IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No. 96 of 2003 Reserved on 16.03.2011 Decided on : 29.4.2011 State of Himachal Pradesh ..… Petitioner. Versus R.K. Mehta and others Coram The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 Yes. For the Petitioner : Mr. J.S.Guleria, Assistant Advocate General. For the Respondents : Mr. Dharamvir Sharma, Advocate for respondents No. 1 and 3. Mr. R.L. Sood, Sr. Advocate, with Mr. Arjun Lal, Advocate, for respondents No. 2, 5, 6 and 8. Mr. K.D. Batish, Advocate, for respondent No.4. None for respondent No.7. V.K.Sharma, Judge The challenge herein in this revision petition under Sections 397 and 401 read with Section 482 of the Code of Criminal Procedure (in short ‘Cr.P.C’), is against the order dated 18.3.2003, of the learned 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 Special Judge (Forest), Shimla, H.P., in Case No. 21-S/7 of 1997, titled State vs. Shri R.K. Mehta and others, whereby respondents No. 1 to 6 and 8 herein along with deceased respondent Shri Om Dutt Sharma, who along with co-accused Shri Satish Chand Jain, who died during pendency of the proceedings before the learned trial court and co-accused Shri D.V.Gupta, who turned approver, who were booked under Sections 420, 447, 379, 467, 468, 471 and 120-B IPC, Sections 14/30 of the Himachal Pradesh Prevention of Specific Corrupt Practices Act, 1983, Sections 268 and 269 of the Himachal Pradesh Municipal Corporation Act, 1979, Section 38 of the Himachal Pradesh Town and Country Planning Act, 1977 and Section 5(2) of the Prevention of Corruption Act, 1947, were discharged under Section 227 of Cr.P.C as under:- “For these reasons, therefore, owners accused, namely, Kusum S. Chand and Rajesh Jain are discharged under section 120-B, 420, 201, 447, 379 I.P.C. and the official-accused are discharged under Section 120-B, 420, 201, 447, 379, 467, 468, 471 I.P.C., Section 14(30) (3) of the H.P. Specific Corruption Act and Section 5(2) of the Prevention of Corruption Act.” 2. It shall be pertinent to notice at the very outset that earlier vide order dated 25.8.2001, the learned trial court had proceeded to frame charges 3 against all the accused except deceased accused Shri Satish Chand Jain, in the following terms:- “In totality of the facts and circumstances of the case, the documents placed by the accused on record under Section 239 Cr.P.C. upon consideration of the police report and documents sent therewith, it appears that there is a prima- facie case and sufficient grounds to presume that the accused R.K. Mehta has committed offences under Sections 467, 468, 471, 120- B of the Indian Penal Code and under section 5(2) of the P.C. Act 1947, accused R.S. Chandel, Om Dutt Sharma, Krishan Lal, Jagdish Chand Pant and Ganga Ram have committed offences under Section 120-B of the Indian Penal Code and under Section 5(2) of the P.C. Act 1947; accused Rajesh Jain has committed offence under Section 120-B of the Indian Penal Code, under Section 38 of the H.P. Town and Country Planning Act 1977 and under Section 384 of the M.C. Act 1979; accused D.V.Gupta has committed offences under Sections 120-B and 420 of the Indian Penal Code and accused S. Kusum Chand has committed offence under Sections 120-B, 420 of the Indian Penal Code; under Section 38 of the H.P. Town and Country Planning Act 1977 and under section 384 of the M.C. Act 1979. Charges as ordered framed. The accused pleaded not guilty and claimed trial.” 4 3. Against the above order of charge dated 25.8.2001, as many as three criminal revision petitions being Cr. R Nos. 152, 153 and 154 were filed in this court by A-8 Smt. Kusum S. Chand , A-2 Shri R.S. Chandel and A-10 Shri Rajesh Jain, respectively and the same were allowed by the learned Single Judge of this court vide judgment dated 19.8.2002, operative part whereof is as under:- “After having considered the respective submissions urged on behalf of the parties as also examining the case law cited at the bar as well as for the reasons to be recorded hereinafter, all these Revision petitions need to be allowed. However, before proceeding further in the matter, reference is being made to the decision in AIR 1980 SC 52 supra, on which great emphasis was led by Mr. R.C. Sharma. The legal propositions laid down in this judgment can hardly be disputed as was stated on behalf of the petitioners. But according to Mr. Sood, the documents referred to in the two applications under Section 239 Cr.P.C. should have been considered and in no case could have been excluded in the fact of the order dated 14th August, 2001 and statement of learned PP of the said date. In this behalf it is also appropriate to observe that so far as the judgment of Supreme Court is concerned, that the trial court was