STATE REPRESENTED BY THE DEPUTY SUPERINTENDENT OF POLICE VIGILANCE AND ANTI CORRUPTION, TAMIL NADU versus J. DORAISWAMY ETC. on 7 March 2019

STATE REPRESENTED BY THE DEPUTY SUPERINTENDENTOF POLICE VIGILANCE AND ANTI CORRUPTION,TAMIL NADU

v.

J. DORAISWAMY ETC.

(Criminal Appeal Nos. 445-446 of 2019)

MARCH 07, 2019.

[ABHAY MANOHAR SAPRE ANDDINESH MAHESHWARI, JJ.]

Code of Criminal Procedure, 1973:

s.227 – Respondents-Police officials prosecuted underPrevention of Corruption Act – Charge sheet filed by the StateProsecuting Agency against the respondents – Application unders.227 filed by respondents praying for their discharge from the casewhich was allowed by trial court – High Court dismissed the revisionpetitions filed by State challenging the order of trial court – Validity– Held: While considering the case of discharge, sought immediatelyafter the charge-sheet is filed, the Court cannot become an AppellateCourt and start appreciating the evidence by finding outinconsistency in the statements of the witnesses as was done by theHigh Court in the impugned order – There is no prima facie casemade out for discharge of the respondents at this stage of the trial– CJM should have, therefore, allowed the State to adduce theevidence on merits in support of the charge-sheet to prove thecharges – Matter remitted to CJM to proceed with the trial –Prevention of Corruption Act, 1988.

Allowing the appeals and remitting the matter to CJMCourt, the Court.

HELD: The High Court acted like an Appellate Court thanas a Revisionary Court as if it was hearing the appeal against thefinal verdict of the Special Court. There was no prima facie casemade out for discharge of the respondents at this stage of thetrial. They, therefore, have to stand for trial on merits in the lightof the documents and contents of charge-sheet filed pursuant tothe order of the Court. [Paras 12, 18][923-G; 925-D]

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922 SUPREME COURT REPORTS [2019] 2 S.C.R.

ACRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 445-446 OF 2019.

From the Judgment and Order dated 14.07.2016 of the High CourtJudicature at Madras in Crl. R.C. Nos. 825 and 826 of 2015.

S. Partha Sarathi, S. Raja Rajeshwaran, M. Yogesh Kanna, Advs.Bfor the Appellant.

Neeraj Jain, Sr. Adv., S. Thananjayan, Krishan Kumar, Rahul RajMishra, Advs. for the Respondents.

The Judgment of the Court was delivered by CABHAY MANOHAR SAPRE, J. 1. Leave granted.

2. These appeals are directed against the final judgment and orderdated 14.07.2016 passed by the High Court of Judicature at Madras inCrl. R.C. Nos.825 and 826 of 2015 whereby the High Court dismissedthe revisions filed by the appellant-State and affirmed the order of theDSpecial Judge/Chief Judicial Magistrate, Tiruvannamalai by which therespondents herein were discharged under Section 227 of the CriminalProcedure Code, 1973 (hereinafter referred to as “the Crl.P.C.”) fromthe Criminal Proceedings filed against them in Special Case No.4 of2014 under the Prevention of Corruption Act, 1988 (hereinafter referredto as “the PC Act”).E3. These appeals involve a short point as would be clear from thefacts mentioned infra.

4. Respondents (A-1 and A-2) were working as Inspector of Policeand Sub-inspector of Police respectively in the State Tamil Nadu PoliceFServices. Both the respondents were prosecuted for commission of theoffences punishable under Section 7 read with Section 13(1) (d) of thePC Act in Crime Case No.3 of 2008/Special Case No. 4 of 2014 in the Court of Special Judge and Chief Judicial Magistrate, Tiruvannamalai.

5. On charge-sheet being filed by the State Prosecuting AgencyGagainst the respondents after obtaining necessary sanction as requiredin law, both of them filed applications under Section 227 of the Cr.P.C.(Crl.M.P.Nos.648/2014 & 113/2015) before the CJM praying thereinfor their discharge from the case. In substance, the respondents contendedthat no prime facie case is made out against them under the PC Act andin the charge- sheet hence both the respondents are liable to beHdischarged.

STATE REP. BY THE DEPUTY SUPT. OF POLICE VIGILANCE & ANTICORRUPTION, T. N. v. J. DORAISWAMY [ABHAY MANOHAR SAPRE, J.]

6. The Chief Judicial Magistrate, by order dated 29.06.2015,allowed the applications and discharged them from the case. The Statefelt aggrieved by the order dated 29.06.2015 passed by the Chief JudicialMagistrate and filed two revisions in the High Court. By impugnedorder, the High Court dismissed the revisions and affirmed the order ofthe Chief Judicial Magistrate, giving rise to filing of these appeals by theState by way of special leave in this Court.

7. So, the short question, which arises for consideration in theseappeals, is whether the Courts below were justified in allowing thedischarge applications filed by the respondents under Section 227 of theCr. P.C.

