Defence Of Accused Cannot Be Put Forth At The Stage Of Framing Of Charges: Jharkhand HC

While refusing to quash the criminal proceedings against a public servant, the Jharkhand High Court in a learned, laudable, landmark and latest judgment titled Pushpendra Kumar Sinha vs The State of Jharkhand in Cr.M.P. No. 2632 of 2021 delivered as recently as on January 24, 2022 refused to quash criminal proceedings against a public servant, where the trial has already begun noting that at the stage of framing of charge, the defence of the accused cannot be put forth. The single Judge Bench of Justice Anil Kumar Choudhary observed, “That at the stage of framing of charge the defence of the accused cannot be put forth.” Very rightly so!

To start with, the single Judge Bench of Justice Anil Kumar Choudhary of Jharkhand High Court who authored this noteworthy judgment first and foremost puts forth in para 1 that, “Heard the parties through video conferencing.”

To put things in perspective, the Bench then puts forth in para 2 that, “This criminal miscellaneous petition has been filed with a prayer to quash the entire criminal proceedings initiated against the petitioner vide Vigilance (Special) Case No. 20 of 2013 (corresponding to Vigilance P.S. Case No. 19 of 2013) registered under Sections 409, 420, 467, 468, 471, 477A with Section 120B of the Indian Penal Code read with Sections 13(1) (c) (d) and under Section 13(2) of the Prevention of Corruption Act, 1988 and also to quash the order dated 06.08.2021, passed by the learned Special Judge, AntiCorruption Bureau, Ranchi in Misc. Cr. Application No. 1171 of 2019 and to quash/set aside, with all consequences, the order framing charge dated 18.11.2021 as well as the charges framed on 18.11.2021.”

While briefly elaborating on the facts of the case, the Bench then envisages in para 3 that, “The brief facts of the case is that The First Information Report in this case was registered with the allegation that under APDRP scheme related to the towns of Ranchi, Khunti, Ramgarh, Jamtara and Pakur, it was detected that illegal allotment of tender was given to the contractor under criminal conspiracy by the petitioner along with the co-accused persons by misusing their power and post as Public Servants. It is further alleged that the members of the Tender Evaluation Committee were changed many times to finalize the tender and the approval of the competent authority in submitting the revised price was not found in the file. It is also alleged that the cost of that was not approved by the Board and that under criminal conspiracy of the petitioner along with the co-accused persons, the approval of the tender was made ignoring the advice of accounts department to the contrary. It is also alleged that projects of Ranchi town as well as the other towns of the year 2004 was decided in the year 2008 and the work order was placed by escalating the estimate. It is further alleged that the complicity of the petitioner is evident from the fact that on account of intentional delay in allotment of the work, the amount had to be raised substantially and the petitioner is responsible for huge amount of wrongful loss caused to the Board. The further specific allegation against the petitioner is that although the Accounts Section of Jharkhand State Electricity Board made an objection regarding the procedure of tender but the petitioner overruled the objection and made favourable noting in favour of the contractor which was approved by the Chairman and in the process the evaluation report submitted by MECON was totally ignored in order to provide benefit to the party concerned. It is also alleged that Ranchi district was allotted ₹ 18.81 crore approximately in the year 2004 for this program but tender was finalized in the year 2008 at a cost of ₹ 34.25 crores approximately causing huge wrongful loss to the state.”

As it turned out, the Bench then enunciates in para 4 that, “After submission of charge sheet the petitioner filed a petition for discharge. The same was rejected by the learned trial court. The petitioner earlier filed Criminal Revision No. 578 of 2018 before this court challenging the said rejection of the prayer of the petitioner for discharge in the case and a coordinate bench by the order dated 07.05.2019 dismissed the said revision application. Though the petitioner moved the Hon’ble Supreme Court of India against the said order passed by the coordinate bench of this court vide SLP (Crl.) no. 7338 of 2019, but the said special leave petition stood dismissed as withdrawn vide the order dated 23.08.2019 of the Hon’ble Supreme Court of India.”

Most significantly and also most remarkably, what forms the cornerstone of this brief, brilliant, bold and balanced judgment is then encapsulated in para 7 wherein it is held that, “Having heard the rival submissions made at the Bar and after carefully going through the materials in the record it is pertinent to mention here that it is a settled principle of law as has been observed by the Hon’ble Supreme Court of India in paragraphs 17 and 18 in the case of State of Orissa v. Debendra Nath Padhi, (supra)

17. As opposed to the aforesaid legal position, the learned counsel appearing for the accused contended that the procedure which deprives the accused to seek discharge at the initial stage by filing unimpeachable and unassailable material of sterling quality would be illegal and violative of Article 21 of the Constitution since that would result in the accused having to face the trial for a long number of years despite the fact that he is liable to be discharged if granted an opportunity to produce the material and on perusal thereof by the court. The contention is that such an interpretation of Sections 227 and 239 of the Code would run the risk of those provisions being declared ultra vires of Articles 14 and 21 of the Constitution and to save the said provisions from being declared ultra vires, the reasonable interpretation to be placed thereupon is the one which gives a right, howsoever limited that right may be, to the accused to produce unimpeachable and unassailable material to show his innocence at the stage of framing charge.

