vs. State, Crl.A.(MD) No.234 of
2011 dated 18.08.2015:-
“16. With pains, thus for, we have
discussed about the irregularities in the charges
framed and the consequential trial conducted by
the trial Court. Time and again, the Hon’ble
Supreme Court as well as this Court have been
impressing upon the need for the trial Court to
have thorough study of the entire Police report
and all the documents filed therewith and to
frame appropriate charges so ass to avoid any
failure of justice. The law makers have made it
mandatory that under Section 218 Cr.P.C. for
every distinct offence of which a person is
accused, there shall be a separate charge. The21/113
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Crl.R.C.Nos.2194 and 2195 of 2023law makers have also made a provision under
Section 226 Cr.P.C. that in a trial before a Court
of Sessions, the Public Prosecutor shall open his
case by describing the charge brought against
the accused and stating by what evidence he
proposes to prove the guilt of the accused. In
practice, often we have come to know that this
provision is followed only in breach. This case is
a classic illustration of failure of justice as the
accused have walked away with punishment for
simple murder, though there were three brutal
murders.
17. We regret to say that in our experience,
in many cases, which have come up before this
Court in the recent past, we have noticed that
because the cases were not properly opened by
the prosecutors, because the prosecutors had
not described the charges brought against the
accused; and because the trial Courts also had
not bestowed their required attention, there
were defective charges framed which, ultimately,
in some cases, resulted in failure of justice as
well. In some cases, because of the defects in
the charges, the accused have cakewalk on
account of the said loopholes in the charges. In
some cases, this Court had to often remand the
case after many years, for altering the charges
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18.Judicial training has almost become a
part of the service of the Judges, in this State.
On the important subjects, often training is
imparted to the Judges by the Tamil Nadu State
Judicial Academy run by this Court and by the
National Judicial Academy, through eminent
jurists drawn from across the country. We are
told that even the Public Prosecutors are also
trained at the cost of the Government. Despite
these efforts, it is really distressing that we have
noticed a lot of defects in the matter of framing
of charges as we have seen in the instant case
which have, at times, paved the way for the real
culprits to escape from the clutches of law. We
would like to remind the Judicial Officers that
gross failure to bestow attention and to frame
appropriate charges resulting in failure of justice
and paving the way for the accused to escape
from the clutches of law may amount to a
dereliction of official duty by the officers. In this
scenario,we, once again, wish to reiterate that
Judges and Magistrates, presiding over the
Criminal Courts, shall bestow their best attention
in the matter of framing of charges as framing of
charges is not a ministerial job but a very serious
judicial function.
19. As there were defects in the charges,
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equally in this case, there were defects in the
trial also, as the trial was not conducted with
best attention by the learned Public Prosecutor,
who was in charge of the case. In many cases,
this Court has pointed out that the trial had not
been conducted with proper care and attention,
resulting in acquittal of the accused, though
during the investigation sufficient materials had
been collected by the investigating officers. Very
recently, one of us (Justice S.NAGAMUTHU)
sitting single in Crl.A.No.67 of 2015
(Navaneethakrishnan and another Vs. Inspector
of Police, Q Branch Police Station, Madurai),
relating to a very sensational case involving the
security of the nation, found such serious
irregularities in the charges and the serious
errors committed at the time of trial by failing to
bring on record the evidences collected during
the investigation. In that case, the conviction
was set aside and the matter was remanded to
the trial Court for fresh disposal (vide judgment
dated 24.07.2015). This is only an illustration.
The case on hand is the next illustration. We do
not want to cite many more cases as, in our
considered view, it would only add to the length
of this judgment. We only wish to impress upon
the Government to ensure the competence of the
Public Prosecutors in conducting criminal trials,
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while making appointments and also impart
them legal training on periodical basis. This will
surely improve the quality of the Prosecutors in
this State and consequently, improve the quality
of the criminal judicial administration in the
State.
d)Parthiban and Others Vs. State, Crl.A.No.349, 353,
392, 419, 439, 449 and 495 of 2016 dated 23.08.2016:-
16. Before analyzing the arguments
advanced by the learned counsel for both sides
and the evidences available on record, let us, at
the outset, record our displeasure about the
manner in which the charges have been framed,
in this case, and the manner in which the trial
court has convicted these 14 accused for various
offences.
17. Time and again, this Court and the
Hon’ble Supreme Court have been impressing
upon the trial courts, the importance of charges
framed, because the accused are liable to answer
the charges framed against them and framing of
appropriate charges alone would put the accused
on notice, the allegations against him, so that,
he could face the same effectively. In other25/113
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part of fair trial afforded to the accused.
18. Section 211 of the Criminal Procedure
Code contemplates the contents of the charges.
The provisions that followed in Chapter XVII
elaborately deal with the form of charges and
more specifically, Section 215 of the Code, deals
with effects of errors in charges. But it is not
infrequent that this Court comes across cases,
which reflect the indifference on the part of the
trial courts, in the matter of bestowing attention
to frame appropriate charges. The present case
is a classic example of such indifference. As we
have pointed out in paragraph No.1 of this
judgment, though it is alleged that 14 accused
had assembled, all armed with wooden logs, with
a common object of killing the deceased, the trial
court has not framed appropriate charges.
19. As we have pointed out, as against all
the 14 accused, the trial court has framed
charges under Section 147 IPC as well as 148
IPC. Since all the 14 accused were armed with
dangerous weapons, the trial court ought to have
framed charges against all the accused under
Section 148 IPC, but, quite, strangely, the trial
court has convicted and imposed sentence for
offence under Section 148 as well as 147 IPC.
This will amount to clear double jeopardy. It is
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common knowledge that once an accused is
convicted for the offence under Section 148 IPC,
he cannot be again punished for the offence
under Section 147 IPC.
5.11. Furthermore, it is pertinent to go through the charge
sheet as the prosecution even while filing the same after allegedly
investigating the issue, has left open the question of money trial to
further investigation under Section 173(8) of Cr.P.C. This would
only show that the prosecution has hastily filed the charge sheet
without completing the investigation and reiterate the prosecution’s
mala-fide intention to somehow roped the petitioner. The trial
Court failed to apply its mind at the time of taking cognizance of the
matter. As per the prosecution’s status report before the trial court
dated 17.10.2023 further investigation is still ongoing and money
trial is yet to be established.
5.12. The learned Senior counsel argued that the charges
framed are made as even assuming without admitting that there
are grounds to proceed for framing charges, the exercise
undertaken by the trial Court in framing charges in a case where
there are no grounds to proceed, is unsustainable and the same is
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liable to be set aside.
5.13. He also submitted that the defects as raised and argued
above are incurable, since on a joint consideration of the errors
made in the impugned discharge order and the impugned charges
framed, the same would vitiate the entire proceedings as against
the petitioner.
5.14. Mr.C.Manishankar, learned Senior counsel in
Crl.R.C.No.2194 of 2023 submitted that the petitioner was under
custody between 02.05.2012 and 28.06.2012 and subsequently was
granted bail by order dated 28.06.2012. The learned Senior counsel
drew the notice of this Court that bail was granted by this Court in
Crl.O.P.No.12056 of 2012 by order dated 28.06.2012, on the
ground that Ms.Kamalavalli (L.W.2) had constantly changed her
statement before the investigating agency which raised a question
to her credibility.
5.15. At this juncture, the learned Senior counsel also pointed
out that the character of L.W.2/Ms.Kamalavalli is to mislead Courts
and investigation agencies. In the present case, a woman missing
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Crl.R.C.Nos.2194 and 2195 of 2023case turned into an extortion and kidnapping case, since L.W.2 had
made such a statement when she was initially investigated on
14.02.2010. Moreover, she was not kidnapped and the story was
concocted in her statements under Section 161(3) Cr.P.C., dated
13.03.2010 and 23.08.2011, are merely an evasion from her duty
to refund the depositors in the Paazee Trading scam and to take
revenge on the police officers, who investigated her for the same.
5.16. On 11.08.2022, a petition to quash the proceedings in
C.C.No.2 of 2013 was filed before this Court and an order of
dispensing with the personal appearance of the petitioner was
granted. On 04.09.2022, this Court vide an order in
Crl.M.P.No.13402 of 2023 in Crl.O.P.No.24216 of 2018, directed the
trial Court to fix a schedule and proceed with the matter if there is
no other legal impediment. It is relevant to point out that the
petitioner herein was not a party therein. On 25.10.2023, the trial
Court issued a non bailable warrant against the petitioner for his
non appearance and further dismissed the petition under Section
309 Cr.P.C., filed by the petitioner.
5.17. Subsequent to the issuance of a non bailable warrant
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Crl.R.C.Nos.2194 and 2195 of 2023against the petitioner, he appeared before the trial Court and the
same was recalled on 27.10.2023. At this point of time, the
petitioner had also filed the petition to discharge in Crl.M.P.No.1527
of 2023. However, the petitioner was directed to appear before the
trial Court on 04.11.2023 for framing of charges even before
hearing the discharge petition filed by the petitioner. It is
submitted that the petitioner moved Crl.O.P.No.25507 of 2023
against the dismissal of 309 petition and interim protection from
appearance before the trial Court was granted by this Court vide its
order dated 03.11.2023. However, on 06.11.2023,
Crl.O.P.No.25507 of 2023 was disposed of with the direction to the
petitioner to appear for framing charges and 313 questioning. On
23.11.2023, the Discharge Petition in Crl.M.P.No.1527 of 2023 was
dismissed by the trial Court. Aggrieved over the same, the instant
revision in Crl.R.C.2194 of 2023 has been preferred by the
petitioner.
5.18. The trial Court in its order dated 23.11.2023 placed
reliance on the order of this Court in Crl.O.P.Nos.2691 & 5356 of
2011, wherein this Court has transferred the case from CBCID to
CBI. It is further submitted that the said order of this Court dated
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the Hon’ble Supreme Court by its order dated 17.03.2015 was
pleased to set aside the same and remanded the matter back to this
Court, with a direction to hear the petitioner before passing orders.
5.19. The learned Senior counsel highlighted the order of the
trial Court, wherein the trial Court being influenced by the order of
this Court dated 19.04.2011 had extracted the same in para 7.7 of
its order, even though it was set aside by the Hon’ble Supreme
Court. He therefore submitted that the trial Court ought not to have
placed reliance on the order of this Court in Crl.O.P.Nos.2691 &
5356 of 2011 and for this reason alone, the order of dismissing the
discharge petition by the trial Court is liable to be set aside.
5.20. In para 7.10 of the impugned order of the trial Court
dated 23.11.2023, it specifically referred and extracted the common
order of this Court dated 02.11.2021 which reveals the fact that the
trial Court has been influenced by the same. Inspite of the
observation made by the Hon’ble Supreme Court in its order dated
19.07.2022 in SLP (Crl.) Nos.8901 to 8904 of 2021, wherein it has
held that the common order of this Court dated 02.11.2021 being a
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Crl.R.C.Nos.2194 and 2195 of 2023prima facie observation is not to weigh in the minds of the trial
Court when proceedings are brought before it, the learned Judge of
the trial Court merely followed the order dated 02.11.2021 which is
contrary. Hence he submitted that the trial Court had passed the
order without application of mind and disregard to the grounds
raised seeking dismissal of discharge.
