1. By way of preferring this application under Section 482 of the Code of Criminal Procedure, 1973, Page 1 of 36 Downloaded on : Fri Apr 19 21:25:57 IST 2024 NEUTRAL CITATION R/CR.MA/19324/2017 JUDGMENT DATED: 12/04/2024 undefined the applicant seeks to invoke the inherent powers of this Court praying for the following relief/s:

2. The facts as narrated in the memo of the Page 2 of 36 Downloaded on : Fri Apr 19 21:25:57 IST 2024 NEUTRAL CITATION R/CR.MA/19324/2017 JUDGMENT DATED: 12/04/2024 undefined application, can be summarized in nutshell as under:

Officer, 3. M.C.Patel Director, 4. Shri K.J.Soni Director officer and Dy. Manager Vigilance Gujarat State Civil Supply Corporation Ltd. Ghandhinagar, had inspected and verified the office of the said Zalod Godown of the Government of Gujarat and the Team found some irregularities and violation of Page 3 of 36 Downloaded on : Fri Apr 19 21:25:57 IST 2024 NEUTRAL CITATION R/CR.MA/19324/2017 JUDGMENT DATED: 12/04/2024 undefined Rules of G.R. and instructions with regard to distribution of commodities to Fair Price Shops from the Godown. That on finding alleged irregularities in maintaining registers particularly H-Register and violation of Govt. Resolutions, the Collector, Dahod issued order to lodge F.I.R. against the present petitioner and three other co accused, on the basis of so called reports from the Manager Vigilance and Director of Guj. State Civil Supply Corp. Ltd Gandhinagar. So the complainant Shri Mukeshbhai Navnitlal Sheth, Mamlatdar Supply Dahod, Chakaliya Road Office, Dahod had filed written complaint dated 30/06/2011 before the Police Inspector, Zalod against present petitioner and three other co accused, The Police ultimately has registered the F.I.R. being C.R.No.II-37 of 2011 under Sec. 3 and 7 of the Essential Commodities Act 1995 on 04/10/2011.

2.8. That the petitioner and other accused were arrested by the police and presented before the Learned Judicial Magistrate Zalod on 06/10/2011 and on the same day they have been released on bail.

2.9. As the petitioner is not guilty of the offence enumerated in final charge sheet being Cri. Case No.1987 of 2011 pending before the learned J.M.F.C., Zalod, the petitioner had preferred discharge application at Exh.17 dated 05.07.2016 under Section 239 of Cr.P.C. before the learned J.M.F.C., Zalod. The learned J.M.F.C. pleased to reject the said application at Exh.17 vide order dated 28.11.2016.

2.10. That being dissatisfied, the petitioner preferred Revision Application No.42 of 2016 before the learned Sessions Judge, Dahod on 21.12.2016. That learned Second Additional Sessions Judge, Dahod has also rejected said Criminal Revision Application No.42 of 2016 on 13.06.2017. Hence, present petition is filed challenging the aforesaid orders.

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3. Heard learned advocate Mr. Karansinh Solanki for the applicant and learned APP Mr. Dhawan Jayswal for the respondent - State.

4. Learned advocate Mr. Solanki submitted that one FIR being C.R.No.II-37/2011 has been registered on 04.10.2011 with Jhalod Police Station, District Dahod against total four accused persons for the offence punishable under Sections 3 and 7 of the Essential Commodities Act, 1995. It is stated in the said FIR that the said incident is occurred during the period between February, 2008 to 21.05.2011. On the strength of the said FIR, investigation has been carried out in particular direction and ultimately at the end of day, charge-sheet has been filed by the concerned investigating officer against the accused persons before the competent Court. The Court concerned took cognizance upon the charges levelled against the accused persons and issued summons which was duly served to the accused and therefore they appeared through their advocate and preferred applications at Exh.17 and 18 in Criminal Case No.1987 of 2011 under Section 239 of the Code of Criminal Procedure, 1973, seeking discharge from the charges levelled against them. After affording an opportunity of hearing to both the parties as well as considering the material available on record, vide order dated 28.11.2016 passed below applications Exh.17 and 18, the learned Judicial Magistrate First Class, Jhalod came to a Page 5 of 36 Downloaded on : Fri Apr 19 21:25:57 IST 2024 NEUTRAL CITATION R/CR.MA/19324/2017 JUDGMENT DATED: 12/04/2024 undefined definite conclusion that prima facie there are enough material found out against the accused persons and therefore they could not have been discharged from the charges levelled against them. At the time of deciding the said applications, learned Judge has specifically observed that for the purpose of proving the charge levelled against the applicants accused, certain important evidences are required to be led by the investigating agency and without examining the witnesses and allowing the prosecuting agency to bring correct evidence on record, the prosecuting agency could not be in a position to lead said evidences. Therefore, by making aforesaid observations, the learned J.M.F.C., Jhalod rejected the said applications.

