Without mincing any words whatsoever, the Supreme Court in an extremely remarkable, realistic, robust, rational and recent judgment titled Pushpendra Kumar Sinha vs State of Jharkhand in Criminal Appeal No. 1333 of 2022 [Arising out of SLP (Crl.) No. 1333 of 2022 [Arising out of SLP (Crl.) No. 3440 of 2021] pronounced as recently as on August 24, 2022 has observed that before framing of the charge in criminal proceedings, the Court must apply its judicial mind to satisfy itself that the commission of the offence by the accused was possible. The Apex Court Bench was hearing an appeal against the conviction of the appellant-Accused who was charged with corruption charges. The Apex Court while discharging the appellant of the charges levelled against him observed that, “It is a well settled law that at the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing of charge the Court must apply it’s judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.” The Court also held that it has limited scope of enquiry and has to see whether any prima facie case against the accused is made out or not.
At the outset, this learned, laudable, landmark and latest judgment authored by Justice JK Maheshwari for a Bench of Apex Court comprising of CJI NV Ramana, himself and Justice Hima Kohli sets the ball rolling by first and foremost putting forth in para 2 that, “The Appellant has assailed the final judgment dated 06.01.2020 passed by High Court of Jharkhand at Ranchi in Criminal Revision No. 1057 of 2018, by which the order dated 04.07.2018 passed by learned Special Judge, Anti-Corruption Bureau dismissing the application for discharge filed by the Appellant under Section 239 of Code of Criminal Procedure, 1973 (for short “Cr.P.C.”) in connection with Special Case No. 02 of 2011 has been affirmed. The criminal case was registered against the Appellant and others for commission of offences under Sections 109, 409, 420, 467, 471, 477A and 120B of Indian Penal Code (for short “IPC”) and Section 13(1)(c) and 13(1)(d) read with 13(2) of Prevention of Corruption Act, 1988 (for short “PC with 13(2) of Prevention of Corruption Act, 1988 (for short “PC Act”).”
To put things in perspective, the Bench then envisages in para 3 that, “The facts briefly put are that the Appellant was working as an Executive Engineer (Electrical) (“EE”) in the Accelerated Power Development Reforms Program (“APDRP”) Wing of Jharkhand State Electricity Board (in short “JSEB”) from 07.12.2004. During his tenure as EE, one Ramjee Power Construction Limited (hereinafter “RPCL”) was awarded a contract of work under APDRP vide work order dated 27.01.2005. On account of delay in execution of the work and to resolve the said issue, the then Chairman JSEB, Mr. Shivendu, convened a meeting on 21.12.2006, wherein he orally instructed Mr. R.P. Agarwal, the then Chief Engineer (“CE”), to place the agenda for next board meeting for termination of the contract of M/s RPCL. Prior to convening of the next Board meeting, Mr. V.N. Pandey was appointed as the new Chairman, JSEB on 04.01.2007. The new Chairman called for a meeting on 06.02.2007/07.02.2007 for the agenda to review the progress of RPCL’s work. In the said meeting, other officers of JSEB including Mr. R.P. Agarwal, CE, had participated. In the meeting, it was mutually agreed by JSEB and RPCL that full effort to complete the work within the extended time, i.e. July, 2007 shall be made by RPCL. In furtherance of the decision taken in the aforesaid meeting, Mr. R.P. Agarwal, CE, made various correspondences reminding RPCL to complete the pending work. On retirement of Mr. R.P. Agarwal, Mr. S.C. Shrivastava Superintending Engineer (Electrical) was made in charge in place of Mr. R.P. Agarwal. Meanwhile, RPCL sent letters dated 16.05.2007, 18.05.2007 and 08.06.2007 requesting him for further extension of time. In the said correspondences, it was said that RPCL had already invoked the arbitration clause on 22.12.2006, in terms of the contract and requested JSEB for appointment of an arbitrator. The said letters were handed over to the Appellant, on which under the instructions, the Appellant prepared a note dated 08.06.2007 and placed it before the Chairman on the issue relating to appointment of an arbitrator and waiver of penalty, as advised by learned Advocate General (“AG”) of State of Jharkhand in similarly placed transmission lines projects.”
As it turned out, the Bench then points out in para 4 that, “Thereafter, vide JSEB resolution dated 28.06.2007, a committee consisting of one Mr. GNS Munda (Member, Technical), Mr. A. Banerjee (Finance) and Mr. A.K. Mishra (Law Officer) was constituted, which on 09.08.2007 suggested three names for appointment of an Arbitrator. Out of the three names as suggested, Mr. Ramayan Pandey was appointed as the arbitrator by consent. Arbitration proceedings commenced and an interim award dated 25.11.2007 was passed in favour of RPCL. Thereafter, an agenda accompanied with the aforesaid award was put before Chairman, Mr. B.M. Verma prior to asking for an opinion from the AG, State of Jharkhand, regarding enforceability of the award. Later, as per the opinion of the AG, JSEB vide Board Resolution dated 05.04.2008 and 07.04.2008, decided to implement the interim award. It is worthwhile to state that, Mr. GNS Munda (Member, Technical) as well as Smt. Rajbala Verma (then Finance Secretary, State of Jharkhand) were part of this Board meeting.”
