The case involves allegations against Fatehkaran Mehdu, a mining engineer, and Kishan Singh Rawat, regarding illicit mining operations and purported corruption, with Mehdu accused of issuing quarry licenses and enabling ...
No Acts & Articles mentioned in this case
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 216 of 2017
(arising out of SLP(Crl.) No. 3998 of 2011)
STATE OF RAJASTHAN ... APPELLANT
VERSUS
FATEHKARAN MEHDU ... RESPONDENT
With
Crl. Appeal No. 217 of 2017 @ SLP(Crl.)No. 3996 of
2011
J U D G M E N T
ASHOK BHUSHAN, J .
Leave granted.
2.These two appeals have been filed against the
common judgment dated 16.11.2010 of the High Court
of Judicature for Rajasthan at Jodhpur allowing
S.B. Criminal Revision Petition No. 592/2009
Fatehkaran Mehdu versus State of Rajasthan and
S.B. Criminal Revision Petition No. 598/2009
Page 2 2
Kishan Singh Rawat versus State of Rajasthan. The
High Court vide its order, allowing the Criminal
Revisions, set aside the order dated 05.05.2009
passed by the Special Judge Anti Corruption Cases,
Udaipur, framing charges against both the
respondents under Section 13(1)(d) & 13(2) of the
Prevention of Corruption Act, 1988 read with
Section 120B of IPC.
3.The brief facts of the case, as emerged from
materials on record, need to be noted for deciding
the issueS raised in these appeals. Both the
appeals having arisen out of First Information
Report No. 342/2001 and order dated 05.05.2009
framing charges, the facts being common, it shall
be sufficient to refer the facts from Criminal
Appeal No.......of 2017 @ SLP(Cr.) No. 3998 of
2011, State of Rajasthan versus Fatehkaran Mehdu.
4.The Respondent, Fatehkaran Mehdu was working
as Mining Engineer at Tehsil Bijolia, District
Bhilwara, State of Rajasthan in the year 199798.
Page 3 3
One Smt. Sushma Devi had submitted an application
for the grant of quarry licence for a mineral
(Sand Stone) as per the Rajasthan Minor Mineral
Concession Rules, 1986 (hereinafter referred to as
Rule 1986). The application was made for grant of
quarry licence for Khatedari land situated at
Nayanagar in different plots, including Plot No.
1181/124. She deposited a banker's cheque of Rs.
1,75,000/ dated 23.4.1998 and the quarry licence
for 4.95 hectare (30 bigha and 12 biswas) was
prepared in the name of Smt. Sushma Devi Dhakad
and Shri Manoj Kumar Sandhya on 06.05.1998. On
noticing that the quarry licence issued on
06.05.1998 contained various cuttings, she
contacted Fatehkaran Mehdu and handed him the
licence for issue of fresh licence. Shri Mehdu
after taking all papers from Smt. Sushma Devi did
not issue her a fresh licence, whereas, Smt.
Sushma Devi had started mining operations. On
18.07.1998 one Shri K. K. Boda, inspected the area
and stopped the mining activities informing Smt.
Page 4 4
Sushma Devi that no quarry licence was issued in
her favour. On 11.08.1998, Mining Engineer
Fatehkaran Mehdu directed Smt. Sushma Devi to stop
the mining activities; Fatehkaran Mehdu was
transferred in August 1998 out of Tehsil Bigolia.
5.Aggrieved by nonissuance of quarry licence
Sushma Devi filed a Writ Petition No. 166 of 1999
before the High Court of Rajasthan which was
dismissed by order dated 08.03.1999 due to
availability of alternate remedy of filing an
appeal under the Rules 1986. Smt. Sushma Devi
filed an appeal before the Appellate Authority and
Appellate Authority vide order dated 29.04.1999
allowed the appeal and restored the quarry licence
of Smt. Sushma Devi.
6.On the other hand, Sri Kishan Singh Rawat, the
respondent was also granted quarry licence on
gapland in Block No. 263A and 264A which
contained a condition that the said approval shall
not be effective outside Plot No. 1345/1185/124.
Page 5 5
Plot No. 1185/124 was situated towards South of
Plot No. 1181/124, which was included in the
quarry licence of Smt. Sushma Devi.
