STATE OF RAJASTHAN versus ASHOK KUMAR KASHYAP

[2021] 4 S.C.R. 158

[2021] 4 S.C.R.

STATE OF RAJASTHAN

ASHOK KUMAR KASHYAP

(Criminal Appeal No. 407 of 2021)

BAPRIL 13, 2021

[DR. DHANANJAYA Y. CHANDRACHUD ANDM.R. SHAH, JJ.]

Prevention of Corruption Act, 1988: s. 7 – Offence relatingto public servant being bribed – On facts, filing of chargesheetCagainst the accused for the offence u/s. 7 – Special Judge on basisof the transcript of conversation recorded between the complainantand the accused, found that there is prima facie case of the allegedoffence u/s. 7, and framed the charges against the accused for thesaid offence – Revision Application thereagainst – High CourtDdischarged the accused of the alleged offence u/s. 7 – Sustainabilityof – Held: Not sustainable – While discharging the accused, theHigh Court exceeded in its revisional jurisdiction and acted beyondthe scope of s. 227/239 Cr.P.C. – High Court considered in detailthe transcript of the conversation between the complainant and theaccused which exercise at that stage was not permissible at all – AtEthe stage of framing of the charge and/or considering the dischargeapplication, the mini trial is not permissible – At this stage, even asper s. 7, even an attempt constitutes an offence – Thus, the HighCourt erred and/or exceeded in virtually holding mini trial at thestage of discharge application – Order passed by the High CourtFquashed and set aside, and that of the Special Judge restored.

Allowing the appeal, the Court

HELD:1. While discharging the accused, the High Courtexceeded in its jurisdiction in exercise of the revisional jurisdictionand acted beyond the scope of Section 227/239 Cr.P.C. The HighGCourt went into the merits of the case and considered whetheron the basis of the material on record, the accused is likely to beconvicted or not. For the aforesaid, the High Court consideredin detail the transcript of the conversation between the

complainant and the accused which exercise at this stage toconsider the discharge application and/or framing of the chargeis not permissible at all. The Special Judge rightly held that atthe stage of framing of the charge, it has to be seen whether ornot prima facie case is made out and the defence of the accusedis not to be considered. After considering the material on recordincluding the transcript of the conversation between thecomplainant and the accused, the Special Judge having found thatthere is prima facie case of the alleged offence under Section 7of the Prevention of Corruption Act, framed the charge againstthe accused for the said offence. The High Court was required toconsider whether prima facie case has been made out or notand whether the accused is required to be further tried or not. Atthe stage of framing of the charge and/or considering the dischargeapplication, the mini trial is not permissible. At this stage, evenas per Section 7 of the PC Act, even an attempt constitutes anoffence. Therefore, the High Court erred and/or exceeded invirtually holding mini trial at the stage of discharge application.Furthermore, this Court is not entering into the merits of thecase and/or merits of the transcript as the same is required to beconsidered at the time of trial. Defence on merits is not to beconsidered at the stage of framing of the charge and/or at thestage of discharge application. [Para 11, 12][167-B-E; G-H]

2. The impugned judgment and order passed by the HighCourt discharging the accused under Section 7 of the PC Act isunsustainable in law and is quashed and set aside, and the orderpassed by the Special Judge framing charge against the accusedunder Section 7 of the PC Act is restored. [Para 13][168-A-B]

P. Vijayan v. State of Kerana (2010) 2 SCC 398:[2010]2 SCR 78; State of Karnataka Lokayukta, PoliceStation, Bengaluru v. M.R. Hiremath (2019) 7 SCC515 : [2019] 8 SCR 713 – relied on.

Srilekha Sentil Kumar v. Deputy Superintendent ofPolice, CBI, ACB, Chennai (2019) 7 SCC 82; AsimShariff v. National Investigation Agency (2019) 7 SCC148 : [2019] 8 SCR 799 – referred to.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 407 of 2021.