5.21. Continuing his argument, the learned Senior counsel
raised the following points for consideration of the revision
petitions:
5.21.1) Sanction for prosecution granted under Section 19(2)
of the PC Act and Section 197(1)(b) of Cr.P.C., suffers from severe
non application of mind as even a prima facie reading of the charge
sheet would show that no case under the offences are made out as
against the petitioner.
5.21.2) Section 8 and 10 of PC Act reads as follows:
8.Offence relating to bribing of a
public servant.
(1)Any person who gives or promises to
give an undue advantage to another person or
persons, with intention-
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i)to induce a public servant to perform
improperly a public duty; or
ii)to reward such public servant for the
improper performance of public duty; shall be
punishable with imprisonment for a term which
may extend to seven years or with fine or with
both:
Provided that the provisions of this section
shall not apply where a person is compelled to
give such undue advantage:
Provided further that the person so
compelled shall report the matter to the law
enforcement authority or investigating agency
within a period of seven days from the date of
giving such undue advantage:
Provided also that when the offence under
this section has been committed by commercial
organisation, such commercial organisation shall
be punishable with fine.
Illustration. – A person, ‘P’ gives a public
servant, ‘S’ an amount of ten thousand rupees to
ensure that he is granted a license, over all the
other bidders. ‘P’ is guilty of an offence under
this sub-section.
Explanation. - It shall be immaterial whether the person to whom an undue
advantage is given or promised to be given is the
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shall also be immaterial whether such undue
advantage is given or promised to be given by
the person directly or through a third party.
2)Nothing in sub-section (1) shall apply to
a person, if that person, after informing a law
enforcement authority or investigating agency,
gives or promises to give any undue advantage
to another person in order to assist such law
enforcement authority or investigating agency in
its investigation of the offence alleged against
the later.
10.Person in charge of commercial
organisation to be guilty of offence.
Where an offence under section 9 is
committed by a commercial organisation, and
such offence is proved in the court to have been
committed with the consent or connivance of any
director, manager, secretary or other officer shall
be of the commercial organisation, such director,
manager, secretary or other officer shall be guilty
of the offence and shall be liable to be proceeded
against and shall be punishable with
imprisonment for a term which shall not be less
than three years but which may extend to seven
years and shall also be liable to fine.
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Explanation. – For the purposes of this
section, “director”, in relation to a firm means a
partner in the firm.
5.21.3) A mere reading of Section 8 of PC Act, 1988 would
show that it can only be attracted to private persons and not public
servants. In the instant case, there is nothing in the charge sheet or
witnesses statements to show that A4 and A5 were ever in contact
with the petitioner. It is relevant to note that A4 and A5 have an
effect on the petitioner to abuse his power is nowhere to be found
in the charge sheet or accompanying documents.
5.21.4) Section 10 of PC Act shall not be charged against the
petitioner as Section 10 is punishment for abetting an offence under
Section 8. The prosecution has failed to establish a prima facie
nexus between A1 and the private persons A4 and A5 and
therefore, Section 8 and 10 of PC Act, would not attract. When the
materials were placed before the Sanctioning Authority, the
authority ought to have considered the same and applied their
mind prior to issuing sanction for prosecution. The same would
apply even to the sanction granted under Section 197 Cr.P.C., since
no ingredients of Sections 347, 384 or the other offences charged
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under, have been made out. It is also admitted by the prosecution
that there is no money trail. It is therefore submitted that there is
a severe lack of application of mind by the Sanctioning Authority.
5.21.5) The learned Senior counsel contended that sanction
granted for the offences under IPC, even though the prosecution
has admitted the fact that no money trail could be established, the
sanctioning authority has not applied his mind prior to granting
sanction to prosecute the petitioner. Sanction ought not to have
been granted by the authority as the requisite of an illegal gain as
mandated under the statute for Sections 347 and 384 has not been
made out as against the petitioner. This also applies to the
sanctioning authority, who has granted sanction under the PC Act
wherein sanction granted for Section 13(1)(d) has no requisite
material for a prima facie case of demand and acceptance.
5.22. In support of his submissions, the learned Senior
counsel placed reliance on the following decisions:
a) Nanjappa Vs. State of Karnataka [2015 (14) SCC
186]
22.The legal position regarding the
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Prevention of Corruption is thus much too clear
to admit equivocation. The statute forbids taking
of cognizance by the Court against a public
servant except with the previous sanction of an
authority competent to grant such sanction in
terms of clauses (a), (b) and (c) to Section
19(1). The question regarding validity of such
sanction can be raised at any stage of the
proceedings. The competence of the court trying
the accused so much depends upon the
existence of a valid sanction. In case the
sanction is found to be invalid the court can
discharge the accused relegating the parties to a
stage where the competent authority may grant
a fresh sanction for prosecution in accordance
with law. If the trial Court proceeds, despite the
invalidity attached to the sanction order, the
same shall be deemed to be non-est in the eyes
of law and shall not forbid a second trial for the
same offences, upon grant of a valid sanction for
such prosecution.
b) Dinesh Kumar Vs. Chairman, Airport Authority of
India [2012 (1) SCC 532]
10.In our view, invalidity of sanction
where sanction order exists, can be raised on
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diverse grounds like non-availability of material
before the sanctioning authority or bias of the
sanctioning authority or the order of sanction
having been passed by an authority not
authorised or competent to grant such sanction.
The above grounds are only illustrative and not
exhaustive. All such grounds of invalidity or
illegality of sanction would fall in the same
category like the ground of invalidity of sanction
on account of non-application of mind – a
category carved out by this Court in Parkash
Singh Badal, the challenge to which can always
be raised in the course of trial.
c) Suresh Budharmal Kalani Vs. State of Maharashtra
[1998 (7) SCC 337]
7.So far as the confession of Jayawant
Suryarao is concerned, the same (if voluntary
and true) can undoubtedly be brought on record
under Section 30 of the Evidence Act to use it
also against Kalani but then the question is what
would be its evidentiary value against the latter.
The question was succinctly answered by this
Court in Kashmira Singh V. State of Madhya
Pradesh (1952 SCR 526) with the following
words:
“The proper way to approach a case of this
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accused excluding the confession altogether from
consideration and see whether, if it is believed, a
conviction could safely be based on it. If it is
capable of belief independently of the confession,
then of course it is not necessary to call the
confession in aid. But cases may arise where the
judge is not prepared to act on the other
evidence as it sands even though if believed, it
would be sufficient to sustain a conviction. In aid
the confession and use it to lend assurance to
the other evidence and thus fortify himself in
believing what without the aid of the confession
he would not be prepared to accept.”
The view so expressed has been
consistently followed by this Court. Judged in the
light of the above principle the confession of
Suryarao cannot called in aid to frame charges
against Kalani in absence of any other evidence
to do so.
……
10. A bare perusal of the above statement
makes it abundantly clear that it is self
exculpatory and hence inadmissible in evidence
as ‘ confession’. Once it is left out of
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Crl.R.C.Nos.2194 and 2195 of 2023statements of the other three accused, for what
they are worth, cannot be made – in absence of
any other material to connect Dr. Desai with the
accusation levelled against him a basis for
impugned charges in view of the law laid down
in Kashmira singh (supra).
d) P.Satyanarayana Murthy Vs. District Inspector of
Police [2015 (10) SCC 152]
20.This Court in A. Subair vs. State of
Kerala (2009)6 SCC 587, while dwelling on the
purport of the statutory prescription of Sections
7 and 13(1)(d) of the Act ruled that the
prosecution has to prove the charge thereunder
beyond reasonable doubt like any other criminal
offence and that the accused should be
considered to be innocent till it is established
otherwise by proper proof of demand and
acceptance of illegal gratification, which are vital
ingredients necessary to be proved to record a
conviction.
21. In State of Kerala and another vs. C.P.
Rao (2011) 6 SCC 450, this Court, reiterating its
earlier dictum, vis-à-vis the same offences, held
that mere recovery by itself, would not prove the
charge against the accused and in absence of
any evidence to prove payment of bribe or to
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show that the accused had voluntarily accepted
the money knowing it to be bribe, conviction
cannot be sustained.
22. In a recent enunciation by this Court to
discern the imperative pre-requisites of Sections
7 and 13 of the Act, it has been underlined in B.
Jayaraj (supra) in unequivocal terms, that mere
possession and recovery of currency notes from
an accused without proof of demand would not
establish an offence under Sections 7 as well as
13(1)(d)(i)&(ii) of the Act. It has been
propounded that in the absence of any proof of
demand for illegal gratification, the use of
corrupt or illegal means or abuse of position as a
public servant to obtain any valuable thing or
pecuniary advantage cannot be held to be
proved. The proof of demand, thus, has been
held to be an indispensable essentiality and of
permeating mandate for an offence
under Sections 7 and 13 of the Act. Qua Section
20 of the Act, which permits a presumption as
envisaged therein, it has been held that while it
is extendable only to an offence under Section
7 and not to those under Section 13(1)(d)(i)&(ii)
of the Act, it is contingent as well on the proof of
acceptance of illegal gratification for doing or
forbearing to do any official act. Such proof of
acceptance of illegal gratification, it was
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emphasized, could follow only if there was proof
of demand. Axiomatically, it was held that in
absence of proof of demand, such legal
presumption under Section 20 of the Act would
also not arise.
23. The proof of demand of illegal
gratification, thus, is the gravamen of the offence
under Sections 7 and 13(1)(d)(i)&(ii) of the Act
and in absence thereof, unmistakably the charge
therefor, would fail. Mere acceptance of any
amount allegedly by way of illegal gratification or
recovery thereof, dehors the proof of demand,
ipso facto, would thus not be sufficient to bring
home the charge under these two sections of the
Act. As a corollary, failure of the prosecution to
prove the demand for illegal gratification would
be fatal and mere recovery of the amount from
the person accused of the offence under Sections
7 or 13 of the Act would not entail his conviction
thereunder.
5.23. As per the ratio laid down by the Hon’ble Apex Court in
the cases of Nanjappa and Dinesh Kumar as stated supra which
squarely applies to the present case shows that the order of the
Sanctioning Authority suffers from non application of mind and
therefore, the learned trial Judge ought to have considered the
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same and discharged the petitioner from the charges framed.
5.24. In regard to approver’s evidence, the learned Senior
counsel contended that it is vital to point out the fact that the entire
case of the prosecution rests on the statement of L.W.27, one
Mr.E.Shanmugaiah, who was first an accused in the FIR but later
turned as an approver by grant of pardon. There is no direct
evidence apart from the evidence of approver as against the
petitioner which is fatal to the case of the prosecution.
5.25. At this point of time, it is relevant to cite the approver’s
character before appreciating his evidence, Document No.D 293, a
list of communications where a report on the misdeeds of the
approver is articulated therein. Moreover, he also drew the
attention of this Court that, E.Shanmugaiah was in the habit of
misusing the name of superior officers to extort money/bribe from
individuals and the same can be seen from the report of the
Additional Superintendent of Police, his immediate superior. The
allegation/charge against the petitioner is also similar in nature. It
is submitted that neither any witness other than approver nor
document reveals any contact between the petitioner and the
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alleged extortion. Further, the statement of E.Shanmugaiah being
an approver, who was granted a pardon, cannot be taken into
account at the stage of framing of charges.
5.26. Reliance cannot be placed on the statement of
E.Shanmugaiah, who is not only proven to be an unreliable witness
but also due to the fact that such a statement cannot be used at the
time of framing of charges bereft of any other supporting or
corroborating evidence as per the law laid down by the Hon’ble
Supreme Court in Suresh Budharmal Kalani’s case as stated supra.