7.Kishan Singh Rawat alongwith certain other
persons had filed a suit against the consenting
party of Khatedari Land No. 1238/125 on 23.06.1998
for stopping Sushma Devi from carrying on mining
operations. Another suit No. 1181/24 was filed on
13.7.1998 by Kishan Singh against the Khatedars of
Plot No. 1181/124 restraining them from
interfering in mining operation on Plot No.
1345/1185/124 area 3 bigha.
8.After holding a Preliminary Enquiry No. 7 of
2000 against Fatehkaran Mehdu, Deputy
Superintendent of Police, Prevention of Corruption
Bureau of Udaipur, lodged a First Information
Report against the Fatehkaran Mehdu and Kishan
Singh Rawat under Section 13(1)(d) and 13(2) of
Prevention of Corruption Act, 1988 and Section
120B of IPC.
Page 6 6
9.After conducting the investigation, a
chargesheet No. 208/2005 dated 24.10.2005 was
submitted. The Special Judge, Prevention of
Corruption Act, Udaipur vide order dated
05.05.2009 framed charges against both the
Respondents under Section 13(1) (d) read with
Section 13(2) of Prevention of Corruption Act,
1988 and 120B IPC. Aggrieved by order dated
05.05.2009, Fatehkaran Mehdu filed S.B. Criminal
Revision Petition No. 592 of 2009 and Kishan Singh
Rawat filed S.B. Criminal Revision Petition No.
598 of 2009. The High Court of Rajasthan vide its
judgment and order dated 16.11.2010 set aside the
order dated 05.05.2009 allowing the Revision
against which these two appeals have been filed by
the State of Rajasthan.
10.We have heard learned counsel for the parties
and perused the records. Learned counsel for the
appellant submits that there were sufficient
materials on record against the respondent,
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relying on which learned Special Judge has framed
the charges and the High Court committed an error
by interfering with the charges framed, in
exercise of revisional jurisdiction. It is
submitted that there was no ground made out for
exercise of revisional jurisdiction under Section
397 Cr.P.C. for quashing the charges framed. It
was proved on the materials on record that the
Respondent Mehdu had facilitated Shri Kishan Singh
Rawat to carry on illegal mining by which, he
obtained illegal benefits to the detriment of
State of Rajasthan as well as Smt. Sushma Devi.
The quarry licence granted to Sushma Devi was
cancelled by Mehdu to facilitate Kishan Singh
Rawat to carry on illegal mining on the plot,
which was included in the quarry licence of Sushma
Devi. Shri Mehdu being a public servant has
committed an offence under Section 13(1)(d) read
with Section 13(2).
11.Learned counsel for the Respondent, refuting
Page 8 8
the submission of appellant contends that the High
Court on valid grounds has set aside the order
framing the charge, since there was no allegation
before the Special Judge on which, it can be said
that any offence under Section 13(1)(d) read with
13(2) and 120B was made out. The allegation
against Shri Mehdu that he has granted quarry
licence of 80,000 Sq. ft. to Kishan Singh Rawat,
was factually incorrect since Kishan Singh Rawat
was sanctioned quarry licence of only 25,000 Sq.
ft. It is submitted that cancellation of licence
of Smt. Sushma Devi by Shri Mehdu cannot amount to
any offence within the meaning of aforesaid
sections and the order of Appellate Authority,
setting aside the cancellation order does not lead
to any presumption that an offence was committed
by Shri Mehdu.
12.Before we proceed to examine the respective
contentions, it is necessary to look into the
chargesheet to find out the nature of allegations
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made against the respondents. The chargesheet
has been brought on record as Annexure A9. It is
relevant to note some of the allegations, as
recorded in the chargesheet against the
respondent. The chargesheet notices the following:
"whereas it is also pertinent to
mention here that area of plot No.
1345/1185/124 is three bigha 52272
Sq. ft. whereas, Shri Fatehkaran
Mehdu Mining Engineer, Bijolia has
granted sanction of 80,000 Sq. ft.
as gap fat. Thus, Shri Fatehkaran
Mehdu Mining Engineer in collusion
with Shri Kishan Singh Rawat
granted sanction for 80,000 Sq. ft
land as against 52272 Sq. ft.
available land, by which obviously
proceeding for giving land to Shri
Kishan Singh Rawat out of plot No.
