JUDGMENT
S.K. Agarwal, J.
1. By this petition under Section 482 of the
Code of Criminal Procedure read with Article 227 of the
Constitution of India, petitioner has challenged the
order dated 14th July, 1999, passed by the Additional
Sessions Judge, New Delhi, setting aside the order dated
1.3.1996, of the Metropolitan Magistrate and remanding
back the case with a direction to reconsider the whole
case and re-frame the charges in case FIR No.571/93
under Sections 420/468/471, IPC, P.S. Hauz Khas.
2. In brief, prosecution allegations are that
complainant was running a business of selling of sweets
at Jodhpur and was looking for some alternative
business. One Mr. D.L. Naida r/o village Singhora,
District Jhunjhun, Rajasthan, a contractor, was known to
the complainant. He mentioned the name of the accused
and told him that petitioner can get a government supply
contract through him. Mr. Naida also informed the
complainant that he was getting such a big contract
through the petitioner. The complainant became
interested in the project and on 7.11.1993 he came to
Delhi Along with Mr. Naida. Both of them stayed at
Uphar Guest House, Green Park. thereafter, the
complainant was introduced to the petitioner by Mr.
Naida. Accused at that time claimed himself to be the
“Indian defense Accounts Officer” and on deputation to
the Ministry of defense as Executive Officer. In order
to inculcate faith in the complainant, petitioner showed
his identity card. He represented that he can get a
very big supply contract from Ministry of defense at one
percent commission. On this representation, the
complainant became more interested in the project. On
his own, petitioner gave a photocopy of classified
letter dated 23.9.1993 to the complainant, in which the
supply of goods worth Rs.17.20 crores was to be awarded.
Petitioner informed the complainant that a fee of half
percent of the value which comes to Rs.8.0 lakh has to
be deposited as security. Petitioner also told him that
everything has to be kept top secret and he is in charge
of the whole project. He also asked the complainant to
bring money on 12.11.1993 and promised that on the same
day the contract will be signed and given to him. On
this representation, the complainant went back to
Jodhpur and arranged a sum of Rs.8.0 lakhs from his
father-in-law and others. On 11.11.93 the complainant
came back to Delhi and stayed with his brother Shri D.D.
Singh. The petitioner had given a contact Number
3782609 Extn.2. This telephone was picked up by the
petitioner himself. On telephone the complainant told
him that he had arranged the money. Accordingly, the
petitioner called the complainant at South Block, Main
Gate towards North Block at 2:30 p.m. As per the
instructions of the petitioner, the complainant
Along with his brother D.D. Singh went to South Block,
Main Gate. The accused came out from South Block and
met the complainant. The petitioner with the
complainant and his brother sat in a car. They were
told that the entry in the office was restricted. While
sitting in car petitioner gave two typed letters on
letter head of Govt. of India and asked the complainant
to fill and signed the same. These letters were duly
signed by the complainant and witnessed by his brother
on the asking of the accused. In presence of the
complainant and his brother the accused had signed both
these documents as Executive Officer and endorsed
“recommend”. Thereafter, the petitioner went inside the
office and came out after half an hour and gave
photocopy of these two letters duly stamped with the
endorsement “recommended”. The contract was to be
allegedly signed by some other officer. Thereafter, the
accused told the complainant that the tender has been
informally accepted. The complainant was asked to
deposit half percent security, at the residence of P.S.
Badiala, Director General at T-23, Green Park. The
complainant and his brother, as per the instructions of
the accused went there. The petitioner took the
brief-case containing Rs.8 lakhs from the complainant
and went inside and came after half an hour and informed
that the complaint would be receiving receipt on
16.11.93 at Room No.-17-B, South Block Along with papers
of the contact. The petitioner also congratulated the
complainant and asked that his commission of Rs.17 lakhs
should be given to him before the start of first
payment, for which the complainant agreed. On 14.11.93,
Mr. Naida came to Delhi. Thereafter, to meet Shri Naida
the complainant came to Uphar Guest House where the
petitioner was to meet but he did not turn up. When the
petitioner did not meet the complainant and Mr. Naida,
they got suspicious. Next day Mr.Naida informed the
complainant that Mr. Mal Singh Choudhary had also cheated
him for Rs.5 lakhs. At this the complainant tried to
find out the petitioner at the given address.
3. On the basis of the above allegations, the
Metropolitan Magistrate by order dated 1.3.1996 ordered
that the charge for the offence under Section 420 IPC
only is made out against the accused. Petitioner filed
a revision petition, which was dismissed and the matter
was remanded back for reconsideration of the charges.
It was also observed that prima facie offence under
Sections 468/471, IPC is also made out. This order is
under challenge. I have heard learned counsel for the
petitioner and learned APP for the State.
4. Learned counsel for the petitioner, at the
outset, argued that petitioner had filed the revision
petition against the order framing charge against him
under Section 420, IPC and the order holding that prima
facie case under Sections 468/471, IPC, is also made out
and directing reframing of charge against petitioner is
without jurisdiction. I am unable to agree. Bare
perusal of Section 397 of the Code of Criminal
Procedure shows that the superior court can always call
for and examine the correctness, legality or propriety
of any finding, sentence or order. Merely because the
learned Additional Sessions Judge came to the conclusion
that prima facie a case under Sections 468/471, IPC is
also made out. The impugned order cannot be said to be
without jurisdiction.
5. Learned counsel for the petitioner next
argued that petitioner was earlier also falsely
implicated in case FIR No. 88/97, P.S. Maurice Nagar,
under Sections 25/54/59 of the Arms Act and by judgment
and order dated 19.3.1997 he was acquitted because there
was no public witness and evidence of the public
officials was not believed. Referring to another order
passed by the Court at Jhunjhunu, Rajasthan, learned
counsel argued that on the basis of the complaint lodged
by one Digambar Lal, petitioner was involved in another
case under Section 420/406, IPC. On the revision
petition filed by the petitioner, he was exonerated at
the stage of framing of the charge itself. She argued
that the present case is also a part of the same plan
through Mr. Nadiad and, therefore, prosecution of the
petitioner is nothing but an abuse of the process of the
Court and charge against petitioner is false and
baseless and that no case is made out against the
petitioner. Learned APP for the State argued to the
contrary.
6. I have considered the rival contentions
and have been taken through the record. As per settled
law, at the stage of framing of charge, the Court is not
required to examine the evidence minutely. Even a grave
suspicion is enough. The Court is required to see
whether the allegations against the accused, prima
facie, appear to be true. At this stage, defense of the
accused is not required to be considered. Reference in
this regard can be made to the decision of the Supreme
Court in Union of India v. Prafulla Kumar, and several subsequent decisions, wherein it was
held:
“Thus, on a consideration of the
authorities mentioned above, the
following principle emerge:
(1) That the Judge while considering
the question of framing the charges under
Section 227 of the Code has the
un-doubted 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;
(2) 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;
(3) The test to determine a prima
facie case would naturally depend upon
the facts of each case and it is
difficult to lay down a rule of universal
application. By and large however 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 within his
right to discharge the accused.
(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.”
(emphasis supplied).
7. Applying the above principles to the facts
of this case, at this stage, it cannot be said that
prima facie no offence against the petitioner is made
out. Any detailed discussion is not necessary lest it
may prejudice the case of the petitioner or the
prosecution. The reasoning adopted by the learned
Additional Sessions Judge while dismissing the revision
petition is legal and valid. There is nothing in the
impugned order to warrant any interference at this
stage.
8. For the foregoing reasons, I find no merit
in the petition and the same is dismissed. Any
observations made in this order shall not affect the
merits of the case.