5. Being aggrieved by and dissatisfied with the said judgment and order passed by the learned J.M.F.C., Jhalod, the applicant challenged the said order by preferring Criminal Revision Application No.42 of 2016 before the District Court, Dahod. After considering and appreciating the material placed on record and after affording opportunity of hearing to both the parties, the Second Additional Sessions Judge, Dahod came to the conclusion that judgment and order passed by the J.M.F.C., Jhalod is just, fair and reasonable and reasons assigned by the learned J.M.F.C. have been confirmed by reiterating the said finding, reasons and observations. Therefore, being aggrieved by and dissatisfied with the above stated Page 6 of 36 Downloaded on : Fri Apr 19 21:25:57 IST 2024 NEUTRAL CITATION R/CR.MA/19324/2017 JUDGMENT DATED: 12/04/2024 undefined two judgments and orders passed by the learned J.M.F.C., Jhalod and learned Second Additional Sessions Judge, Dahod, the applicant has preferred present application.

6. Learned advocate Mr. Solanki submitted that in fact FIR is filed against four accused persons and during the pendency of the present proceedings, one of the co-accused viz. K. K. Katara is passed away and therefore an application with death certificate of the said accused is produced before the concerned Court. Considering the above stated factual aspects, proceedings qua the said accused have been abated by the concerned Court. Learned advocate Mr. Solanki submitted that present applicant accused was working as Godown Manager at that relevant point of time. Learned advocate Mr. Solanki further submitted that just to maintain the public distribution system in control, at regular interval, certain circulars/notifications and regulations are issued by the State of Gujarat, which used to be published in Government Gazette and on the strength of the said guidelines and norms prepared and issued by the Government of Gujarat, the concerned Godown Manager has to act and carry out all the modes of work of operations by strictly adhering and complying with the said terms and conditions mentioned in the guidelines. Learned advocate Mr. Solanki further submitted that along with the present petition, he has also produced the copies of certain circulars Page 7 of 36 Downloaded on : Fri Apr 19 21:25:57 IST 2024 NEUTRAL CITATION R/CR.MA/19324/2017 JUDGMENT DATED: 12/04/2024 undefined which were in existence at the relevant point of time. He read the contents of the said circulars and submitted that for the sake of argument and without admitting it, if all the charges levelled against the present applicant are accepted in its entirety, in that event, at the most, it can be construed that there was lack of supervision and/or dereliction of duty on the part of the present applicant accused and for such default, departmental inquiry is required to be instituted. Admittedly, here in the case on hand, on the strength of certain defaults committed by the applicant as well as other co-accused persons, departmental inquiry had already been instituted by the concerned authority and applicant accused put through the said rigorous proceedings and ultimately after completion of the said inquiry, applicant has been exonerated by the concerned authority. Learned advocate Mr. Solanki submitted that whatever terms, norms, conditions and rules applicable to the applicant accused at that relevant point of time have been used and utilized by the concerned authority and therefore by no stretch of imagination it can be construed that any penal provision is required to be instituted against the present applicant. Learned advocate Mr. Solanki further submitted that at the time of registration of the FIR and submission of charge-sheet against the present applicant accused, prosecuting agency has put emphasis upon Section 6 of the Public Distribution System (Control) Order, 2001, and more particularly, given weightage to clause No. Page 8 of 36 Downloaded on : Fri Apr 19 21:25:57 IST 2024 NEUTRAL CITATION R/CR.MA/19324/2017 JUDGMENT DATED: 12/04/2024 undefined (4) of Section 6 , which reads as under:

