Held :
1.
We are of
the opinion that this was not the stage where the court should have appraised
the evidence and discharged the accused
as if it was passing an order of
acquittal. Further, defect in investigation itself cannot be a ground
for discharge. In our opinion, the order impugned suffers from grave error and
calls for rectification.
2.
It is worth mentioning that the
Code contemplates discharge of the
accused by the Court of Sessions under Section 227 in a case triable by it;
cases instituted upon a police report are
covered by Section 239 and cases
instituted otherwise than on a police
report are dealt with in Section 245. From a reading of the aforesaid sections
it is evident that they contain somewhat different provisions with regard to discharge of an accused.
Under Section 227 of the Code, the trial
court is required to discharge the accused if it “considers that there is not
sufficient ground for proceeding against
the accused”. However, discharge under
Section 239 can be ordered when “the
Magistrate considers the charge against
the accused to be groundless”. The power to discharge is exercisable under
Section 245(1) when, “the Magistrate considers, for reasons to be recorded that no case against the accused
has been made out which, if not
repudiated, would warrant his conviction.
REPORTABLE
IN
THE SUPREME COURT OF INDIA
CRIMINAL
APPELLATE JURISDICTION
CRIMINAL
APPEAL NO.22-23 OF 2014
(@SPECIAL
LEAVE PETITION(CRL.)NOs.3810-3811 of 2012)
STATE OF TAMILNADU BY INS.OF POLICE
VIGILANCE AND ANTI CORRUPTION …
APPELLANT
VERSUS
N.SURESH RAJAN & ORS. …RESPONDENTS
With
CRIMINAL
APPEAL NO.26-38 OF 2014
(@SPECIAL
LEAVE PETITION(CRL.)NOs. 134-146 of 2013)
STATE
REP. BY DEPUTY SUPDT. OF POLICE
VIGILANCE AND ANTI CORRUPTION … APPELLANT
VERSUS
K.PONMUDI & ORS. …RESPONDENTS
J U D G M E N T : CHANDRAMAULI KR. PRASAD,
J.
CRIMINAL APPEAL NO.22-23 OF 2014 (@SPECIAL
LEAVE PETITION(CRL.)Nos.3810-3811 of 2012)
The State of Tamil Nadu aggrieved by the order dated 10th of December,
2010 passed by the Madras High Court in Criminal R.C.No.528 of 2009 and
Criminal M.P.(MD) No.1 of 2009, setting aside the order dated 25th of
September, 2009 passed by the learned Chief Judicial Magistrate-cum-Special Judge,
Nagercoil (hereinafter referred to as ‘the Special Judge’), whereby he refused
to discharge the respondents, has preferred these special leave petitions.
Leave granted.
Short facts giving rise to the present appeals are that Respondent No. 1,
N. Suresh Rajan, during the period from 13.05.1996 to 14.05.2001, was a Member
of the Tamil Nadu Legislative Assembly as also a State Minister of Tourism.
Respondent No. 2, K. Neelkanda Pillai is his father and Respondent No. 3,
R.Rajam, his mother. On the basis of an information that N. Suresh Rajan,
during his tenure as the Minister of Tourism, had acquired and was in
possession of pecuniary resources and properties in his name and in the names
of his father and mother, disproportionate to his known sources of income, Crime
No. 7 of 2002 was registered at Kanyakumari Vigilance and Anti Corruption
Department on 14th of March, 2002 against the Minister N. Suresh Rajan,
his father, mother, elder sister and his bother-in-law. During the course of
the investigation, the investigating officer collected and gathered
informations with regard to the property and pecuniary resources in possession
of N. Suresh Rajan during his tenure as the Minister, in his name and in the
name of others. On computation of the income of the Minister from his known
sources and also expenditure incurred by him, it was found that the properties
owned and possessed by him are disproportionate to his known sources of income to
the tune of Rs. 23,77,950.94. The investigating officer not only examined the accused
Minister but also his father and mother as also his sister and the
brother-in-law. Ultimately, the investigating agency came to the conclusion
that during the check period, Respondent No.1, N. Suresh Rajan has acquired and
was in possession of pecuniary resources and properties in his name and in the
names of his father, K. Neelakanda Pillai (Respondent No. 2) and mother R.
