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Inquiry To Be Conducted While Examining Prima Facie Case For Discharge Under Section 277 Of CrPC

Vanshita Singh ,
  16 September 2022       Share Bookmark

Court :
Hon’ble Supreme Court of India
Brief :

Citation :
Criminal appeal no. 1562 OF 2022 arising out of SLP (CRL) NO. 9601 OF 2016

CASE TITLE:
Kanchan Kumar Vs. State of Bihar

DATE OF ORDER:
14 September 2022

JUDGES:
Justice BR Gavai and Justice PS Narasimha

PARTIES:
Petitioner: Kanchan Kumar
Respondent: State of Bihar

SUBJECT

The Supreme Court stated that while examining a discharge plea, a simple and reasonable examination can be made to determine whether a prima facie case is made out. The bench noted that the level of scrutiny necessary to decide an application under Section 227 Cr.P.C. entails taking into account the case’s broad probabilities as well as the overall impact of the material in the record, including a review of any apparent flaws.

IMPORTANT PROVISIONS

The Code of Criminal Procedure, 1973

  • Section 239 - When accused shall be discharged. - 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 Magistrate 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.
  • Section 227 - Discharge - If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.

BRIEF FACTS

  • On July 19, 1974, the appellant began working for the Bihar State Financial Corporation (BSFC) as an assistant general manager. In 1987, a complaint was made against the appellant for allegedly buying three homes and two plots of land in Bihar, which, in the complainant’s opinion, was excessive given the appellant’s known sources of income. The allegations were found to be false.
  • No additional assets could be linked back to the appellant except for a residence in Patna that he had acquired on August 29, 1988 using a loan from the BSFC. The investigation was kept pending despite the fact that the claim had no merit.
  • The appellant kept his lien with the BSFC and joined the Oil and Natural Gas Commission (ONGC) as deputy general manager on deputation in 1996. On February 21, 2000, based on the same accusation, a FIR was filed against him under Sections 13(l)(d) and 13(2) of the Prevention of Corruption Act, 1986.
  • The Appellant claimed in a letter to the Director General of Police (Vigilance), Patna, on April 18, 2002, that the computations in the FIR overestimated his assets and underestimated his income, creating an inaccurate and exaggerated picture of his spending.
  • On September 11, 2007, a charge sheet was submitted, revealing that he had a total income of Rs. 3,01,561 and expenses of Rs. 5,24,386 during the check period. In light of this, the Appellant was accused of amassing Rs. 2,22, 825 in excess of his recognised sources of income.
  • The Appellant claimed that there were obvious flaws in the computation when he filed a discharge application under “Section 239” of the Criminal Procedure Code (which should have been under Section 227) before the Court of Special Judge (Vigilance), Patna. By its ruling of 28.03.2016, the Court, however, rejected the application without analysing or scrutinising the materials presented or the reasons put out.
  • The Appellant filed a motion with the High Court after being aggrieved by the dismissal of his application. The High Court began by outlining the timeline of events before citing decision after judgement and ultimately dismissing the revision application.

ISSUES RAISED

  • Whether the Appellant is entitled to be discharged of the proceedings initiated against him under the Prevention of Corruption Act, 1988?

ARGUMENTS ADVANCED BY THE PETITIONER

  • The learned Counsel for the Petitioner submitted that the Trial Court should have dismissed the Appellant based on the fundamental concern regarding the calculation and improper inclusion of some items.
  • He explained to the bench some blatant flaws that were present in the case record before the Special Judge in a clear-cut and straightforward manner.
  • He supported his submissions by the decisions of the Supreme Court in Union of India v. Prafulla Kumar Samal and Another and Ghulam Hassan Beigh v. Mohammad Maqbool Magrey.

ARGUMENTS ADVANCED BY THE RESPONDENT

  • The counsel for the respondent contended that the Trial Court was right in dismissing the discharge application.
  • He argued that the courts were unable to conduct a roving investigation while deciding a case under Section 239 of the Cr.P.C.

JUDGEMENT ANALYSIS

  • The Court confined its inquiry to 3 heads of expenditure indicated in the chargesheet itself which will satisfy the requirements of Section 227 of Cr.P.C.
  1. The first objection is on the inclusion of Rs. 55,000, which was listed as the Appellant's bank balance and included as an expense on the charge sheet. However, the Bank Passbook submitted by the Appellant clearly showed that there was only a balance of Rs. 11,998.The Prosecution did not offer an explanation for the disparity in the numbers. As a result, the Special Judge (Vigilance) and the High Court were unable to resolve such an obvious contradiction in the Prosecution's testimony. The bench held that only the sum of Rs. 11,998 - recorded as the balance during the check period in the Appellant's bank passbook - was properly permitted as expenditure under this head.
  2. The second objection is in relation to the inclusion of Rs. 53,467 as repayment of the BSFC loan expenses. However, the amount repaid for loan instalments had already been subtracted from the appellant’s gross income, and the subtracted sum was noted as the appellant’s total disposable income for the check period. As a result, the loan repayment could not be independently considered an expense once more. This was a flagrant error. Due to the fact that a roving inquiry is not permitted during the discharge stage, the Special Judge (Vigilance) and the High Court did not take this issue into consideration.
  3. The third objection concerns the inclusion of Rs. 1,58,562 as the value of the items discovered during a search of the home of the appellant on February 21, 2000, which was twelve years after the 1974–1988 check period. Nothing even remotely suggests that these items discovered during the search in 2000 were obtained during the check period. It was unlawful to include the value of these items in the expenditure if there was no evidence that they were purchased during the check period. The Court believed that the Appellant’s objection to this amount being included in the list of expenses was therefore fully justifiable. Unfortunately, neither the Special Judge (Vigilance) nor the High Court took into account even this objection, which did not necessitate a thorough examination of the documentation.
  • Due to several errors, the total cost only came to Rs. 2,69,355 and not Rs. 5,24,386 as stated before. When compared to the income of Rs. 3,01,561 received during the check period, the expense of Rs. 2,69,355 should be noted. These facts unequivocally show that the prosecution has not established a case beyond a reasonable doubt, and the appellant was thus entitled to a dismissal.

CONCLUSION

Since the roving inquiries are not allowed during the discharge stage, the Special Judge (Vigilance) denied the discharge application. In order to reach the judgement that an appellant should be tried, the Special Judge (Vigilance) was required to perform a comparable investigation. The High Court of Patna's judgement and order in CRLM No. 23031 of 2016 and that of the Court of Special Judge (Vigilance), Patna, in Special Case No. 09 of 2000, both dated 05.10.2016, were both overturned by the court, and the Appellant was released. The court also allowed the Criminal Appeal arising out of SLP (Crl) No. 9601 of 2016 to be heard. 21. There was no expense order.

Click here to download the original copy of the judgement

Learn the practical aspects of CrPC HERE, CPC HERE, IPC HERE, Evidence Act HERE, Family Laws HERE, DV Act HERE

 
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