7. Learned advocate Mr. Solanki submitted that for the purpose of invoking the provisions of Section 6(4) of the Public Distribution System (Control) Order, 2001, the ingredients mentioned in the explanation are required to be fulfilled. Admittedly, those requirements are not fulfilled in the instant case. He read the definitions of 'diversion' as well as 'substitution' mentioned in the explanation given under Section 6 of the Public Distribution System (Control) Order, 2001 and submitted that 'diversion' means, 'unauthorized movement or delivery of essential commodities released from central godowns but not reaching to the intended beneficiaries under the Public Distribution System'. Learned advocate Mr. Solanki submitted that if this Hon'ble Court would go through the charge of accusations levelled against the applicant accused in the compilation of charge- sheet papers, in that event, it would be found out that statement of the said shop owners whose consent Page 9 of 36 Downloaded on : Fri Apr 19 21:25:57 IST 2024 NEUTRAL CITATION R/CR.MA/19324/2017 JUDGMENT DATED: 12/04/2024 undefined was not obtained at the time of distribution of food- grain items are not forming part of the charge-sheet papers and in absence of those essential evidences, prosecuting agency would not be able to prove the charges levelled against the present applicant. Learned advocate Mr. Solanki further submitted that the case of the prosecution is that applicant being Godown Manager has to supply and distribute the food- grain items to the authorized person of the shop owners viz. Adivasi Mahila Mandal, Madhva as well as Smt. A. J. Pargi, Nani Charoli. Learned advocate Mr. Solanki submitted that the muddamal food grain items were handed over to the authorized agent of those shop owners viz. Kachrubhai and at the time of handing over the goods, signature of said Kachrubhai was taken in 'H' Register and copy of the said 'H' Register is placed on record which clearly goes on to show that the said food grain items were distributed to the said shop owners through Kachrubhai. Admittedly, said Kachrubhai was not possessing any authorized consent letter of those two shop owners; thus, default is committed by the present applicant accused by handing over the goods to said Kachrubhai without verifying the availability of the consent letter. Learned advocate Mr. Solanki submitted that in fact for the said default committed by the applicant accused, as per the norms and rules of the Government, the applicant has already faced the departmental inquiry proceedings, however, at the end of the day, he has been exonerated from the said Page 10 of 36 Downloaded on : Fri Apr 19 21:25:57 IST 2024 NEUTRAL CITATION R/CR.MA/19324/2017 JUDGMENT DATED: 12/04/2024 undefined charges levelled against him by the concerned authority. Whereas, for the purpose of invoking the provisions of Section 6(4) of the Public Distribution System (Control) Order, 2001, the prosecuting agency has to prove the unauthorized movement or delivery of essential commodities released from central godowns but not reaching the intended beneficiaries under the Public Distribution System. For the purpose of proving the said charge, prosecuting agency has to come with a specific case that the goods released from central godown has not been reached to the real and intended beneficiaries. For the purpose of proving the said charge, the investigating officer has to record the statement of those shop owners but record shows that statements of those two shop owners are not forming part of charge-sheet and in absence of statements of those shop owners, the applicant accused is required to be discharged from the charges levelled against him as prosecution would not be able to bring those set of evidence on record and if trial would permit to continue then entire exercise to conduct trial would become futile.

8. Learned APP Mr. Jayswal has objected present application with vehemence and submitted that immediately after the submission of charge-sheet, the applicant accused has preferred discharge application and after considering the arguments canvassed by learned advocates of rival parties as well as material placed on record, learned Judge has thought Page 11 of 36 Downloaded on : Fri Apr 19 21:25:57 IST 2024 NEUTRAL CITATION R/CR.MA/19324/2017 JUDGMENT DATED: 12/04/2024 undefined it fit not to consider that application and observed that without leading evidence prosecuting agency would not be in a position to bring the correct facts on record. Therefore, the said order is challenged by way of preferring criminal revision application before the learned District Court, Dahod. The said revision application also came to be dismissed by reiterating the same facts. Therefore, present application is filed challenging both the aforesaid orders passed by the learned J.M.F.C., Jhalod as well as learned Second Additional Sessions Judge, Dahod. Learned APP Mr. Jayswal submits that it is well within the knowledge of one and all that the High Court ordinarily will not interfere with the concurrent findings of fact except in exceptional cases and the case on hand does not fall under the category of exceptional case. Learned APP further submitted that at the time of submission of charge- sheet, the Investigating Officer collected ample material and evidences and submitted charge-sheet against the accused persons and those set of evidences are required to be brought on record by permitting the prosecution through leading evidence and recording deposition of the witnesses and therefore at this juncture, present application may not be entertained. Learned APP Mr. Jayswal, therefore, submitted that considering the above stated factual aspects, the application may be rejected.