Rajam (Respondent No. 3) and his wife D.S. Bharathi for total value of Rs. 17,58,412.47.
The investigating officer also came to the conclusion that Minister’s father
and mother never had any independent source of income commensurate with the
property and pecuniary resources found acquired in their names. Accordingly,
the investigating officer submitted the charge-sheet dated 4th of July, 2003
against Respondent No.1, the Minister and his father (Respondent No.2) and
mother (Respondent No.3) respectively, alleging commission of an offence under
Section 109 of the Indian Penal Code and Section 13(2) read with Section
13(1)(e) of the Prevention of Corruption Act. Respondents filed application
dated 5th of December, 2003 under Section 239 of the Code of Criminal
Procedure, 1973 (hereinafter referred to as ‘the Code’), seeking their discharge.
The Special Judge, by its order dated 25th of September, 2009 rejected their
prayer. While doing so, the Special Judge observed as follows:
“At this stage it will be premature
to say that there are no sufficient materials on the side of the state to frame
any charge against them and the same would not be according to law in the
opinion of this court and at the same time this court has come to know that
there are basic materials for the purpose of framing charges against the 3 petitioners,
the petition filed by the petitioners is dismissed and orders passed to that effect.”
Aggrieved by the same, respondents filed criminal revision before the
High Court. The High Court by the impugned judgment had set aside the order of
the Special Judge and discharged the respondents on its finding that in the
absence of any material to show that money passed from respondent No. 1 to his
mother and father, latter cannot be said to be holding the property and resources
in their names on behalf of their son. The High Court while passing the
impugned order heavily relied on its earlier judgment in the case of State by Deputy Superintendent of
Police, Vigilance and Anti Corruption Cuddalore Detachment v. K. Ponumudi &
Ors. (2007-1MLJ-CRL.-100), the validity whereof
is also under consideration in the connected appeals. The High Court while
allowing the criminal revision observed as follows:
“12.In the instant case,
the properties standing in the name of the petitioners 2 and 3 namely, A2 and
A3 could not be held to be the properties or resources belonging to the 1st
accused in the absence of any investigation into the individual income
resources of A2 and A3. Moreover, it is not disputed that A2 was a retired Head
Master receiving pension and A3 is running a Financial Institution and an
Income Tax assessee. In the absence of any material to show that A1’s money
flow into the hands of A2 and A3, they cannot be said to be holding the properties
and resources in their name on behalf of the first accused. There is also no material
to show that A2 and A3 instigated A1 to acquire properties and resources disproportionate
to his known source of income.”
It is in these circumstances that the appellant is before us.
CRIMINAL APPEAL NO.26-38 OF 2014 (@SPECIAL
LEAVE PETITION(CRL.)Nos. 134-146 of 2013)
These special leave petitions are barred by limitation. There is delay of
1954 days in filing the petitions and 217 days in refiling the same.
Applications have been filed for condoning the delay in filing and refiling the
special leave petitions.
Mr. Ranjit Kumar, learned Senior Counsel for the petitioner submits that
the delay in filing the special leave petitions has occurred as the Public
Prosecutor earlier gave an opinion that it is not a fit case in which special
leave petitions deserve to be filed. The Government accepted the opinion and
decided not to file the special leave petitions. It is pointed out that the
very Government in which one of the accused was a Minister had taken the
aforesaid decision not to file special leave petitions. However, after the
change of the Government, opinion was sought from the Advocate General, who
opined that it is fit case in which the order impugned deserves to be
challenged. Accordingly, it is submitted that the cause shown is sufficient to condone
the delay.
Mr. Soli J. Sorabjee, learned Senior Counsel appearing for the
respondents, however, submits that mere change of Government would not be sufficient
to condone the inordinate delay. He submits that with the change of the
Government, many issues which have attained finality would be reopened after
long delay, which should not be allowed. According to him, condonation of huge delay
on the ground that the successor Government, which belongs to a different political
party, had taken the decision to file the special leave petitions would be
setting a very dangerous precedent and it would lead to miscarriage of justice.