18. We are unable to accept the aforesaid contention. The reliance on Articles 14 and 21 is misplaced. The scheme of the Code and object with which Section 227 was incorporated and Sections 207 and 207-A omitted have already been noticed. Further, at the stage of framing of charge roving and fishing inquiry is impermissible. If the contention of the accused is accepted, there would be a mini-trial at the stage of framing of charge. That would defeat the object of the Code. It is well settled that at the stage of framing of charge the defence of the accused cannot be put forth. The acceptance of the contention of the learned counsel for the accused would mean permitting the accused to adduce his defence at the stage of framing of charge and for examination thereof at that stage which is against the criminal jurisprudence. By way of illustration, it may be noted that the plea of alibi taken by the accused may have to be examined at the stage of framing of charge if the contention of the accused is accepted despite the well-settled proposition that it is for the accused to lead evidence at the trial to sustain such a plea. The accused would be entitled to produce materials and documents in proof of such a plea at the stage of framing of the charge, in case we accept the contention put forth on behalf of the accused. That has never been the intention of the law well settled for over one hundred years now. It is in this light that the provision about hearing the submissions of the accused as postulated by Section 227 is to be understood. It only means hearing the submissions of the accused on the record of the case as filed by the prosecution and documents submitted therewith and nothing more. The expression “hearing the submissions of the accused” cannot mean opportunity to file material to be granted to the accused and thereby changing the settled law. At the stage of framing of charge hearing the submissions of the accused has to be confined to the material produced by the police.

That at the stage of framing of charge the defence of the accused cannot be put forth. The charge has already been framed in this case and the trial has begun. Perusal of the record reveals that there is no material in the record to suggest that the said copy of the reports of the Public Accounts Committee as also the report of the Ministry of Power, Government of India on restructuring of APDRP in October, 2008 regarding actual achievement of APDRP under 10th plan schemes under all the state utilities was ever placed before the trial court even at the time of 2nd approach for discharge after the said Special Leave Petition was dismissed by the Hon’ble Supreme Court of India as withdrawn.

As has been held by the Hon’ble Supreme Court of India in the case of Supdt. and Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja, reported in (1979) 4 SCC 274, para-18 of which reads as under:

“18. It may be remembered that the case was at the stage of framing charges; the prosecution evidence had not yet commenced. The Magistrate had, therefore, to consider the above question on a general consideration of the materials placed before him by the investigating police officer. At this stage, as was pointed out by this Court in State of Bihar v. Ramesh Singh [(1977) 4 SCC 39 : 1977 SCC (Cri) 533] , the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of Section 227 or 228 of the Code of Criminal Procedure, 1973. At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, may justify the framing of charge against the accused in respect of the commission of that offence.”

At the stage of framing the charge the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. At this stage, even a very strong suspicion founded upon materials before the Special Judge, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, may justify the framing of charge against the accused in respect of the commission of that offence.”

No less significant is what is then stated in para 8 that, “Now coming to the facts of the case the allegation inter alia against the petitioner is that he in criminal conspiracy with the co-accused persons was instrumental in illegal allotment of tender to the contractor by misusing their power and post as Public Servants. There is further allegation that the members of the Tender Evaluation Committee were changed many times to finalize the tender and the approval of the competent authority in submitting the revised price was not found in the file. It is also alleged that the cost of that was not approved by the Board and that under criminal conspiracy of the petitioner along with the co-accused persons, the approval of the tender was made ignoring the advice of accounts department to the contrary. These allegations has got nothing to do with the delay that occurred in allotment and the consequential escalation in price of the tender which at the most is claimed to be explained by the said documents produced before this court and basing upon which it was urged upon this court to quash the entire criminal proceeding and to set aside the order framing the charge and the charges that have been framed. Hence this court is of the considered view that even assuming for the sake of argument that the documents filed by the petitioner are true and genuine still they not sufficient enough in themselves to absolve the petitioner from all the charges framed against him in this case.”

Finally, the Bench then concludes by holding in para 9 that, “In view of the discussions made above this court do not find any merit to accede to the prayer of the petitioner to quash the entire criminal proceeding as well as the order framing charge and the charges already framed in the case more so at this belated stage when the trial of the case has already begun. Accordingly this criminal miscellaneous petition being without any merit is dismissed.”

In a nutshell, the single Judge Bench comprising of Justice Anil Kumar Choudhary of Jharkhand High Court has minced no words to state it plainly, persuasively and pragmatically that the defence of accused cannot be put forth at the stage of framing of charges. As we see, the Court is definitely not convinced by the specious arguments made by the petitioner which did not cut any ice. Thus, we see that the criminal miscellaneous petition of the petitioner is dismissed for the grounds stated hereinabove! No denying it!