IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 26.04.2010 Coram The Honourable Mr. Justice S.TAMILVANAN Crl. R.C.Nos.1013, 1014, 1015, 1016, 1017 and 1018 of 2009 and M.P.Nos.2 to 2 of 2009 1. J.Duraimunusamy ..Petitioner in Crl.R.C.No.1013 of 2009 2. S.Chinnathambi ..Petitioner in Crl.R.C.No.1014 of 2009 3. S.Anbalagan ..Petitioner in Crl.R.C.No.1015 of 2009 4. N.Ravichandran ..Petitioner in Crl.R.C.No.1016 of 2009 5. A.Karrupusamy .. Petitioner in Crl.R.C.No.1017 of 2009 6. R.Anbalagan .. Petitioner in Crl.R.C.No.1018 of 2009 vs. State by The Additional Superintendent of Police CBI:SPE:ACB, Chennai – 6. .. Respondent in all the (Crime No.RC 58(A)2006 revision petitions Revision Petitions filed under Section 397 & 401 of Criminal Procedure Code against the order, dated 21.08.2009 passed in Crl.M.P.Nos.400 of 2009, 399 of 2009, 397 of 2009, 398 of 2009, 395 of 2009 and 396 of 2009 in C.C.No.10 of 2009 on the file of the Additional Special Judge for CBI Cases / IX Additional Judge, City Civil Court, Chennai. For petitioners : Dr.A.E.Chelliah, Senior Counsel for Mr.K.Ramanujam For respondent : Mr.N.Chandrasekaran Special Public Prosecutor for CBI Cases COMMON ORDER All the aforesaid criminal revisions have been preferred separately by the petitioners who are accused in the case in C.C.No.10 of 2009 on the file of the Special Judge for CBI cases / IX Additional Judge, City Civil Court, Chennai. 2. The petitioners herein have sought an order to call for the records in Crl.M.P.Nos. 400 of 2009, 399 of 2009, 397 of 2009, 398 https://hcservices.ecourts.gov.in/hcservices/ of 2009, 395 of 2009 and 396 of 2009 in C.C.No.10 of 2009 on the file of the Court below and to set aside the order, dated 21.08.2009, thereby discharge the petitioners / accused from the charges framed against them. 3. Dr.A.E.Chelliah, learned Senior Counsel appearing for all the revision petitioners submitted that the petitioners have established that they are entitled to be discharged from the alleged offence attributed against them by the respondent / prosecution and that they had filed written submission bringing out the hollowness of the prosecution case and the documents referred to by the prosecution, however, the petitions, seeking discharge of the petitioners under Section 227 of the Code of Criminal Procedure were dismissed by the Court below, without considering the same on merits. The learned Senior Counsel for the petitioners drew the attention of this Court to Section 227 of the Code of Criminal Procedure and argued that the attendance register relating to the accused A1 and A2 was tampered with by their superior officer, in order to convict the accused and further contended that the relevant portion of the document relating to the accused have been erased by using blade. According to the learned Senior Counsel, one Arivumani, clerk shown as L.W.7, on the instructions of Ramasamy, Sub-Inspector of Police, who maintained the attendance register had tampered with the attendance register, however, he was cited only as witness and the learned senior counsel also brought the statement of the Arivumani to the notice of this Court, which reads in Tamil as follows : "13.08.2005 Mk; njjp SI uhkrhkp 03/2005 khjj;jpy; fhtyh; 1025 Jiu KDrhkp. fhtyh; 571 rpd;djk;gp Mfpa ,uz;L fhtyh;fSf;Fk; 24.03.2005Mk; njjp M$h; (X) vd;W nghlg;gl;oUe;jij ghh;j;jhh;/ gpd; vd;id miHj;J ,uz;L fhtyh;fSf;Fk; (P) vd;W khw;wptpLkhW brhd;dhh;/ mth; Kd;dpiyapnyna ,uz;L fhtyh;fSf;Fk; M$h; (X) vd;W ,Ue;jij gpnslhy; Ruz;o mDkjp (P) vd;W khw;wpndd;/ gpd; kPz;Lk; SI uhkrhkp ,uz;L fhtyh;fSf;Fk; M$h; (X) vd;W jpUj;jptpL vd;W brhd;dhh;/ mjd;gona ,uz;L fhtyh;fSf;Fk; mDkjp (P) vd;W khw;wpaij kPz;Lk; M$h; (X) vd;W jpUj;jk; bra;njd;/ SI uhkrhkp brhy;ypj;jhd; ehd; ,e;j jpUj;jj;ij bra;njd;/ 27.03.2005e; njjp vGj;J njh;t[f;Fhpa rkak; TN USRB nghh;oy; DGP Tr.beapy;thy;. ADGP Tr.ghyre;jpud;. IGP Tr.uhjhfpUc&;zd; ,Ue;jhh;fs;/ 4. The translated english version is that on 13.08.2005, Sub- Inspector Ramasamy saw 'X' mark (present) for the month of 03.2005 on 24.03.2005 for PC 1025 Duraimunusamy and PC 571 Chinnathambi. Then he asked the witness, Arivumani to change it as 'P' https://hcservices.ecourts.gov.in/hcservices/ (permission) for the said two constables. In his presence, for both the constables, the said witness used blade and scratched and replaced 'X' (present) by 'P' (permission). Then Sub-Inspector Ramasamy asked the witness to again change it by correcting as 'X' (present). Hence, the change already effected as 'P' (permission) for both the constables were again corrected as 'X' (present). The witness Arivumani did the correction as directed by Sub-Inspector Rangasamy, however he was not arrayed as accused. At the time of examination for the Tamil Nadu Uniformed Service Recruitment Board (TN USRB), the Senior Officers were DGP Nailwal, ADGP Balachandran and IGP Radhakrishnan. 