Code of Criminal Procedure, 1973 – s. 227 – Discharge – There was a Partnership firm “AMC”, first accused and second accused became partners of the firm in 2009 – The appellant was arrayed as the third accused – There was a reference in the chargesheet to a conspiracy between the first accused and the second accused – The appellant was director of Mines and Geology in the State at the relevant time – It was alleged that appellant had acted in pursuance to the criminal conspiracy and abused his official position with a dishonest and fraudulent intention to cheat the Government and knowingly made a false note in the file that he had discussed the matter, relating to issuance of the Mineral Dispatch Permit (MDP) to the new partners of the firm, viz., the first accused and the second accused, with the Deputy Director (legal) and directed Deputy Director to issue MDP – It was alleged in the charge-sheet that the acts of the accused including the third accused (appellant) constituted criminal offences u/ss. 120B, 420, 379, 409, 447, 468, 471, 477A of IPC and ss. 13 (2), 13 (1) (c) and 13 (1) (d) of the Prevention of Corruption Act, 1988 – Applications were filed u/s. 227 of the Cr.P.C. seeking discharge – The Trial Court discharged the second accused and the appellant – This order was set aside by the High Court – On appeal, held: The prosecution case largely depended upon the statement of the Deputy Director legal who took a definite stand that no opinion was sought from him by the appellant – A matter, u/r. 37 of the Rules, therefore, according to the prosecution case, which ought to have gone to the State Government for prior sanction, came to be dealt with by the appellant as Director of Mines – This led to the issue of MDP – If the defence of the appellant is not to be looked into, which included the practice of obtaining in the past whenever the firm was reconstituted and also the version of the appellant that he did in fact speak with the Deputy Director (legal) and acted on his advice and further that this fact would be established if the Deputy Director legal was questioned in his presence, they would appear to be matter which may not be available to the appellant to press before the Court considering the application u/s. 227 of the Cr.P.C. – Consequently, the appeal is dismissed – Mines and Minerals (Development and Regulation) Act, 1957 – Mineral Concession Rules, 1960 – r. 37.
Code of Criminal Procedure, 1973 – s. 227 – Contours of jurisdiction under – Held: The principle established is to take the materials produced by the prosecution, both in the form of oral statements and also documentary material, and act upon it without it been subjected to questioning through cross-examination and everything assumed in favour of the prosecution, if a scenario emerges where no offence, as alleged, is made out against the accused, it, undoubtedly, would enure to the benefit of the accused warranting the Trial Court to discharge the accused – It is not open to the accused to rely on material by way of defence and persuade the court to discharge him.
Code of Criminal Procedure, 1973 – s. 227 – Discharge – Defence of accused seeking discharge – Held: The defence of the accused is not to be looked into at the stage when the accused seeks to be discharged u/s. 227 of the Cr.PC (State of J & K v. Sudershan Chakkar and another) – The expression, “the record of the case”, used in Section 227 of the Cr.PC, is to be understood as the documents and the articles, if any, produced by the prosecution – The Code does not give any right to the accused to produce any document at the stage of framing of the charge – At the stage of framing of the charge, the submission of the accused is to be confined to the material produced by the Police (State of Orissa v. Debendra Nath Padhi).
Dismissing the appeal, the Court
HELD: 1. The defence of the accused is not to be looked into at the stage when the accused seeks to be discharged under Section 227 of the Cr.PC (State of J & K v. Sudershan Chakkar and another). The expression, “the record of the case”, used in Section 227 of the Cr.PC, is to be understood as the documents and the articles, if any, produced by the prosecution. The Code does not give any right to the accused to produce any document at the stage of framing of the charge. At the stage of framing of the charge, the submission of the accused is to be confined to the material produced by the Police (State of Orissa v. Debendra Nath Padhi). [Para 15][805-D-E]
2. It is here that again it becomes necessary to remind the contours of the jurisdiction under Section 227 of the Cr.PC. The principle established is to take the materials produced by the prosecution, both in the form of oral statements and also documentary material, and act upon it without it been subjected to questioning through cross-examination and everything assumed in favour of the prosecution, if a scenario emerges where no offence, as alleged, is made out against the accused, it, undoubtedly, would enure to the benefit of the accused warranting the Trial Court to discharge the accused. [Para 25][810-A-B]
3. It is not open to the accused to rely on material by way of defence and persuade the court to discharge him. [Para 26][810C]
4. In this case, as already noticed, going by the statements made by the subordinates working in the Office of the appellant, on receipt of the letter from the erstwhile partners of AMC dated 26.12.2009, two of his subordinates, including the Additional Director, did recommend that the matter requires a legal opinion. The noting, which is undisputed in this case, made by the appellant, would appear to suggest that he had spoken to the Deputy Director (Legal). The prosecution case largely depends upon the statement of the Deputy Director (Legal) who takes a definite stand that no opinion was sought from him. A matter, under Rule 37 of the Rules, therefore, according to the prosecution case, which ought to have gone to the State Government for prior sanction, came to be dealt with by the appellant as Director of Mines. This led to the issue of MDPs. It is, no doubt, true that there may not be any other material to link the appellant with various other acts and omissions which have been alleged against the first accused in particular along with the fifth accused and other accused. However, the fact remains, if the defence of the appellant is not to be looked into, which included the practice obtaining in the past whenever the firm was reconstituted, and also the version of the appellant that he did in fact speak with the Deputy Director (Legal) and acted on his advice and further that this fact would be established if the Deputy Director (Legal) was questioned in his presence, they would appear to be matter which may not be available to the appellant to press before the court considering the application under Section 227 of the Cr.PC. [Para 29][810-F-H; 811-A-B]
Sree Ramakrishna Mining Company v. Commissioner of Income-Tax, Mysore (1966) SCC Online Kar 73; State of J & K v. Sudershan Chakkar and another AIR 1995 SC 1954; State of Orissa v. Debendra Nath Padhi AIR 2005 SC 359 – referred to.
P. Vijayan v. State of Kerala and another (2010) 2 SCC
398 – relied on.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.