IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No. 68 of 2010. Judgment Reserved On 19.8.2010. Date of Decision: October 19 ,2010. _______________________________________________ R.L.Sharma. ….Petitioner. Versus. State of H.P. ….Respondent. Coram: Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting1?yes. For the petitioner :Mr. Subhash Sharma, Advocate. For Respondent. :Mr. P.K. Sharma, Addl. Advocate General with Ms.Shubh Mahajan, Dy. Advocate General. Dev Darshan Sud, J.(Oral). The petitioner challenges the order Annexure:P- 29 urging that the charge as framed against him by the Special Judge is not in accordance with law. 2. The petitioner has been charged for offences under Section 120-B, 420, 468, 465, 471, 477-A and Section 13(2) of the Prevention of Corruption Act, 1988. The charges were framed by the learned Court on 4.11.2009. Learned counsel appearing for the petitioner has urged a number of Whether reporters of the Local papers are allowed to see the judgment? yes. 2 grounds in support of his contention that no charges could be framed against the petitioner. 3. In particular, he refers to the judgment of this Court passed in Criminal Revision No. 53 of 2004 and Cr. Revision No. 12 of 2005 detailing the circumstances under which the case came to be registered. In that case, this Court notices that F.I.R. No. 53 of 1994 was registered in Police Station Enforcement, South Zone, Shimla on 7.11.1994 under Sections 418, 420, 467, 468, 471, 477-A, 406, 409, 218, 109, 201 and 120-B of the Indian Penal Code read with Section 13(2) of the Prevention of Corruption Act. After investigation, sixteen accused were charged and the challan was filed in the Court on 2.3.1998. The case kept hanging fire and supplementary challan again was presented in the year 1998. This Court then directs:- “In the instant revision petitions, filed by Shri A.K.Vashisht and Shri R.L.Sharma, the learned counsel for the petitioners herein submitted that the documents/material in part-I of the challan were not available to the accused/petitioners in Challan No.II to facilitate them to effectively show that the case against them as alleged is not made out and segregating Challan No.II from the main challan has caused a material prejudice to them. Further there was no reason or justification to start the separate and independent proceedings against them when the FIR is the same and they were to meet the same case, like other accused persons whose cases were being tried together despite the fact that the supplementary challan No.III was presented against one co-accused and the Dy.S.P. while presenting the challan had requested to take the cognizance of the matter against the accused persons in the main challan, supplementary challan Nos. I and II. The plea taken by the counsel for the petitioners appears to be reasonable and quite 3 convincing and the learned trial court did not assign any reason in its any of the orders in Challan No.II, as to why it was being kept separate. As a matter of fact, both part-II as well as Part-III of the Challan should have been tagged and taken together against the accused persons named therein alongwith the main challan State Vs. Shiv Lal and others. In no case, the supplementary challan No.II could have been segregated from the main challan, therefore, in my considered opinion, a prejudice has been caused to the petitioners herein, to present their case properly and effectively at the time of charge. Accordingly, the charges framed against them are hereby quashed and set aside and the case is remanded back to the learned trial court with the direction to tag supplementary challan Part-II along with the main challan like Challan No.III and the matter qua the present petitioners, with respect to the role be reconsidered after hearing them, on the point of charge alongwith the accused persons in the main challan and Challan No.III and pass the appropriate orders. The petitioners are hereby directed to be present before the learned trial court on 8.9.2008 and the record of the case (all the three challans) be returned forthwith.” 4. The case was thereafter again taken up by the Court below and the petitioner has filed this revision petition questioning the legality of the charge. 5. Learned counsel for the petitioner has taken this court through the various letters/documents originating from the office of the Bank itself and submits that reading of these documents does not implicate the petitioner in any manner whatsoever and that by no stretch of imagination can any criminality be imputed to the petitioner. Learned counsel submits that had the Court applied its mind to the material on record, the petitioner could not have been charged for any offence whatsoever. He submits that the charge has been 4 framed in a mechanical manner and without application of mind. 6. Considering the law applicable to framing of charge, it is by now well settled that the Court cannot be expected to act as the mouth piece of the prosecution and at the time of framing of charge the Court