Crl.M.C./17/2013 of SHRI. PETER THOROSE AND ANR Vs C.B.I. AND ORS on 31 December 2013

1. Shri Peter A. Thorose

S/o (L) A.A. Thorose Principal, St. Peter’s College Shillong. Principal, St. Peter’s College Shillong.

2. Smt. Dancy D. Syiem Vice Principal, St. Peter’s College Shillong. Vice Principal, St. Peter’s College Shillong.

……Petitioners.

-Versus-

1. State

Through Central Bureau of Investigation.

2. Director General Central Bureau of Investigation. Central Bureau of Investigation.

3. North Eastern Council Through Secretary Through Secretary Nongrim Hills, Shillong.

…..Respondents.

BEFORE HON’BLE MR.JUSTICE T. NANDAKUMAR SINGH

For the Petitioners :: Mrs. PDB Baruah Mr.S Sen Ms. P. Das Advocates.

JUDGMENT AND ORDER

1.

1. Heard Mrs.PDB Baruah, learned counsel appearing for the petitioners and also Mr.VK Jindal, learned Sr.counsel assisted by Mr.S.Dey, learned counsel appearing for the respondents CBI.

2. After hearing the submissions of the learned counsel appearing for the parties at length, it appears that the core questions fall for consideration in the present revision petition are (1)“For ex debito justitiae to do real and substantial justice in the present case, whether the court can look into the documents and materials produced by the petitioners at the time of consideration of the charge? (2) Whether this court can exercise its jurisdiction under section 482 Cr.PC and/or Article 227 of the Constitution of India for entertaining the present revision petition?

3. It is well settled that there is no catalogue of cases where the Court for “ex debito justitiae” can look into the evidence and materials produced by the accused at the time of consideration of the charge and that there shall not be roving and fishing enquiry at the time of consideration of charge, otherwise there shall be mini trial at the time of consideration of the charge. Normally, at the time of framing of charge, the trial court is required to, and can consider only the police report referred to U/s 173 of the Cr.PC and documents sent with and only the right of the accused has at that stage is of being heard and nothing beyond that.

4. The prosecution story, in brief, is that an FIR was lodged on the basis of the enquiry conducted by the Central Bureau of Investigation (for short “CBI”) on the alleged irregularities in the implementation of the Scheme called “Holistic Cluster Approaches at grass root level for sustainable development in North East Region”by St. Peter’s College, Shillong which was funded by the Science and Technology Sector of NEC, Shillong during the year 2004-05. The proposal for the said project was submitted by Mr.Peter A Thorose, Principal, St. Peter’s College, Shillong (petitioner No.1) to Mr. R.P. Kharpuri, the then Director (S&T), NEC, Shillong on 11.02.2005 seeking financial assistance which was estimated at Rs.498.50 lakhs.

Mr. Kharpuri in turn directed Mr. A.D. Kharshiing, Extension Officer (Seismology), NEC to process such proposal from Mr. Peter A. Thorose and the said proposal was straight away processed by Mr.A.D Kharshiing, Extension Officer (Seismology) NEC, Shillong without the same being forwarded by the implementing agency, namely the Director of Higher & Technical Education, Govt. of Meghalaya, Shillong as required under the procedure. The proposal which was initiated in gross violation of the provisions of the rules was eventually concurred to by Mr. U.N. Majhi, the then Financial Advisor, NEC. The petitioner and other accused entered into a conspiracy and in consequence of conspiracy, they have committed various offences which ultimately caused the State exchequer to suffer a loss to the tune of Rs.1,26,09,580/-. On the above allegation, the CBI put up charge sheet against the present petitioners and others U/S 120 B,420,467,471 IPC as well as U/S 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. The CBI submitted the charge sheet and all the documents relied upon by the CBI to the Special Judge, CBI, Shillong and Special Judge, CBI, Shillong furnished those documents relied upon by the CBI to the accused persons.

5. The case was posted for consideration of the charge on many dates and on 16.11.2011 submissions were advanced by the prosecution and the defence counsel for the present petitioners and fixed on 19.12.2011 for framing of charge against the present petitioners. But the framing of charge was delayed due to adjournment sought by the petitioners side and as such the charge is not yet framed against the petitioners. On 4.7.2012, the charge had been framed against the 3 (three) other accused.

