IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.49414 of 2008 MUHAMMAD QUASIM ANSARI, son of Late Muhammad Fakhruddin Ahmad, Superintendent, Central Excise, Patna (presently posted at Dhanbad), resident of C-86, Indrapuri Colony, PO B.V. College, PS Shastrinagar, Patna – Petitioner. Versus STATE OF BIHAR THRU.C.B.I. ----------- 2 8.10.2009 Heard learned counsel for the petitioner and the counsel appearing on behalf of the C.B.I. The petitioner has challenged the order, dated 23.2.2006 passed by the Special Judge, CBI, South Bihar, Patna in Special Case No.9/2000, arising out of RC No. 18(A) PAT/2000 by which charges have been framed under sections 13(2) read with section 13(1)(e) of the Prevention of Corruption Act, 1988 (hereinafter referred to as ‘the Act’). The main thrust of the argument is that the petitioner was not heard in the matter and the order does not show that the court has applied its mind before framing of the charges. The order impugned indicates that on 23.2.2006 the court merely read out the charges in presence of the accused persons. It is contended that section 227 of the Code of Criminal Procedure (hereinafter referred to as ‘the Code’) envisages that the court must on consideration of the records of the case and the materials produced and after hearing the submissions of the accused pass an order discharging the accused, if the court finds that there is no sufficient ground for proceeding against the accused. In the event the court does not find sufficient ground for passing an order of discharge, then section 228 of the Code comes into play which 2 indicates that the court must frame charges as envisaged under this section. In the present case it is apparent that the petitioner although present on the date when the charge was framed, had not made any submissions oral or written before the court or produced any material to substantiate his claim that the materials on record do not make out a case for framing of charges. At this juncture it may be noted that the trial has already proceeded and about sixteen witnesses have already been examined. Nevertheless in order to satisfy itself and the petitioner, this court shall examine in brief the facts which have been stated in the petition on the basis of which the petitioner is claiming that there are sufficient materials to discharge him from the offences alleged. The allegation against the petitioner is that while he was Inspector of Customs in Central Excise and Superintendent Customs, Central Excise, Patna during 1981-1999, he amassed huge assets both moveable and immoveable which is disproportionate to his known source of income to the tune of Rs.6.27 lakhs approximately. It is also alleged that the petitioner was responsible for assisting the smugglers in carrying out smuggling activities. The defence of the petitioner is that the C.B.I. has not conducted the case in a proper manner and not considered the fact that the money amassed by the accused petitioner was through various legitimate sources were properly accounted for. It is stated that the petitioner had submitted documents of such source of income before the C.B.I. for consideration which was ignored while investigating the 3 matter. The prosecution has claimed in the charge sheet that the accused earned income of Rs.12,23,722/- during the said period from salary and saving bank accounts, L.I.C., sale of gold ornaments, financial assistance from Central Excise Department, G.P.F. withdrawal, interest earned on the amount of salary prior to the period 1975-76. It is submitted that no details have been furnished in the charge sheet regarding these aspects of the matter and as such the prosecution has not been able to prima facie prove that the income earned by the petitioner is beyond the source of his income. The petitioner has also claimed that the court out to have considered the fact that the petitioner’s wife had also got income of about Rs.25,48,001/- during the said period from salary, bonus and other arrears, sale of gold ornaments of her and her mother, GPF advance, NSC maturity amount, LIC money back, sale of a truck, KVP maturity amount, rent from ancestral house, agricultural income, sale of IDBI bonds of wife and sale and income from UTI shares. In this manner the counsel for the petitioner has claimed that in fact the calculations made by the C.B.I. are defective giving a complete go by to the explanation furnished by the petitioner and as such no offence is made out against the petitioner and he ought to have been discharged after considering the materials aforesaid. For the purpose of substantiating the claim the petitioner has relied upon several decisions of the Supreme court but none of them are applicable in the facts of this case. The Supreme court has 4 laid down law with respect to interference by the court under section 482 of the Code, the manner in which the High court should exercise this extra ordinary jurisdiction for quashing proceedings at any stage. It is stated in the case of Janta Dal vs. H.S. Choudhary & Ors., 1992 (4) SCC 305, Dr. Raghubir Saran vs. State of Bihar, 1964 (2) SCR 336 and Monika Kumar vs. State of UP, AIR 2008 SC 2778 that no hard and fast rule can be laid down with respect to interference of the court under section 482 of the Code at any stage. So far as stage of the case is concerned, it is certainly at belated inasmuch as the evidence has began and sixteen witnesses have been examined. The next question, therefore, is with respect to validity of the order, dated 23.2.2006 which is under challenge. The order sheet has not been produced by the petitioner and as such this court has no occasion to know as to what proceeded before the order, dated 23.2.2006 was passed. It is also a fact that the petitioner did not file any application for discharge and in fact no arguments were made on his behalf on 23.2.06 before the court below to substantiate that on the basis of the materials against him no case is made out. This court has discussed the materials referred to by the petitioner, for the purpose of showing that the prosecution case that the petitioner had amassed disproportionate assets is false. The materials referred to by the petitioner cannot be examined by this court. This plea of the petitioner is by way of defence and an only be substantiated in the full-fledged trial. Therefore, this court finds that prima facie there is enough material 5 for the court to proceed with the framing of charges. The Supreme court in the case of Kanti Bhadra Shah vs. State of West Bengal, AIR 2000 SC 522 has held that the framing of charge itself prima facie shows that the trial judge has formed the opinion, upon considering the sanction report and other documents and after hearing the parties that there is ground for presuming that the accused has committed the offences concerned. The order cannot be quashed merely on the ground that it is a cryptic order. The main consideration for framing of charges is that the court has to prima facie see that offence is made out for the offences alleged and it does not have to analyze the evidence at the stage of framing of charges. The principles have been settled by other decisions of the Supreme court, one of which is in the case of Lalu Prasad vs. State of Bihar (2007) 1 SCC 49. In any event this court has considered the materials which have been brought on record by the petitioner to substantiate his claim and, therefore, finds that the trial court has rightly proceeded with the trial. The second ground advanced by the petitioner is that the trial cannot proceed as the provisions under section 19(1) of the Act has not been complied with by the State i.e. lack of an order of sanction. The facts are that the petitioner on25.6.2004 the petitioner was dismissed from service. The petitioner challenged the order of his dismissal and it was finally set aside on 23.1.2006 and he was reinstated in service on 30.6.2006. The cognizance was taken on 6 19.1.2005. It appears that on the date on which cognizance was taken the petitioner stood dismissed from service and as such no sanction was required for taking cognizance against him. It is a different matter that the C.B.I. may be required to take sanction for proceeding further in this case but this aspect of the matter can be raised at the stage of trial. For the reasons aforesaid I find no reason to interfere with the impugned order. This application is dismissed. haque (Sheema Ali Khan, J.)