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TMI Blog2023 (3) TMI 745X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Sessions Judge and Designated Judge (PMLA) District Court Ahmedabad (Rural) arising out of ECIR/-1/AZO/2012 (98 of 101) registered with Enforcement Directorate, Ahmedabad and further be pleased to discharge the applicant under Section 227 of the Code of Criminal Procedure from PMLA Case No. 02 of 2016 pending before the Hon'ble Sessions Judge and Designated Judge (PMLA) District Court, Ahmedabad (Rural). 2. Brief facts of the present case are as under: 2.1 The applicant has been arrested on 31.07.2016 in connection with the inquiry being registered by the respondent no. 1 herein being ECIR /01/AZO/2012 (98 to 101), subsequently after investigation the respondent no. 1 has filed complaint before th Hon'ble Sessions Judge and Designated Judge (PMLA), District court, Ahmedabad (Rural) being PMLA complaint no. 2/16 on 27.09.2016 for the offence under section 3 and under section 4 of the Prevention of the Money Laundering Act, 2002. That, in the present case the scheduled offence as per the case of the prosecution are (i) I-CR.No.03/2010 registered with Rajkot Zone, CID Crime for offences under sections 7, 11, 13(1)(B), 13(2) of Prevention of corruption Act. (ii) I-CR. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so the aforesaid fact has been not at all considered by the learned Special Judge. 5. It was further submitted by learned advocate for the applicant that as per the other scheduled offence is concerned being I-C.R. No. 09/10 registered with Rajkot Zone, CID Crime, the allegations are similar and even the amount stated is also same and the offence of corruption is not charged and therefore, both the aforesaid offence are identical and therefore, also this shows that the applicant cannot be held liable since the offence were committed prior to coming into force of the act. That, learned Special Court erred in not considering the relevant principle as far as discharge of the accused is concerned and as merely rejected the application as if it is the bail application therefore also, the impugned order is required to be quashed. That the applicant was arrested on 06.01.2010 in the scheduled offence and thereafter, the applicant was suspended on 08.01.2010 and pending suspension, the applicant attained the age of superannuation therefore now there is no question of the applicant to be in service and the age of the applicant is 63 years and therefore, the applicant is required to be disc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the offence but the said request has not been accepted by the learned trial court. 8. Before concluding the present application, first of all we may consider the legal provisions relating to discharge application. 8.1. In case of Saranya vs. Bharathi and another reported in (2021) 8 SCC 583, the Hon'ble Supreme Court, in paragraph nos.10 and 11, observed as under: "10. Before considering the rival submissions of the parties, few decisions of this Court on the principles which the High Court must keep in mind while exercising the jurisdiction under Section 482 .P.C./at the stage of framing of the charge while considering the discharge application are required to be referred to and considered. 11. In the case of Deepak (supra), to which one of us (Dr. Justice D.Y. Chandrachud) is the author, after considering the other binding decisions of this Court on the point, namely, Amit Kapoor v. Ramesh Chander (2012) 9 SCC 460; State of Rajasthan v. Fatehkaran Mehdu (2017) 3 SCC 198; and Chitresh Kumar Chopra v. State (Government of NCT of Delhi) (2009) 16 SCC 605, it is observed and held that at the stage of framing of charges, the Court has to consider the material only with a vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case would give a fair idea thereof, and that the stage of framing of charges under Section 228 of the CrPC is reached after crossing the stage of Section 227 of the CrPC, which affords both the prosecution and accused a fair opportunity to put forward their rival contentions. 16. Section 227 of the CrPC reads thus: "227. Discharge.─ 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." 17. Section 228 of the CrPC reads thus: "228. Framing of charge. (1) If, after such consideration and hearing as aforesaid,the Judge is of opinion that there is ground for presuming that the accused has committed an offence which - (a) is not exclusively triable by the Court of Session, he may frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, or any other Judicial Magistrate of the first class and direct the accused to appear before the Chi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rly explained the Court will be, fully justified in framing a charge and proceeding with the trial. (3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (4) That in exercising his jurisdiction under section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a Post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial." 22. There are several other judgments of this Court delineating the scope of Court's powers in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is challenged in cross examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial.... If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section 227." "23. At the stage of framing the charge in accordance with the principles which have been laid down by this Court, what the Court is expected to do is, it does not act as a mere post office. The Court must indeed sift the material before it. The material to be sifted would be the material which is produced and relied upon by the prosecution. The sifting is not to be meticulous in the sense that the Court dons the mantle of the Trial Judge hearing arguments after the entire evidence has been adduced after a full-fledged trial and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cused has committed the offence. (v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. (vi) At the stage of Sections 227 and 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. (vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to dis charge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal." 24. The exposition of law on the subject has been further considered by this Court in State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aterial in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary to constitute the offence. In 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 be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage." 27. Thus from the aforesaid, it is evident that the trial court is enjoined with the duty to apply its mind at the time of framing of ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Hon'ble Apex Court, in paragraph nos.21 to 27, observed as under: "21. The law is well settled that although it is open to a High Court entertaining a petition under Section 482 of the CrPC or a revision application under Section 397 of the CrPC to quash the charges framed by the trial court, yet the same cannot be done by weighing the correctness or sufficiency of the evidence. In a case praying for quashing of the charge, the principle to be adopted by the High Court should be that if the entire evidence produced by the prosecution is to be believed, would it constitute an offence or not. The truthfulness, the sufficiency and acceptability of the material produced at the time of framing of a charge can be done only at the stage of trial. To put it more succinctly, at the stage of charge the Court is to examine the materials only with a view to be satisfied that prima facie case of commission of offence alleged has been made out against the accused person. It is also well settled that when the petition is filed by the accused under Section 482 CrPC or a revision Petition under Section 397 rad with Section 401 of the CrPC seeking for the quashing of charge framed against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error and it may not be appropriate for the court to scrutinize the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits. 13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. xxx 27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction, the Court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice. xxx 27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie. 26. This Court in the case of Chitresh Kumar Chopra v. State (Government of NCT of Delhi), reported in (2009) 16 SCC 605, observed in para 25 as under: "25. It is trite that at the stage of framing of cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s serious allegations against the applicant so far as Hawala chapter is concerned wherein the Hawala entries via Dubai (UAE), crores of rupees have been credited in the accounts of wife of the applicant as well as his children in USA and the wife of the applicant was made partner in a firm to the extent of 30% by investment of only RS. 1 lakh and getting crores of rupees from India as well as UAE. It was further observed by learned trial court while rejecting the discharge application of the applicant that there is strong prima facie case upon the applicant and there appears materials sufficient for the purpose of trial and therefore, this is not fit case to exercise discretion under Section 227 of Code of Criminal Procedure. 10. It appears from the record that at this stage, on the basis of the charge sheet and documents produced with it, court should have to take decision. The defence taken and evidences produced by the accused should not be considered at this stage. At the present stage, it is to see that whether prima facie offence is there against the accused or not and evaluation of evidence produced by the accused and evaluation of the evidence should not be considered at t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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