ORDER
Dipak Misra, J.
1. This batch of criminal revisions being interconnected were heard together and disposed of by this common order. For the sake of clarity, I will refer to the distinguishing facts in the cases where the same is necessary.
2. First I shall deal with the facts in Criminal Revision No. 611/2001. In this petition the petitioner, M. Saran, has called in question the legal propriety of the order dated 11-4-2001 passed by the learned Special Judge (CBI), Jabalpur Special Case No. 5/2000. The facts as have been uncurtained are that the petitioner is an accused in Special Case No. 5/2000. Briefly stated, the prosecution case is that M/s. Sunita Textiles Private Ltd. is situated at Bapi, in the State of Gujarat and coal was issued to the aforesaid company by South Eastern Coal fields Limited (in short ‘the SECL’) for the year 1991 by rail movement based on the sponsorship issued by the Indian Cotton Mill Federation, Bombay. The accused Jagdish Prasad has been working as the Managing Director and the authorised representative of M/s. Sunita Textiles Pvt. Ltd. During the month of March and April 1991 due to short fall the coal could not be received by M/s. Sunita Textiles Pvt. Ltd.
3. As per prosecution case the accused D. Sinha and M. Vidyarthi were posted as Sales Officers in the SECL Headquarter Bilaspur and there duty was to issue Road Release Orders (for brevity ‘the RROs’). The accused N.C. Vidyarthi was posted as Senior Sales Officer in SECL, J & K Area respectively and his duty was to issue delivery orders. Accused R.C. Agrawal was the Sub Area Manager Incharge of Bhadra Colliery and his duty was to supply the coal to the party. Accused Mohan Shukla and D.P. Rai were trader and advocate respectively at Katni.
4. According to the prosecution the accused persons entered into criminal conspiracy and agreed to cheat the SECL by lifting the coal through RROs issued against the rail short fall and to sell the coal in the blackmarket to get wrongful gain. In pursuance of the said conspiracy the accused Jagdish Prasad Badgamia sent an application in May, 1991 to SECL for issuance of RROs for coal regarding the month of March and April, 1991. The RROs were prepared and signed by the accused D. Sinha and M. Saran by showing bogus despatch of these RROs the company at Bati. They were not actually sent to the company but diverted to unidentified and unauthorised persons to lift the coal with the help of other co-accused and sold in the blackmarket. Other accused persons, namely N.C. Vidyarthi and R.C. Agrawal, issued delivery orders and the coal without verifying the persons. The accused late P.K. Vidyarthi, Mohan Shukla and D. P. Rai prepared the demand draft and despatched coal in the name of some fictitious persons/firms and also played a major role in pursuance of the agreement of criminal conspiracy.
5. When the matter came before the learned special Judge for the purpose of framing charge, it was contended that the case is totally based on surmises and conjectures and there is no material on record which could be treated as legal evidence and hence, the accused persons deserved to be discharged.
6. Combatting the aforesaid submission of the learned counsel for the accused, the Public Prosecutor contended before the learned Special Judge that there is sufficient material on record to frame charge against the accused persons in respect of the offences punishable under Section 120B read with Section 420 of the Indian Penal Code and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (in short ‘the Act’). Before the learned trial Judge on behalf of the accused persons, D. Sinha and M. Saran it was contended that they only issued RROs and thus, they have only done what was required to be done by them. There was a separate branch, namely, Despatch Section, which was responsible for the despatch of RROs to the concerned party and thus these two accused cannot be prima facie held responsible for non-receipt of the RROs sent to the parties. It was urged that from the material brought on record it was not clear whether the RROs were actually not received by M/s. Sunita Textiles Limited.
7. It is apposite to mention here, on 10-4-2001 an application under Section 91 of the Code of Criminal Procedure (in short ‘the Code’) was filed on behalf of the accused D. Sinha with a prayer for requisitioning of some documents, namely, Peon Book, Post Office Registration Book, Sales Manual of CIL and organisational chart of the SECL, Bilaspur before the charge could be framed. It was canvassed before the learned trial Judge that if the said documents are made available to the Court it would become quite graphic that the accused persons, namely, D. Sinha and M. Saran, are absolutely innocent. The learned trial Judge considering the contentions of the learned counsel for the parties came to hold that calling for the said documents could not prove the innocence of the accused as the determination of the same would be done after fulfledged trial. The learned trial Judge further came to hold that the prayer for calling for the documents before the charge is framed did not deserve consideration. However, the prayer for calling for the documents during the trial was not rejected and it was directed that above referred documents would be called for before the date of evidence.