From the Judgment and Order dated 12.09.2018 of the HighCourt of Judicature for Rajasthan Bench at Jaipur in S.B. CriminalCRevision No. 1270 of 2018.

Vishal Meghwal, Milind Kumar, Advs. for the Appellant.

Anuj Bhandari, Adv. for the Respondent.

The Judgment of the Court was delivered by

M. R. SHAH, J.

1. In the facts and circumstances of the case and having heardthe learned counsel for the respective parties, the delay caused in filingthe special leave petition is hereby condoned.

E1A. Leave granted.

2. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 12.09.2018 passed by the High Court of Rajasthan,Bench at Jaipur in S.B. Criminal Revision No. 1270 of 2018, by whichthe High Court, in exercise of its revisional jurisdiction, has quashed theForder passed by the learned Special Judge, Prevention of CorruptionAct, Bharatpur dated 22.06.2018 framing the charge against therespondent-accused for the offence under Section 7 of the Preventionof Corruption Act (for short, ‘PC Act’) and consequently has dischargedthe accused of the alleged offence under Section 7 of the PC Act, theState has preferred the present appeal.G

3. That the respondent herein – original accused was serving as aPatwari. That the original complainant Jai Kishore and one another on31.08.2010 submitted written report before the AdditionalSuperintendent of Police, Anti-Corruption Bureau, Bharatpur stating thatfor the purpose of issuing Domicile Certificate and OBC Certificate of

his son, he has submitted an application enclosed with complete certificatesbefore the accused – Patwari Ashok Kumar Kashyap for endorsing hisreport. However, the Patwari in lieu of endorsing his report over the saidapplication demanded bribe of Rs.2,800/-. Thereafter after conductingthe investigation chargesheet came to be filed by the investigatingagency against the accused for the offence under Section 7 of the PCAct. That the learned Special Judge heard the prosecution as well as thedefence at the time of framing of the charge. After hearing theprosecution as well as the counsel for the defence and considering thematerial on record which included the transcript of conversation recordedbetween the complainant and the accused and considering the othermaterial on record and having found that there is prima facie casemade out and the defence of the accused is not to be considered at thisstage, by order dated 22.06.2018 framed the charge against the accusedfor the offence under Section 7 of the PC Act.

4. Feeling aggrieved and dissatisfied with the order passed by thelearned Special Judge framing the charge against the accused underSection 7 of the PC Act, the accused preferred revision application beforethe High Court by filing Criminal Revision No. 1270 of 2018.

4.1 Before the High Court, it was contended on behalf of theaccused that no case is made out under Section 7 of the PC Act, evenon the basis of the transcript recording the conversation between thecomplainant and the accused. It was submitted that it is borne out fromthe transcript that the accused in fact refused to give bonafide residencecertificate and returned the form on 29.08.2010 and that no work waspending before him. It was also contended that on reading the entiretranscript the factum of demand of Rs.2,800/- is not revealed.

4.2 The revision application was opposed by the learned PublicProsecutor. Heavy reliance was placed on the decision of this Court inthe case of Chitresh Kumar Chopra v. State (Govt, of NCT of Delhi),AIR 2010 SC 1446 and it was submitted that as held by this Court thatat the stage of framing of charge, the Court is required to evaluate thematerial and documents on record with view to finding out if the factsemerging therefrom, taken at their face value, disclose the existence ofall the ingredients constituting the alleged offence. It was submitted thatfrom the transcript it is evident that bribe was demanded from thecomplainant.