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9. I have heard the learned advocates appearing for both the parties. I have also gone through the material placed on record. It is found out from the record that FIR being C.R.No.II-37/2011 has been registered on 04.10.2011 with Jhalod Police Station, District Dahod against total four accused persons for the offence punishable under Sections 3 and 7 of the Essential Commodities Act, 1995. On the strength of the registration of the FIR, investigation has been carried out in particular direction and ultimately at the end of day, charge-sheet has been filed by the concerned investigating officer against the accused persons before the competent Court. Simultaneously, departmental inquiry proceedings also initiated against the applicant accused and other accused persons. However, at the end of the day, the applicant has been exonerated from the charges levelled against him by the concerned authority in the departmental inquiry proceedings.

10 Thereafter, the applicant and another co-accused person appeared through their advocate and preferred applications at Exh.17 and 18 in Criminal Case No.1987 of 2011 under Section 239 of the Code of Criminal Procedure, 1973, seeking discharge from the charges levelled against them. After affording an opportunity of hearing to both the parties as well as considering the material available on record, the learned Judicial Magistrate First Class, Jhalod rejected the said applications.

NEUTRAL CITATION R/CR.MA/19324/2017 JUDGMENT DATED: 12/04/2024 undefined 10.1. Being aggrieved by and dissatisfied with the said judgment and order passed by the learned J.M.F.C., Jhalod, the applicant challenged the said order by preferring Criminal Revision Application No.42 of 2016 before the District Court, Dahod. After considering and appreciating the material placed on record and after affording opportunity of hearing to both the parties, the Second Additional Sessions Judge, Dahod also rejected the said application. Therefore, being aggrieved by and dissatisfied with the above stated two judgments and orders passed by the learned J.M.F.C., Jhalod and learned Second Additional Sessions Judge, Dahod, the applicant has preferred present application.

11. It is found out from the record that applicant accused was working as Godown Manager at that relevant point of time and now he retires from the service. It is the specific case of the prosecution that applicant accused has worked as a Godown Manager during the period between 06.06.2008 to 14.07.2010 i.e. when the so-called incident is occurred. With a sole intent to maintain regularity and control in the public distribution system, at regular interval, certain circulars/notifications and regulations came to be issued by the State of Gujarat and on the strength of the said guidelines and norms prepared and issued by the Government of Gujarat, the concerned Godown Manager has to act. It is alleged against the applicant accused that being a Godown Page 14 of 36 Downloaded on : Fri Apr 19 21:25:57 IST 2024 NEUTRAL CITATION R/CR.MA/19324/2017 JUDGMENT DATED: 12/04/2024 undefined Manager he has to supply and distribute the food- grain items to the authorized person of the shop owners.

12. It is the specific case of the prosecution that as per the job profile of the Depot Manager, he has to verify the veracity of the ownership of the shops and after obtaining signature in the 'H' Register, he has to distribute the food grain items to the concerned shop owners. The said entire work is to be supervised by the Godown Manager. It is found out from the record that during the period in question, as per the case of the prosecution, the applicant accused had handed over food grain items of 12 fair price shops and three private shops to one Kachrubhai Prajapati, who had obtained consent letter from the concerned shop owners by taking his signature in 'H' Register and therefore it appears that without any prior permission from the competent authority, the said goods had been handed over to the person who was not the owner of the shops - the intended beneficiary. It is found out from the record that the goods (food grain items) of other four shops were also handed over to said Kachrubhai Prajapati by taking his signature in 'H' Register. It is also found out from the record that without any authority and competency certificate issued by the competent authority, food gran items of two shop owners viz. Shri T.C. Pandor and Shri M.V. Patel had been handed over to the said person. It is also found out from the record that at the time of handing over the goods Page 15 of 36 Downloaded on : Fri Apr 19 21:25:57 IST 2024 NEUTRAL CITATION R/CR.MA/19324/2017 JUDGMENT DATED: 12/04/2024 undefined to Shri Kachrubhai Prajapati, his signature was obtained in 'H' Register but the said Kachrubhai Prajapati was not having any competency to take the goods from the godown as he is not authorized by the competent authority by issuing consent letter. It is the duty of the Godown Manager to verify as to whether the authorized agent possesses the consent letter of the concerned shop owners to receive goods on their behalf or not and after verifying and scrutinizing all those set of documents, the said goods can be handed over if at all he found all the documents in order. The record shows that the said Kachrubhai Prajapati was not authorised by shop owners by consent letter to carry the said goods from the godown, even though, the food grain items were handed over to him and therefore criminal prosecution has been launched against the present applicant.