8. After dealing with the said application the learned trial Judge proceeded to deal with the material brought on record for the purpose of framing of charge. Thereafter the learned trial Judge referred to the statements under Section 161 of the Code and came to hold that there is prima facie material to show that there was conspiracy amongst all the persons to cheat the SECL by lifting the coal through RROs issued against the rail short fall and to sell the coal in blackamarket to make a wrongful gain. The learned trial Judge came to hold that it is discernible from record that the accused persons were working as officers and they had a role in issuing concerned RROs, and delivery orders which led to supply coal. The learned trial Judge also observed that the coal though had been taken from the colliery but did not reach the company which was supposed to receive the same and the said coal was otherwise diverted. As far as the individual role of the accused persons is concerned the learned trial Judge observed that the same can be determined only after the trial takes place and accordingly he did not discharge the accused and framed charge as has been indicated hereinbefore.
9. In the Criminal Revision No. 678/2001 D. Sinha is the petitioner. He has also challenged the order passed by the learned Special Judge (CBI) in Special Case No. 6/2000. In the said case the RRO was issued in favour of M/s. Anjani Synthetic Pvt. Ltd., situated at Ahmedabad in the State of Gujrat. That apart, other facts are almost same and the reasoning given by the learned trial Judge is similar.
10. In Criminal Revision No. 679/2001 D. Sinha is also the petitioner and the allegations are almost similar as in Criminal Revision No. 611/2001.
11. In Criminal Revision No. 682/2001 Ashok Ahuja is the petitioner and the allegations against him relate to issuance of RRO in favour of M/s. Anjani Synthetics Private Limited. Allegation against him is that he had prepared the bank draft.
12. In Criminal Revision No. 603/2001 M. Saran is the accused and allegation against him is that he had signed the RROs to show bogus despatch.
13. In Criminal Revision No. 696/2001 Ramesh Chandra Agrawal is the accused and the impugned order shows that he was involved in the conspiracy relating to M/s Sunita Textiles Pvt. Ltd.
14. In Criminal Revision No. 659/2001 S. K. Chakraborty is the petitioner. As far as he is concerned he had played a role in preparation of the RROs in respect of M/s. Anjani Synthetics Pvt. Ltd. The specific role attributed to him is that he had issued the delivery orders and coal without verifying the persons.
15. In Criminal Revision No. 697/2001 Ramesh Chandra Agrawal is the petitioner. Allegations against him are the same as in the Criminal Revision No. 611/2001.
16. It is worth-noting that these accused persons are involved in separate cases.
17. I have heard the learned counsel for the petitioners and Mr. R. S. Patel, learned Senior Standing Counsel on behalf of the respondent.
It is urged by the learned counsel for the petitioners that if the documents which were sought to be requisitioned before the charge, if they were called for it would have gone a long way to show that the persons had no role in the crime in question and the role of the prosecution would have collapsed like a pack of cards.
18. Mr. R. S. Patel, learned Senior Standing Counsel for the respondent, per contra, submitted that the learned trial Judge has not rejected the application under Section 91 of the Code but has allowed the same in a different manner and hence, no infirmity can be found with it. It is also putforth by him that there are ample material on record to form a prima facie opinion and, therefore, the order passed by the learned trial Judge cannot be regarded as fallacious.
19. To appreciate the rival submissions raised at the Bar, I have carefully perused the impugned order passed in each case. The learned trial Judge on proper appreciation of the legal position has come to hold that an application under Section 91 of the Code was not entertainable at that juncture. It is wrothwhile to mention that he has not rejected the same but has only stated that it was not necessary to call for the documents at that stage but that would be called for at the stage of recording of evidence. Thus, an application filed under Section 91 of the Code by the petitioners stand allowed in a different manner indicating the stage and hence, I do not perceive any error in the same. Quite apart from the above, the learned trial Judge has given adequate reasons how the said documents could not have nullified the allegations brought on record and, therefore, there was no necessity to requisition the same before charge was framed. Thus, I am of the considered view, the order passed by the learned trial Judge on that score is absolutely sound and impeccable.