Hence, pleaded that the trial Court ought to have considered the
same and discharged the petitioner herein.
5.27. The learned Senior counsel drew the attention of this
Court to Sections 340 and 347 IPC and the same has been
extracted for ready reference as under:
340.Wrongful confinement:-
Whoever wrongfully restrains any person in
such a manner as to prevent that person from
proceeding beyond certain circumscribing limits,
is said “wrongfully to confine” that person.
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347. Wrongful confinement to extort
property, or constrain to illegal act.—
Whoever wrongfully confines any person for the
purpose of extorting from the person confined, or
from any person interested in the person
confined, any property or valuable security or of
constraining the person confined or any person
interested in such person to do anything illegal or
to give any information which may facilitate the
commission of an offence, shall be punished with
imprisonment of either description for a term
which may extend to three years, and shall also
be liable to fine.
5.28. Section 347 of IPC for wrongful confinement to extort
property has been charged against the petitioner. There is no
prima facie case or factual foundation to invoke Section 347 IPC. It
is pivotal to note that the petitioner herein was not in charge of the
investigation and it was only the second accused/A2, who was part
of the Paazee Trading investigation and reimbursement committee
and A3/Inspector, who was in-charge. The police obtained
information that one Jayaraman/L.W.8 and Meena
Shantakumari/L.W.16, who were the agents of Paazee Trading were
still functioning when the operations were shut down by the police,
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raid in their respective premises. The statement given by
Jayaraman specifically refers that only A3 took him to the station
for questioning and sent in the same evening as he was not
arrested. Hence, there is no stretch of imagination be the reason to
invoke Section 340 (wrongful confinement) and Section 347 of IPC
as against the petitioner and the charge under Section 347 is
erroneous.
5.29. So far as Section 384 IPC is concerned, the petitioner
has been charged under the same for extortion. In order to invoke
Section 384 IPC, two things are mandated namely, intentionally
putting a person in fear of injury to himself or another and
dishonestly inducing the person so put in fear to deliver to any
person any property or valuable security. Section 384 of the IPC
(Indian Penal Code) deals with punishment for extortion. According
to Section 384 IPC, whoever commits or does extortion shall be
punished or will be held with imprisonment of either description for
a term which may extend to three years, or with a fine, or with
both, and also as per the facts of the cases as per section 384 IPC.
Insofar as the present case on hand is concerned, the perusal of the
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statement relied upon by one Kamalavalli/L.W.2 would show that
she never made any allegation as against the petitioner to bring
home the ingredients of Section 384 IPC. Since Kamalavalli
completely goes back on her previous statement and in her second
statement, she states that she went on a pilgrimage voluntarily,
without considering the reliability of the statements of Kamalavalli,
the charge is framed in a mechanical manner and the charge
framed under 384 IPC is also baseless. The learned trial Judge has
gone forward to frame charges without the necessary ingredients to
establish an offence under Sections 347 and 384 of IPC, which
resulted in total non application of mind.
5.30. The petitioner was charged under Section 506(i) of IPC
for criminal intimidation. In order to bring this charge, it is
necessary to prove that the ingredients of Section 503 IPC were
made out. It is essential to show that threatening a person with
any injury to his person or property or reputation or to anyone on
which the person is interested and the threat must be with intent to
cause alarm; to cause such person to do any act which he is not
legally bound to do or cause such person to omit to do anything
which he is legally entitled to do. The statement of Kamalavalli
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appears to be the basis even though the same is not referred in the
order of discharge. As far as the statement of Kamalavalli is
concerned, it was already dealt with. The statement of
E.Shanmugaiah/approver is concerned, he merely stated that
Inspector General instructed him to make an anonymous call to
bring home the ingredients of Section 503. Hence, there is no
question as the petitioner directly being involved in order to show
that Section 506(i) would be attracted against him in this case. A
perusal of charge No.4 itself shows that it has jumbled too many
facts and no offence has been made out against the petitioner to
prove the ingredients under Section 503 to frame a charge under
Section 506(i).
5.31. In regard to Section 8 of PC Act which shows that it can
only be attracted to private persons and not public servants.
Furthermore, there is nothing in the charge sheet or witness
statements to show that A4 and A5 were ever in contact with the
petitioner herein. There is no evidence to prove that A4 and A5
influenced the petitioner to misuse his power either in the charge
sheet or in the accompanying documents. Section 10 of PC Act
also ought to vanish since Section 10 is punishment for abetting an
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offence under Section 8. The prosecution has failed to establish a
prima facie connection between A1 and the private persons A4 and
A5 and therefore, Sections 8 and 10 of PC Act would not attract.
5.32. It is pointed out by the learned Senior Counsel that the
prosecution while filing the charge sheet has left open the question
of money trail to further investigation under Section 173(8) Cr.P.C.
Even as per the prosecution’s status report before the trial Court
dated 17.10.2023, further investigation is still ongoing and money
trial is to be established. It is further submitted that neither proof
of demand nor any money trial to show acceptance is established by
the prosecution and it is the settled proposition of law that in the
absence of demand, a charge under Section 13(1)(d) of PC Act
completely fails.
5.33. Thus, while concluding their arguments, both the
learned Senior counsel pleaded this Court that the orders impugned
by the trial Court has to be set aside.
6. Contentions of the learned Senior counsel and
counsel appearing on behalf of the respondent/CBI is as
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follows:
6.1. The petitioner during his tenure as Inspector General of
Police, Coimbatore Division, directed the registration of complaint
against one Paazee Trading for defrauding the public by collecting
hundreds of crores as deposits in the name of doing Forex trade
without license from Reserve Bank of India (RBI). Pursuant to the
said direction of the petitioner, on 24.09.2009 CCB, Tirupur suo
moto registered Cr.No.26 of 2009 against the directors of the said
Company namely, Mohanraj, Kathiravan and Kamalavalli under
Sections 3 and 4 of Prize Chits and Money Circulation Scheme
(Banning) Act, 1978 & under Section 420 of IPC. Subsequently,
Section 5 of Tamil Nadu Protection of Investments of Depositors Act
was also included.
6.2. On 08.10.2009, this Court while granting anticipatory bail
to all the three accused in Crl.O.P.No.20887 of 2009, directed the
Superintendent of Police, Tirupur to take effective measures for
ensuring repayments to the depositors by the accused persons.
6.3. On 08.12.2009, A.Kamalavalli, the third accused in
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registered by Tirupur North Police Station on 09.12.2009 under
Cr.No.3068 of 2009 at the instance of her driver.
6.4. The said Kamalavalli came on 11.12.2009 and on
14.02.2010, she gave a representation to the then Deputy
Superintendent of Police, Tirupur alleging that she was kidnapped
on 08.12.2009 and an amount of Rs.3 Crores was extorted from her
Company by three police officers viz., Rajendran-Deputy
Superintendent of Police, Tirupur; Mohanraj-Inspector of Police,
CCB Tirupur; & E.Shanmugaiah, formerly Inspector, CCB Tirupur
and a private individual namely, Annachi @ John Prabakar. On
15.02.2010, the Sections of woman missing case in Cr.No.3068 of
2009 was altered to Sections 323, 353, 365, 384 of IPC and Section
4 of Tamil Nadu Prohibition of Harassment of Women (Amendment)
Act, 2002.
6.5. On 23.02.2010, Cr.No.26 of 2009 was transferred from
CCB, Tirupur to Economic Offences Wing (EOW), Coimbatore by the
Director General of Police (DGP), Tamil Nadu considering the nature
of gravity of the case and the same was re-registered as Cr.No.3 of
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6.6. On 18.03.2010 by the order of the DGP, Tamil Nadu, the
case in Cr.No.3068 of 2010 on the file of Tirupur North PS was
transferred to CB CID, Vellore. After investigation, on 15.09.2010
CBCID, Vellore altered the charges in Cr.No.3068 of 2009 to
Sections 384, 506(i) & 507 of IPC, Section 4 of TNHW(A) Act, 2002
and Sections 7 and 13(2) r/w.13(1)(d) of PC Act against the
aforesaid three police officers and the private individual Annachi.
The petitioner was directed to attend an enquiry in connection with
the case in Cr.No.3068 of 2009 and the petitioner was interrogated.
6.7. In the meanwhile, the depositors had formed an
association and filed petitions under Section 482 Cr.P.C., in
Crl.O.P.Nos.2691 and 5356 of 2011, seeking for transfer of the
investigation from State Police to CBI, scaring that the State Police
is protecting the directors of the Company and delaying the
payments to the depositors. This Court by its order dated
19.04.2011 in Crl.O.P.Nos.2691 and 5356 of 2011, observed the
nexus between Cr.No.26 of 2009 & Cr.No.3068 of 2009 and
directed transfer of both the cases to CBI for investigation. The
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cases were transferred to CBI, EOW, Chennai and they were
renumbered as R.C.12/E/2011 and R.C.13/E/2011.
6.8. During investigation, it was found that the petitioner
while working as Inspector General of Police, West Zone,
Coimbatore during the year 2008-2009 and under whose
jurisdiction CCB Tirupur comes, abused his official position,
conspired with his subordinate police officers and extorted money to
the extent of Rs.2.85 Crores from the directors of Paazee Trading
Group of Companies i.e., the accused in Cr.No.26 of 2009. The
petitioner was arrayed as A6 through a memo filed before the
learned Special Judge for CBI Cases, Coimbatore on 28.02.2012.
His bail application in Crl.O.P.No.7071 of 2012 was dismissed by
this Court on 20.04.2012. The petitioner was arrested on
02.05.2012 in Crime No.3068 of 2009 and subsequently, released
on bail on 28.06.2012.
6.9. He has filed W.P.No.21801 of 2012 to forbear the
respondents therein from proceeding further with regard to
investigation in R.C.No.13(E)/2011-CBI/EOW/Chennai on the
ground that the petitioner is a member of IPS Cadre. He is in the
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category of officer of the level of Joint Secretary and hence, as per
Section 6A of the Delhi Special Police Establishment Act, 1946
(DSPE Act), it is mandatory to get prior permission to initiate any
investigation against the petitioner and that the investigation
launched against the petitioner is in violation of the statutory
mandate of Section 6A of the DSPE Act and therefore, is invalid and
non-est in the eye of law and prayed that the entire investigation
made by the CBI against the petitioner should be set aside insofar
as the petitioner is concerned. On 05.12.2012, the learned Single
Judge dismissed the Writ Petition holding that, this Court in exercise
of its powers under Section 482 Cr.P.C., passed an order
transferring investigation from State Police to CBI and when the
transfer of investigation was ordered by this Court, CBI can
investigate the case even without getting prior permission from the
Central Government.
6.10. Being aggrieved by the dismissal of his Writ Petition, the
petitioner preferred a Writ Appeal in W.A.No.12 of 2013 against
W.P.No.21801 of 2012. The said Writ Appeal was dismissed on
29.04.2013 on the ground that, prior approval contemplated under
Section 6A DSPE Act is only directory and not mandatory and
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consequently, non compliance of the same would not vitiate the
proceedings and further held that, direction in the order made in
Crl.O.P.Nos.2691 and 5356 of 2011 dated 19.04.2011 to transfer
investigation from State Police to CBI, cannot be said to be in
deviation of any statutory provisions. The said order dated
19.04.2011 transferring investigation to CBI remains unchallenged.
