The Division Bench comprising of Dhananjaya Y. Chandrachud and M.R. Shah*, JJ., recently held in an interesting case that evaluation of evidence on merits is not permissible at the stage of considering the application for discharge and the same is beyond the scope of revisional jurisdiction of the High Courts. The Bench explained,
“At the stage of framing of the charge and/or considering the discharge application, the mini-trial is not permissible.”
The High Court of Rajsthan, in the exercise of its revisional jurisdiction, had quashed the order passed by the Special Judge, Prevention of Corruption Act.
The High Court had set aside the charges framed by the Special Judge against the respondent accused of the offence under Section 7 of the Prevention of Corruption Act and consequently had discharged the accused of the alleged offence.
Factual Matrix of the Case
The respondent-accused was serving as a Patwari when it was alleged by the complainant that for the purpose of issuing Domicile Certificate and OBC Certificate of his son, but the Patwari in lieu of endorsing his report demanded a bribe of Rs.2,800.
Pursuant to the said complaint, an investigation was conducted and the accused was charge-sheeted on reaching the findings that there was a prima facie case made out under Section 7 of the PC Act.
Feeling aggrieved and dissatisfied the accused preferred a revision application before the High Court whereby the High Court had discharged the accused.
It was submitted by the state that the High Court had committed a grave error in evaluating the transcript/evidence on merits which at the stage of considering the application for discharge is not permissible and is beyond the scope of the exercise of the revisional jurisdiction.
It was further submitted that the accused had been charged for the offence under Section 7 of the PC Act and even an attempt is sufficient to attract the offence under Section 7 of the PC Act.
Stand taken by the Respondent
The defense raised by the respondent-accused was that he had refused to issue residence certificate for Rajsthan and caste certificate in favor of the complainant had come to know about the complaint being the permanent resident of Agra and that the complainant wanted a false residence certificate and caste certificate illegally.
It was submitted that in fact the respondent-accused gave a report rejecting the request of the complainant and there was nothing pending before the accused and the decision regarding his application was already taken.
The respondent submitted that at the time of the conversation two persons were present, (1) the complainant – Jai Kishore; and (2) Devi Singh. And so far as the complainant was concerned, the accused categorically refused to accept any bribe.
However, it was alleged that the appellant had tried to confuse and mislead the Court by mixing the conversation of Devi Singh regarding his dues of Rs.4,850-/ to the bank against which he had paid Rs.2,000/- and the remaining amount of Rs.2,850/- was due to the bank. Thus, neither there was any acceptance nor there was any demand of bribe and the High Court has rightly discharged the accused.
The reliance was placed on Dilawar Balu Kurane v. State of Maharashtra, (2002) 2 SCC 135, it had been held that by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him will give rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused.
Findings of the Court
At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. The Bench opined that the High Court had exceeded in its jurisdiction and had acted beyond the scope of Section 227/239 Cr.P.C.
While discharging the accused, the High Court had gone into the merits of the case and had considered whether, on the basis of the material on record, the accused was likely to be convicted or not. For the aforesaid,
“The High Court has considered in detail the transcript of the conversation between the complainant and the accused which exercise at this stage to consider the discharge application and/or framing of the charge is not permissible at all.”
At the stage of framing of the charge and/or considering the discharge application, the mini-trial is not permissible. At this stage, it is to be noted that even as per Section 7 of the PC Act, even an attempt constitutes an offence. Therefore, the High Court has erred and/or exceeded in virtually holding a mini-trial at the stage of discharge application.
Lastly, the Bench stated, defence on merits is not to be considered at the stage of framing of the charge and/or at the stage of discharge application. In view of the above, the impugned judgment and order were held unsustainable in law and the same was quashed and set aside. The order passed by the Special Judge of framing charge against the accused under Section 7 of the PC Act was restored.
[State of Rajsthan v. Ashok Kumar Kashyap, 2021 SCC OnLine SC 314, decided on 13-04-2021]
courtesy SCC online