TMI Blog1978 (11) TMI 151X X X X Extracts X X X X X X X X Extracts X X X X ..... trying the accused in the instant case. Moreover, this Court could be most reluctant to interfere with concurrent findings of the two courts in the absence of any special circumstances. For the reasons given above, the judgement of the High Court is affirmed and the appeal is dismissed. - Criminal Appeal No. 194 of 1977 - - - Dated:- 6-11-1978 - FAZALALI, SYED MURTAZA AND DESAI, D.A., JJ. Soli J. Sorabjee, Addl. Sol. Gen. and E. C. Agarwala and Girish Chandra for the appellant Gobinda Mukhoty and N. R. Chowdhary for the respondent JUDGMENT FAZAL ALI, J. This appeal is directed against the judgment dated 30th August, 1976 of the High Court of Orissa by which the High Court has upheld the order of the Special Judge, Puri discharging respondents No. 1 and 2. The facts of the case lie within a narrow compass and centre round an alleged conspiracy said to have been entered into between respondents No. 1 and 2 in order to commit offences under sections 5(2) and 5(1)(d) of the Prevention of Corruption Act (hereinafter referred to as the Act) read with section 120-B I.P.C. The main charge against the respondents was that between 19-2-1972 to 30-3-1972 the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the application for special leave was filed, there was no direct decision of this Court on the interpretation of section 227 of the Code, the matter was thought fit to be given due consideration by this Court. We might, state, to begin with, that so far as the present case (offences committed under the Prevention of Corruption Act) is concerned it is regulated by the procedure laid down by the Criminal Law Amendment Act under which the police has to submit, charge-sheet directly to the Special Judge and the question of commitment to the Court of Session does not arise, but the Sessions Judge has nevertheless to follow the procedure prescribed for trial of sessions cases and the consideration governing the interpretation of section 227 of the Code apply mutatis mutandis to these proceedings after the charge-sheet is submitted before the Special Judge. Before interpreting and analysing the provisions of section 227 of the Code so far as pure sessions trials are concerned, two important facts may be mentioned. In the first place, the Code has introduced substantial and far reaching changes in the Code of 1898 as amended in 1955 in order to cut out delays and simplify the procedu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discretion, therefore, is to be exercised by a senior and more experienced Judge so as to exclude any abuse of power. In this view of the matter, it is manifest that if the Sessions Judge exercises his discretion in discharging the accused for reasons recorded by him, his discretion should not normally be disturbed by the High Court or by this Court. Section 227 of the Code runs thus:- If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. The words 'not sufficient ground for proceeding against the accused' clearly show that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not A necessary for the court to enter into the pros and cons of the matter or into a weighi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... H. Abbas and Anr.( A.I.R. 1967 S.C. 740) this Court observed as follows:- No doubt a Magistrate enquiring into a case under S. 209, Cr. P.C. is not to act as a mere Post office and has to come to a conclusion whether the case before him is fit for 8 commitment of the accused to the Court of Session . To the same effect is the later decision of this Court in the case of Almohan Das and ors. v. State of West Bengal ([1969] 2 S.C.R. 520) where Shah, J. speaking for the Court observed as follows:- A Magistrate holding an enquiry is not intended to act merely as a recording machine. He is entitled to sift and weigh the materials on record, but only for seeing whether there is sufficient evidence for commitment; and not whether there is sufficient evidence for conviction. If there is no prima facie evidence or the evidence is totally unworthy of credit; it is the duty to discharge the accused: if there is some evidence on which a conviction may reasonably be based, he must commit the case . In the aforesaid case this Court was considering the scope and ambit of section 209 of the Code of 1898. Thus, on a consideration of the authorities mentioned above, the followi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o had a land along with structure in the Cantonment at Cuttack. As the All-India Radio authorities found this land suitable, they approached respondent No. 1 through his mother for selling the land to them by private negotiation. As this did not materialise, the All-India Radio authorities moved the Collector of Cuttack to assess the price of the land and get it acquired. Accordingly, the Tehsildar of the area directed the Revenue officer, Cuttack; to fix the valuation of the land of respondent No. 1. The Revenue officer reported back that the land belonged to respondent No. 1 and was his private land and its value would be fixed at Rs. 3000 per guntha. It is common ground that the land in question was situated in Cuttack Cantonment and was a Khasmahal land which was first leased out to one Mr. Boument as far back as 1-9-1943 for a period of 30 years. The lease was given for building purposes. In 1954. Mrs. Boument who inherited the property after her husband's death transferred the land to respondent No. 1 with the consent of the Khasmahal authorities. When respondent No. 1 came to know that the land in question was required by the All-India Radio authorities, he wrote a lette ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hal Lands belonging to the Government. The High Court in this connection has observed as follows: Government authorities admit that the land in question was known to be Khasmahal land from the very inception. This must lead to an inference that the authorities knew that the interest of the opposite party No. 1 in the land was that of a lessee and the State Government was the proprietor . The High Court has further observed that a number of witnesses who were examined by the police had stated that it was common Knowledge that all khasmahal lands in the Cantonment area in Cuttack were Government lands Relying on the statement of Mr. T. C. Vijayasekharan, Collector, Cuttack, the High Court observed as follows:- Shri Vijayasekharan who has admittedly played an important role in the land acquisition proceeding has said that it is a matter of common knowledge that all khasmahal lands in Cantonment area at Cuttack are Government lands. He has further categorically stated that Shri P. M. Samantray did not put undue pressure of any kind . Furthermore, it would appear that Mr. B. C. Mohanty, Land Acquisition officer submitted a report about the land in question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecause there was no one else in the field, there was no impediment in the way of acquiring the land and taking possession from respondent No. 1. In fact, it would appear as pointed out by the High Court that as far back as 22nd February 1972 the Land Acquisition officer who was a person other than the second respondent had sent a letter to the Government with the counter signature of the Collector for sanctioning the estimate of acquisition of 2 acres of land belonging to respondent No. 1. Later, however, the area of the land was reduced from 2 acres to 1.764 acres and revised estimates as desired by the Revenue department were sent on 7-3-1972. This estimate amounted to Rs. 4,18,642 55 and was sent through the A.D.M's letter,on 8-3-1972. The Home Department by their letter dated 11-3-1972 sanctioned the aforesaid estimate. There after, the Government indicated to the Collector that an award might be passed for acquiring 1.764 acres of land. These facts apart from negativing the allegations of criminal conduct against the respondents demonstrably prove the untruth of the circumstance relied upon in the charge-sheet, namely, that unless the respondent No. 1 and 2 acted in concer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned counsel for the State of Mysore, contends that the Land Acquisition officer had not assessed the compensation payable for the rights of the respondents in the land acquired .. .......We have gone through the Award made by the Land Acquisition officer. The Land Acquisition officer appears to have valued the rights of the respondents in the lands acquired. Whether the valuation made by him is correct or not cannot be gone into these proceedings. As the appellant was naturally interested in finalising the deal as quickly as possible, there could be no difficulty in finding out the estimates which had been sanctioned a week before respondent No. 1 wrote the letter to the Vigilance Department. This fact proves the bona-fide rather than any wrongful conduct on the part of respondent No. 1 which may lead to an adverse inference being drawn against him. Finally, it was argued that what was acquired by the Government was merely the lessee's interest, but the respondent No. 1 appears to have got compensation as the owner. This is factually incorrect. We have already referred to the circumstances which clearly show that the Government was fully aware that ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