6.11. On 08.05.2013, the Tamil Nadu Government issued
sanction to prosecute the petitioner under Section 197(1)(b) of the
Code of Criminal procedure, 1973 which was followed by the
sanction issued by the Central Government on 10.05.2013 to
prosecute the petitioner under Section 19(2) of PC Act.
6.12. On 22.05.2013, after completing the investigation in the
woman missing case in Cr.No.3068 of 2009, CBI had filed a final
report before the Special Court for CBI Cases at Coimbatore which
had been taken cognizance as C.C.No.2 of 2013 for commission of
the offences punishable under Sections 120-B r/w.347, 384, 506(i),
507 IPC and also under Sections 8, 10, 13(2) r/w.13(1)(d) of PC
Act, 1988.
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6.13. CBI had also completed the investigation with respect to
the offence in Cr.No.26 of 2009 and had filed a final report before
the Special Court for TNPID Cases in Coimbatore, which had taken
cognizance of the final report as C.C.No.9 of 2011 against the
accused, Mohan Raj, Kathiravan, Kamalavalli, M/s.Paazee Marketing
Co., for offences punishable under Sections 120-B r/w. Section 4 of
Prize Chits and Money Circulation Schemes (Banning) Act, 1978,
Section 420 IPC and Section 5 of TNPID Act, 1997.
6.14. On 05.07.2013, the petitioner/Pramod Kumar filed a
special leave to Appeal (C) No.17999 of 2013 against the judgment
of the Hon’ble Division Bench of this Court. By order dated
17.03.2015, the Hon’ble Supreme Court remanded the matter,
namely, W.P.No.21801 of 2012 back to this Court and directed
afresh adjudication by impleading the appellant therein, namely,
Pramod Kumar in Crl.O.P.Nos.2691 and 5356 of 2011 and afford
him an opportunity of being heard. The order dated 05.12.2012 in
W.P.21801 of 2012 was set aside.
6.15. In the interregnum, on 06.05.2014, the Hon’ble
Supreme Court struck down Section 6A of the DSPE Act as invalid in
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Dr.Subramanian Swamy Vs. Director, CBI and another,
W.P.(Civil) No.38 of 1997.
6.16. On 19.10.2015, C.C.No.2 of 2013 was closed by the
trial Court vide docket order based on a memo filed by the
petitioner and in view of the order passed by the Hon’ble Supreme
Court in C.A.No.3062 of 2015 and subject to the order passed by
this Court in W.P.No.21801 of 2012, Crl.O.P.Nos.2691 & 5356 of
2011. The said docket order closing the case pending under
C.C.No.2 of 2013 was challenged by the CBI on 20.01.2016 in
Crl.O.P.No.1661 of 2016.
6.17. On remand, heard the batch of cases and this Court on
02.11.2021 passed a common order in W.P.No.21801 of 2012,
Crl.O.P.Nos.2691 & 5356 of 2011, Crl.O.P.No.1661 of 2016 etc.,
whereby this Court i) confirmed the transfer of investigation to CBI
and subsequent investigation; ii) set aside closing of C.C.No.2 of
2013 by trial Court and iii) directed the trial Court to proceed with
the case. Against the common order of this Court dated
02.11.2021, the petitioner filed Special Leave Petition, which was
dismissed as withdrawn on 19.07.2022.
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6.18. On 11.08.2022, the petitioner filed Crl.O.P.No.19442 of
2022 for quashing the charge sheet filed by CBI pending in
C.C.No.2 of 2013, contending that striking down Section 6A of the
DSPE Act, is prospective. On 11.09.2023 in another unrelated case,
CBI Vs. R.R. Kishore (Crl.A.No.377 of 2007), the Hon’ble
Constitution Bench of the Hon’ble Supreme Court held that Section
6A of the DSPE Act, is void ab initio. The same was held to be in
effect retrospectively i.e., Section 6A not in force from date of
insertion viz., 11.09.2003. In the meanwhile, the said Original
Petition was dismissed.
6.19. On 23.11.2023, the trial Court dismissed the discharge
petition filed by the petitioner vide order passed in Crl.M.P.No.1527
of 2023. Subsequently on 28.11.2023, Crl.O.P.No.19442 of 2022
filed by the petitioner was dismissed by this Court and on the same
day, charges were framed against the petitioner and others by the
trial Court. Assailing the same, the present Criminal Revision
Petitions were filed along with Criminal Miscellaneous Petition
seeking interim stay of further proceedings in C.C.No.2 of 2013 on
the file of the learned II Additional District Judge for CBI Cases,
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Coimbatore in order to protract the proceedings in C.C.No.2 of
2013.
6.20. Pursuant to the order dated 19.04.2011 of this Court in
Crl.O.P.Nos.2691 and 5356 of 2011, investigation of two cases,
were transferred to CBI out of which in one case, the trial was
completed and the judgment was delivered by the trial Court on
26.08.2022, convicting the accused to undergo rigorous
imprisonment for 27 years and also imposing a fine of Rs.171
Crores, while in the present case, charges were framed only on
28.11.2023.
6.21. The petitioner has challenged the final report before the
trial Court on the following grounds viz., it does not satisfy the
ingredients under IPC and PC Act and also bereft of any ingredients;
it does not reveal about money trial of the petitioner; sanction
under Section 19(2) of the PC Act suffers from non application of
mind as Section 8 of the PC Act, is not applicable to the public
servant and also since the investigation has not disclosed any
money trial. Since Section 8 and 10 applies only to private persons
and therefore, the charges against the petitioner under those
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Section cannot exist. It is also contended that Section 197(1)(b) of
Cr.P.C., also suffers from non application of mind for similar
reasons. It is also contended that ingredients of the offences under
Sections 120-B r/w.347, 384, 506(1), 507 IPC and Sections 8, 10,
13(2) r/w.13(1)(d) of PC Act, 1988 are not made out. Moreover, it
has been stated by the petitioner that the statement of
approver/L.W.27 is not admissible in view Section 30 of the Indian
Evidence Act and the proposition laid down in 1998 (7) SCC 337
[Suresh Budharmal Kalani Vs. State of Maharashtra. It is
their case that a statement of an accused, who is later discharged
and not tried together, cannot be used against the co-accused
facing the trial, if they do not face trial together. Therefore, the
statement of the approver, who is granted pardon under Section
306 of Cr.P.C., cannot be used against the petitioner as he does not
face trial along with the petitioner. Section 13 of the PC Act is not
attracted, since there is no demand and lack of money trial and
recovery in view of proposition laid down in 2015 (10) SCC 152
[P.Satyannarayana Murthy Vs. District Inspector of Police,
State of A.P. and another].
6.22. However the trial Court on hearing the arguments on
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both sides, dismissed the discharge petition filed by the petitioner
on the following grounds:
i)Discharge is not a proper stage to decide about
inconsistencies. It is only after the trial, the inconsistencies and
contradictions can be considered and the probative value of the
materials can be gone into. The trial Court relied on the decisions
of the Hon’ble Supreme Court reported in 2008 (2) SCC 561
[Onkar Nath Mishra & Others V. State (NCT of Delhi) &
another] and 2004 (8) SCC 568.
ii)During discharge, what is required is to find out whether
there is ground for presuming whether prima facie case giving rise
to suspicion is made out. The trial Court relied on State of
Rajasthan Vs. Ashok Kumar Kashyab which lays down that
there cannot be a mini-trial during the stage of discharge.
iii)There is a recovery of 25 lakhs from A4 which is lying in
the FDR. Hence, the objection that there is no recovery is not at all
tenable. Even though the recovery is from A4, it is the case of
prosecution that A1 along with other accused are co-conspirators
and committed the alleged offences together.
iv)The trial court relied on AIR 2022 SC 5454 [Ghulam
Hasan Beigh V. Mohammed Maqbool Magrey & Others] which
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sufficient to presume that the accused has committed the offence,
even a strong suspicion would suffice. For the same, the trail Court
also relied on State of Bihar V. Ramesh Singh and CBI Vs.
Aryan Singh.
v)The trial Court distinguished 1998 (8) SCC 337 [Suresh
Budharmal Kalani V. State of Maharashtra] relied on by the
petitioner on facts. It held in the present case that the co-accused
was not treated as an approver nor was given a tender of pardon
but was discharged. The accused was granted a pardon under
Section 306 Cr.P.C., and not a discharge. Section 164 Cr.P.C.,
statement of the approver forms part of the charge sheet.
vi)It also distinguished 2015 (10) SCC 152
[P.Satyanarayana Murthy V. District Inspector of Police,
State of A.P. & another] lays down that demand and proof of
demand is an essential ingredient to attract Section 13 of PC Act.
The trial Court held that the Hon’ble Supreme Court rendered such
a view after full trial is completed and the petitioner cannot use the
said proposition at the stage of discharge.
6.23. The trial Court held that invalidity of sanction for non
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application of mind cannot be questioned at the time of discharge.
The trial Court relied on Prakash Singh Badal and Another Vs.
State of Punjab, 2012 (1) SCC 532, 2014 (14) SCC 295 and
2020 (17) SCC 664.
6.24. It held that there were call detail records, travel
particulars and statements of 103 witnesses to show the conduct
between the accused and there were enough grounds to proceed
with framing of charges and dismissed the discharge application
filed by the petitioner.
6.25. The trial Court proceeded with framing the charges and
has framed 8 charges under Section 120-B r/w.347, 384, 506(i),
507 of IPC and Section 8, 10, 13(2) r/w.13(1)(d) of PC Act, 1988.
6.26. The petitioner/A1 has preferred the present two revision
petitions against the order dismissing the discharge application and
as against framing of charges.
6.27. The grounds raised were the same as one raised in the
discharge petition along with few other grounds in addition to the
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above mentioned here. They are a) sanction bad in law; b) prima
facie discrepancies in the charge sheet grounds; c) evidentiary
value of approver’s statement; d) offences under IPC and PC Act
are not made out; e) documents and witness statements bereft of
any merits and do not disclose any triable offence against the
petitioner; f) judgment relied on by the trial Court are not
applicable to the facts of the present case on hand and hence, the
order is bad in law; g) charges framed against the petitioner is bad
in law since the charge is long and complicated; h) charge sheet
does not make out any charge against this petitioner; i) charge
sheet suffers from vagueness; j) the defects mentioned in the
charges does not fall under Section 464 Cr.P.C., and hence the
order framing the charges have to be quashed; k) The very framing
of charges is defective since the investigation has not been
completed. It is the petitioner’s case that the last paragraph
discloses that the investigation pertaining to the money trail is
ongoing and hence, investigation is not completed even as per the
case of the prosecution. Since the investigation is not complete, the
prosecution cannot file a final report under Section 173(2) of
Cr.P.C.; and l) The petitioner questions the credentials and conduct
of the approver and alleges that his statement under Section 164
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Cr.P.C., are not believable and hence, prayed for allowing the
revisions.
6.28. The respondent has filed their counter disputing the
legal grounds raised by the petitioner and pleaded for dismissing
the revisions at the outset.
6.29. The learned counsel for the respondent/CBI submitted
that the grounds agitated by the petitioner is beyond the scope of
revision. He contended that at the stage of discharge, the Court has
to be satisfied that a prima facie case is made out against the
accused and cannot conduct a roving enquiry or a mini trial at this
stage. All the documents and statements of the witnesses filed by
the prosecution are genuine. In a discharge petition, the Court has
to merely sift through the evidence filed by the prosecution and
satisfy itself to proceed with the trial. He further contended that in
a revision, the Court cannot re-appreciate the evidence and can
only look into fundamental defects like lack of jurisdiction and
illegality leading to failure of justice.
