Page 1 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 10

th

of December, 2010 passed by the

Page 2 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 25

th

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,

2

Page 3 disproportionate to his known sources of income,

Crime No. 7 of 2002 was registered at Kanyakumari

Vigilance and Anti Corruption Department on 14

th

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,

3

Page 4 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 4

th

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 5

th

of December, 2003 under

Section 239 of the Code of Criminal Procedure,

1973 (hereinafter referred to as ‘the Code’),

4

Page 5 seeking their discharge. The Special Judge, by

its order dated 25

th

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

5

Page 6 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 1

st

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.”

6

Page 7 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,

7

Page 8 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

8

Page 9 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

9

Page 10 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

1

Page 11 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,

1

Page 12 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 3

rd

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 11

th

of August, 2006

passed by the Madras High Court whereby the

revision petitions filed against the order of

discharge dated 21

st

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.

1

Page 13 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

1

Page 14 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 14

th

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-

1

Page 15 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

1

Page 16 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

1

Page 17 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

1

Page 18 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 21

st

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

1

Page 19 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.

1

Page 20 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

2

Page 21 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.”

2

Page 22 Now we proceed to consider the legal position

concerning 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

2

Page 23 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:

xxxxxxxxx

2

Page 24 (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

2

Page 25 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

2

Page 26 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

2

Page 27 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

2

Page 28 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

2

Page 29 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

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Page 30 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

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Page 31 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-in-

law, 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

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Page 32 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

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Page 33 surviving respondents are directed to appear

before the respective courts on 3

rd

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.

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