He emphasizes that there is a life span for every legal remedy and condonation
of delay is an exception. Reliance has been placed on a decision of this Court
in the case of Postmaster
General v. Living Media India Ltd., (2012) 3 SCC 563, and our attention has been drawn to Paragraph 29 of the judgment, which
reads as follows:
“29. In our view, it is the
right time to inform all the government bodies, their agencies and instrumentalities
that unless they have reasonable and acceptable explanation for the delay and there
was bona fide effort, there is no need to accept the usual explanation that the
file was kept pending for several months/years due to considerable degree of procedural
red tape in the process. The government departments are under a special obligation to ensure that they perform their
duties with diligence and commitment. Condonation of delay is an exception and
should not be used as an anticipated benefit for the government departments.
The law shelters everyone under the same light and should not be swirled for
the benefit of a few.”
Mr. Sorabjee further submits that the Limitation Act does not provide for
different period of limitation for the Government in resorting to the remedy
provided under the law and the case in hand being not a case of fraud or collusion
by its officers or agents, the huge delay is not fit to be condoned. Reliance
has also been placed on a decision of this Court in the case of Pundlik Jalam Patil v. Executive Engineer,
Jalgaon Medium Project, (2008) 17 SCC 448 and
reference has been made to Paragraph 31 of the judgment, which reads as
follows:
“31. It is true that when
the State and its instrumentalities are the applicants seeking condonation of
delay they may be entitled to certain amount of
latitude but the law of limitation is same for citizen and for governmental
authorities. The Limitation Act does not provide for a different period to the Government
in filing appeals or applications as such. It would be a different matter where
the Government makes out a case where public interest was shown to have suffered
owing to acts of fraud or collusion on the part of its officers or agents and
where the officers were clearly at cross purposes with it. In a given case if
any such facts are pleaded or proved they cannot be excluded from consideration
and those factors may go into the judicial verdict. In the present case, no such
facts are pleaded and proved though a feeble attempt by the learned counsel for
the respondent was made to suggest collusion and fraud but without any basis.
We cannot entertain the submission made across the Bar without there being any
proper foundation in the pleadings.”
The contentions put forth by Mr. Sorabjee are weighty, deserving
thoughtful consideration and at one point of time we were inclined to reject the
applications filed for condonation of delay and dismiss the special leave
petitions. However, on a second thought we find that the validity of the order
impugned in these special leave petitions has to be gone into in criminal appeals
arising out of Special Leave Petitions (Criminal) Nos. 3810-3811 of 2012 and in
the face of it, it shall be unwise to dismiss these special leave petitions on
the ground of limitation. It is worth mentioning here that the order impugned
in the criminal appeals arising out of Special Leave Petition (Criminal) Nos. 3810-3811
of 2012, State of
Tamil Nadu by Ins. Of Police, Vigilance and Anti Corruption v. N. Suresh Rajan
& Ors., has been mainly rendered, relying on the
decision in State by
Deputy Superintendent of Police, Vigilance and Anti Corruption Cuddalore
Detachment vs. K. Ponmudi and Ors.(2007-1MLJ-CRL.-100),
which is impugned in the present special leave petitions. In fact, by order
dated 3rd of January, 2013, these petitions were directed to be heard along
with the aforesaid special leave petitions. In such circumstances, we condone
the delay in filing and refiling the
special leave petitions.
In these petitions the State of Tamil Nadu impugns the order dated 11th
of August, 2006 passed by the Madras High Court whereby the revision petitions
filed against the order of discharge dated 21st of July, 2004 passed by the Special
Judge/Chief Judicial Magistrate, Villupuram (hereinafter referred to as ‘the Special
Judge’), in the Special Case No. 7 of 2003, have been dismissed.
Leave granted.
Shorn of unnecessary details, facts giving rise to the present appeals
are that K. Ponumudi, respondent No. 1 herein, happened to be a Member of the
State Legislative Assembly and a State Minister in the Tamil Nadu Government
during the check period. P. Visalakshi Ponmudi (Respondent No.2) is his wife,
whereas P.Saraswathi (Respondent No.3) (since deceased) was his mother-in-law.