A4.3 That by the impugned judgment and order, the High Court hasallowed the said revision application and has quashed and set aside theorder passed by the learned Special Judge framing the charge againstthe accused for the offence under Section 7 of the PC Act andconsequently discharged the accused from the alleged offence byobserving in paragraphs 10 & 11 as under:B

“10. In the present case in hand, complainant himself when hemoved to the Anti Corruption Department mentioned that petitionerhad returned the form without making report. From the transcriptwhich is available on record, it is evident that some prior transactionspertaining to bank file was pending between the parties and matterCpertained to Rs. 4,850/- out of which as per the petitioner, Rs.4,000/- was to be paid to the bank and in the transcript he hasexplained the total amount which was payable by the complainant.There is no specific demand for making bonafide residencecertificate, rather, petitioner had mentioned in the transcript thatDas the complainant and his son are residing in Agra (U.P.), abonafide residence certificate cannot be issued. No trapproceedings were conducted in the case and the matter hasremained pending with the Anti Corruption for period of morethan five years. There is no specific demand of money by petitionerand on the date of transcript no matter was pending before him.E11. In view of the same, it is evident from bare reading of thetranscript that offence under Section 7 of the Prevention ofCorruption Act would not be made out against the petitioner.”

5. Feeling aggrieved and dissatisfied with the impugned judgmentFand order passed by the High Court, discharging the accused and quashingand setting aside the order of framing charge by the learned SpecialJudge, in exercise of its revisional jurisdiction, the State has preferredthe present appeal.

6. Mr. Vishal Meghwal, learned Advocate appearing on behalf ofGthe State has vehemently submitted that in the facts and circumstancesof the case, the High Court has erred in discharging the accused of thecharged offence when there is ample material and evidence on recordagainst the accused and sufficient grounds are available for proceedingagainst the accused.

6.1 It is submitted that the High Court has failed to appreciatethat at the stage of framing of charge and/or consideration of anapplication for discharge, the Court is to consider whether there is anyprima facie case made out against the accused or not and at that stagethe Court is required to evaluate the material and documents relied onby the prosecution only with view to find out whether the facts emergingtherefrom, if taken at their face value, disclose the existence of all theingredients constituting the alleged offence or not.

6.2 It is submitted that in the present case the High Court hascommitted grave error in evaluating the transcript/evidence on meritswhich at the stage of considering the application for discharge is notpermissible.

6.3 It is further submitted by the learned Advocate appearing onbehalf of the State that in the present case even otherwise from thetranscript recording the conversation between the complainant and theaccused case of demand of illegal gratification has been made out. Itis submitted that the accused has been charged for the offence underSection 7 of the PC Act and therefore even an attempt is sufficient toattract the offence under Section 7 of the PC Act. It is submitted thattherefore the High Court has erred in evaluating the evidence on recordon merits at the stage of considering the discharge application which, assuch, is impermissible and beyond the scope of the exercise of therevisional jurisdiction.

6.4 Learned Advocate appearing on behalf of the State has heavilyrelied upon the decisions of this Court in the cases of P. Vijayan v. Stateof Kerana, (2010) 2 SCC 398; Srilekha Sentil Kumar v. DeputySuperintendent of Police, CBI, ACB, Chennai, (2019) 7 SCC 82;Asim Shariff v. National Investigation Agency (2019) 7 SCC 148;and State of Karnataka Lokayukta, Police Station, Bengaluru v.M.R. Hiremath, (2019) 7 SCC 515.

7. Learned Advocate appearing on behalf of the respondent-accused has vehemently submitted that in the facts and circumstancesof the case and as it was found from the transcript recording theconversation between the complainant and the accused that no case, atall, has been made out against the accused for the offence under Section7 of the PC Act, the High Court has rightly discharged the accused byquashing and setting aside the order passed by the learned Special Judge

Aframing charge against the accused. It is vehemently submitted by thelearned Advocate for the respondent-accused that, as such, the accusedrefused to issue residence certificate and caste certificate having cometo know about the complaint being the permanent resident of Agra. It issubmitted that in fact the complainant wanted false residence certificateand caste certificate illegally to be made in the State of Rajasthan, thoughBhe was the permanent resident of Agra. It is submitted that in fact therespondent-accused gave report rejecting the request of the complainanton 29.08.2010 and therefore, as such, there was nothing pending beforethe accused and the decision regarding his application was already taken.