has to sift through material on record to arrive at a prima facie conclusion. (See: Union of India Vs. Prafulla Kumar Samal and another, AIR 1979 SC 366, Niranjan Singh Karam Singh Punjabi, Advocate Vs. Jitendra Bhimraj Bijja and others, 1990 Crl. L.J. 1869 and State of Karnataka Vs. L.Muniswamy and others, (1977) 2 SCC 699, 7. It is also well settled that the Court is not required to appreciate the evidence in detail at that stage. {See: State of M.P. Vs. S.B.Johari and others, (2000) 2 SCC 57. } 8. Most of all, in Dilwar Balu Kurane Vs. State of Maharashtra, (2002) 2 SCC 135, the Court is emphatic when it holds that the Court cannot act as the mouth piece of the prosecution. These principles are well settled and laid down in cases as urged by the learned counsel appearing for the petitioner. 9. In Parkash Singh Badal and another Vs. State of Punjab and others (2007) 1 SCC 1, the Supreme Court holds: “45 With reference to the absence of allegations under Sections 8 and 9 of the Act, it is submitted whether the charge- sheet has reference to any particular material referred to in it and the relevance of it is to be considered at the time when the charge is framed. It would not be desirable to analyse minutely the materials as at that stage the court is primarily concerned with the question as to whether charge is to be framed in 5 respect of any offence and whether prima facie there appears existence of any material and not the sufficiency of the materials. Therefore, the appellants’ stand that the charge- sheet does not refer to any particular material cannot be accepted, more particularly, in view of the specific materials referred to by the learned counsel for the respondent State.” (PP 36&37) (emphasis added) 10. Similarly, in Lalu Prasad alias Lalu Prasad Yadav Vs. State of Bihar through CBI (Adh) Patna, (2007) 1 SCC 49, the Court holds: “13 The question raised relating to recording of reasons at the time of framing of charge is different from a case of opinion on the basis of which an order of discharge of the accused is passed. Sections 227 and 228 of the Code are with regard to discharge of the accused and framing of charges against the accused respectively in a case triable by the Court of Session; Sections 239 and 240 concern discharge and framing of charge in case of warrant, triable by the Magistrate whereas Section 245 deals with discharge and framing of charges in cases instituted other than on the police report, indicates the difference……………………………… 14……………………………………… 15. In Kanti Bhadra Shah V. State of W.B. (2000) 1 SCC 722: 2000 SCC (Cri) 303 again the question was examined. It was held that the moment the order of discharge is passed it is imperative to record the reasons. But for framing of charge the court is required to form an opinion that there is ground for presuming that the accused has committed the offence. In case of discharge of the accused the use of the expression “reasons” has been inserted in Sections 227, 239 and 245 of the Code. At the stage of framing of a charge the expression used is “opinion”. The reason is obvious. If the reasons are recorded in case of framing of charge, there is likelihood of prejudicing the case of the accused put on trial…………” (PP 57 & 58) 6 11. But at the same time, the Court in Lalu Prasad Yadev’s case (supra) also held that where the question of jurisdiction is raised, the trial Court is required to adjudicate on that issue in particular the court directs: “16 But where the question of jurisdiction is raised and the trial court is required to adjudicate that issue, it cannot be said that reasons are not to be recorded. In such a case reasons relate to question of jurisdiction and not necessarily to the issue relating to framing of charge. In such a case reasons dealing with a plea relating to jurisdiction have to be recorded.” (P 59) 12. With respect to the question of placing of documents on record by the accused at the time of framing of charge, at one time the view prevailed that the accused could place on record such documents which prima facie establish his innocence and on the basis of which the Court can conclude that no offence was committed and it was futile to continue with the prosecution. This view of the Court in Satish Mehra Vs. Delhi Administration and another, (1996) 9 SCC 766 was referred to a larger Bench by the Supreme Court in State of Orisa V. Debender Nath Padhi, AIR 2003 S.C. 1512 . 13. By its decision in the same case State of Orisa V. Debender Nath Padhi, AIR 2005 S.C. 359, the Supreme Court holds: “8. What is to the meaning of the expression ‘the record of the case’ as used in Section 227 of the Code. Though the word ‘case’ is not defined in the Code but Section 209 throws light on the interpretation to be placed on the said word. Section 209 which deals with the commitment of case to Court of Session when offence is triable exclusively by it, inter alia, 7 provides that when it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall commit ‘the case’ to the Court of Session and send to that Court ‘the record of the case’ and the document and articles, if any, which are to be produced in evidence and notify the Public Prosecutor of the commitment of the case to the Court of Session. It is evident that the record of the case and documents submitted there with as postulated in Section 227 relate to the case and the documents referred in Section 209. That is the plain meaning of Section 227 read with Section 209 of the Code. No provision in the Code grants to the accused any right to file any material or document at the stage of framing of charge. That right is granted only at the stage of the trial. 