ORDER
1. This revision is filed for quashing the proceedings in CC No.16 of 1998 on the file of the learned Principal Special Judge for SPE and ACB Cases-cum-IV Additional Chief Judge, Hyderabad against the petitioners and one other. Before considering the contentions raised by the petitioners, it is necessary to state skeleton facts.
2. Petitioner No.1 was working as a Metropolitan Sessions Judge at Hyderabad, in the State Judicial Service, during May, 1995 to September, 1996. He resides in Flat No.402 of “Garudagagan Apartments” at Secunderabad. He is accused No.1 in the CCNo.16 of 1998, which is under challenge. Accused No.2 is one Mohd. Omer Bind Main, who was a police constable attached to the Court which was presided by accused No.1. However, accused No.2 is not amongst the petitioners. Accused No.3, who is petitioner No.2, is the wife of petitioner No.1 and is serving as a Teacher and residing in Excise Colony at Hanamkonda. Accused No.4 is the deaf and dumb son of accused No. I and accused No.3 and he resides with his mother, accused No.3, at Hanamkonda and is aged about 19 years. One Sessions Case No.186 of 1989 was pending before accused No.1 and Sant Eshar Singh and another person Sardar Rajendra Singh were accused in the said Sessions Case. Sant Eshar Singh is hereafter referred to as the ‘complainant’. When the said Sessions Case was at fag end, accused No.2 approached the complainant and represented to him that if an amount of six lakhs of rupees was paid as bribe for accused No.1 and additional sum of Rs.50,000/- paid to accused No.2 for mediating, complainant would be acquitted in the Sessions Case. Complainant was not
willing to pay the amount and wanted to see accused No.1. Accused No.2 kept contact with complainant on phone and assured him that his work would be done if payment was made. Ultimately a deal was struck for Rs.3,00,000/- (Rs. three lakhs) to be paid to accused No.1, and Rs.50,000/- (Rs. fifty thousand) to be paid to accused No.2 for mediating. The complainant was told by accused No.2 that complainant would get ‘go ahead’ signal when the matter would come up for hearing before accused No.1 in the Court on 4-9-1996 if accused No.1 openly declared in the Court “the pending petitions are posted to 6-9-1996”. It was to be taken that accused No. 1 had accepted the deal fixed. The complainant approached the Anti-Corruption Bureau Police in the mean time and lodged his complaint. As the matter concerned a Judicial Officer, the A.C.B. police approached the Chief Justice of the High Court for permission to go ahead. Such permission was obtained from the High Court. On 4-9-1996 accused No. 1 uttered the words which were alleged to be the code words to go ahead. Thereafter, accused No.2 asked the complainant to come with money for being paid to accused No.3 at Hanamkonda at the residence of accused No.3. Accordingly, they went in a car. On reaching the house of accused No.3 at Hanamkonda, accused No.2 told accused No.3 that the complainant had come to make the payment as instructed by accused No.1. When accused No.3 indicated that payment may be made, accused No.2 took the money, which was in a plastic cover, from the complainant and wanted to take out the money and keep it on the Teapoy. However, accused No.3 told accused No.2 not to take out the money and keep it in plastic cover itself. The currency was of course smeared with Phenopthalein powder already. The money was then kept on the Teapoy and was lifted by accused No.4 and kept aside in the Cupboard in the drawing room. Thereafter, the raiding party came upon a signal given by the complainant. In the meantime, accused No.4 is alleged to have shifted the plastic cover containing the
amount to some other place. When accused No.4 was questioned by the Investigating Officer, the said amount in the plastic cover was found to have been kept in the flush tank of the toilet. It was recovered and seized. After making the usual panchanama etc., accused No.2 and complainant were brought back towards Hyderabad. By about 11.30 night, the party came to outskirts of Hyderabad at a place called “Uppal” and from there accused No.2 contacted accused No.1 on phone from a booth. Accused No.1 gave instructions to bring the complainant to his residence in Secunderabad. Accused No.2 did all these things as per the directions of the Investigating Officer. On reaching the building in which accused No.1 resides, the watchman at the gate made a query and after accused No.2 disclosed that the purpose was visiting accused No.1, the said watchman after contacting accused No.1 permitted accused No.2 and the complainant to go into the flat of accused No. 1. When they entered the flat, accused No.1 is alleged to have bolted the entrance-door from inside and when accused No.2 told accused No. 1 that the payment was made as agreed, accused No.1 assured the complainant that he should not be afraid of anything. Immediately the Raiding Party entered and when accused No.1 was questioned as to how the complainant, who was accused in a pending case before accused No.1, was in his flat at such mid-night, accused No. 1 could not explain. Thereafter, the whole investigation was done. Later sanction was obtained for prosecuting accused No.1, as well as accused No.2 and accused No.3 and the case was sent up before the concerned Judge dealing with the A.C.B. cases.