1181/124 of Smt. Sushma Devi
situated neighbouring has been done
by collusion.”
13.Further, after noticing the facts,
pertaining to grant of quarry licence to
Kishan Singh Rawat and Smt. Sushma Devi
following was stated:
“By investigation it was also found
that illegal mining was done on
plot No. 1185/124 of Shri Kishan
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Singh Rawat for years. In the year
1997 the Mining Enginner in
collusion under gap fat policy with
view to provide undue profit by
back door got surrendered 3 bigha
land out of 5 bigha in favour of
State Government and recorded
without name so that gap fat could
be approved under above policy.
Under rules lease can be granted
only on land of without name. To
land so surrendered plot No.
1345/1185/124 was given rest of two
bigha land of khatedar property No.
1185/124 was given which presently
is recorded as khatedari land in
name Dhiru son of Limbu Bheel R/o
Suradiya Tehsil Beawar in khata
which is ancestral village of
Kishan Singh Rawat. Plot No.
1185/124 combined rakba 2 bigha
land is also recorded as khatedari
therefore, gap fat permission can
not be accorded under gap fat
policy but Mining Engineer in files
of office accorded approval of plot
No. 1345/1185/124 rakba 3 bigha,
entry in which regard was made with
special stipulation on quarry
licence but in technical map told
about according approval on plot
No. 1185/124 combined so that if
anytime measurement is carried out
then same could be found according
to technical map and according to
same Shri Kishan Singh Rawat could
get illegal profit. On spot Shri
Kishan Singh Rawat in present time
is also doing mining work on plot
No. 1185/124 com. Rakba 2 bigha
land and whenever question for
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measurement arises then he shows
being approval on the basis of
department's technical map whereas,
in quarry lincence and files
permission is accorded only to plot
No. 1345/1185/124, total area of
which comes to be 52472 Sq.ft
whereas, according to technical map
area 80,000 Sq. ft is shown. Under
khatedari policy Shri Fatehkaran
Mehdu only with view to cause loss
to tenure holders of plot No.
1181/124 situated in south of plot
No. 1185/124, called back issued
quarry licence of Smt. Sushma
Dhakad in name of correcting same
by violating all rules, cancelled
quarry licence and information in
which regard was not given to
licence holders.”
14.There was a clear allegation in the
chargesheet that quarry licence to Kishan Singh
Rawat was given by Shri Mehdu in furtherance of
object and purpose of illegally benefitting Kishan
Singh Rawat. It was further stated that although,
approval for quarry licence on Plot No.
1345/1185/124 area 3 bigha was granted, total area
of which comes to only 52,272 Sq. ft., whereas in
the technical map, area was shown 80,000 Sq. ft.
dishonestly benefiting Kishan Singh Rawat.
Page 12 12
15.Considering the chargesheet and other
materials on record, the charges have been framed.
In Para 1 of the order, the learned Special Judge
has noted the following facts:
"1.It is worthmentioning that
total area of land No.
1345/1185/124 is total three bigha
i.e. 52272 Sq. ft. while Fatehkaran
Mehdu issued sanction of 80,000 Sq.
ft. in the form of gap fat area and
thus, accused Fatehkaran Mehdu
connived with Kishan Singh Rawat,
he connived in the proceedings for
getting alotted more land to Kishan
Singh Rawat out of the land of
neighbour Sushma Devi, on which on
establishing the prima facie case
making out, the then Additional
Superintendent of Police of
Prevention of Corruption Bureau,
Udaipur, sent an First Information
Report without numbering to the
Headquarter, on which case First
Information Report No. 342/01 was
registered on 18.09.2001 and was
received for investigation.”
16.Further in para 2, the order states:
“2.From the investigation it was
established that Smt. Sushma Devi,
Manoj Kumar Sandhya and Jitmal
Balai submitted application on
01.05.1998 in prescribed form.
Landowners of concerning khasra
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numbers expressed their consent in
favour of applicants, thereafter,
on 06.05.1998 Shri Mehdu granted
approval for issuing quarry licence
and licence were issued. Smt.