A.Manivannan (Respondent No.4) and A.Nandagopal (Respondent No.5) (since deceased)
are the friends of the Minister (Respondent No.1). Respondent Nos. 3 to 5
during their lifetime were trustees of one Siga Educational Trust, Villupuram.
In the present appeals, we have to examine the validity of the order of
discharge passed by the Special Judge as affirmed by the High Court. Hence, we
consider it unnecessary to go into the details of the case of the prosecution
or the defence of the respondent at this stage. Suffice it to say that,
according to the prosecution, K. Ponmudi (Respondent No.1), as a Minister of Transport
and a Member of the Tamil Nadu Legislative Assembly during the period from 13.05.1996
to 30.09.2001, had acquired and was in possession of pecuniary resources and
properties in his name and in the names of his wife and sons, which were
disproportionate to his known sources of income. Accordingly, Crime No. 4 of 2002
was registered at Cuddalore Village, Anti- Corruption Department on 14th of
March, 2002 under Section 109 of the Indian Penal Code read with Section 13(2)
and Section 13(1)(e) of the Prevention of Corruption Act, hereinafter referred
to as ‘the Act’. During the course of investigation it transpired that between
the period from 13.05.1996 to 31.03.2002, the Minister had acquired and
possessed properties at Mathirimangalam, Kaspakaranai, Kappiampuliyur villages
and other places in Villupuram Taluk, at Vittalapuram village and other places
in Thindivanam Taluk, at Cuddalore and Pondicherry Towns, at Chennai and Trichy
cities and at other places. It is alleged that respondent No.1- Minister being
a public servant committed the offence of criminal misconduct by acquiring and being
in possession of pecuniary resources and properties in his name and in the
names of his wife, mother-in-law and also in the name of Siga Educational
Trust, held by the other respondents on behalf of Respondent No. 1, the
Minister, which were disproportionate to his known sources of income to the extent
of Rs.3,08,35,066.97. According to the prosecution, he could not satisfactorily
account for the assets and in this way, the Minister had committed the offence punishable
under Section 13(2) read with Section 13(1)(e) of the Act.
In the course of investigation, it further transpired that during the
check period and in the places stated above, other accused abetted the Minister
in the commission of the offence by him. Respondent No. 2, the wife of the
Minister, aided in commission of the offence by holding on his behalf a
substantial portion of properties and pecuniary resources in her name as well
as in the name of M/s. Visal Expo, of which she was the sole Proprietor.
Similarly, Respondent No. 3, the mother-in-law, aided the Minister by holding on
his behalf a substantial portion of properties and pecuniary resources in her
name as well as in the name of Siga Educational Trust by purporting to be one
of its Trustees. Similarly, Respondent No. 4 and Respondent No. 5 aided the
Minister and held on his behalf a substantial portion of the properties and
pecuniary resources in the name of Siga Educational Trust by purporting to be
its Trustees. It is relevant here to mention that during the course of
investigation, the statement of all other accused were taken and in the opinion
of the investigating agency, after due scrutiny of their statements and further
verification, the Minister was not able to satisfactorily account for the
quantum of disproportionate assets. Accordingly, the Vigilance and Anti
Corruption Department of the State Government submitted charge-sheet against the
respondents under Section 109 of the Indian Penal Code and Section 13(2) read
with Section 13(1)(e) of the Act.
It is relevant here to state that the offences punishable under the
scheme of the Act have to be tried by a Special Judge and he may take
cognizance of the offence without commitment of the accused and the Judge
trying the accused is required to follow the procedure prescribed by the Code for the trial of warrant cases by
the Magistrate. The Special Judge holding the trial is deemed to be a Court of
Sessions. The respondents filed petition for discharge under Section 239 of the
Code inter alia contending that the system which the prosecution had followed
to ascertain the income of the accused is wrong. Initially, the check period
was from 10.05.1996 to 13.09.2001 which, during the investigation, was enlarged
from 13.05.1996 to 31.03.2002. Not only this, according to the accused, the
income was undervalued and the expenditures exaggerated. According to Respondent
No. 1, the Minister, income of the individual
property of his wife and that of his mother-in-law and their expenditure ought
not to have been shown as his property. According to him, the allegation that
the properties in their names are his benami properties is wrong. It was also
contended that the valuation of the properties has been arrived at without
taking into consideration the entire income and expenditure of Respondent No.