3. The petitioners challenged the framing of charges by making an application for seeking a discharge. The said application was dismissed by the learned Special Judge and the said order is now challenged by this revision petition.
4. It is argued that even if it is assumed that all the facts alleged are true, the
prosecution will not be in a position to obtain conviction. The evidence is unbelievable on the face of it. Secondly, it is contended that the sanction obtained is a farce because the Government has given sanction merely on directions of the High Court. There was no application of mind by the Government. The learned Special Public Prosecutor has contended that at the stage of framing of the charge, these questions cannot arise. Whether the evidence is believable or not has to be determined at the trial. The facts as alleged and placed before the Court in the charge-sheet give a ground for a strong suspicion about involvement of the accused persons in the alleged charges. The accused can claim discharge only if the Court thinks that the charge preferred against the accused is groundless. In respect of sanction it is argued that whether sanction is valid or not is a question of fact. The argument that Government has not applied its mind cannot be considered at this stage, without evaluation of the evidence to be led at the time of trial. It is thus contended that the revision case is without merit.
5. It may be pointed out that the petitioners had earlier filed proceedings under Section 482 of the Criminal Procedure Code (for short ‘the Cr.PC’) vide Crl. P. No.2951 of 1998 for quashing these impugned proceedings, on the ground that the proceedings initiated against the petitioners amount to abuse of process of law, as the allegations even if accepted did not amount to commission of any offence. In other words, almost similar arguments were raised at that point of time. The learned Judge, who decided the said Crl. P. No.2951 of 1998 on 16-7-1998 while dismissing it observed :
“The charge-sheet prima facie reveals the commission of the offence by the petitioners.”
It is thus clear that this Court has once come to the conclusion that there was prima facie
case made out against the petitioners. Inspite of the said finding of this Court, the petitioners are reagitating the issue in the garb of filing a revision against the order of dismissal of the petition filed by them before the learned Sessions Judge seeking their discharge. I think that this would be impermissible.
6. Considering the argument of the petitioners afresh, I am not inclined to accept the contention of the petitioners. As far as the challenge to the sanction is concerned, as rightly pointed out by the learned Special Public Prosecutor, this is not the stage at which the Court can decide as to whether sanction was granted by the Government with or without application of its mind. Merely because the High Court had directed the Investigating Agency to obtain sanction from the Government, it cannot be said that Government felt obliged to give sanction of the prosecution of accused No.1. High Court apparently gave direction because the police had gone for obtaining sanction to prosecute accused No.1 from the High Court. As appointing authority in respect of Judicial Officers, is the State Government, the High Court rightly gave direction to the Investigating Agency to approach the Government and obtain the necessary sanction in that respect. Therefore, at this stage it is premature to argue that the Government did not apply its mind before granting the sanction. The contention that accused are entitled to discharge on the ground of alleged invalid sanction is thus meritless.
7. The learned Counsel for the petitioners has very vehemently contended that if the material relied upon by the prosecution is scanned it will be found that the evidence sought to be led will be unbelievable and no conviction will ever stand on such evidence as it is intrinsically unbelievable. The Counsel for the petitioners says that in Niranjan Singh Punjabi v. Jitendra Bijjaya, , it has
been decided by the Supreme Court that even at the stage of framing of the charge, the Court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose existence of all the ingredients constituting alleged offence. He therefore argues on the basis of the said observations that the learned Special Judge was bound to evaluate the material placed before him to find out the reliability of the said material. Sections 227, 228 and 239 of the Cr.PC are relied upon for considering the argument, by the petitioners’ learned Counsel. They are as follows :
Section 227 :
“If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and prosecution in this behalf, the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.”
Section 228 :
“(1) If, after such consideration and hearing as aforesaid the Judge is of opinion that there is ground for presuming that the accused has committed an offence which-
(a) is not exclusively triable by the Court of Session, he may frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, and thereupon the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of warrant cases instituted on a police report;
(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.