8. Heard Mr. S. Partha Sarathi, learned counsel for the appellantand Mr. Neeraj Jain, learned Senior counsel and Mr. S. Thananjayan,learned counsel for the respondents.

9. Having heard the learned counsel for the parties and on perusalof the record of the case including the written submissions filed by therespondents, we are inclined to allow the appeals and while setting asidethe impugned order, dismiss the applications filed by the respondentsunder Section 227 of the Cr.P.C. and remand the case to the SpecialJudge/CJM for its trial on merits in accordance with law.

10. We have gone through the record including the impugned orderwith a view to find out as to whether any prima facie case is made outagainst the respondents on the basis of documents filed by the Statealong with the charge-sheet.

11. Having gone through the documents, the contents of the charge-sheet and the impugned order, we are of the view that though the HighCourt referred to the law laid down by this Court on the subject in thecase of Yogesh alias Sachin Jagdish Joshivs.State of Maharashtra[(2008) (10) SCC 394), but erred in not properly applying the principleslaid down therein thereby committed an error in allowing the applicationsfiled by the respondents under Section 227 of the Cr.P.C. for theirdischarge.

12. We find that the High Court acted like an Appellate Courtthan as a Revisionary Court as if it was hearing the appeal against thefinal verdict of the Special Court.

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924 SUPREME COURT REPORTS [2019] 2 S.C.R.

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13. It is clear from the perusal of the entire order including itsconcluding Para 14, which reads as under:

“14. That being so, when the charges which are identical,could not be established in the departmental proceedings,for the same set of facts, for framing a charge in the criminalBproceedings, chance of conviction would be very remote.At the same time, this Court is also well aware of the legalposition that mere exoneration from the departmentalp[proceedings, cannot be taken as a sole ground to allowthe discharge petition. Therefore, it is necessary to see asto whether any prime facie case has been made out by theCprosecution to frame charge against an accused. In thiscase, the case of the prosecution is mainly relied upon thestatement of witness/complaint sundarrajan and his cousinbrother Sekar. As observed by the trial court, there areinconsistencies in the statements of prosecution witnesses.DMoreover as observed by the trial court, the prosecutionhas not produced any evidence much less documentaryevidence to show that A1 and A2 were present in roomNo.4 of the said Arunachala Lodge/Guest House. Thoughit is the case of the prosecution that the said sum of Rs.5lakhs was paid in the said Room No.4 in the said Lodge, inEthe statement of Sekar recorded under section 161 Cr.P.C.on 14.09.2010 before Subbiah-Additional Superintendentof Police, DV & AC, Special Investigation Team, Chennai,he has referred to the date of payment of money as15.01.2004, but in the statement before ADSP-CrimeF(Vellore) – Juilan on 09.07.2004, he has stated that the saidamount was paid one or two days before 15.02.2004.Therefore, there is material contradiction, more particularlywith regard to the date of the above said payment of Rs.5Lakhs to A1 and A2. Except the ipse-dixit statement of thesaid Sekar, absolutely there is no other material before thisGCourt to prove the demand of money by A1 and A2.”

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14. In our view, such approach of the High Court while decidingthe discharge applications of the respondents (accused) is not legallycorrect and, therefore, it cannot be upheld.

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STATE REP. BY THE DEPUTY SUPT. OF POLICE VIGILANCE & ANTICORRUPTION, T. N. v. J. DORAISWAMY [ABHAY MANOHAR SAPRE, J.]

15. In our view, consideration of the record for discharge purposeis one thing and the consideration of the record while deciding the appealby the Appellate Court is another thing.

16. While considering the case of discharge sought immediatelyafter the charge-sheet is filed, the Court cannot become an AppellateCourt and start appreciating the evidence by finding out inconsistency inthe statements of the witnesses as was done by the High Court in theimpugned order running in 19 pages. It is not legally permissible.

17. We have neither set out the facts and nor the evidence (whichis yet to be led and tested in the trial) in detail and have also refrainedourselves from recording any finding on the merits of the case, else itwill cause prejudice to the rights of the parties while prosecuting theircase in the trial.

18. All that we say while allowing these appeals is that there is noprime facie case made out for discharge of the respondents at this stageof the trial. They, therefore, have to stand for trial on merits in the lightof the documents and contents of charge-sheet filed pursuant to theorder of the Court. The Special Court (CJM) should have, therefore,allowed the State to adduce the evidence on merits in support of thecharge-sheet to prove the charges.

19. In view of the foregoing discussion, the appeals succeed andare accordingly allowed. The impugned order is set aside. As aconsequence, the applications filed by the respondents under Section227 of the Cr.P.C. are dismissed.

20. The Special Court(CJM) is directed to proceed with the trialand conclude it within six months in accordance with law.

21. The Special Court will decide the case strictly on the basis ofevidence adduced by the parties in the trial in accordance with lawuninfluenced by any observations made by the High Court and this Courtin these proceedings.

Devika Gujral

Appeals allowed and matter remitted back to CJM Court.

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