1. Respondents have also alleged that the investigating officer, who is the
informant of the case, had acted autocratically and his action is vitiated by bias. The Special Judge examined all these contentions
and by order dated 21st of July, 2004 discharged Respondents on its finding
that the investigation was not conducted properly. The Special Judge further
held that the value of the property of Respondent Nos. 2 to 5 ought not to have
been clubbed with that of the individual properties and income of Respondent
No. 1 and by doing so, the assets of Respondent No. 1 cannot be said to be
disproportionate to his known sources of income. On the aforesaid finding the Special
Judge discharged all the accused. Aggrieved by the same, the State of Tamil
Nadu filed separate revision petitions and the High Court, by the impugned
order, has dismissed all the revision petitions. The High Court, while affirming
the order of discharge, held that the prosecution committed an error by adding
the income of other respondents, who were assessed under the Income Tax Act, in
the income of Respondent No.1. In the opinion of the High Court, an independent
and unbiased scrutiny of the entire documents furnished along with the final
report would not make out any ground of framing of charges against any of the
accused persons. While doing so, the High Court has observed as follows:
“18. The assets which admittedly, do not belong to Accused 1 and owned by
individuals having independent source of income which are assessed under the Income
Tax Act, were added as the assets of Accused -1. Such a procedure adopted by
the prosecution is not only unsustainable but also illegal. An independent and
unbiased scrutiny of the entire documents furnished along with the final report
would not make out any ground for framing of charge as against any of the
accused persons. The methodology adopted by the prosecution to establish the
disproportionate assets with reference to the known source of income is
absolutely erroneous.
xxx xxx xxx
The theory of Benami is
totally alien to the concept of trust and it is not legally sustainable to array
the accused 3 to 5 as holders of the properties or that they are the benamies
of the accused. The benami transaction has to be proved by the prosecution by
producing legally permissible materials of a bona fide character which would directly
prove the fact of benami and there is a total lack of materials on this account
and hence the theory of benami has not been established even remotely by any
evidence. On a prima-facie evidence it is evident that the other accused are
possessed of sufficient funds for acquiring their properties and that A1 has
nothing to do with those properties and that he cannot be called upon to
explain the source of income of the acquisition made by other persons.
19……… Admittedly the accused are not possessed of the properties standing
in the name of Trust and controlled by the Accused A3 to A5. The trust is an
independent legal entity assessed to income tax and owning the properties. Only
to boost the value of the assets the prosecution belatedly arrayed the Trustees
of the Trust as accused 3 to 5 in order to foist a false case as against A1.
xxx xxx
xxx
21………All the properties acquired by A2 and A3 in their individual capacity
acquired out of their own income have been shown in the Income Tax Returns,
which fact the prosecution also knows and also available in the records of the
prosecution. The prosecution has no justification or reason to disregard those
income tax returns to disallow such income while filing the final report. The
documents now available on record also would clearly disprove the claim of
benami transaction.”
The High court ultimately concluded as
follows:
“24…………Therefore, the trial court analyzing the materials and documents that
were made available at the stage of framing charges and on their face value arrived
at the right conclusion that charges could not be framed against the
respondents/accused.”
Now we proceed to consider the legal position cconcerning the issue of
discharge and validity of the orders impugned in these appeals in the background
thereof. Mr. Ranjit Kumar submits that the
order impugned suffers from patent illegality. He points out that at the time
of framing of the charge the scope is
limited and what is to be seen at this stage is as to whether on examination of
the materials and the documents collected, the charge can be said to be groundless
or not. He submits that at this stage, the court cannot appraise the evidence
as is done at the time of trial. He points out that while passing the impugned
orders, the evidence has been appraised and the case of the prosecution has
been rejected, as is done after the trial while acquitting the accused.