13. Now, for the purpose of proving the charges and accusations levelled against the applicant accused, prosecution must have to prove that the goods released from central godowns had not been reached to the intended beneficiaries and for the purpose of proving the said charge, statements of that intended beneficiaries are required to be recorded. However, admittedly, at the time of submission of charge- sheet, statements of the intended beneficiaries i.e. the shop owners have not been recorded by the investigating officer. In short, statement of those shop owners is not forming part of the charge-sheet Page 16 of 36 Downloaded on : Fri Apr 19 21:25:57 IST 2024 NEUTRAL CITATION R/CR.MA/19324/2017 JUDGMENT DATED: 12/04/2024 undefined papers and in absence of such important piece of evidence, prosecution would not be in a position to prove the charges levelled against the applicant accused. As per the case of the prosecution, the said Kachrubhai Prajapati was the authorized agent and he had also made signature in 'H' Register at the time of receiving the goods. However, he has not supplied consent letter purportedly signed and/or issued by the shop owners but after receiving the said goods, whether the said goods have been reached to the shop owners or not is also an important point involved in this matter. Moreover, for the purpose of proving the charge of misappropriation levelled against the applicant accused, the fact that the goods were missing and/or misappropriated by the person concerned is also required to be proved. Thus, for the purpose of proving the charges levelled against the applicant accused, the statements/evidences of those persons (owners of shops) are required to be brought on record and at the time of hearing of this application, a specific query was put to learned APP as to whether the statements of those persons were recorded or not and after verifying the record, learned APP has fairly conceded that statements of those persons are not forming part of the charge- sheet papers.

14. It is pertinent to note that at the time of registration of the FIR and submission of charge- sheet against the present applicant accused, the Page 17 of 36 Downloaded on : Fri Apr 19 21:25:57 IST 2024 NEUTRAL CITATION R/CR.MA/19324/2017 JUDGMENT DATED: 12/04/2024 undefined prosecuting agency has put reliance upon clause No. (4) of Section 6 of the Public Distribution System (Control) Order, 2001, which reads as under:

15. It is required to be noted that for invocation of the aforesaid provisions, the explanation given in the said Section is also required to be seen. Explanation (i) provides that 'diversion' means unauthorized movement or delivery of essential commodities released from central godowns but not reaching the intended beneficiaries under the Public Distribution System. It is the specific case of the applicant accused that the muddamal food grain items were handed over to the authorized agent of those shop owners viz. Kachrubhai and at the time of handing over the goods, signature of said Kachrubhai was taken in 'H' Register. Copy of the said 'H' Register is also placed on record which clearly goes on to show that the said food grain items were distributed to the said shop owners through Page 18 of 36 Downloaded on : Fri Apr 19 21:25:57 IST 2024 NEUTRAL CITATION R/CR.MA/19324/2017 JUDGMENT DATED: 12/04/2024 undefined Kachrubhai. It is true that said Kachrubhai was not having any authorized consent letter of those two shop owners and therefore at the best it can be said that there is dereliction of duty on the part of the applicant accused in handing over the goods to said Kachrubhai without verifying the contents of the consent letter. In fact for the said default committed by the applicant accused, as per the norms and rules of the Government, the applicant has already faced the departmental inquiry proceedings, however, at the end of the day, he has been exonerated from the said charges levelled against him by the concerned authority.

16. As per the explanation (i) given in Section 6 of the Public Distribution System (Control) Order, 2001, the prosecuting agency has to prove the unauthorized movement or delivery of essential commodities released from central godowns but not reaching the intended beneficiaries under the Public Distribution System. For the purpose of proving the said charge, prosecuting agency has to come with a specific case that the goods released from central godown has not been reached to the real and intended beneficiaries. For the purpose of proving the said charge, the investigating officer has to rely upon the statements of those shop owners and admittedly the statements of those shop owners are not forming part of the charge- sheet papers and in absence of statement of those shop owners and considering the material available on Page 19 of 36 Downloaded on : Fri Apr 19 21:25:57 IST 2024 NEUTRAL CITATION R/CR.MA/19324/2017 JUDGMENT DATED: 12/04/2024 undefined record, I am of the opinion that, at the end of trial, the chances of conviction of the applicant would be bleak and therefore continuation of criminal proceedings against the applicant would nothing but an exercise in futility.