otherwise bound to have looked 5 into. Since the facts stated in two applications under Section 239 Cr.P.C. having not been controverted, this fact coupled with the statement of P.P. supra, the existence, legality, propriety or otherwise was not disputed. Once this conclusion is arrived at, ratio laid down in the decision reported in AIR 1980 SC 52 supra, is not attracted to the facts of the present case. As such going into other contentions urged on behalf of the parties at the time of haring of these Revision petitions, the impugned order dated 25th August, 2001 passed by learned Special Judge (F), Shimla is hereby quashed and set aside in its entirety and consequential charges framed must also go. It is ordered accordingly. At the same time it is directed that learned Special Judge (F) will re-examine the matter on the basis of materials which are on the file and thereafter at the same time it will keep in view the order dated 14th August, 2001 and statement made on that day as extracted hereinabove, and then, it shall proceed further to re-examine the case regarding framing of charges or otherwise and then deal with the same in accordance with law. In this behalf, it hardly needs to be clarified that nothing said in this order shall come in the way of the trial court to re-examine the case afresh. Since the record is here, parties are directed to appear before the learned 6 Special Judge (F), Shimla on 6th September, 2002. Where after trial court is directed to proceed with utmost expedition while dealing with the case, learned trial Court shall keep in view the fact that First Information Report was lodged in the year 1987 and the challan was put in Court in the year 1997.” 4. The impugned order dated 18.3.2003, was passed by the learned trial Court against the above backdrop. 5. Factual matrix as noticed by the learned trial court is as under. Undisputedly, land on which main building ‘Hotel Honny Moon Inn’ is situate in the city popularly known as ‘Queen of Hills’ Shimla, was earlier housing “Rook Villa Cottage’, which was situate in khasra No. 532/313/D, 532/313/F and 313/2/1 and vacant land, measuring 721.08 square yards. In fact, khasra No. 532/313/F measuring 533.05 square yards equivalent to 446.29 square meters was an open land, khasra No. 532/313/D measuring 533 square yards equivalent to 28.10 square meters, was a path and on khasra No. 313/2/1 measuring 155.03 square yards , equivalent to 130 square meters, there was a house, (referred to as property in question). Undeniably, D.V. Gupta accused and his wife Smt. Sudha Gupta had earlier purchased the property in question from one Sh. Anand Prasad as a compact number. Thereafter, by two separate registered sale 7 deeds namely Deed No.555 and Deed No. 556, dated 5.9.1983, the property in question, was purchased by accused late Satish Chand Jain and his wife Smt. Kusum S.Chand. To be more precise, by a sale deed No. 555, accused D.V. Gupta and his wife Smt. Sudha Gupta sold a part of the property in question, namely, khasra No. 532/313/F measuring 446.29 square meters to Smt. Kusum S.Chand accused. Similarly, by sale deed No. 556 the rest of the property in question measuring 188.03 square meters, plus an old house called ‘Rookvilla Cottage’ was purchased by late Satish Jain. The sale consideration in each of the said sale transaction was a sum of Rs.48000/-. Earlier to the said sale transactions, accused D.V. Gupta and his wife had on 5.9.1983 applied to the Town and Country Planner for a permission to construct a Hotel in question, which was accorded by the Municipal Corporation on 3.12.1983. Late Sh.Satish Chand Jain and his wife Kusum S. Chand then leased out the property in question to a Company floated in the name of M/S Hotel Hill Huts Shimla which was being represented by Rajesh Jain accused as a General Manager and of which late Sh. Satish Chand Jain was the Managing Director. Later, late Satish Chand Jain purchased, vide registered sale deed, dated 23.4.1985, land comprising in khasra No. 532/313/B measuring 147 square yards in Station Ward 8 Chhota Shimla from one Sh. Sant Ram. An application was moved on 14.8.1985 to Town and Country Planner seeking permission to construct a lift block in the said parcel of land. According to the prosecution case, despite the ban having already been imposed on a new construction in this green area, w.e.f. 25.10.1983, the owners/accused of the M/S Hotel Hill Huts namely, Kusum S.Chand , Rajesh Jain and late Satish Jain in connivance with officers accused namely, accused R.K. Mehta, State Town Planner, accused J.C. Panth Range Officer, Krishan Lal Deputy Range Officer, Ganga Ram Patwari of Municipal Corporation Shimla, and R.S. Chandel and Om Dutt Sharma, Tehsildar and Naib Tehsildar, carried out