Mr. Sorabjee as also Mr. N.V. Ganesh appearing on behalf of the
respondents-accused, however, submit that when the court considers the applications
for discharge, it has to examine the materials for the purpose of finding out
as to whether the allegation made is groundless or not. They submit that at the
time of consideration of an application
for discharge, nothing prevents the court to sift and weigh the evidence for
the purpose of ascertaining as to whether the allegations made on the basis of
the materials and the documents collected are groundless or not. They also
contend that the court while considering such an application cannot act merely as
a post-office or a mouthpiece of the prosecution. In support of the submission,
reliance has been placed on a decision of this Court in the case of Sajjan Kumar v. CBI, (2010) 9 SCC
368 and our attention has been drawn to Paragraph
17(4) of the judgment, which reads as follows:
“17. In Union of India v. Prafulla Kumar Samal & Anr., 1979 (3) SCC 4,
the scope of Section 227 CrPC was considered. After adverting to various
decisions, this Court has enumerated the following principles:
xxx xxx xxx
(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.”
Yet another decision on which reliance has been placed is the decision of
this Court in the case of Dilawar Balu Kurane v. State of Maharashtra, (2002) 2 SCC 135, reference has been made to the following paragraph of the said judgment:
“12. Now the next question
is whether a prima facie case has been made out against the appellant. In
exercising powers under Section 227 of the Code of Criminal Procedure, the
settled position of law is that the Judge while considering the question of framing
the charges under the said section has the undoubted power to sift and weigh
the evidence for the limited purpose of finding out whether or not a prima
facie case against the accused has been made out; 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; by and large 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
justified to discharge the accused, and in exercising jurisdiction under
Section 227 of the Code of Criminal Procedure, the Judge 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 but should not make a roving enquiry into the pros and cons of
the matter and weigh the evidence as if he was conducting a trial.”
We have bestowed our consideration to the
rival submissions and the submissions made by Mr. Ranjit Kumar commend
us. True it is that at the time of consideration of the applications for discharge,
the court cannot act as a mouthpiece of the prosecution or act as a post-office
and
may sift evidence in order to find out whether or not the allegations
made are groundless so as to pass an order of discharge. It is trite that at the
stage of consideration of an application for discharge, the court has to
proceed with an assumption that the materials brought on record by the
prosecution are true and evaluate the said materials and documents with a view
to find out whether the facts emerging therefrom taken at their face value
disclose the existence of all the ingredients constituting the alleged offence.
At this stage, probative value of the materials has to be gone into and the
court is not expected to go deep into the matter and hold that the materials
would not warrant a conviction. In our opinion, what needs to be considered is
whether there is a ground for presuming that the offence has been committed and
not whether a ground for convicting the accused has been made out. To put it
differently, if the court thinks that the accused might have committed the
offence on the basis of the materials on record on its probative
value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial
at this stage. Reference in this connection can be made to a recent decision of this Court in
the case of Sheoraj Singh Ahlawat & Ors.
vs. State of Uttar Pradesh & Anr.,
AIR 2013 SC 52, in which,
after analyzing various decisions on the point, this Court endorsed the following view taken
in Onkar Nath Mishra v. State (NCT of Delhi), (2008) 2 SCC
561:
“11. It is trite that at
the stage of framing of charge the court is required to evaluate the material
and documents on record with a view to finding out if the facts emerging there from, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is
not expected to go deep into the
probative value of the material on
record. What needs to be considered is
whether there is a ground for presuming that
the offence has been committed and not a ground for convicting the accused has
been made out. At that stage, even strong
suspicion founded on material which
leads the court to form a presumptive
opinion as to the existence of the factual
ingredients constituting the offence alleged would justify the framing
of charge against the accused in respect
of the commission of that offence."