Sushma Devi checked quarry licence
on 08.05.1998, then came to know
that serious nature of lacunae were
found. At the same time Smt. Sushma
Devi contacted Fatehkaran Mehdu,
Mineral Engineer about the
abovesaid, then he issued
directions for making correction
the quarry licence and handed over
letters etc. to the Office
Assistant Sohanlal. Stating
excessive cuttings, Shri Mehdu
instead of taking all the papers
from Smt. Sushma Devi for issuing
new quarry licence, with intentions
to get other person Kishan Singh
unlawfully benefits, connived with
him and malafide and issued
licence.”
17.In para 2, it has further been noted:
“2.Under the quarry licence passed
by Shri Fatehkaran Mehdu, Shri
Kishan Singh undertook unauthorized
mining work for years on five bigha
land in place of three bigha land
due to which State Government
suffered loss of annual rent etc.
and Kishan Singh earned unlawful
profits. On account of conspiracy
hatched with him and connivance
forgetting Kishan Singh benefitted,
it established that Shri Fatehkaran
Mehdu allotted land to Kishan Singh
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Rawat contrary to rules or in the
form of gap & fat due to which the
present charge sheet under section
13(1)(d) read with section 13(2)
Prevention of Corruption Act, 1988
and section 120 Indian Penal Code
was filed in which Kishan Singh
Rawat, beneficiary was also made
accused.”
18.The Special Judge after considering the
contention putforth by the learned counsel for the
parties noted the charge that against the total
area of 52,272 Sq. ft. available, Shri Mehdu has
issued sanction for 80,000 Sq. ft. in the form of
'gap area' to Kishan Singh Rawat to unduly benefit
him, and the same can be decided after recording
oral and documentary evidence. The Special Judge
found, a clear prima facie case of framing
charges. It is relevant to extract the findings
from Para 6 of the order. In Para 6 of the order,
following has been stated:
“Prima facie charge has been framed
against accused persons that with
the intentions to cause loss to
Khatedars of land No. 1181/124
situated in the southern side of
Page 15 15
land No. 1185/124, on which licence
issued to Smt. Sushma Dhakar, Shri
Fatehkaran Mehdu called for the
same in the name of rectifying the
same, he canceled the quarry
licence in violations of all the
rules and its information was not
conveyed to the licence holders.
Shri Mehdu did not try to settle
the disputes on the spot rather he
issued licence to parties without
any acceptable demaraction and
canceled without adopting process.
Dispute prevailing between land No.
1185/125 and 1181/124 could have
been settled earlier by carrying
out measurement in detail through
the Department of revenue, but no
any effort was made in this
context, consequently, Kishan Singh
Rawat has undertaken unauthorized
mining work on five bigha area of
land No. 1185/124 in place of three
bigha land due to which State
Government has suffered loss of
annual rent etc.. it also
established in the investigation
that Fatehkaran Mehdu had got the
intentions behind cancelling of
quarry licence of Smt. Sushma
Dhakar that Kishan Singh Rawat be
benefited by allotting land to
Kishan Singh Rawat neighbour of
Smt. Dhakar in the name of gap fat
and Shri Mehdu has got Kishan Singh
Rawat financially benefitted
unlawfully by allotting land in the
form of gap fat having misused his
post and powers. It is universal
principle of law that court is
supposed to see at the stage of
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framing of charge as to whether
prima facie case worth triable
makes out on the basis of evidence
and the facts putforth by the
prosecution or not. Final disposal
of the charges framed against
accused on merits does not require
at the said stage.”
19.In view of what has been noted above, whether
the High Court was right in quashing the order
framing charges by Special Judge on 05.05.2009, is
the question to be answered in these appeals. What
is the basis for quashing the charges by the High
Court, has to be found out from the order of the
High Court, allowing the Criminal Revisions.