17. Now, at this juncture, before adverting to the issue involved in the present matter, I would like to refer to and rely upon the observations made by the Hon'ble Apex Court in the recent pronouncements, more particularly, in the case of Ghulam Hassan Beigh v. Mohammad Maqbool Magrey & Ors. , rendered in Criminal Appeal No. of 2022 arising out of S.L.P. (Criminal) No.4599 of 2021.

"18. The purpose of framing a charge is to intimate to the accused the clear, unambiguous and precise nature of accusation that the accused is called upon to meet in the course of a trial. [See: decision of a Four Judge Bench of this Court in V.C. Shukla v. State through C.B.I. reported in1980 Supp SCC 92: 1980 SCC (Cri) 695).

19. The case may be a sessions case, a warrant case, or a summons case, the point is that a prima facie case must be made out before a charge can be framed. Basically, there are three pairs of sections in the CrPC . Those are Sections 227 and 228 relating to the sessions trial; Section 239 and 240 relatable to trial of warrant cases, and Sections 245(1) and (2) with respect to trial of summons case.

20. Section 226 of the CrPC, over a period of time has gone, in oblivion. Our understanding of the provision of Section 226 of the CrPC is that before the Court proceeds to frame the charge against the accused, the Public Prosecutor owes a Page 20 of 36 Downloaded on : Fri Apr 19 21:25:57 IST 2024 NEUTRAL CITATION R/CR.MA/19324/2017 JUDGMENT DATED: 12/04/2024 undefined duty to give a fair idea to the Court as regards the case of the prosecution.

21. This Court in the case of Union of India v. Prafulla Kumar Samal and another , (1979) 3 SCC 4, considered the scope of enquiry a judge is required to make while considering the question of framing of charges. After an exhaustive survey of the case law on the point, this Court, in paragraph 10 of the judgment, laid down the following principles :

22. There are several other judgments of this Court delineating the scope of Court's powers in respect of the framing of charges in a criminal case, one of those being Dipakbhai Jagdishchndra Patel v. State of Gujarat , (2019) 16 SCC 547, wherein the law relating to the framing of charge and discharge is discussed elaborately in paragraphs 15 and 23 resply and the same are reproduced as under:

"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 Page 23 of 36 Downloaded on : Fri Apr 19 21:25:57 IST 2024 NEUTRAL CITATION R/CR.MA/19324/2017 JUDGMENT DATED: 12/04/2024 undefined 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 fullfledged trial and the question is not whether the prosecution has made out the case for the conviction of the accused. All that is required is, the Court must be satisfied that with the materials available, a case is made out for the accused to stand trial. A strong suspicion suffices. However, a strong suspicion must be founded on some material. The material must be such as can be translated into evidence at the stage of trial. The strong suspicion cannot be the pure subjective satisfaction based on the moral notions of the Judge that here is a case where it is possible that accused has committed the offence. Strong suspicion must be the suspicion which is premised on some material which commends itself to the court as sufficient to entertain the prima facie view that the accused has committed the offence."

23. In Sajjan Kumar v. CBI [(2010) 9 SCC 368 :

24. The exposition of law on the subject has been further considered by this Court in State v. S. Selvi , (2018) 13 SCC 455 : (2018) 3 SCC (Cri) 710, followed in Vikram Johar v. State of Uttar Pradesh , (2019) 14 SCC 207 : 2019 SCC OnLine SC 609 : (2019) 6 Scale 794.

25. In the case of Asim Shariff v. National Investigation Agency , (2019) 7 SCC 148, this Court, to which one of us (A.M. Khanwilkar, J.) was a party, in so many words has expressed that the trial court is not expected or supposed to hold a mini trial for the purpose of marshalling the evidence on record. We quote the relevant observations as under:

(emphasis supplied)

26. In the case of State of Karnataka v. M.R. Hiremath , reported in (2019) 7 SCC 515, this Court held as under:

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 charge and should not act as a mere post office. The endorsement on the charge sheet presented by the police as it is without applying its mind and without recording brief reasons in support of its opinion is not countenanced by law. However, the material which is required to be evaluated by the Court at the time of framing charge should be the material which is produced and relied upon by the prosecution. The sifting of such material is not to be so meticulous as would render the exercise a mini trial to find out the guilt or otherwise of the accused. All that is required at this stage is that the Court must be satisfied that the evidence collected by the prosecution is sufficient to presume that the accused has committed an offence. Even a strong suspicion would suffice. Undoubtedly, apart from the material that is placed before the Court by the prosecution in the shape of final report in terms of Section 173 of CrPC, the Court may also rely upon any other evidence or material which is of sterling quality and has direct bearing on the Page 28 of 36 Downloaded on : Fri Apr 19 21:25:57 IST 2024 NEUTRAL CITATION R/CR.MA/19324/2017 JUDGMENT DATED: 12/04/2024 undefined charge laid before it by the prosecution. (See :