Be it noted, the Bench then puts forth in para 5 that, “It is pertinent to mention that, while giving effect to the award, JSEB was facing shortage of funds. However, JSEB decided to make internal enquiry into handling the work contract given to RPCL. On the basis of the said enquiry, allegations of malpractice and financial irregularity were levelled against the Appellant and some others. The Secretary, JSEB vide letter dated 30.07.2010, made a request to the Director General of Vigilance Bureau (“DGP”) to lodge an FIR against the Appellant and others for offences punishable under Sections 109, 409, 420, 467, 471, 477A and 120B of IPC and Section 13(1)(c) and 13(1)(d) read with 13(2) of PC Act. Additionally, another letter dated 03.09.2010, was issued by Smt. Rajbala Verma (then Vigilance Commissioner) to the DGP, recommending the same action against the Appellant. As already noted above, Smt. Rajbala Verma was also a part of the Board meeting (being the then Finance Secretary, State of Jharkhand) that had approved the implementation of the arbitral award. In the said facts, FIR dated 20.01.2011 was lodged against the Appellant and other officers of the JSEB. Investigation was carried out, chargesheet dated 08.01.2016 was filed and cognizance was taken by the Court dealing with vigilance cases vide order dated 11.01.2016. Thereafter, the Appellant moved a discharge petition under Section 239 of the Cr.P.C., which came to be dismissed by the learned Special Judge vide order dated 04.07.2018. The Court observed that sufficient material exists to make out a primafacie case against the Appellant for framing of charges.”
As we see, the Bench then states in para 6 that, “Aggrieved by the same, the Appellant preferred a criminal revision assailing the aforesaid order. The High Court vide impugned order dismissed the revision and affirmed the order passed by the learned Special Judge. The High Court was primafacie influenced by the fact that the previous chairman, JSEB, Mr. Shivendu had orally instructed to put up the agenda for termination of the contract of RPCL. On demitting the office by the said Chairman, the Appellant had put the file noting before the subsequent Chairman Mr. V.N. Pandey, regarding referral of the matter for arbitration without mentioning about referral of the matter for arbitration without mentioning about the instructions given by the previous Chairman, JSEB. The High Court found fault in the action of the Appellant of having proposed an agenda regarding wrongful implementation of the award which was challenged belatedly. Thus, having found a primafacie case against the Appellant, the High Court dismissed the revision petition.”
Most significantly, the Bench then minces no words to hold in para 18 that, “It is a well settled law that at the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing of charge the Court must apply it’s judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. Indeed, the Court has limited scope of enquiry and has to see whether any primafacie case against the accused is made out or not. At the same time, the Court is also not expected to mirror the prosecution story, but to consider the broad probabilities of the case, weight of primafacie evidence, documents produced and any basic infirmities etc. In this regard the judgment of “Union of India Vs. Prafulla Kumar Samal, (1979) 3 SCC 4” can be profitably referred for ready reference. Having due regard to the documents placed before us and in the light of the submissions and discussion made above, we are of the considered view that sufficient grounds casting a grave suspicion on the Appellant, do not exist. It is observed that the ingredients of alleged offences cannot be primafacie established against the Appellant as neither had he been entrusted with funds of JSEB nor he had fraudulently or dishonestly deceived senior officials of the JSEB to cause any benefit to RPCL or any wrongful loss to JSEB and no evidence of illegal gratification or disproportionate assets has been found against the Appellant.”
Finally, the Bench then concludes by holding in para 19 that, “In view of the foregoing discussion, we are of the considered opinion that the High Court erred in refusing to exercise the revisional powers vested in it under Sections 397 and 401 of the Cr.P.C. and dismissing the criminal revision preferred by the Appellant. In the facts and circumstances of the case as discussed, the inescapable conclusion that can be drawn in this case that ingredients of the alleged offences are not primafacie made out against the Appellant. Therefore, we deem it fit to allow the instant appeal and set aside the impugned order. Consequently, the Appellant is discharged in the criminal proceedings arising out of Special Case No.02 of 2011.”
In a nutshell, we thus see that the Apex Court has very rightly allowed the instant appeal and discharged the appellant as stated hereinabove. At the cost of repetition, it must be said that the Apex Court has also made it pretty clear that before framing of the charges in criminal proceedings, the Court must apply its judicial mind to satisfy itself that the commission of the offence by the accused was possible. There can be just no denying it!
Sanjeev Sirohi