20.The High Court, after noticing the few
allegations against the respondent observed that
there was no allegation made by the prosecution
against the respondent to the effect that by any
corrupt or illegal means Shri Mehdu obtained any
valuable thing or pecuniary advantage for himself
or for any other person. With regard to alleged
allotment of 80,000 Sq. ft. in favour of Kishan
Page 17 17
Singh Rawat, it was held prima facie not to be
correct since concerned Mining Engineer had
certified that there was no allotment of 80,000
Sq. ft. by Mehdu to Kishan Singh Rawat. It is
useful to extract para 8 and 9 of the judgement of
the High Court which is to the following effect:
"8.Having gone through the
aforesaid provision and judgments
cited at the bar and upon perusal
of the order dated 5.5.2009, this
Court does not find any allegation
made by the applicant or
prosecution against the present
petitioner that by any corrupt or
illegal means he obtained any
valuable thing or pecuniary
advantage either for himself or for
any other person. Even alleged
allotment of 80,000 Sq. ft. land in
favour of petitioner no. 2 Kishan
Singh was prima facie found to be
incorrect since concerned Mining
Engineer himself certified that
there was no allotment of 80,000
sq. ft. area by the present
petitioner in favour of petitioner
No. 2 Kishan Singh and only
allotment made was way back in
199798 of 25,000 sq. ft. Mere
fact that application Smt. Sushma
Devi had to file appeal before the
competent authority under the
Mining Act against the alleged
illegal cancellation of her quarry
licence and succeeded therein does
Page 18 18
not amount to any criminal charge
against the present petitioner
under the purview of Section 13 (1)
(d) of the Prevention of Corruption
Act, 1988. Obviously, these
proceedings are quasi judicial in
nature undertaken in exercise of
powers conferred upon the Mining
Engineer under the said Act and any
error which can be corrected by
appellate or revisional authority
does not amount to a criminal
charge established against the said
authority. This Court does not
find any allegation of taking bribe
or any other allegation of that
nature which would come within the
ambit of words employed in Section
13 (1) (d) namely; “by corruption
or illegal means obtains for
himself or for any other person any
valuable thing or pecuniary
advantage.”
"9.In the absence of any such
allegation, this court cannot
appreciate how the charge under
Section 13(1) (d) and 13(2) of
Prevention of Corruption Act read
with Section 120B IPC has been
framed against the present
Petitioners.”
21.The High Court based its judgement for
quashing the charges on the aforesaid conclusion,
as recorded in para 8 and 9. Section 13(1) (d) &
13(2) of the Prevention of Corruption Act, 1988
Page 19 19
under which charges have been framed, are to the
following effect:
“13. Criminal misconduct by a public
servant:
(1) A public servant is said to
commit the offence of criminal
misconduct,
..... ....... .......
(d) if he,
(i) by corrupt or illegal
means, obtains for himself
or for any other person any
valuable thing or pecuniary
advantage; or
(ii) by abusing his
position as a public
servant, obtains for
himself or for any other
person any valuable thing
or pecuniary advantage; or
(iii) while holding office
as a public servant,
obtains for any person any
valuable thing or
pecuniary advantage
without any public
interest; or
..... ....... ......
Page 20 20
(2) Any public servant who
commits criminal misconduct shall
be punishable with imprisonment
for a term which shall be not
less than one year but which may
extend to seven years and shall
also be liable to fine. ”
22. What are the allegations against Mehdu to
frame charge under Section 13(1) (d) read with
13(2) has to be found out from the Chargesheet and
other materials. We have already extracted the
relevant allegations, made against Shri Mehdu in
the chargesheet as well as the facts noticed by
the learned Special Judge. While framing the
charge, the substance of the allegation against
Mehdu is that he has granted a quarry licnece to
Kishan Singh Rawat on three bigha area of plot No.
1345/1185/124, total area of which comes to 52,272
Sq. ft. whereas, he was sanctioned 80,000 Sq.ft.
Further allegation is that Mehdu permitted Kishan
Singh Rawat to indulge in unauthorised mining over
the larger area than that of granted to him
putting the Government as well as Smt. Sushma Devi
Page 21 21
to loss. The High Court in its order has observed
that it has been certified by the present Mining
Engineer that Mehdu had never sanctioned alleged
80,000 Sq.ft. in favour of Kishan Singh Rawat for
which observation, the High Court based a letter
dated 13.11.2009 filed as Annexure A11 in the
appeal, which was also taken on the record by the
High Court. The said letter was addressed to
Fatehkaran Mehdu in reply to his querry, as to
whether, Kishan Singh Rawat was granted quarry
licence for 80,000 Sq. ft. The answer given in
the said letter dated 03.11.2009 is to the
following effect:
"As per the information sought
with regard to the captioned
subject, as per the record
available in the office no
licence of 80,000 Sq. ft. has
been granted to Shri Kishan Singh
Rawat in Arazi No. 1185/124 Mauza
village Nayanagar, Tehsil
Bijoliya, District – Bhilwara.
