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, 1973, to set aside the order dated 28.11.2023 passed by the
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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 in C.C. No.2 of 2013 dated 23.11.2023 and as against the
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Crl.R.C.Nos.2194 and 2195 of 2023
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 Trading India Ltd., under the provisions of Prize Chits and
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Crl.R.C.Nos.2194 and 2195 of 2023Monies 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
Inspector General of Police and inter-alia was involved in extorting
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Crl.R.C.Nos.2194 and 2195 of 2023money 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 No.3068 of 2009 to
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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, the State of Tamil Nadu had filed a
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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
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2013 and the trial Court has dismissed the discharge petition on
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
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Crl.R.C.Nos.2194 and 2195 of 2023Crl.R.C.No.2195 of 2023 submitted that the Directors of Paazee
Forex 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
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of investigation of both Crime No.26 of 2009 (Paazee Case) and
Crime No.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
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framed against the petitioner for the offence of criminal conspiracy
under Section 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,
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which is absent in the present case as against the petitioner.
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
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respect of the facts proved, it shall quash the
conviction.
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
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does not give it any specific name, so much of
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.—
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(1) The charge shall contain such
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
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the manner in which the alleged offence was
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
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following judgments:
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
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as to the effect of absence of a charge or defect
in charge how far vitiates the conviction. In one
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.).
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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 been
prejudiced 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…”20/114
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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 :
“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 to21/114
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Crl.R.C.Nos.2194 and 2195 of 2023frame 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. The
law 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
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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 properly and to
pass fresh judgment. This sordid stated of
affairs has not vanished.
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
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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,
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.
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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, 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
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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 other words, framing of appropriate charges
would be 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
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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 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.
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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
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
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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 case 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
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Crl.R.C.Nos.2194 and 2195 of 2023the 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
against 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
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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
19.04.2011 was challenged before the Hon’ble Supreme Court and
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.
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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 prima 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
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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-
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.
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Crl.R.C.Nos.2194 and 2195 of 2023Illustration. – 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 same person as the person who is to
perform, or has performed, the public duty
concerned and it 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
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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.
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
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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 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
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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
importance of sanction under Section 19 of the
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, the37/114
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Crl.R.C.Nos.2194 and 2195 of 2023same 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
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
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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
kind is first, to marshal the evidence against the
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 of39/114
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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
consideration – as it should be – the confessional
statements 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
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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
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
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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
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
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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
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
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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
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.
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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.
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.
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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, the petitioner merely directed the concerned officials to
conduct a 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
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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 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
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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
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
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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
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.
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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
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.
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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
Cr.No.26 of 2009 went missing and “a woman missing case” was
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
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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 2010 by EOW.
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
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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
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
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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
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
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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 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.
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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.
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
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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 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
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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.
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
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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, 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
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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 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
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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
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
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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
states that the Court must be satisfied that the evidence is
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.
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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
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
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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
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
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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
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
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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
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
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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.
6.31. It has clearly noted that there are three ingredients to
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
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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 under revision cannot be said to
be one and the same but distinct and different in
the ambit and 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.
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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:
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
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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
2019] and b)Dalbir Singh Vs. State of U.P. [2004 (5) SCC
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
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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 extortion by all the co-conspirators
against L.W.1 is also clearly 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
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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 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
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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 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 the73/114
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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
charge, the court is concerned not with proof but
with a strong suspicion that the accused has
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
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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 extracted for ready reference:
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”.
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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.)
…
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
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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 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
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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 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
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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 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
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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
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
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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 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
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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 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
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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.
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
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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
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
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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
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
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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
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
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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 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
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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 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
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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 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
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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.
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
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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 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
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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
sheet, witnesses statements and documents filed along with the
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
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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 accordance with law, which warrants no interference
by this Court 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
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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.
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
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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
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
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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.
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
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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 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
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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 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.
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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.
23.11. In regard to the offence under Section 120-B, there is
no evidence to show connecting money trail or benefit to the
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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
offences under Section 13(2) r/w.13(1)(d) of the PC Act cannot be
maintainable.
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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 28.11.2024.
24. Concentrating on the submissions of the learned Senior
counsels on the following decisions defending their stand in
respect of the charges framed by the respondent:
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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.”In regard to similar issue, the decisions of Latu Mahto and
another V. State; Willie (William) Slaney V. The State; and Gaya
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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 that in the absence of any proof of demand for
illegal gratification, the use of corrupt or illegal means or abuse of
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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 any material evidence.
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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
the alleged offence but is still forced to remain on bail and to
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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 decision
taken by the conspirators regarding the106/114
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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.”107/114
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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.”
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The aforesaid decision of the High Court of Karnataka is self
explanatory.
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
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by the respondent through any prima facie evidence and hence,
the impugned orders of the trial Court dated 23.11.2023 and
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
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Order : Speaking
DP
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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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