5. It is an admitted fact that on 27.03.2005, examination had to be conducted for the recruitment of Gr.II constables by the Tamil Nadu Uniformed Services Recruitment Board (TN USRB). However, on 01.06.2005, on account of the leakage of the question paper, re- examination was held by the said authority. Subsequently, enquiry was conducted and the report, dated 25.07.2005 was filed by the Enquiry Officer. On 08.12.2005, FIR was registered by the F1 Chinthadripet Police Station for the leakage of question paper and as directed by this Court, the investigation was subsequently entrusted to CBI. After the case was entrusted to the CBI, according to the learned Senior Counsel appearing for the petitioners, FIR was re-registered. Originally there were 87 accused in the case, as per Page Numbers 189 to 200 of the typed set Volume I. After the investigation, charge sheet was filed only against 31 caused on 12.12.2008. One accused passed away, 9 turned approvers, out of the remaining 77 accused, only 31 were shown in the charge sheet and 46 accused were dropped from the case by the prosecution. 6. Learned Senior Counsel drew the attention of this Court to the caption available therein as thus : "Names and address of the accused persons not sent up for trial whether arrested or not arrested including absconders" and pointed out that there is no red ink mark to record the alleged absconding accused. Therefore, according to the learned Senior Counsel, it has to be presumed that there was no absconding accused in the case. 7. Learned Senior Counsel mainly contended that as per the prosecution case, there are two alleged sources of leakage of question paper, out of which, one source is A1 and A2 and the other source is a senior Police Officer, Radhakrishnan, IPS, however, the said IPS Officer was unreasonably dropped from the list of accused by the prosecution for the reasons best known to the respondent herein. The petitions filed for discharge of accused A1 to A5 and A28 were dismissed by the Additional Special Judge for CBI Cases, Chennai on 21.08.2009. According to the learned Senior Counsel, the Court below has not passed the order, considering the vital legal and factual aspects raised on behalf of the petitioners. In the said order, the Court below has simply averred that 30 pages of written https://hcservices.ecourts.gov.in/hcservices/ submissions and 4 pages of additional written submissions were filed by the Senior Counsel and they were carefully perused, however the Court below summarily dismissed the petition, without considering the same on merits. 8. It is not in dispute that criminal appeals were originally filed by the petitioners and later on converted into criminal revisions. Learned Senior Counsel appearing for the petitioners further drew the attention of this Court to the FIRs available in page number 169 to 190 and 180 to 200 of Volume I of the typed set, wherein an unsigned letter, dated 04.06.2005,available at page numbers 16 to 18 of the said Volume I. The unsigned note available at page numbers 19 to 21 of Volume I, unsigned chart available at page number 22 of Volume I and the enquiry report available at page numbers 89 to 164 of Volume I, Forensic Expert opinion touching the attendance register, station daily report relating to A14 available at page numbers 7 to 133 of Volume I, statement of witnesses and accused, available at page numbers 13 to 27 and 400 and unnumbered pages in the respondent's typedset volume and other materials available on record and argued that the prosecution has dropped unreasonably the prime accused, who were the alleged source of leakage of question paper, considering their official status, however, prosecuting the petitioners, who are the constables, who have nothing to do with the alleged offence. The learned Senior Counsel contended that prosecuting only the petitioners is a clear abuse of process and also drew the attention of this Court to Section 212 and 227 Cr.P.C. 9. As contemplated under Section 212 Cr.P.C., the charge framed shall contain such particulars as to the time and place of the alleged offence and the person ( if any) against whom, or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged. 10. As per Section 227 Cr.P.C., if the Judge considered that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. According to the learned Senior Counsel, there is no sufficient ground for proceeding against the petitioners / accused, after dropping 46 accused, including the alleged main source of leakage, Radhakrishnan, IPS. 11. Per contra, Mr.N.Chandrasekaran, learned Special Public Prosecutor appearing for the respondent / complainant submitted that the criminal revision petitions are not legally maintainable. It is not disputed by the learned counsel appearing for the respondent that the case relates to leakage of question paper on 27.03.2005 and also the re-examination held on 01.06.2005 