In the circumstances, it is not
possible to give the copy. In the
year 19971998, the quarry
licence holder in Plot No. 263 A
and 264 A of Arazi No. 1185/124
Page 22 22
Shri Gopal Singh Rawat S/o Shri
Anna Singh Rawat R/o Suradia
Tehsil Byawar, District Ajmer
(Rajasthan) was granted
permission and quarry licence of
total 1250012500 Sq. ft. The
said quarry licence was
transferred in the name of Kishan
Singh Rawat S/o Devi Singh Rawat
resident of Suradia, Tehsil
Byawar District Ajmer
(Rajasthan), which is not
effective at present.”
23.The Respondents have brought on record the
copy of the quarry licence granted to Kishan Singh
Rawat as Annexure A3 and A4 which indicates that
two quarry licences were for 12500 Sq. ft each.
It appears that the High Court failed to advert
the substance of allegation against Shri Mehdu, as
we have already noticed from the chargesheet that
Shri Mehdu although, granted quarry licence only
for three bigha gap land in Plot No.
1345/1185/124, but technical map issued by Shri
Mehdu was to an area of 80,000 Sq. ft, which was a
source for Kishan Singh Rawat to carry on
unauthorised mining over the larger area than that
Page 23 23
of actually allotted to him.
24.In the chargesheet following has been
specifically noted :
"....On spot Shri Kishan Singh
Rawat in present time is also
doing mining work on plot No.
1185/124 com. Rakba 2 bigha land
and whenever question for
measurement arises then he shows
being approval on the basis of
department's technical map
whereas, in quarry lincence and
files permission is accorded only
to plot No. 1345/1185/124, total
area of which comes to be 52472
Sq.ft whereas, according to
technical map area 80,000 Sq. ft
is shown.”
25.As noted above, learned Special Judge had
observed that final adjudication of charge cannot
be made unless oral and documentary evidence are
received. The High Court has not adverted to the
technical map which mentions 80,000 Sq. Ft. and
without adverting to that allegation, has
erroneously observed that there is no allegation
which may come within the meaning of 13 (1) (d)
read with 13(2) of the Act. Both chargesheet and
Page 24 24
order of the learned Special Judge have
specifically noted the allegations, which clearly
makes out an offence under Section 13(1)(d) and
13(2) of Prevention and Corruption Act, 1988 and
Section 120B I.P.C.
26.The scope of interference and exercise of
jurisdiction under Section 397 of Cr.P.C. has been
time and again explained by this Court. Further,
the scope of interference under Section 397
Cr.P.C. at a stage, when charge had been framed,
is also well settled. At the stage of framing of a
charge, the court is concerned not with the proof
of the allegation rather it has to focus on the
material and form an opinion whether there is
strong suspicion that the accused has committed an
offence, which if put to trial, could prove his
guilt. The framing of charge is not a stage, at
which stage final test of guilt is to be applied.
Thus, to hold that at the stage of framing the
charge, the court should form an opinion that the
Page 25 25
accused is certainly guilty of committing an
offence, is to hold something which is neither
permissible nor is in consonance with scheme of
Code of Criminal Procedure.
27.Now, reverting to the limit of the scope of
jurisdiction under Section 397 Cr. P.C., which
vests the court with the power to call for and
examine the records of an inferior court for the
purposes of satisfying itself as to the legality
and regularity of any proceedings or order made in
a case. The object of this provision is to set
right a patent defect or an error of jurisdiction
or law or the perversity which has crept in the
proceeding.