16 All the decisions, when they hold that there can only be limited evaluation of materials and documents on record and sifting of evidence to prima facie find out whether sufficient ground exists or not for the purpose of proceeding further with the trial, have so held with reference to materials and documents produced by the prosecution and not the accused…………………… 17. As opposed to the aforesaid legal position, the learned counsel appearing for the accused contended that the procedure which deprives the accused to seek discharge at the initial stage by filing unimpeachable and unassailable material of sterling quality would be illegal and violative of Article 21 of the Constitution since that would result in the accused having to face the trial for long number of years despite the fact that he is liable to be discharged if granted an opportunity to produce the material and on perusal thereof by the Court. The contention is that such an interpretation of Sections 227 and 239 of the Code would run the risk of those provisions being declared ultra vires of Articles 14 and 21 of the Constitution and to save the said provisions from being declared ultra vires, the reasonable interpretation to be placed thereupon is the one which gives a right, howsoever, limited that right may be, to the accused to produce unimpeachable and unassailable material to show his innocence at the stage of framing charge. 8 18. We are unable to accept the aforesaid contention. The reliance on Articles 14 and 21 is misplaced. The scheme of the Code and object with which Section 227 was incorporated and Sections 207 and 207(A) omitted have already been noticed. Further, at the stage of framing of charge roving and fishing inquiry is impermissible. If the contention of the accused is accepted, there would be a mini trial at the stage of framing of charge. That would defeat the object of the Code. It is well- settled that at the stage of framing of charge the defence of the accused cannot be put forth. The acceptance of the contention of the learned counsel for the accused would mean permitting the accused to adduce his defence at the stage of framing of charge and for examination thereof at that stage which is against the criminal jurisprudence. By way of illustration, it may be noted that the plea of alibi taken by the accused may have to be examined at the stage of framing of charge if the contention of the accused is accepted despite the well settled proposition that it is for the accused to lead evidence at the trial to sustain such a plea. The accused would be entitled to produce materials and documents in proof of such a plea at the stage of framing of the charge, in case we accept the contention put forth on behalf of the accused. That has never been the intention of the law well settled for over one hundred years now. It is in this light that the provision about hearing the submissions of the accused as postulated by Section 227 is to be understood. It only means hearing the submissions of the accused on the record of the case as filed by the prosecution and documents submitted therewith and nothing more. The expression ‘hearing the submissions of the accused’ cannot mean opportunity to file material to be granted to the accused and thereby changing the settled law. At the state of framing of charge hearing the submissions of the accused has to be confined to the material produced by the police.” (PP 363,364&365) (Emphasis added) 9 14. This finally sets at rest the controversy that material placed by the accused at the time of framing of charge can be considered or not. 15. It is this legal aspect of the case which precludes me from pre-judging the issue. In these circumstances, without expressing any opinion on the conduct of the petitioner herein which according to the learned counsel is absolutely clean as evidenced by the writings of the bank itself, all that I need to say is that this will be subject matter of the trial. At that stage, it will be open to the petitioner to produce such material. 16. I have not expressed any opinion on the merits of the case of the prosecution for the simple reason that I have not adverted to the material on record at all. I cannot undertake a detailed examination of the documents. This petition is accordingly disposed of. There shall be no order as to costs. The record of the courts below be sent back forthwith. (Dev Darshan Sud), Judge. October 19, 2010(R)