20. As far as framing of charge is concerned, the learned trial Judge has taken note of the statements recorded under Section 161 of the Code and other materials brought on record. It is not a case which does not disclose any admissible or acceptable evidence. It is not disputed that the petitioners had prepared the RROs and despatched the coal. The learned counsel for the petitioners contended that if the documents which were sought to be called for and would have been called for they would have clearly and graphically established that the cases of the petitioners were quite genuine and sanguine and there was no reason to frame the charge. In my view, such a stand can be taken in course of defence and such a plea squarely lies in the realm of defence. Whether the petitioners had any role to play in the crime concerned or not, cannot be scanned and scrutinised at this juncture in the manner in which the learned counsel for the petitioners would like the learned trial Judge of this Court to do. Sifting of evidence to find out reliability, probability and the credibility of the same cannot be done at the stage of framing of charge.
21. In this context I may profitably refer to the decision rendered in the case of State of Bihar v. Ramesh Singh AIR 1977 SC 2018, wherein the Apex Court ruled thus :
Reading Sections 227 and 228 together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged: Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction.
(quoted from the placitum)
21A. In the case of Union of India v. Prafulla Kumar Samal AIR 1979 SC 366 : 1979 Cri LJ 154, their Lordships of the Apex Court ruled thus :
10. Thus, on a consideration of the authorities mentioned above, the following principles emerge :
(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted 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 reving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
22. In this context I may profitably refer to the decision rendered in the case of State of Maharashtra v. Som Nath Thapa AIR 1996 SC 1744 : 1996 Cri LJ 2448 wherein the Apex Court expressed thus :
32. The aforesaid shows that if on the basis of material on record, a Court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the Court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that that the accused has committed the offence. It is apparent that at the stage of framing of charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage.
23. In this context it is also useful to refer the decision rendered in the case State of Maharashtra v. Priya Sharan Maharaj AIR 1997 SC 2041 : 1997 Cri LJ 2248 wherein their Lordships of the Apex Court held as under:
8. The law on the subject is now well settled, as pointed out in Niranjan Singh Punjabi v. Jitendra Bijjaya (1990) 4 SCC 76 : AIR 1990 SC 1962 : 1990 Cri LJ 1869, that at Sections 227 and 228 stage the Court is required to evaluable the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may, for this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution stages as gospel truth even if it is opposed to common sense or the broad probabilities of the case. Therefore, at the stage of framing of the charge the Court has to consider the material with a view to find out if there is ground for presuming that the accused has committed the offence or that there is not sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction.
24. Recently in the case of Om Prakash Sharma v. Central Bureau of Investigation, Delhi AIR 2000 SC 2335 : 2000 Cri LJ 3478, their Lordships of the Apex Court expressed the view as under :
…It is trite law that the standard of proof normally adhered to at the final stage is not to be insisted upon at the stage where the consideration is to be confined to find out a prima facie case and decide whether it is necessary to proceed to the next stage of framing the charges and making the accused to stand trial for the same. This Court has already cautioned against undertaking a roving enquiry into the pros and cons of the case by weighing the evidence or collecting materials, as if during the course or after trial vide Union of India v. Prafulla Kumar Samal (1979) 3 SCC 4 : AIR 1979 SC 366 : 1979 Cri LJ 154. Ultimately, this would always depend upon the facts of each case and it would be difficult to lay down a rule of universal application and for all times. The fact that in one case the Court thought fit to exercise such powers is no compelling circumstance to do so in all and every case before it, as a matter of course and for the mere asking. The Court concerned must be allowed a large latitude in the matter of exercise of discretion and unless in a given case the Court was found to have conducted itself in so demonstrably an unreasonable manner unbecoming of a judicial authority. the Court superior to that Court cannot intervene very lightly or in a routine fashion to interpose or impose itself even at that stage. The reason being, at that stage, the question is one of mere proprieties involved in the exercise of judicial discretion by the Court and not of any rights concretised in favour of the accused.
25. If the present factual matrix is tested on the touchstone of the aforesaid principles, there remains no scintilla of doubt that the learned trial Judge has passed an infallible order by not discharging the accused persons, as it is not a case in which it can be said that there is no material whatsoever against the petitioners. The accused persons desired sifting and scanning the evidence in a great detail and perused the documents which they warranted to call for and record a finding of innocence. In my considered view, the said exercise was unwarranted at that stage. Hence, I am inclined to confer the stamp of approval of this Court to the order passed by the learned trial Judge.
26. Consequently, the criminal revisions are dismissed.