28.It is useful to refer to judgment of this
Court in Amit Kapoor and Ramesh Chander and
Another, (2012) 9 SCC 460, where scope of Section
397 Cr. P.C. have been succinctly considered and
explained. Para 12 and 13 are as follows:
"12.Section 397 of the Code vests
Page 26 26
the court with the power to call
for and examine the records of an
inferior court for the purposes
of satisfying itself as to the
legality and regularity of any
proceedings or order made in a
case. The object of this
provision is to set right a
patent defect or an error of
jurisdiction or law. There has to
be a wellfounded error and it
may not be appropriate for the
court to scrutinize the orders,
which upon the face of it bears a
token of careful consideration
and appear to be in accordance
with law. If one looks into the
various judgments of this Court,
it emerges that the revisional
jurisdiction can be invoked where
the decisions under challenge are
grossly erroneous, there is no
compliance with the provisions of
law, the finding recorded is
based on no evidence, material
evidence is ignored or judicial
discretion is exercised
arbitrarily or perversely. These
are not exhaustive classes, but
are merely indicative. Each case
would have to be determined on
its own merits.”
“13. Another wellaccepted norm
is that the revisional
jurisdiction of the higher court
is a very limited one and cannot
be exercised in a routine manner.
One of the inbuilt restrictions
is that it should not be against
Page 27 27
an interim or interlocutory
order. The Court has to keep in
mind that the exercise of
revisional jurisdiction itself
should not lead to injustice ex
facie. Where the Court is dealing
with the question as to whether
the charge has been framed
properly and in accordance with
law in a given case, it may be
reluctant to interfere in
exercise of its revisional
jurisdiction unless the case
substantially falls within the
categories aforestated. Even
framing of charge is a much
advanced stage in the proceedings
under the CrPC.”
29.The Court in para 27 has recorded its
conclusion and laid down principles to be
considered for exercise of jurisdiction under
Section 397 particularly in context of quashing of
charge framed under Section 228 Cr. P. C. Para 27,
27(1), (2), (3), (9), (13) are extracted as
follows:
"27. Having discussed the scope
of jurisdiction under these two
provisions, i.e., Section 397 and
Section 482 of the Code and the
fine line of jurisdictional
distinction, now it will be
appropriate for us to enlist the
Page 28 28
principles with reference to
which the courts should exercise
such jurisdiction. However, it is
not only difficult but is
inherently impossible to state
with precision such principles.
At best and upon objective
analysis of various judgments of
this Court, we are able to cull
out some of the principles to be
considered for proper exercise of
jurisdiction, particularly, with
regard to quashing of charge
either in exercise of
jurisdiction under Section 397 or
Section 482 of the Code or
together, as the case may be:
27.1) Though there are no limits
of the powers of the Court under
Section 482 of the Code but the
more the power, the more due care
and caution is to be exercised in
invoking these powers. The power
of quashing criminal proceedings,
particularly, the charge framed
in terms of Section 228 of the
Code should be exercised very
sparingly and with circumspection
and that too in the rarest of
rare cases.
27.2) The Court should apply the
test as to whether the
uncontroverted allegations as
made from the record of the case
and the documents submitted
therewith prima facie establish
the offence or not. If the
allegations are so patently
absurd and inherently improbable
Page 29 29
that no prudent person can ever
reach such a conclusion and where
the basic ingredients of a
criminal offence are not
satisfied then the Court may
interfere.
27.3) The High Court should not
unduly interfere. No meticulous
examination of the evidence is
needed for considering whether
the case would end in conviction
or not at the stage of framing of
charge or quashing of charge.
27.9) Another very significant
caution that the courts have to
observe is that it cannot examine
the facts, evidence and materials
on record to determine whether
there is sufficient material on
the basis of which the case would
end in a conviction; the Court is
concerned primarily with the
allegations taken as a whole
whether they will constitute an
offence and, if so, is it an
abuse of the process of court
leading to injustice.
27.13) Quashing of a charge is an
exception to the rule of
continuous prosecution. Where the
offence is even broadly
Page 30 30
satisfied, the Court should be
more inclined to permit
continuation of prosecution
rather than its quashing at that
initial stage. The Court is not
expected to marshal the records
with a view to decide
admissibility and reliability of
the documents or records but is
an opinion formed prima facie.”
30.Applying the above tests, we are of the
considered opinion that High Court erred in
quashing the charges framed by the order dated
05.05.2009. In result, both the appeals are
allowed. The order of the High Court is set aside
and the order dated 05.05.2009 is restored. The
learned Special Judge may proceed with the trial
in accordance with the law expeditiously.
........................J
(Ranjan Gogoi)
........................J
(Ashok Bhushan)
New Delhi
February 03, 2017
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