for recruitment of police constables. The case was registered on the orders of this Court in https://hcservices.ecourts.gov.in/hcservices/ W.P.No.25153 of 2005. Subsequently regarding the leakage of question papers leading to the cancellation of exams, enquiry was conducted by P.Thamarai Kannan, IPS, the then Deputy Commissioner of Police, St.Thomas Mount and based on the report submitted by him, FIR in Cr.No.2600 of 2005, dated 08.12.2005 was registered by the Chindadripet Police Station. As ordered by this Court in W.P.No.25153 of 2005, the above said case was investigated by CBI, ACB, Chennai as RC.58(A)/2006 on 26.12.2006 and all the accused persons cited in Cr.No.2600 of 2005 were shown as accused in the FIR registered by the CBI, Chennai. 12. After a detailed investigation, charge sheet was filed before the Special Judge, CBI Cases, Chennai only against 31 accused persons, based on the evidence and materials available against them. The learned Special Public Prosecutor submitted that as per the charges framed, A1, J.Durai Munusamy entered in to a criminal conspiracy with A-2 Chinnathambi during 2005 to cheat TNUSRB in the matter and fraudulently obtaining the question paper for the PC exam in advance. In furtherance of the alleged criminal conspiracy they fraudulently obtained the question paper in advance for the PC exam held on 27-3-05 and gave the same to his relative A-8 Meena who was appearing from the Madurai Centre. Further, he had also distributed the PC exam question paper in advance to his friend A-14 A.Gopalakrishnan at Madurai whose fiancee, A-12 G.Thirumuthu Vallideivanai, who was appearing for the exam from madurai. In addition to that A-1 J.Duraimunusamy also parted with a copy of the question paper to his friend A-3 Anbu @ S.Anbalagan at Chennai. 13. As per the prosecution case A-2 S.Chinnathambi entered into a criminal conspiracy with A-1 J.Durai Munusamy during 2005 to cheat TNUSRB in the matter of fraudulently obtaining the question paper for the PC exam in advance and in furtherance of the criminal conspiracy obtained the question paper in advance for the PC exam held on 27-3-05 and gave the same to his relative A-9 Elamathi who was appearing for the PC Exam. 14. It is stated that A-3 S.Anbalagan entered into a criminal conspiracy with A-1 J.Durai Munusamy during 2005 to chat TNUSRB in the matter of fraudulently obtaining the question paper for the PC exam in advance and in furtherance of the criminal conspiracy fraudulently obtained the question paper in advance for the PC exam held on 27-3-05 and gave the same to his friend N.Ravichandran (A.4), who in turn had distributed the question paper to some other candidates in advance for consideration. 15. It has been stated that A-4 N.Ravichandran entered into a criminal conspiracy with A-3 S.Anbalagan and A-6 S.Devanath during 2005 to cheat TNUSRB in the matter by fraudulently obtaining the question paper for the PC exam in advance and in furtherance of the criminal conspiracy fraudulently obtained the question paper in https://hcservices.ecourts.gov.in/hcservices/ advance for the PC exam held on 27-3-05 from S.Anbalagan and distributed the same to his friend A-5 A.Karuppasamy and also distributed the same to candidates / approvers Mohan (W-67), Sivaraj (W-68) and Alamelu (W-65) for consideration of Rs.20,000/- each from them and also parted with the question paper to candidate Nagamani (A-11). For the re-exam held on 01.06.05, N.Ravichandran (A-4) fraudulently obtained the question paper from S.Devanath (A-6) and distributed the same to A-11 Nagamani and candidates / approvers Mohan, Sivaraj and Alamelu. 16. It is stated that A-5 A.Karuppasamy entered into a criminal conspiracy with A-4 N.Ravichandran and A-6 Devanath during 2005, to cheat TNUSRB in the matter by fraudulently obtaining the question paper for the PC exam in advance and in furtherance of the criminal conspiracy held on 27-3-05 from A-4 N.Ravichandran and dictated the question paper to approver / candidate Kaleeswaran (W-11) and received a sum of Rs.50,000/- as consideration. For the re-exam held on 01.06.05, in furtherance of the criminal conspiracy with A-6 Devanath, the accused petitioner fraudulently obtained the question paper from A-6 and passed on the same to Kaleeswaran (W-11). 17. Similarly, A-28 R.Anbalagan entered into criminal conspiracy with A-27 K.Elumalai during 2005 to cheat TNUSRB in the matter of fraudulently obtaining the question paper for the PC exam in advance and in furtherance of the criminal conspiracy fraudulently obtained the question paper in advance for the PC exam held on 27-3-05 and distributed the same to candidate Sivakumar (LW- 10) and received a consideration of Rs.20,000/- along with A-27 Elumalai. 