(2) Where the Judge frames any charge under clause (b) of sub-section (1), the
charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.”
Section 239 :
“If, upon considering the police report and the documents sent with it under Section 173 and making such examination, if any, of the accused as the Magislrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.”
Though the learned Counsel has relied on Sections 227 and 228 of the Cr.PC it may be pointed out that these sections appear in Chapter XVIII of the Cr.PC which is relating to a trial before a Court of Session. The trial in cases arising out of the Prevention of Corruption Act is governed by the procedure to be adopted for warrant cases. Therefore, Sections 227 and 228 of the Cr.PC are really not applicable. The petitioners’ case really falls under Section 239 of the Cr.PC. If the petitioners are unable to show that the charge against the accused is groundless, the petitioners cannot succeed. On the other hand if there is ground for presuming that the accused has committed an offence triable under Chapter XIX of the Cr.PC, the Court competent to try would be justified in framing a charge against the petitioners. It is true that principles to be applied will be the same as of the principles of Section 227 or Section 228 of the Cr.PC. The material placed before the Court for purposes of framing of the charge has to be evaluated to a limited extent only. The question came up before the Supreme Court in Stale of Maharashtra v. Priya Sharan Maharaj, 1997(3) Supreme 73. Niranjan Singh’s case (supra) was also considered there. In para 8 in the Priya Sharan’s case (supra), the Supreme Court pointed out that at the stage of framing of 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 no 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. Therefore, the observations made in Niranjan Singh’s case (supra) by the Supreme Court have to be read in the light of what is said in Priya Sharan’s case. If there is a strong suspicion arising from the material placed before the Court at the time of framing charge, it cannot be said that the charge is groundless. The Court is enjoined to frame charge in such a situation. Having regard to this legal position, it is necessary to refer to the material in the instant case.
8. As has been pointed out already, there are quite few circumstances alleged in the material to have strong suspicion about involvement of the petitioners in the crime alleged. Firstly there is the whole evidence of the complainant. At this stage it is impermissible to throw out the complainant’s evidence on any imaginary grounds. As of now there is nothing to show that complainant has any prior enmity with petitioner No.1. Then there is evidence of corroboration to complainant’s version. Firstly his conduct of approaching the A.C.B. Police. Secondly the version given by him has been supported by the utterance of the words of accused No. 1 in the Court “pending petitions are posted to 6-9-1996”. Thereafter, complainant’s going with accused No.2 to Hanamkonda to the house where accused No.3 and accused No.4 are residing and payment of three lakhs of rupees by complainant through accused No.2 and acceptance of the same by accused No.3. Attempt of accused No.3 to contact accused No. 1 on phone from Hanamkonda to intimate receipt of money. Then the phone made by accused No.2 from Uppal, to accused No.1 at his flat. The conduct of accused No.1 in allowing accused No.2 to bring complainant at his flat at odd hour of 1.00 a.m. at night,
when accused No.1 knew that complainant was an accused standing trial before him. Therefore, there are several circumstances which give rise to strong suspicion of involvement of the accused persons in the crime. It cannot be said that the charge preferred is groundless. If at the ultimate stage of trial any of the evidence is found to be unreliable, that would be a different state of affairs. However, as the things stand there is sufficient material for framing charge as there are several grounds to presume that the petitioners are involved in the offence.
9. The contention of the learned Counsel for the petitioners that it is unbelievable that accused No.1 would act in a way as alleged, cannot be accepted at this stage. It is argued that the tainted amount was not found in possession of any particular accused and therefore, the case is bound to fail. This argument is not sound. If the evidence as collected stands wholly it cannot be said that the tainted amount was not in possession of accused No.2 and accused No.3. Finding of phenolphthalein powder on the hands or body of the recipient is not the only way to prove possession. The question ultimately is as to how the evidence stands at the trial.
10. Having regard to all the facts and circumstances stated above, 1 have no doubt whatsoever that the petitioners cannot claim discharge at this stage, as the charge sought to be levelled is not groundless. The application was rightly dismissed by the learned Special Judge.
11. At the cost of repetition it is necessary to state that in fact the petitioners having unsuccessfully advanced identical argument in earlier criminal petition under Section 482 of the Cr.PC, it was really not open for them to reagitate the question in this revision case.
12. The criminal revision case is meritless and is dismissed.