6.30. Furthermore, he relied upon the decision of the Hon’ble
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Supreme Court in the case of Willie (William) Slaney Vs. The
State of Madhya Pradesh reported in AIR 1956 SC 116 The
relevant portion of the judgment reads as under:
“5.Before we proceed to set out our answer
and examine the provisions of the Code, we will
pause to observe that the Code is a code of
procedure and, like all procedural laws, is
designed to further the ends of justice and not to
frustrate them by the introduction of endless
technicalities. The object of the Code is to ensure
that an accused person gets a full and fair trial
along certain well-established and well-
understood lines that accord with our notions of
natural justice. If he does, if he is tried by a
competent court, if be is told and clearly
understands the nature of the offence for which
he is being tried, if the case against him is fully
and fairly explained to him and he is afforded a
full and fair opportunity of defending himself,
then, provided there is substantial compliance
with the outward forms of the law, mere
mistakes in procedure, mere in consequential
errors and omissions in the trial are regarded as
venal by the Code and the trial is not vitiated
unless the accused can show substantial
prejudice. That, broadly speaking, is the basic
principle on which the Code is based.
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attract failure viz., a)trial by a competent Court b)the accused
understands the nature of offence, c)if the case is fully and fairly
explained to him and he is afforded with a full and fair opportunity
of defending himself. In the present case, none of the three
ingredients are satisfied. The accused has clearly read and
understood the charge against him and has pleaded not guilty.
Since the petitioner has signed and very clearly pleaded not guilty,
he is estopped from taking a different stand in the revision.
6.32. In yet another decision of the Hon’ble Supreme Court in
Lachman Dass V. Santokh Singh reported in 1995 (4) SCC
201 para 7, clarified that the discretionary remedy of revision is not
akin to an appeal and distinguished their scope and ambit as below:
7.The legislature has however, made a
provision for discretionary remedy of revision
which is indicative of the fact that the Legislature
has created two jurisdictions different from each
other in scope and content in the form of an
appeal and revision. That being so the two
jurisdictions – one under an appeal and the other
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scope. Precisely stated, an appeal is a
continuation of a suit or proceedings wherein the
entire proceedings are again left open for
consideration by the appellate authorities which
has the power to review the entire evidence
subject, of course, to the prescribed statutory
limitations. But in the case of revision whatever
powers the revisional authority may have, it has
no power to reassess and re-appreciate the
evidence unless the statute expressly confers on
it that power. That limitation is implicit in the
concept of revision.
6.33. In furtherance of his contentions, he relied upon the
decision of the Hon’ble Supreme Court in the case of State of
Tamil Nadu Vs. R.Soundirarasu reported in 2023 (6) SCC 768
has held that the revisional power can be exercised to correct
manifest error of law or procedure which would occasion injustice if
not corrected. A revisional Court cannot undertake meticulous
examination of materials on record as it is undertaken by the trial
can be called for only in the rarest of rare cases to correct patent
error of jurisdiction. The relevant portions of the judgment reads as
under:
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79.Thus, the revisional power cannot be
exercised in a casual or mechanical manner. It
can only be exercised to correct manifest error of
law or procedure which would occasion injustice,
if it is not corrected. The revisional power cannot
be equated with appellate power. A revisional
court cannot undertake meticulous examination
of the material on record as it is undertaken by
the trial court or the appellate court. This power
can only be exercised if there is any legal bar to
the continuance of the proceedings or if the facts
as stated in the charge-sheet are taken to be
true on their face value and accepted in their
entirety do not constitute the offence for which
the accused has been charged. It is conferred to
check grave error of law or procedure.
80.This Court in Asian Resurfacing of Road
Agency Pvt. Ltd. v. Central Bureau of
Investigation, (2018) 16 SCC 299, has held that
interference in the order framing charges or
refusing to discharge is called for in the rarest of
rare case only to correct the patent error of
jurisdiction.
6.34. On the very same aspect, the learned counsel for the
respondent relies on the following judgments viz., a) S.Kannan &
Others Vs. The State [Crl.O.P.Nos.3761 to 3764, 3901 of
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334].
6.35. Continuing his arguments, he contended that the
petitioner has filed several rounds of writs in the Hon’ble Supreme
Court, as well as this Court and it is not now permissible to allege
that charge is too complicated to understand by taking into account
his professional capacity and antecedents. Further, it is pertinent to
state that the petitioner did not object to the charges being
complicated even during questioning and also at the time of framing
of charges. It is also evident that the stand taken by the petitioner
is purely an afterthought and the contention of the petitioner, is
unsustainable.
6.36. Insofar the scope of trial Court in discharge and framing
of charges is concerned, the trial Court had come to a presumptive
opinion that it is a fit case for trial. In order to appreciate the order
of the trial Court, it is necessary to peruse through a few witness
statements. The first statement of L.W.1 clearly shows the
relationship between A4 and A1 and the illegal demand made by A1
and his co-conspirators against L.W.1 for Rs.10 Crores. The acts of
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seen from the typed set of the petitioner itself produced before this
Court and L.W.1 has stated that he has paid an amount of Rs.50
lakhs in cash to A4 as instructed by A1 and has promised to pay the
remaining amount and establishes the nexus between all the
accused. 161 Cr.P.C., statement of L.W.20/Balaganga Devi, IPS is
crystal clear on the fact that A1 wanted the approver posted to
Tirupur CCB inspite of her vehement opposition. It also obvious to
note from the typed set of the petitioner that the committee
members in-charge of transferring officers were not consulted and
A1 without assigning any reasons transferred approver to CCB
Tirupur for carrying out his illegal activities and act of extortion. The
statement of the approver Shanmugaiah throws more light on the
conspiracy that had taken place among all the accused. His
statement is clear about the involvement of A1 and his special
interest in making L.W.1 and L.W.2 to settle certain depositors.
The approver has clearly stated that A3 mentioned that A1 and A4
had arranged for 60:40 sharing with one of the depositors namely,
Sadhasivam from the recovered amount. This statement also
discloses that A1 scolded the approver for not obtaining cash from
L.W.1 in the Sadhasivam’s matter in spite of his instructions. It is
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also obvious that there was a demand for Rs.50 Crores from L.W.1.
The approver discloses that he was handed over Rs.10 lakhs as a
partial payment of the bribe demanded by A1 and his co-
conspirators. These three statements alone very clearly disclose the
existence of a criminal conspiracy, demand for bribe, receiving the
bribe, extortion and criminal intimidation. The statements taken at
their face value clearly discloses the offences charged and a very
strong suspicion making it a fit case for trial. Apart from this, there
are about 103 statements and 354 documents filed by the
prosecution.
6.37. The Hon’ble Supreme Court in the case of Captain
Manjit Singh Virdi (Retired) V. Hussain Mohammed Shattaf reported
in 2023 (7) SCC 633 held that the Court cannot weigh and balance
evidence and probabilities during the stage of framing of charges
and it is the function of the Court after the trial starts. Similarly, the
respondent relies on the decisions of the Hon’ble Supreme Court in
Ghulam Hassan Beigh V. Mohammed Maqbool Magrey [2022 (12)
SCC 657]; State of Rajasthan Vs. Ashok Kumar Kashyap [2021 (11)
SCC 191] and CBI Vs. Aryan Singh etc [2023 SCC Online Sc 379].
Further cited the decision of the Hon’ble Supreme Court in Amit
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Kapoor Vs. Ramesh Chander and another [2012 (9) SCC 460]. The
relevant paragraphs of the judgment reads as under:
“17.Framing of a charge is an exercise of
jurisdiction by the trial court in terms of Section
228 of the Code, unless the accused is
discharged under Section 227 of the Code. Under
both these provisions, the court is required to
consider the ‘record of the case’ and documents
submitted therewith and, after hearing the
parties, may either discharge the accused or
where it appears to the court and in its opinion
there is ground for presuming that the accused
has committed an offence, it shall frame the
charge. Once the facts and ingredients of the
Section exists, then the Court would be right in
presuming that there is ground to proceed
against the accused and frame the charge
accordingly. This presumption is not a
presumption of law as such. The satisfaction of
the court in relation to the existence of
constituents of an offence and the facts leading
to that offence is a sine qua non for exercise of
such jurisdiction. It may even be weaker than a
prima facie case.
….
19.At the initial stage of framing of a
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committed an offence, which, if put to trial, could
prove him guilty. All that the court has to see is
that the material on record and the facts would
be compatible with the innocence of the accused
or not. The final test of guilt is not to be applied
at that stage.
6.38. Section 216 of Cr.P.C., empowers the Court to alter or
add any charge at any time before the judgment is pronounced. On
this aspect, the respondent relies on P.Karthikalakshmi Vs. Sri
Ganesh and another [2017 (3) SCC 347].
6.39. He also dealt with the scope of revisional Court in
dealing with sanction and the right forum to question irregularities
pertaining to sanctioning stating that the ground pertaining to
sanction being defective is to be dismissed in limine on two grounds
viz., a)it has to be raised at the stage of trial; and b)Section 8 of PC
Act is applicable to public servants also. The learned counsel for
the respondent also relied on the decision of Parkash Singh Badal
Vs. State of Punjab reported in 2007 (1) SCC 1 which states that
the opening word of the Section is “whoever” is wide enough to
include public servants also. The relevant paragraphs of the order is
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52.So far as the appellant Sukhbir Singh
Badal is concerned, the stand is that he being a
member of the Parliament is a public servant
and cannot be charged with offences
under Sections 8 and 9 of the Act. His contention
is that Sections 8, 9, 12, 14 and 24 of the Act
are applicable to private persons and not to
public servants. The opening word of Sections
8 and 9 is “whoever”. The expression is very
wide and would also cover public servants
accepting gratification as a motive or reward for
inducing any other public servant by corrupt or
illegal means. Restricting the operation of the
expression by curtailing the ambit of Sections
8 and 9 and confining to private persons would
not reflect the actual legislative intention.
53.If Section 8 is analytically dissected
then it would read as below:(i) Whoever (ii)
Accepts or obtains gratification from any person
(iii) For inducing any public servant (by corrupt
or illegal means) (iv) To render or attempt to
render any services or disservice (etc.) (v) With
any public servant (etc.)
…
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56.In view of the above, it would not be
permissible to contend that a public servant
would be covered by Section 13(1)(d) (similar
to section 5(1)(d) of Old Act) and therefore the
public servant would not be covered by Sections
8 and 9 of the Act. The offences under Section
13(1)(d) and the offences under Sections
8 and 9 of Act are different and separate.
Assuming, Section 13(1)(d)(i) covers public
servants who obtain for ‘himself or for any other
person’ any valuable thing or pecuniary
advantage by corrupt or illegal means, that
would not mean that he would not fall within the
scope of Sections 8 and 9. The ingredients are
different. If a public servant accepts gratification
for inducing any public servant to do or to
forbear to do any official act, etc. then he would
fall in the net of Sections 8 and 9. In Section
13(1)(d) it is not necessary to prove that any
valuable thing or pecuniary advantage has been
obtained for inducing any public servant.
Hence on this reason alone, the ground cannot be entertained as it
goes against the very spirit of the section. Secondly, the right forum
to agitate the validity of sanction is during the course of trial and
the same has been affirmed in 2012 (1) SCC 532 [Dinesh Kumar
Vs. Airport Authority of India]. The ground is premature and
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cannot be entertained at this stage. The same view has been
affirmed in CBI Vs. Ashok Kumar Aggarwal [2014 (14) SCC
295].