18. According to the learned Special Public Prosecutor, after providing opportunity and hearing both sides, satisfying himself, the Special Judge for CBI Cases found that prima facie case is made out against the accused persons and hence dismissed the discharge petitions filed by them. Learned Special Public Prosecutor submitted that the probative value of the documents and the prosecution witnesses are not the issue for consideration at the time of deciding the discharge petition and all that the trial Judge has to consider is whether prima facie case is made out or not against the accused on the basis of the materials placed before him. According to him, the statement of W.4.T.Ramasamy would be sufficient to show that the accused A1 and A2, admitted that they had fraudulently obtained the question paper and during the enquiry conducted by Thamarai Kannan, IPS, the said accused persons gave their hand written statement to that effect. Further, A8, Meena, who obtained the question paper from A1 and her father M.Suryanarayanan have clearly stated before the Enquiry Officer that they got the question paper for the police constable examination in advance from A1, Duraimunusamy. According to him, A14, Gopalakrishnan, A3, Anbu @ Anbalagan also gave a signed statement before the Enquiry Officer, https://hcservices.ecourts.gov.in/hcservices/ admitting the fact that he had obtained question paper relating to police constables examination in advance from A1, Duraimunusamy. 19. Learned Special Public Prosecutor contented that the signed statement of A1 Duraimunusay before the Enquiry Officer (D-36, D- 48), the signed statement of A8, Meena (D-122), signed statement of A2 Chinnathambi (D-58), signed statement of A14 Gopalakrishnan (D- 14) and singed statement of A3 Anbalagan (D-63) would clearly make out a case that the accused / petitioners A1 and A2 had obtained question paper for police constable examination fraudulently and distributed the same to others, hence, there is a prima facie case made out against the petitioners, A1 to A5 and A28. 20. Learned Special Public Prosecutor further submitted that the trial court could discharge the accused, only if there is no sufficient ground for proceeding against the accused, by recording the reason for so doing. In the instant case, as there is a prima facie case made out against the petitioners herein and others, there is no illegality or material irregularity in the order passed by the Court below in dismissing the discharge petitions filed by the petitioners herein. 21. In order to enlighten this Court on the legal aspects, the following decisions were cited by both the learned counsel : 1.Yogesh @ Sachin Jagdish Joshi vs. State of Maharashtra, AIR 2008 SC 2991 2. Sathish Mehra vs. Delhi Administration and another, 1996 (9) SCC 766 3. State of Maharashtra vs. Som Nath Thapa, 1996 (4) SCC 659 4. Keshub Mahindra vs. State of M.P, 1996 (6) SCC 129 5. Supdt., and Remembrance of Legal Affairs, W.B., vs. Anil Kumar Bhunja and others, 1979 Crl.L.J 1390 (1) 6. State of Mysore vs.Gundappa and others, 1966 Crl.L.J 273 22. Dr.A.E.Chelliah, learned Senior Counsel appearing for the petitioners drew the attention of this Court to the decision, Keshub Mahindra vs. State of M.P, reported in 1996 (6) SCC 129, wherein the Hon'ble Apex Court has held as follows : 'It is clear from Sections 227 and 228 of Cr.P.C that while exercising jurisdiction under Section 482 Cr.P.C, when the High Court is called upon to quash the charge pursuant to which proceedings at the stage of trial are pending and even when the High Court is called upon to quash proceedings pursuant to complaint, only a prima facie appraisal of the allegations made in the complaint and the material in support thereof has to be done and the court has no jurisdiction to go into the merits of the allegations, as that stage would come when the https://hcservices.ecourts.gov.in/hcservices/ trial proceeds. It is, therefore, necessary to keep in view the limited jurisdiction available to the court regarding the permissible scrutiny of the prosecution case as revealed from the charge-sheet and the materials supporting the same for framing charges against the present accused. " It has been made clear by the ruling of the Apex Court, that the Court has to consider whether the scrutiny of the prosecution case as revealed from the charge-sheet and the materials supporting the same are sufficient for framing charges against the accused, however, the Court cannot go into the merits of the allegations, based on the evidencary value of the supporting materials. 