7.1 It is submitted that in fact even as per the case of theCprosecution and even the complainant the trap failed and the accusedrefused to accept the bribe in the trap proceedings.

7.2 It is submitted that at the time of conversation two personswere present, (1) the complainant – Jai Kishore; and (2) Devi Singh. Itis submitted that there was mixing of the conversation with theDcomplainant as well as Devi Singh. It is submitted that so far as thecomplainant is concerned, the accused categorically refused to acceptany bribe. However, it is submitted that the appellant has tried to confuseand mislead the Court by mixing the conversation of Devi Singh regardinghis dues of Rs.4,850-/ to the bank against which he has paid Rs.2,000/-Eand the remaining amount of Rs.2,850/- was due to the bank. It issubmitted that therefore so far as the complainant is concerned, neitherthere was any acceptance nor there was any demand of bribe andtherefore having found on the basis of the material/evidence on recordthat no case is made out against the accused for the offence underSection 7 of the PC Act, the High Court has rightly discharged theFaccused.

7.3 Learned counsel appearing on behalf of the accused has heavilyrelied upon the decision of this Court in the case of Dilawar Balu Kuranev. State of Maharashtra, (2002) 2 SCC 135 and has submitted that asheld by this Court the Court while exercising powers under Section 227GCr.P.C. and while considering the question of framing of the charge hasthe undoubted power to sift and weigh the evidence for the limited purposeof finding out whether or not prima facie case against accused is madeout and where the material placed before the Court discloses gravesuspicion against the accused which has not been properly explained,Hthe court will be fully justified in framing of the charge and proceeding

with the trial, however, by and large if two views are equally possibleand the Judge is satisfied that the evidence produced before him willgive rise to some suspicion but not grave suspicion against the accused,he will be fully justified to discharge the accused. It is submitted thattherefore in the present case the High Court was justified in evaluatingthe evidence on record to come to conclusion whether there is anysufficient material/evidence making out case for the offence underSection 7 of the PC Act or not.

7.4 Number of other submissions have been made by the learnedcounsel for the respective parties on merits after taking us in detail tothe transcript recording the conversation between the complainant andthe accused. However, at the stage of framing of the charge and/orwhile considering the discharge application, we do not propose to go intoin detail on merits of the allegations and the evidence on record as forthe reasons stated hereinbelow the same is not permissible at this stage.

8. We have heard the learned counsel for the respective parties.

By the impugned judgment and order, the High Court in exerciseof its revisional jurisdiction has set aside the order passed by the learnedSpecial Judge framing the charge against the accused under Section 7of the PC Act and consequently has discharged the accused for the saidoffence. What has been weighed with the High Court while dischargingthe accused is stated in paragraphs 10 & 11 of the impugned judgmentand order, which are reproduced hereinabove.

9. While considering the legality of the impugned judgment andorder passed by the High Court, the law on the subject and few decisionsof this Court are required to be referred to.

9.1 In the case of P.Vijayan (supra), this Court had an occasionto consider Section 227 of the Cr.P.C. What is required to be consideredat the time of framing of the charge and/or considering the dischargeapplication has been considered elaborately in the said decision. It isobserved and held that at the stage of Section 227, the Judge has merelyto sift the evidence in order to find out whether or not there is sufficientground for proceeding against the accused. It is observed that in otherwords, the sufficiency of grounds would take within its fold the nature ofthe evidence recorded by the police or the documents produced beforethe Court which ex facie disclose that there are suspicious circumstancesagainst the accused so as to frame charge against him. It is further

Aobserved that if the Judge comes to conclusion that there is sufficientground to proceed, he will frame charge under Section 228 Cr.P.C., ifnot, he will discharge the accused. It is further observed that whileexercising its judicial mind to the facts of the case in order to determinewhether case for trial has been made out by the prosecution, it is notnecessary for the court to enter into the pros and cons of the matter orBinto weighing and balancing of evidence and probabilities which isreally the function of the court, after the trial starts.