6.40. The next aspect to be considered is scope of Section
306 Cr.P.C., and the admissibility of statements of the approver,
who has been granted pardon. The very purpose of Section 306
Cr.P.C., is to prevent injustice from happening due to lack of
evidence and a pardon under Section 306 Cr.P.C., is granted only
for the purpose of recording evidence and bringing out the truth.
Section 30 of the Indian Evidence Act has no application as alleged
by the petitioner, also the allegation that the statement of an
accused, who is discharged from the case cannot be applied to the
present case. The pardon granted under Section 306 Cr.P.C.,
cannot be equated to that of a discharge. Therefore, the application
of Section 30 of the Indian Evidence Act will not arise in this instant
case. Hence, the grounds raised by the petitioner that the
statement of the approver is inadmissible is totally mindless and
illegal. In order to support this contention of the respondent, the
Hon’ble Supreme Court in 2012 (1) SCC 500 [Bangaru Laxman
V. State (Through CBI) and another] clearly states that the
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statement of a approver granted pardon should be used and the
main purpose of granting pardon is to prevent failure of justice by
allowing the offender to escape from lack of evidence. The
respondent also relies on 2004 (5) SCC 334 as stated supra on the
similar aspect.
6.41. It is pertinent to note that as per Section 464 Cr.P.C.,
only defects that lead to failure of justice can be used to invalidate
a judgment. All other defects cannot be questioned in appeal or
revision. In the instant case, all the alleged defect that the
petitioner points out are the ones that fall within the purview of
Section 464 Cr.P.C., whether such defect has lead to failure of
justice can be answered only after completion of trial. There are
three ingredients to attract failure of justice viz., i)trial by a
competent court ii)the accused understands the nature of offence
iii)if the case is fully and fairly explained to him and he is afforded
with a full and fair opportunity of defending himself. In the present
case, none of three ingredients are satisfied. It is important to note
that any omission to frame a charge or a defective charge can be
cured by virtue of Section 216 of Cr.P.C. This section enables the
Court to add or alter charge at any time before the judgment is
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pronounced. The entire argument of the petitioner is that the first
charge runs to 14 pages without satisfying ingredients of certain
offences. Therefore as mentioned earlier in the light of Section 216
of Cr.P.C., the charges can be altered depending on the evidence in
the trial if necessary and raising the same at this stage, is
premature.
6.42. It was also argued by the petitioner that the order
framing the charges are defective since the investigation is not
complete as the evidence for money trial leading to A1 is yet to be
filed. This argument is wholly incorrect since it is the prerogative of
the Investigating Officer to fit. In fact, in the case of State of
Haryana Vs. Mehal Singh and another [ILR 1978 (2) P & H
44], wherein it was held that even if the Investigating Officer has
not received the evidence of expert, statement of witnesses and
other documents, the job of an Investigating Officer is over as far
as investigation is concerned. If the Investigating Officer comes
across any other evidence and he seeks to adduce the same. There
has to be a petition under Section 173(8) Cr.P.C., filed and it is
within the discretion of the Court to allow such evidence to be
produced or not. When such evidence is allowed to be adduced a
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copy of the same would be provided to the accused and a fair
chance to defend the case would also be given.
6.43. Summing their contentions, it was submitted by the
learned counsel for the respondent/CBI that the argument of the
petitioner revolves around the petitioner having a good case in the
trial. All the material relied upon by the petitioner can be gone into
only during trial. In that case, the petitioner has to face the trial
and make out his defence. As pointed out above, a revision cannot
be entertained on the aspects highlighted by the petitioner since
none of the grounds lead to failure of justice and the petitioner has
miserably failed to make out a fit case for the purposes of revision.
The background of the petitioner, his educational qualification, his
professional capacity and his antecedents have to be taken note of
when assessing the capacity of the petitioner to understand the
charge. The petitioner is an IPS officer in the zone for consideration
for the post of DGP, being the highest post in the department for
the State. The petitioner has also pleaded not guilty and has not
objected to the charges framed during the proceedings before the
trial Court. Moreover, the conduct of the petitioner is to be noted
and it is clear that the petitioner is abusing the process of law and
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trying to delay the trial as much as possible which cannot be
permitted. On perusing and examining the witnesses statements,
the trial Court came to the right conclusion that there is a fit case to
proceed against the accused as the statement taken at their face
value are very clear about the fact that there was conspiracy.
There is also evidence that A4 has received bribe on behalf of the
first accused/A1 and there was recovery to the tune of Rs.25 lakhs.
Hence, the learned Senior counsels for the respondent prayed this
Court to dismiss the present revisions filed by the petitioner.
7. In response to the counter filed, the learned Senior
Counsels contended that it is the duty cast upon the respondent to
prove the averments made in the counter. At the same time, the
learned Senior counsel admitted the contents of the counter in
regard to paragraphs 2 to 4 as much as they are the matters of
record but however, denied the remaining averments. Further, the
learned Senior counsel highlighted that Kamalavalli had
altered/changed her statement on three occasions, wherein it was
brought out that she had not been kidnapped but had gone on her
own accord in order to avoid repercussions with respect to the then
ongoing investigation in Crime No.26 of 2009 and also stated that
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she had continuously changed her statements which raised the
question as to her credibility.
8. Furthermore, he submitted that the Hon’ble Supreme Court
while disposing of SLP (C) No.17999 of 2013 was pleased to set
aside the order passed by this Court in W.P.No.21801 of 2012 and
remanded the mater back to this Court to be heard afresh. It is
stated that the order passed by this Court in Crl.O.P.Nos.2691 and
5356 of 2009 dated 19.04.2011 would not come in the way while
deciding these petitions since the petitioner herein was not made a
party and heard while deciding the said Criminal Original Petitions.
Subsequently, this Court combining all the pending matters before
it, passed its order on 02.11.2021, the petitioner had challenged
the same before the Hon’ble Supreme Court in SLP Cri. Nos.8901 to
8904 of 2021. It is submitted that the Hon’ble Supreme Court vide
its order dated 19.07.2022 was pleased to permit the petitioner
herein to approach the appropriate Courts with remedies available
under law and was also pleased to record that the observations
made in the common order dated 02.11.2021 ought not to come in
the way when Courts are deciding proceedings as against the
petitioner.
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9. The learned Senior counsel denied the fact that the present
revisions are filed merely to delay further proceedings before the
trial Court. It is submitted that the Hon’ble Supreme Court has
time and again made certain observations to the effect that Section
19(3)(b) and (c) of PC Act do not act as an impediment to the High
Court exercising its power under Section 482 Cr.P.C. The petitioner
is merely exercising his right under law and the same cannot be
construed as a dilatory tactic. Moreover, the completion of trial in
the Paazee Trading case has nothing to do with the petitioner herein
and it is worthwhile to note that not a single mention concerning
the petitioner was brought about in the order of conviction. A
comparison between the Paazee Trading case and the instant case
is misplaced.
10. It was submitted that the instant criminal revision
challenging the dismissal order of petitioner’s discharge petition is
maintainable and is to be considered in the interest of justice. The
impugned order dismissing the discharge petition was passed on
23.11.2023 and the charges immediately framed on 28.11.2023
without affording appropriate time to the petitioner for challenging
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the impugned order before this Court. Since the impugned order is
riddled with inaccuracies and errors, this Court may be pleased to
consider the same and pass appropriate orders.
11. While continuing his submissions, the learned Senior
counsel brought to the notice of this Court that the respondent has
filed a status report before the trial Court to the effect that
investigation is still ongoing in the matter. It is also submitted that
various documents including search mahazar which were
prepared/recovered at the time of arresting and conducting
searches on the petitioner in 2012 have not been filed before the
trial Court along with the charge sheet and hence, the respondent is
today estopped from placing reliance on the same in any further
investigation conducted since those documents have been available
prior to filing of the charge sheet in 2013.
12. The contention of the learned Senior counsel is that
framing of charges has been done in a mechanical way without
independent application of mind and consideration of the
investigation made in the charge sheet. The Hon’ble Supreme
Court goes one step further in stating that on account of invalidity
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of sanction, the Courts ought to discharge the accused and not be
made to go through the rigour of trial. The learned trial Court failed
to appreciate the law laid down in Nanjappa’s case as stated supra
and has erroneously held that the factual matrix differs from the
present case on hand.
13. Further, it is submitted that the petitioner is not seeking
to evaluate the evidence available in the present case but merely
trying to show that even on prima facie consideration of the said
evidence, there is nothing which even rises a suspicion that the
petitioner has committed the alleged crimes that he has been
charged with and the same is permissible under law.
14. He drew the attention of this Court to the intention, scope
and purpose of Sections 227 and 239 of Cr.P.C., apart from the
inherent powers conferred under Section 482 of Cr.P.C., are to
ensure that no person is made to undergo the ordeal of trial just for
the sake of it when nothing in investigation or evidence point to the
commission of said offence. By merely stating that everything is a
matter for trial is a method of avoiding glaring holes in the
prosecution, investigation and the nature of evidence that
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corroborates the investigation. These glaring holes, prima facie does
not disclose the involvement of the petitioner in the alleged
offences.
15. The decision of the Hon’ble Supreme Court in the case of
Suresh Budharmal Kalani stated supra is factually different and
inapplicable to the present case. The correlation between a
discharged accused and an accused, who has been granted a
pardon, has been entirely avoided from any redressal by the
respondent and the same ought to be considered by this Court in
discharging the petitioner.
16. It is denied that there exists prima facie material to
proceed with the matter or that there is enough evidence to convict
the petitioner herein. A prima facie case has not been made out
against the petitioner and the present proceedings are only an
attempt to drag the petitioner through gravel and mud. The
respondent has not appreciated the ratio as laid down in
P.Satyanarayan Murthy’s case. Even though it was a trap case, for
an offence under Section 13(1)(d) of PC Act especially, where there
are allegations of illegal gains, there ought to be a demand and
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acceptance that will have to be proved beyond reasonable doubt by
the respondent. Having no such material, it is only just that the
petitioner is discharged from the instant case and the order framing
charges against the petitioner be set aside. It is submitted that
even as per the respondent’s own statement, the evidence of
L.Ws.1, 2, 16, 27, 30, 34 and 35, along with documents D-177 to
183, 198 to 202, 206 to 208, 222 to 235, 238 to 242, 244 to 284
and 302 to 304 are merely circumstantial and do not point out the
petitioner even being remotely involved in the offences, he has
been charged with. It is denied that a strong case has been made
out against the petitioner.
17. Reliance on the judgment of the Hon’ble Supreme Court in
State of Rajasthan Vs. Ashok Kumar Kashyap is entirely misplaced.
The Hon’ble Supreme Court therein held that a trial Court ought to
proceed further in trial only on satisfaction of suspicious
circumstances against the accused for charges to be framed. The
petitioner seeks to take this Court through the investigation and
evidence only to show that even prima facie, no case is made out as
against the petitioner herein since there is no involvement shown.