23. In Sathish Mehra vs. Delhi Administration and another, reported in 1996 (9) SCC 766, the Hon'ble SupremeCourt has held as follows : "If the materials produced by the accused even at that early stage would clinch the issue, why should the court shut it out saying that such documents need be produced only after wasting a lot more time in the name of trial proceedings. Hence, the Sessions Judge would be within his powers to consider even materials which the accused may produce at the stage contemplated in Section 227 of the Code." As per this decision, the Apex Court ruled that when the trial court is of the opinion that there is ground to presume that the accused has committed an offence, the procedure laid down therein has to be adopted. When those two sections are put in juxtaposition with each other the test to be adopted becomes discernible : Is there sufficient grounds for proceeding against the accused ? It is axiomatic that the standard of proof normally adhered to at the final stage is not to be applied at the stage contemplated, under Section 227 of the Code. 24. In Yogesh @ Sachin Jagdish Joshi vs. State of Maharashtra, reported in AIR 2008 SC 2991, the Ho'ble Apex Court held that words "not sufficient ground for proceeding against the accused" and Section 227 postulate exercise of judicial mind by the Judge. At this stage, he is not required to see as to whether trial will end in conviction or not. 25. In State of Mysore vs.Gundappa and others, reported in 1966 Crl.L.J 273, the Mysore High Court has held that unless records before the Magistrate disclose no basis or foundation for framing charge, he cannot discharge and hence, at this stage, elaborate scrutiny of police statements and other records is not necessary. https://hcservices.ecourts.gov.in/hcservices/ 26. In State of Maharashtra vs. Som Nath Thapa, reported in 1996 (4) SCC 659, the Three Judge Bench of the Hon'ble Apex Court held that if there is ground for presuming that the accused has committed the offence and the court can justifiably say that a prima facie case against the accused exists and frame charge against him based on the allegation and the prima facie material relating to that offence. At the stage of framing of charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage of framing charge. 27. In the instant case, according to the learned Senior Counsel appearing for the petitioners, Radhakrishnan, IPS, the then Member Secretary of the Tamil Nadu Uniformed Services Recruitment Board was an accused in both the FIR's relating to the year 2005, however, he was dropped and his name does not find a place in the charge sheet prepared in the year 2006. He had been stated as one of the main source of alleged leakage of the question paper, as per the earlier FIR. After dropping his name, there is a delink to connect the petitioners / accused with the crime and therefore, prosecuting the petitioners / accused is a futile attempt on the part of the respondent. 28. Per contra, learned Special Public Prosecutor submitted that after the investigation, it was found that there is no prima facie material against some of the persons, who were originally arrayed as accused, including the then member Secretary, Radhakrishnan, IPS. 29. On the petition, the attendance registers relating to the petitioners / A1 and A2 was called for from the Court below. The learned Senior Counsel appearing for the petitioners drew the attention of this Court to the relevant pages and also the statement relating to the entry made for the presence of the first petitioners / A1 and A2, subsequent erasing of the same and also the entry for their person. According to the learned Special Public Prosecutor appearing for the respondent, the evidenciary value of the alleged correction or manipulation made in the attendance register can be decided only after the trial. The suspicious circumstance raised by the learned Senior Counsel appearing for the petitioners relating to the incredibility of the probative value of the evidence available on record and relating to the prosecution case, cannot be decided to decide the discharge petition. 30. In the light of the various decisions cited by both the learned counsel, it has been made clear that under Section 227 Cr.P.C, if the trial Judge considers that there is no sufficient grounds for proceeding the case against the accused, he shall discharge the accused and record his reasons for so doing. https://hcservices.ecourts.gov.in/hcservices/ 31. It is an admitted proposition of law that as per the adversarial system of criminal jurisprudence, the prosecution has to establish the guilt beyond reasonable doubt, otherwise the benefit of doubt should be given to the accused and the accused would be entitled to be acquitted, however, at the time of framing of charge under Section 228 Cr.P.C, the Court has to consider whether there is prima facie case made out or not, based on the materials available on record. The probative value or the evidenciary value cannot be gone into by Court, while framing charges. 32. It has been categorically held by the Hon'ble Apex Court and this Court by various decision, that at the stage of framing of charge, probative value of the materials on record cannot be gone into and the materials brought on record by the prosecution to substantiate allegation has to be accepted as