illegal and unauthorized construction of the Hotel as well as the Lift-cum-stair case in violation of the provisions of M.C. Act, Town and Country Planning Act and the Interim Development plan for Shimla planning area. The prosecution allegations are that R.K. Mehta accused not only approved the construction of the hotel building in violation of the provisions of Interim Development plan as well as the Town and Country Planning Act, but, he also illegally recommended to the Himachal Pradesh Govt. the approval of the construction of the lift. He did not bother to point out or stop the illegal/unauthorized construction until 7.3.1986 when the Director Town and Country 9 Planning himself visited the spot and found that unauthorized building had already come up. Even the Municipal Corporation authorities, namely, accused J.C. Panth and Krishan Lal Range Officer and Deputy Range Officer did not bother to take action despite the fact that one Pratap Singh Guard reported to them that illegal construction is being carried out on the spot. It was much later i.e only on 20.8.86 that the demarcation was got done through Patwari of Shimla and it was found that the owner-accused have encroached upon the M.C. land. It was only then when a belated notice after the expiry of 9 months was shot off to the owner/accused, much less Rajesh Jain, who was ordered to appear in the court of Asstt. Commissioner on 7.1.87.This notice was also not served and in the meanwhile Range Officer reported that some more land seems to have been encroached by M/S Hotel Hill Huts, and, therefore, during the course of an other demarcation it was found that one common path was damaged and obliterated and 9/10 Deodar trees were illicitly felled. Consequently, 4 damage reports were prepared by the Municipal Corporation, Forest wing, out of which only one challan, for felling one Deodar tree, was sent to Special Judicial Magistrate Shimla. So far as the revenue accused, namely, R.S.Chandel and Om Dutt Sharma are concerned, the allegations against them are that they registered the sale 10 deeds in respect of the property in question as well as the land which was subsequently purchased from Sant Ram for construction of the lift, in utter violation of provisions of Section 118 of the H.P. Tenancy and Land Reforms Act, 1974, thus, they like other official accused, connived with the owners accused, by abusing their official position. 6. I have heard the learned Assistant Advocate General for the petitioner-State and the learned counsel for the respondents and gone through the record. 7. The controversy between the parties lies within a narrow compass. Whereas according to the respondents the learned trial court was well within its rights under Section 227 Cr.P.C to consider the documents submitted by them, it is contended on behalf of the petitioner-State that at the time of framing of charge material produced by the prosecution alone is to be considered and materials/documents filed by the accused cannot be taken into account at that stage. 8. When initially the learned trial court had framed charges against the accused vide order dated 25.8.2001, it had relied upon the law laid down by the Hon’ble Supreme Court in Supdt. & Remembrancer of Legal Affairs, west Bengal vs. Anil Kuamr Bhunja and others, AIR 1980 Supreme Court 52, wherein it has been held as under vide para 18 of the report:- 11 “It may be remembered that the case was at the stage of framing charges; the prosecution evidence had not yet commenced. The Magistrate had, therefore, to consider the above question on a general consideration of the materials placed before him by the investigating police officer. At this stage, as was pointed out by this Court in State of Bihar v. Ramesh Singh, AIR 1977 SC 2018, the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of Section 227 or 228 of the Code of Criminal Procedure, 1973. At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged; may justify the framing of charge against the accused in respect of the commission of that offence.” “ 9. In the earlier revision petitions the accused in support of their contention had relied upon three judgments rendered by the Hon’ble Supreme Court reported as (1) Satish Mehra vs. Delhi Administration and another, (1996) 9 Supreme Court Cases 766, (2) Om Parkash Sharma vs. CBI, Delhi, 2000 Supreme Court Cases (Cri) 1014 and (3) Suresh 12 alias Pappu Bhudharmal Kalani vs. State of Maharashtra, (2001) 3 Supreme Court Cases 703. 10. Per contra at that time reliance was placed on behalf of the State on Supdt. & Remembrancer of Legal Affairs, west Bengal vs. Anil Kuamr Bhunja and Others, supra. 