The respondent’s reliance on State of Bihar Vs. Ramesh Singh does
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not factually or legally apply to the present case at hand since i)it
talks about the general law on discharge which is well established
and not disputed by the petitioner and ii)it concerns the offence of
Section 302 and applicability of circumstance evidence to prove
cases under Section 302 and allied offences. Reliance of the
respondent on Ghulam Hassan Beigh Vs. Mohammad Maqbool
Magrey is misplaced since the same concerned, appreciation of
medico legal evidence which is entirely different from the case. The
Court ought not to consider these precedents as the same differ on
facts and the manner of appreciation of the law. Having referred to
paras 7.5 and 7.10 of the impugned order dated 23.11.2023, the
respondent has failed to take note of the specific reference by the
learned trial Judge in para 7.10 of the impugned order to the finding
of suspicion as against the accused by this Court in its common
order dated 02.11.2021. The learned trial Judge makes note of this
finding and decides to proceed with a bias mind owing to the
extracted finding from this Court’s common order dated
02.11.2021, when the Hon’ble Supreme Court in SLP.(Cri) Nos.8901
to 8904 of 2021 has very specifically observed that the common
order dated 02.11.2021 passed by this Court ought to not weigh on
the minds of any Court that are ceased of proceedings concerning
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the petitioner. Therefore, on this ground alone, the impugned order
ought to be set aside.
18. Even though this Court vide its order dated 04.09.2023 in
Crl.M.P.No.13402 of 2023 in Crl.O.P.No.24216 of 2018, directed the
trial Court to proceed with trial, this Court was not informed that
the petitioner was enjoying an order of this Court dispensing with
his personal appearance before the trial Court vide this Court’s
interim order in Crl.O.P.No.19442 of 2022. Moreover, the petitioner
herein was not made a party to the said proceedings.
19. Insofar as issuance of NBW against the petitioner is
concerned, the same was misplaced since the petitioner at the
contemporaneous point in time was enjoying an order dispensing
with his personal appearance before the trial Court. When the
petitioner warrant was recalled by the trial Court, a discharge
petition was also preferred. Further, the learned trial Judge was
monotonous in framing charges and has merely reiterated the
investigation as laid out in the charge sheet. Hence, the same
ought not to be considered by this Court.
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20. The petitioner’s quash petition in Crl.O.P.No.19442 of
2022 was dismissed since the scope of a discharge under Section
239 of Cr.P.C., is entirely different. It is also submitted that the
power of this Court as held by the Hon’ble Supreme Court in Asian
Resurfacing [2018 (16) SCC 299] and Section 19(3)(b) of PC
Act is not a bar on issuing orders of stay. The trail Court failed to
consider the fact that not even a prima facie case is made out as
against the petitioner herein and has mechanically interpreted the
issues involved as matters for trial.
21. The decision of the Hon’ble Supreme Court as relied upon
by the respondent in the case of Amit Kapoor Vs. Ramesh
Chander can also be canvassed in favour of the petitioner since it
is over perverse findings that the petitioner has preferred the
instant revision petitions. The decisions relied upon by the
respondent are on the general principles on the law of discharge. It
is submitted that the present case will have to be adjudicated on
the basis of its own merit and it would not fall under the ambit of
any of the judgments relied upon. It is further submitted that the
instant case is not the one where this Court is required to deep into
evidence but merely on a cursory view, it would be clear that there
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is nothing that connects the petitioner to the alleged charged
arrayed against him. It is also reiterated as above that this Court
under Section 482 of Cr.P.C., has extensive powers to look into the
orders in discharge even though charges are framed.
22. Considered the rival submissions made on either side and
perused the materials available on record.
23. Discussions:
23.1. The charges framed against the petitioner herein are
criminal conspiracy, criminal intimidation, criminal misconduct,
wrongful confinement, abuse of power, illegal gratification for the
commission of the offences punishable under Sections 120-B
r/w.347, 384, 506(i), 507 of IPC r/w. Sections 8, 10 and 13(2)
r/w.13(1)(d) of the PC Act.
23.2. The learned Senior counsels submitted that the entire
case of the respondent rests only on hearsay and indirect evidence
and no proof has been produced to substantiate the allegations
levelled against the petitioner. It is contended that the charge
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charge sheet failed to make out a prima facie case as against the
petitioner. Furthermore, the learned counsel contended that the
charges framed are defective in nature; no material produced to
prove the charge and also no sanction from proper authority. He
also submitted that the material defect in the charge and omission
to frame a proper charge regarding demand, alleged grave
prejudice has been caused to the petitioner.
23.3. Per contra, the respondent/CBI has stated that the
petitioner, being an IPS officer has abused his capacity and indulged
in criminal conspiracy, instructed his sub-ordinates to extort money
from the directors/accused of Paazee Trading by criminally
intimidating them and involved in illegal gratification and pressed
their arguments to the effect that he is the key person for the entire
act of criminality. In this regard, they have placed several
documents and highlighted the evidences of the witnesses and
quoted various citations as stated above. It was further submitted
by the learned counsel for the respondent/CBI that the trial Court
after proper appreciation of the oral and documentary evidences of
the case, have framed the charges as against the petitioner in
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and hence, prayed to dismiss the revisions filed by the petitioner.
23.4. Since the charge sheet has been filed pending
investigation and the alleged money trial is yet to be established
even after 10 years of filing of charge sheet, the sanction accorded
by the Central Government under Section 19(2) of the PC is
arbitrary. The illegal gain by the petitioner has not been proved by
the investigating agency which is indispensable part of the offence
under the PC Act. It is also to be noted that for the offence under
Section 13(1)(d) of PC Act, the prosecution has failed to
substantiate their stand to prove that the petitioner had misused his
power as a public servant and received illegal gratification. In view
of these facts, it is obvious to state that the sanctions accorded by
both the Central, as well as the State Authority, is without
application of mind, which is illegal and invalid in the eye of law.
23.5. In the present case on hand, even as per the charge
sheet, as well as the status report dated 17.10.2023, the
sanctioning authority failed to note the fact that the investigating
authority has not proved the act of illegal gain by the petitioner.
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Section 8 of PC Act has been invoked against the petitioner which is
unsustainable as he is a public servant which has not been taken
into account by the sanctioning authority prior to grant sanction for
prosecuting him. Without any material on record to show the fact
that the petitioner has abetted an offence under Section 8 of PC
Act, Section 10 has been invoked by the respondent as against the
petitioner, which is per se illegal. Since the investigating authority
has failed to any receipt of illegal gratification, as well as money
trail pertaining to the petitioner, the sanction granted by the State
Government to prosecute the petitioner under Section 197(1)(b) of
Cr.P.C. is arbitrary and illegal. Moreover, as threat and extortion
with illegal gain has not been established as per Section 383 IPC,
Section 384 IPC does not attracts. Summing the above, proves the
sanction granted against the petitioner is bad in law.
23.6. At this juncture, it is relevant to refer to the decision of
the Hon’ble Supreme Court in the case of Mansukhlal Vithaldas
Chauhan Vs. State of Gujarat reported in 1997 (7) SCC 622 for
grant of sanction without application of mind, wherein it has held
that independent application of mind to the facts of the case as also
material and evidence collected during investigation by the
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authority competent to grant sanction is mandatory. In yet another
case in Anthony Xavier Vs. State in Crl.A.No.479, 487 & 511
of 2013, this Court has held that in the absence of material
evidence, it has to be presumed that the order of sanction lacks
application of mind.
23.7. It was brought to the notice of this Court that there are
several prima facie discrepancies in the charge sheet filed by the
respondent. There is no whisper about the direct involvement of the
petitioner in the aforesaid offences except the statements of the
list witness viz., 1,2,3,8,16,27,34 & 35 and also to be noted that
the evidences produced before the trial Court are only hearsay
evidences. It is baseless and illegal to prosecute the petitioner for
extortion as the approver and the co-accused have demanded
money using his name. No role has been played by the petitioner in
the appointment of approver as Inspector, CCB, Tiruppur as his
appointment was done by the DIG of the Committee. As per Rule 3
of the All India Service Rules, all oral orders are to be reduced into
writing and approved by the concerned superior officer, hence
L.W.20’s statement in regard to approver’s appointment was
instructed by the petitioner is groundless and without any basis.
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L.W.83’s complaint has been properly marked to the concerned
jurisdictional officer/A2 by the petitioner which does not reflect any
ulterior motive of extortion by the petitioner as alleged in the
charge sheet and not a single statement or document filed to
corroborate the same by the respondent. It is also crystal clear
that there is no nexus between the money and the petitioner as
stated by L.W.14 in his 161 statement which reveals that the co-
accused misused his name to extort money from various persons.
Furthermore, the statement of L.W.3 is wholly unreliable and cannot
be taken into consideration as she improvises her statement
frequently. As there are no oral or documentary evidence to prove
the demand of Rs.10 Crores by the petitioner, he cannot be liable
for any conspiracy, extortion or offences under PC Act. D-293 letter
of the approver dated 13.08.2009, as well as the report dated
17.08.2009 by the ASP, Nilgiris put on light the constant practice of
approver indulging in corrupt activities using the superior officers’
names and the petitioner had no role in his transfer which was done
by the transfer committee. It is also came to light that the duties
and responsibilities of A3 are decided by the committee and not by
the petitioner. In the charge sheet itself, it was stated that even
after the registration of criminal cases against the Paaze company
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and directors, the agents of Paazee involved in illegal criminal
activities. For curtailing the same, raids were conducted which is
the duty cast upon the petitioner. It is stated in the charge sheet
that L.W.34 and L.W.35 have taken the amount from Coimbatore
and handed over the same to A4 in Chennai, which did not disclose
the involvement of the petitioner in the above transactions and the
respondent is still investigating to establish the money trail, that too
even after lapse of 10 years.
23.8. It is to be noted that there is no statement from any of
the witnesses that they have received the orders from the petitioner
directly to perform the alleged offences charged by the prosecution.
Moreover, the respondent relies only on the evidence of the
approver viz., document D-167 which is the confession statement
recorded under Section 164 Cr.P.C. It is the well settled proposition
of the Hon’ble Supreme Court in Suresh Budharmal Kalani’s case as
stated supra that approver’s evidence cannot be used against the
accused for framing of charges. The trial Court has misinterpreted
the ratio laid in the aforesaid case and erred in making distinction
between the statement of a person discharged and a statement of
an approver. It is to be seen that the evidence of an approver, who
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has been granted a pardon under Section 306 Cr.P.C. As per
Section 308 Cr.P.C., an approver to be degraded and be tried as an
accused in the same case.
23.9. Insofar as Section 347 IPC is concerned, no wrongful
confinement was ordered by the petitioner in respect of L.W.8, as it
was only for the purpose of investigation and hence, Section 347
does not attract. In respect of Section 384 IPC, there was neither
any threat nor extortion of property by the petitioner and the same
was not established through money trial by the prosecution as per
the status report dated 17.10.2023 which implies that investigation
with respect to money trial is still ongoing as there is no conclusive
evidence and therefore, the allegation under Sections 383 and 384
of IPC is groundless.
23.10. No record has been produced to prove the involvement
of the petitioner neither directly nor indirectly criminally or
anonymously intimidating any of the persons mentioned in the
charge sheet, which reveals that the offence levelled against the
petitioner under Sections 506(i) and 507 IPC does not attract.
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23.11. In regard to the offence under Section 120-B, there is
no evidence to show connecting money trail or benefit to the
petitioner by the other accused including the approver which shows
that no case has been made out against the petitioner for the said
offence.
23.12. A bare reading of the Section 8 of PC Act reveals that
the said section can be attracted for private persons and not against
a public servant and the trial Court has also not dealt with this
section in the impugned judgment. In the case on hand, A4 and A5
private persons have not made any statement against the petitioner
about abetment and hence, the same cannot be charged against
the petitioner and no finding of the trial Court in the impugned
order in this regard.