28. In Amit Kapoor v. Ramesh Chander , (2012) 9 SCC 460, this Court observed in paragraph 30 that the Legislature in its wisdom has used the expression "there is ground for presuming that the accused has committed an offence". There is an inbuilt element of presumption. It referred to its judgement rendered in the case of State of Maharashtra v. Som Nath Thapa and others , (1996) 4 SCC 659, and to the meaning of the word "presume", placing reliance upon Blacks' Law Dictionary, where it was defined to mean "to believe or accept upon probable evidence"; "to take as true until evidence to the contrary is forthcoming". In other words, the truth of the matter has to come out when the prosecution evidence is led, the witnesses are crossexamined by the defence, incriminating material and evidences put to the accused in terms of Section 313 of the Code, and then the accused is provided an opportunity to lead defence, if any. It is only upon completion of such steps that the trial concludes with the Court forming its final opinion and delivering its judgement....." (emphasis supplied) 17.1. The Hon'ble Apex Court has in Vishnu Kumar Shukla & Anr. v. the State of Uttar Pradesh & Anr. , rendered in Criminal Appeal No.3618 of 2023 (Special Leave Petition (Cri.) No.8658 of 2017, observed and held as under:

settled, courtesy, inter alia, State of Bihar v Ramesh Singh , (1977) 4 SCC 39; Union of India v Prafulla K Samal , (1979) 3 SCC 4; Stree Atyachar Virodhi Parishad v Dilip N Chordia , (1989) 1 SCC 715; Niranjan Singh Karam Singh Punjabi v Jitendra B Bijjaya, (1990) 4 SCC 76; Dilawar B Kurane v State of Maharashtra , (2002) 2 SCC 135; Chitresh K Chopra v State (Government of NCT of Delhi), (2009) 16 SCC 605; Amit Kapoor v Ramesh Chander , (2012) 9 SCC 460; Dinesh Tiwari v State of Uttar Pradesh , (2014) 13 SCC 137; Dipakbhai Jagdishchandra Patel v State of Gujarat , (2019) 16 SCC 547; and State (NCT of Delhi) v Shiv Charan Bansal , (2020) 2 SCC 290. We need only refer to some, starting with Prafulla K Samal (supra), where, after considering Ramesh Singh (supra), K P Raghavan v M H Abbas , AIR 1967 SC 740 and Almohan Das v State of West Bengal, (1969) 2 SCR 520, it was laid down as under:

NEUTRAL CITATION R/CR.MA/19324/2017 JUDGMENT DATED: 12/04/2024 undefined (2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly 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 court 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.' (emphasis supplied)

21. In Niranjan Singh Karam Singh Punjabi (supra), this Court was alive to reality, stating that '... it cannot be expected even at the 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.' If a view gives rise to suspicion, as opposed to grave suspicion, the Court concerned is empowered to discharge the accused, as pointed out in Sajjan Kumar v Central Bureau of Investigation , (2010) 9 SCC 368. The Court, in Dinesh Tiwari (supra) had reasoned that if the Page 31 of 36 Downloaded on : Fri Apr 19 21:25:57 IST 2024 NEUTRAL CITATION R/CR.MA/19324/2017 JUDGMENT DATED: 12/04/2024 undefined Court concerned opines that there is ground to presume the accused has committed an offence, it is competent to frame a charge even if such offence is not mentioned in the Charge Sheet. As to what is 'strong suspicion', reference to Dipakbhai Jagdishchandra Patel (supra) is warranted, where it was explained that it is '... the suspicion which is premised on some material which commends itself to the court as sufficient to entertain the prima facie view that the accused has committed the offence.'

22. In a recent judgement viz. State of Gujarat v Dilipsinh Kishorsinh Rao , 2023 INSC 89414, this Court held:

Nothing in the Code limits the ambit of such hearing, to oral hearing and oral arguments only and therefore, the trial court can consider the material produced by the accused before the I.O.