11. In State of Bihar vs. Ramesh Singh, AIR 1977 Supreme Court 2018, the Hon’ble Supreme Court while considering the law on the point of discharge or framing of charge under Sections 227 and 228 Cr.P.C, respectively, has laid down the following law in para 4 of the report:- “Under S. 226 of the Code while opening the case for the prosecution the prosecutor has got to describe the charge against the accused and state by what evidence he proposes to prove the guilt of the accused. Thereafter comes at the initial stage the duty of the Court to consider the record of the case and the documents submitted therewith and to hear the submissions of the accused and the prosecution in that behalf. The Judge has to pass thereafter an order either under S. 227 or S. 228 of the Code. If "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", so enjoined by S. 227. If, on the other hand, "the Judge is of opinion that there is ground for presuming that the accused has committed an offence which ...... ...... (b) in exclusively triable by the Court, he shall frame in writing a charge against the accused", as provided in S. 228. Reading the two 13 provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under S. 227 or S. 228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for 14 the purpose of deciding prima facie whether the Court should proceed with the trial or not. If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it 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. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. 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 S. 227 or S. 228, then in such a situation ordinarily and generally the order which will have to be made will be one under S. 228 and not under S. 227.” 12. To the similar effect is the law laid down by the Hon’ble Apex Court in Niranjan Singh Karam Singh Punjabi, Advocate vs. Jitendra Bhimraj Bijja and others and connected matters, 1990 Cri.L.J. 1869. 13. The law with regard to framing of charge/discharge under Sections 227/228 Cr.P.C is by now fairly settled to the effect that the materials/documents filed by the accused cannot be considered at that stage and instead material produced 15 by the prosecution alone is to be considered and it is only in very rare cases that the High Court in exercise of its powers under Section 482 Cr.P.C and Article 226 of the Constitution can make such orders as may be necessary to prevent abuse of the process of any court or otherwise to secure the ends of justice within the parameters the law laid in Bhajan Lal’s case (1992 Supp (1) Supreme Court Cases 335). In this behalf reference may be made to two recent authoritative pronouncements of law on the subject rendered by the Hon’ble Supreme Court, that is (1) State of Orissa vs. Devendra Nath Padhi, AIR 2005 Supreme Court 359, whereby Satish Mehra vs. Delhi Administration and another, supra was overruled and (2) Rukmini Narvekar vs. Vijaya Satardekar & Ors., 2009 (2) Criminal Court Cases 442. 14. In State of Orissa vs. Devendra Nath Padhi, supra, it has been held as under vide paras 8, 16 and 29:- “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, provides that when it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall 16 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 therewith 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. The decisions proceed on the basis of settled legal position that the material as produced by the prosecution alone is to be considered and not the one produced by the accused. The latter aspect relating to the accused though has not been specifically stated, yet it is implicit in the decisions. It seems to have not been specifically so stated as it was taken to be well settled proposition. This aspect, however, has been adverted to in State Anti-Corruption Bureau, Hyderabad and Another v. P. Suryaprakasam [1999 SCC (Crl.) 373] where considering the scope of Sections 239 and 240 of the Code it was held that at the time of framing of charge, what the trial court is required to, and can consider are only the police report referred to under Section 173 of the Code and the documents sent with it. The only right the accused has at that stage 17 is of being heard and nothing beyond that (emphasis supplied). The judgment of the High Court quashing the proceedings by looking into the documents filed by the accused in support of his claim that no case was made out against him even before the trial had commenced was reversed by this Court. It may be noticed here that learned counsel for the parties addressed the arguments on the basis that the principles applicable would be same - whether the case be under Sections 227 and 228 or under Sections 239 and 240 of the Code. 29. Regarding the argument of accused having to face the trial despite being in a position to produce material of unimpeachable character of sterling quality, the width