Now reverting to the decisions of this Court in the case Sajjan Kumar (supra) and Dilawar Balu Kurane (supra), relied on by the respondents, we
are of the opinion that they do not advance their case. The aforesaid
decisions consider the provision of
Section 227 of the Code and make it clear that at the stage of discharge the
Court can not make a roving enquiry into the pros and cons of the matter and weigh the evidence as
if it was conducting a trial. It is
worth mentioning that the Code
contemplates discharge of the accused by
the Court of Sessions under Section 227 in a case triable by it; cases instituted upon a police report are covered
by Section 239 and cases instituted
otherwise than on a police report are
dealt with in Section 245. From a reading of the aforesaid sections it is evident
that they contain somewhat different provisions
with regard to discharge of an accused. Under Section 227 of the Code, the trial court is required to discharge the
accused if it “considers that there is not sufficient ground for proceeding against the accused”. However, discharge under Section 239 can be ordered when “the Magistrate considers the
charge against the accused to be
groundless”. The power to discharge is exercisable under Section 245(1) when,
“the Magistrate considers, for reasons to
be recorded that no case against the accused has been made out which, if not repudiated, would warrant his conviction”. Section 227 and 239 provide for discharge before the recording of evidence on the basis of the police report,
the documents sent along with it and
examination of the accused after giving
an opportunity to the parties to be heard.
However, the stage of discharge under
Section 245, on the other hand, is
reached only after the evidence referred in
Section 244 has been taken. Thus, there is difference in the language employed in these provisions.
But, in our opinion, notwithstanding these
differences, and whichever provision may be
applicable, the court is required at this stage to see that there is a
prima facie case for proceeding against the accused. Reference in this connection can be made to a judgment of
this Court in the case of R.S. Nayak v. A.R. Antulay, (1986)
2 SCC 716. The same reads as follows:
“43………………Notwithstanding
this difference in the position there is
no scope for doubt that the stage at which the magistrate is required to consider the question of framing
of charge under Section 245(1) is a preliminary one and the test of “prima
facie” case has to be applied. In spite of the difference in the language of
the three sections, the legal position
is that if the Trial court is satisfied
that a prima facie case is made out, charge has to be framed.”
Bearing in mind the principles aforesaid, we proceed to consider the facts of the present case.
Here the allegation against the accused Minister (Respondent No.1), K. Ponmudi
is that while he was a Member of the Tamil Nadu Legislative Assembly and a
State Minister, he had acquired and was
in possession of the properties in the name of his wife as also his
mother-inlaw, who along with his other friends, were of Siga Educational Trust, Villupuram. According
to the prosecution, the properties of
Siga Educational Trust, Villupuram were held by other accused on behalf of the accused Minister.
These properties, according to the
prosecution, in fact, were the properties of K.Ponumudi. Similarly, accused N.
Suresh Rajan has acquired properties disproportionate to his known sources of income in the names of his father and
mother. While passing the order of discharge, the fact that the accused other
than the two Ministers have been
assessed to income tax and paid income tax cannot be relied upon to discharge
the accused persons particularly in view
of the allegation made by the
prosecution that there was no separate income to amass such huge properties. The
property in the name of an income tax assessee
itself cannot be a ground to hold that it
actually belongs to such an assessee. In case this proposition is accepted, in
our opinion, it will lead to disastrous consequences. It will give opportunity to the corrupt public
servants to amass property in the name of known persons, pay income tax on
their behalf and then be out from the
mischief of law. While passing the impugned
orders, the court has not sifted the materials
for the purpose of finding out whether or not there is sufficient ground for
proceeding against the accused but
whether that would warrant a conviction.
We are of the opinion that this was not
the stage where the court should have
appraised the evidence and discharged the accused as if it was passing an order
of acquittal. Further, defect in investigation itself cannot be a ground for discharge. In
our opinion, the order impugned suffers
from grave error and calls for
rectification.
Any observation made by us in this judgment is for the purpose of disposal of these
appeals and shall have no bearing on the trial. The surviving respondents are directed to appear before
the respective courts on 3rd of February, 2014. The Court shall proceed with
the trial from the stage of charge in
accordance with law and make endeavour to dispose of the same expeditiously.
In the result, we allow these appeals and set aside the order of discharge with the
aforesaid observation.
………………..……………………………….J.
(CHANDRAMAULI KR. PRASAD)
………………….……………………………………… J.
(M.Y. EQBAL)
NEW DELHI,
JANUARY 06, 2014.