10. It is settled principle of law that at the stage of considering an application for discharge the court must proceed on an assumption that the material which has been brought on record by the prosecution is true and evaluate said material in order to determine whether the facts emerging from the material taken on its face value, disclose the existence of the ingredients necessary of the offence alleged. ...

11. The defence of the accused is not to be looked into at the stage when the accused seeks to be discharged. The expression "the record of the case" used in Section 227 Cr.

NEUTRAL CITATION R/CR.MA/19324/2017 JUDGMENT DATED: 12/04/2024 undefined P.C. is to be understood as the documents and articles, if any, produced by the prosecution. The Code does not give any right to the accused to produce any document at the stage of framing of the charge. The submission of the accused is to be confined to the material produced by the investigating agency.

12. The primary consideration at the stage of framing of charge is the test of existence of a prima-facie case, and at this stage, the probative value of materials on record need not be gone into. This Court by referring to its earlier decisions in the State of Maharashtra v. Som Nath Thapa , (1996) 4 SCC 659 and the State of MP v. Mohan Lal Soni, (2000) 6 SCC 338 has held the nature of evaluation to be made by the court at the stage of framing of the charge is to test the existence of prima-facie case. It is also held at the stage of framing of charge, the court has to form a presumptive opinion to the existence of factual ingredients constituting the offence alleged and it is not expected to go deep into probative value of the material on record and to check whether the material on record would certainly lead to conviction at the conclusion of trial.' (emphasis supplied)

23. On a careful conspectus of the legal spectrum, juxtaposed with our view on the facts and merits expressed hereinbefore, we are satisfied that there is no suspicion, much less strong or grave suspicion that the appellants are guilty of the offence alleged. It would be unjustified to make the appellants face a full- fledged criminal trial in this backdrop. In an appeal dealing with the refusal of the High Court to quash an FIR under Section 482 , CrPC albeit, this Court, while setting aside the judgment impugned therein and quashing that FIR, took the view that '...the Appellants are to be protected against vexatious and unwarranted criminal prosecution, and from unnecessarily being put through the rigours of an eventual trial.'15 The protection against vexatious and unwanted Page 34 of 36 Downloaded on : Fri Apr 19 21:25:57 IST 2024 NEUTRAL CITATION R/CR.MA/19324/2017 JUDGMENT DATED: 12/04/2024 undefined prosecution and from being unnecessarily dragged through a trial by melting a criminal proceeding into oblivion, either through quashing a FIR/Complaint or by allowing an appeal against an Priyanka Mishra v State of Uttar Pradesh , 2023 INSC 729 | 2023 SCC OnLine SC 978. order rejecting discharge or by any other legally permissible route, as the circumstances may be, in the deserving case, is a duty cast on the High Courts. The High Court should have intervened and discharged the appellants. But this Court will intervene, being the sentinel on the qui vive."

18. I have considered the law laid down by the Hon'ble Apex Court in the aforesaid decisions. I have also gone through the findings recorded by the learned Trial Court as well as Revisional court. It is true that the High Court should slow in interfering with the orders recording concurrent findings of fact. However, at the same time, considering the material available on record and in the facts and circumstances of the case, if it is found that continuation of criminal proceedings against the applicant would nothing but an exercise in futility, in that event, the High Court can exercise inherent powers by quashing and setting aside the proceedings against the applicant accused.

19. Resultantly, the application succeeds and is hereby allowed. Accordingly, common order dated 28/11/2016 passed by the learned J.M.F.C., Jhalod below applications Ex.17 & 18 in Criminal Case No.1987 of 2011 as well as order dated 13/06/2017 Page 35 of 36 Downloaded on : Fri Apr 19 21:25:57 IST 2024 NEUTRAL CITATION R/CR.MA/19324/2017 JUDGMENT DATED: 12/04/2024 undefined passed by the learned Additional Sessions Judge, Dahod in Criminal Revision Application No. 42 of 2016 are hereby quashed and set aside. The F.I.R being C.R. No.II 37 of 2011 registered with Jhalod Police Station, charge-sheet and proceedings of Criminal Case No.1987 of 2011 pending before the Court of J.M.F.C., Jhalod are hereby quashed qua the applicant viz. Karansinh Kalusinh Rathod. Rule is made absolute to the aforesaid extent.

(DIVYESH A. JOSHI,J) LAVKUMAR J JANI Page 36 of 36 Downloaded on : Fri Apr 19 21:25:57 IST 2024