23.13. There is neither demand nor acceptance of bribe by
the petitioner from the complainant and also, there is no recovery
and money trail linking the petitioner to any illegal gratification,
which is fatal to the case of the respondent and as regards misuse
of power for illegal gratification, except hearsay witness there is no
proof for abuse of power in his official capacity and and hence, the
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offences under Section 13(2) r/w.13(1)(d) of the PC Act cannot be
maintainable.
23.14. Furthermore, there are also other discrepancies in the
order of the trial Court in its findings, wherein it has relied on the
document Nos.177 to 183, 198 to 202, 206 to 208, 222 to 235, 244
to 284 and 302 to 304 which are frivolous as it does not prove the
involvement of the petitioner in the alleged offences. Inspite of the
setting aside the order of this Court in Crl.O.P.Nos.2691 & 5356 of
2011 by the Hon’ble Supreme Court vide its order dated 17.03.2014
in C.A.No.3062 of 2015, the trial Court has relied upon the same in
the impugned order. Moreover, the trial Court without proof of
commission of offence, has framed the charges against the
petitioner and has also misunderstood that the petitioner was a part
of the committee that was overseeing the disbursement of funds to
the defrauded depositors but he was not at all a member of such
committee which was evidenced from its impugned order dated
28.11.2023.
24. Concentrating on the submissions of the learned Senior
counsels on the following decisions defending their stand in respect
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of the charges framed by the respondent:
24.1. Defective charge:
In the decision of the Hon’ble Supreme Court in
Soundarajan V. State rep. by the Inspector of Police
Vigilance Anti-Corruption, Dindigul reported in 2023 SCC
Online SC 424, wherein it has held that under Section 464 of
Cr.P.C., omission to frame a charge or any error in charge is never
fatal unless, in the opinion of the Court, a failure of justice has in
fact been occasioned thereby. The relevant portion of the order
reads as follows:
“16.We find that, in this case, the charge
has been framed very casually. The trial Courts
ought to be very meticulous when it comes to
the framing of charges. In a given case, any
such error or omission may lead to acquittal
and/or a long delay in trial due to an order of
remand which can be passed under sub-section 2
of Section 464 of Cr.P.C. Apart from the duty of
the trial Court, even the public prosecutor has a
duty to be vigilant and if a proper charge is not
framed, it is his duty to apply to the Court to
frame an appropriate charge.”101/113
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Crl.R.C.Nos.2194 and 2195 of 2023In regard to similar issue, the decisions of Latu Mahto and
another V. State; Willie (William) Slaney V. The State; and Gaya
Prasad v. State of U.P. has been highlighted by the petitioner’s
counsel.
24.2. No material to charge:
In relation to this, it has already been dealt above in
this order in the case Suresh Budharmal Kalani’s case as stated
supra, wherein it has held that the confession statements cannot
called in aid to frame charges against the accused in absence of any
other evidence to do so.
24.3. No sanction from proper authority:
Likewise, in Nanjappa Vs. State of Karnataka [2015 (14)
SCC 186] has already dealt above, wherein it has held that the
competence of the court trying the accused so much depends upon
the existence of a valid sanction. In case the sanction is found to be
invalid the court can discharge the accused relegating the parties to
a stage where the competent authority may grant a fresh sanction
for prosecution in accordance with law. In yet another judgment in
P.Satyanarayana Murthy’s case as stated supra, it has held
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the use of corrupt or illegal means or abuse of position as a public
servant to obtain any valuable thing or pecuniary advantage cannot
be held to be proved. The proof of demand, thus, has been held to
be an indispensable essentiality and of permeating mandate for an
offence under Sections 7 and 13 of the Act and it was held that in
absence of proof of demand, such legal presumption under Section
20 of the Act would also not arise.
24.4. Charges:
a) Charge No.1 framed against the petitioner which runs to 14
pages for the offences under Sections 120-B r/w.347, 384, 506(i),
507 of IPC r/w. Sections 8, 10 and 13(20 r/w.13(1)(d) of PC Act is
vague and invalid as no tenable evidence has been produced by the
prosecution to prove the same and make out a prima facie case as
against the petitioner.
b) Charge No.4 for the alleged offence under Section 506(i)
IPC also not attracted since the anonymous commission threatening
the approver by the petitioner has not been corroborated through
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any material evidence.
c) Insofar as Charge No.7 for the offence under Section 10 of
PC Act is concerned, due to the credibility of the approver’s
statement who used to misuse his superior officials’ names in order
to indulge in corrupt activities and also that, no proof has been
placed for the same by the respondent, the same cannot be
attracted as against the petitioner.
d) In regard to Charge No.8 framed under Section 13(2)
r/w.13(1)(d) of PC Act, since there is no demand or acceptance of
bribe and abuse of official capacity has been established against the
petitioner, the same cannot stand against him.
25. In the recent decision of the High Court of Rajasthan, in
the case of Jitendra Singh vs. State Of Rajasthan S.B.
[Criminal Revision Petition No. 265/2023] reported in 2023
LiveLaw (Raj) 37, it has held that “Forcing a person to go through
the rigor of trial without there being apt prima facie material or
evidence would surely be direct infringement of his fundamental
rights. Of course, if a person has to do nothing in connection with
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the alleged offence but is still forced to remain on bail and to attend
the court proceedings, then restraining his liberties would
tantamount to breach of his fundamental rights…Framing of charge
is a determinative action,” the bench observed.”
26. In another decision, in the State of Kerala Vs. P.
Sugathan and Ors. reported in (2000) 8 SCC 203, it was held by
Hon’ble the Supreme Court that there is not enough evidence to link
the accused to the offence of criminal conspiracy. The relevant
paragraphs of the afore-mentioned judgment are as follows:
“12. We are aware of the fact that direct
independent evidence of criminal conspiracy is
generally not available and its existence is a
matter of inference. The inferences are normally
deduced from acts of parties in pursuance of
purpose in common between the conspirators.
This Court in V.C. Shukla v. State( Delhi
Administration) 1980 SCC (2) 665 held that to
prove criminal conspiracy, there must be
evidence direct or circumstantial to show that
there was an agreement between two or more
persons to commit an offence. There must be a
meeting of minds resulting in ultimate decision105/113
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commission of an offence and where the factum
of conspiracy is sought to be inferred from
circumstances, the prosecution has to show that
the circumstances giving rise to a conclusive or
irresistible inference of an agreement between
the two or more persons to commit an offence.
As in all other criminal offences, the prosecution
has to discharge its onus of proving the case
against the accused beyond reasonable doubt.
The circumstances in a case, when taken
together on their face value, should indicate the
meeting of the minds between the conspirators
for the intended object of committing an illegal
act or an act which is not illegal, by illegal
means. A few bits here and a few bits there on
which the prosecution relies cannot be held to be
adequate for connecting the accused with the
commission of the crime of criminal conspiracy. It
has to be shown that all means adopted and
illegal acts done were in furtherance of the object
of conspiracy hatched. The circumstances relied
for the purposes of drawing an inference should
be prior in time than the actual commission of
the offence in furtherance of the alleged
conspiracy.”106/113
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27. Also in the case of State of M.P. Vs. Mohan Lal Soni:
2000 Cri. LJ 3504, this Court while referring to several previous
decisions, held that the crystallised judicial view is that at the stage
of framing charge, the Court has to prima facie consider whether
there is sufficient ground for proceeding against the accused.
28. In the case of Neeraj Dutta V. State (Govt. of N.C.T.
of Delhi) reported in 2023 Live Law (SC) 211, the Hon’ble Apex
Court has held that in the present case, there are no circumstances
brought on record which will prove the demand for gratification.
Therefore, the ingredients of the offence under Section 7 of the PC
Act were not established and consequently, the offence under
Section 13(1)(d) will not be attracted. Similarly, in the present case
on hand, there is neither direct evidence nor proof for demand and
acceptance has been proved by the respondent through any
evidence and also, allegation of demand of gratification and
acceptance made by a public servant/petitioner herein has not been
established beyond a reasonable doubt.
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29. The High Court of Karnataka in the case of Somanath @
Somashekhar S/O. Mahadevappa … V. The State Of
Karnataka has held that “… It is settled principle of law in
criminal cases, the prosecution has to prove its case beyond all
reasonable doubt as alleged. In cases under Prevention of
Corruption Act, the essential ingredients of demand and acceptance
is to be proved. Then only presumption can arise. Here neither
there is evidence to show that either accused No.1 demanded
money nor he accepted that money. Drawing inference that accused
No.2 received money on behalf of accused No.1 has not an iota of
evidence. Such presumption is not based on any legally admissible
evidence. There is lot of difference between may be true and must
be true. On appreciation of the entire evidence of prosecution it
clearly indicates that, the prosecution has failed to prove the guilt of
accused No.1 beyond all reasonable doubt. As the evidence of
prosecution witnesses creates doubt about the prosecution case,
the benefit of doubt should go to accused No.1. If there are two
views possible from evidence of prosecution witnesses, then the
Court has to accept the view favourable to the accused.”
The aforesaid decision of the High Court of Karnataka is self
explanatory.
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30. In the case on hand, the respondent has not proved the
essential ingredients of demand and acceptance as against the
petitioner and merely saying that the other accused has received
money on behalf of the petitioner, cannot substantiate their case
which is only presumptive. Such presumption is legally
unsustainable in the eye of law and there is lot of difference
between may be true and must be true. On appreciation of the
entire evidence of prosecution it clearly indicates that, the
prosecution has failed to prove the offences of the petitioner herein
beyond all reasonable doubt.
31. After an elaborate and analytical discussions of the case
on hand and also on an overall analysis of the submissions made on
either side and scrutinizing the charges framed against the
petitioner, looking from any angle, this Court is of the considered
opinion that the same is without application of mind and in violation
to principles of natural justice as the offences levelled against the
petitioner in framing the charges have not been proved by the
respondent through any prima facie evidence and hence, the
impugned orders of the trial Court dated 23.11.2023 and
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28.11.2023 (framing of charges) suffers from material infirmity and
unsustainable in the eye of law.
32. For the foregoing reasons and in the light of the decisions
of the Hon’ble Supreme Court and various decisions of the High
Courts as stated supra, the impugned orders dated 23.11.2023 and
28.11.2023 passed by the learned II Additional District Judge for
CBI Cases, Coimbatore as against the petitioner herein, are set
aside. Consequently, the petitioner/first accused is discharged from
all offences charged in the Charge Sheet dated 28.11.2013 in
C.C.No.2 of 2013 pending on the file of the learned II Additional
District Judge for CBI Cases, Coimbatore.
33. In the result, the Criminal Revision Petitions stand
allowed. Consequently, connected Miscellaneous petition(s) is/are
closed.
07.06.2024 NCC : Yes Index : Yes Order : Speaking DP 110/113 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.2194 and 2195 of 2023 111/113 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.2194 and 2195 of 2023 To
1.The II Additional District Judge for CBI Cases,
Coimbatore.
2.State, CBI,
The Additional Superintendent of Police,
CBI, E.O.W., Shastri Bhavan,
Chennai.
3.The Public Prosecutor,
Madras High Court, Chennai.
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VIVEK KUMAR SINGH, J.
DP
Crl.R.C.Nos.2194 and 2195 of 2023
and
Crl.M.P.Nos.19769 & 19772 of 2023
07.06.2024
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