9.2 In the recent decision of this Court in the case of M.R.Hiremath (supra), one of us (Justice D.Y. Chandrachud) speaking forthe Bench has observed and held in paragraph 25 as under:C

25. The High Court ought to have been cognizant of the fact thatthe trial court was dealing with an application for discharge underthe provisions of Section 239 CrPC. The parameters which governthe exercise of this jurisdiction have found expression in severaldecisions of this Court. It is settled principle of law that at theDstage of considering an application for discharge the court mustproceed on the assumption that the material which has been broughton the record by the prosecution is true and evaluate the materialin order to determine whether the facts emerging from the material,taken on its face value, disclose the existence of the ingredientsEnecessary to constitute the offence. In State of T.N. v. N. SureshRajan [State of T.N. v. N. Suresh Rajan, (2014) 11 SCC 709,adverting to the earlier decisions on the subject, this Court held:(SCC pp. 721-22, para 29)

“29. … At this stage, probative value of the materials has to beFgone into and the court is not expected to go deep into the matterand hold that the materials would not warrant conviction. In ouropinion, what needs to be considered is whether there is groundfor presuming that the offence has been committed and not whethera ground for convicting the accused has been made out. To put itdifferently, if the court thinks that the accused might haveGcommitted the offence on the basis of the materials on record onits probative value, it can frame the charge; though for conviction,the court has to come to the conclusion that the accused hascommitted the offence. The law does not permit mini trial at thisstage.”

10. We shall now apply the principles enunciated above to thepresent case in order to find out whether in the facts andcircumstances of the case, the High Court was justified indischarging the accused for the offence under Section 7 of thePC Act.

11. Having considered the reasoning given by the High Court andthe grounds which are weighed with the High Court while dischargingthe accused, we are of the opinion that the High Court has exceeded inits jurisdiction in exercise of the revisional jurisdiction and has actedbeyond the scope of Section 227/239 Cr.P.C. While discharging theaccused, the High Court has gone into the merits of the case and hasconsidered whether on the basis of the material on record, the accusedis likely to be convicted or not. For the aforesaid, the High Court hasconsidered in detail the transcript of the conversation between thecomplainant and the accused which exercise at this stage to considerthe discharge application and/or framing of the charge is not permissibleat all. As rightly observed and held by the learned Special Judge at thestage of framing of the charge, it has to be seen whether or not primafacie case is made out and the defence of the accused is not to beconsidered. After considering the material on record including thetranscript of the conversation between the complainant and the accused,the learned Special Judge having found that there is prima facie caseof the alleged offence under Section 7 of the PC Act, framed the chargeagainst the accused for the said offence. The High Court materiallyerred in negating the exercise of considering the transcript in detail andin considering whether on the basis of the material on record the accusedis likely to be convicted for the offence under Section 7 of the PC Act ornot. As observed hereinabove, the High Court was required to considerwhether prima facie case has been made out or not and whether theaccused is required to be further tried or not. At the stage of framing ofthe charge and/or considering the discharge application, the mini trial isnot permissible. At this stage, it is to be noted that even as per Section 7of the PC Act, even an attempt constitutes an offence. Therefore, theHigh Court has erred and/or exceeded in virtually holding mini trial atthe stage of discharge application.

12. We are not further entering into the merits of the case and/ormerits of the transcript as the same is required to be considered at thetime of trial. Defence on merits is not to be considered at the stage offraming of the charge and/or at the stage of discharge application.

A13. In view of the above and for the reasons stated above, theimpugned judgment and order passed by the High Court discharging theaccused under Section 7 of the PC Act is unsustainable in law and thesame deserves to be quashed and set aside and is accordingly herebyquashed and set aside and the order passed by the learned Special Judgeframing charge against the accused under Section 7 of the PC Act isBhereby restored. Now the case is to be tried against the accused by thecompetent court for the offence under Section 7 of the PC Act, inaccordance with law and its own merits.

Nidhi Jain

Appeal allowed.