6. It is pertinent to mention that before the framing of the charge against the present petitioners, the petitioners had filed a petition dated 8.8.2012 U/S 91 of the Cr.PC (reference Spl.Case No.5/2009) before the trial court, i.e. the Special Judge, Meghalaya, seeking the prayer for a direction to the CBI to produce the relevant files along with the charge sheet, the complete audited statements pertaining to the period from 22.03.2005 to 31.03.2009 which had already been submitted by the petitioners and also for a direction to the CBI to scrutinize the said audit report and file a report before the court, i.e. Special Judge, after scrutinizing the audited statement referred to by the petitioners for the above period. It is stated in the said application that the petitioners had submitted the audited statement comprising of income and expenditure account for the said project, i.e. Holistic

Cluster Approaches at grass root level for sustainable development in North East Region, for which the NEC had sanctioned the amount of Rs.2.67 crores, from 22.3.2005 to 31.3.2009 containing all the trial balance, cash book, bank book, journal books and ledger account coupled with all the original vouchers which are now either with the CBI or with the NEC as depicted by the correspondence dated 16.6.2010 and 27.7.2010 to the NEC. The NEC vide its letter dated 17.12.2009 informed the CBI that they were fully satisfied and had accepted the expenditure of Rs.2.67 crores incurred by the College, i.e. St.Peter’s College, and that the implementing agency, i.e. the St.Peter’s College, Shillong, had spent more than what had been released by the NEC. It is also further stated by the petitioners that the NEC during the above mentioned relevant period had disbursed the grant-in-aid to the College, i.e. St.Peter’s College, Shillong to the tune of Rs.2.67 crores. Income and expenditure account shows that:

“A. Rs.77 lacs approx.has been utilized on the up-gradation of laboratory, B. Rs. 3 lacs on filed studies/visits, C. Rs.24 lacs appx. On laboratory analysis; D. Rs.52 lacs appx. on Socio Economic Surveys for upliftment, protection works; E. Rs.1.32 crores appx. on capacity building for alternative lilvelihoods (Training Centre, village IT empowerment Centres,etc.); F. Rs.5,000/- on workshops/conferences. G. Rs.4.25 lakhs appx. on Administrative cost for e.g. Appointment of staff,etc.; H. Rs.4.87 lacs appx. on AMC of laboratory equipments; I. Rs.3.39 lacs appx. on consultancy charges; and J. Rs.30,000/- on contingency”.

It is also stated in the said petition that the CBI has registered a case against the St.Peter’s College on the allegation that out of the total of Rs.2.67 crores released by the NEC, St.Peter’s College for implementing the scheme, Holistic Cluster Approaches at grass root level for sustainable development in North East Region, targeted for the villages in the State of Assam, Meghalaya, Arunachal Pradesh, a sum of Rs.1.26 crores approximately had been misutilised by the College. But the CBI had not looked into the detailed income and expenditure account for which the audit reports were submitted on 16.6.2010 and 22.7.2010 respectively and submitted the charge sheet hastily on 30.7.2010. Had the said documents been looked into and considered by the CBI, the CBI would not have submitted the charge sheet against the petitioners. The learned trial court vide its order dated 21.9.2012 had dismissed the said application for the reason that at the stage of framing of charge, the defence of the accused cannot be put forth in the light of the decisions of the Apex Court in (i) Rukmani Narvekar Vs. Vijaya Satardekar & Ors: (2008) 14 SCC 1 and (ii) State of Orissa Vs. D.N. Padhi: (2005) 1 SCC 568 and prosecution cannot be directed to furnish the complete audited statement on the prayer of the petitioners.

7. In the revision petition, i.e. the Cril.Petn.(SH) NO.11 of 2013 filed against the said judgment and order of the trial court dated 21.9.2012, this Court affirmed the judgment and order of the trial court vide judgment and order dated 20.3.2013 for the reason that only the police report U/S 173 of the Cr.PC and documents relied upon for submitting Police report could be looked into at the time of consideration of the charge and accused cannot have the right to require the court to cause production of some documents not relied upon by the prosecution in order to consider the case of the accused and accordingly said application U/S 91 of the Cr.PC urging the Court to call for all documents not relied upon by the prosecution is not maintainable in law. But this court had not decided the core questions mentioned above called for consideration in the present revision petition in the earlier judgment and order dated 20.3.2013. In other words, what the court had decided vide judgment and order dated 20.3.13 in the said revision petition was that the said application U/S 91 of the Cr.PC for a direction to the CBI to produce the audited statement and others which are not annexed in the charge sheet and/or police report and not relied upon by the prosecution is not maintainable under the law. It is the case of the petitioners in the present revision that the documents and materials produced by the petitioners in the present revision petition, if considered, would show that in the interest of justice and also for preventing the abuse of the process, the case of the petitioners put forth in the present revision petition is required to be considered even at the time of consideration of the charge.

8. The succinct facts leading to the filing of the present revision petition by the petitioners are to be looked into for deciding the core questions fall for consideration in the present revision petition. In the year 2004-05, St. Peter’s College, Shillong applied for expansion of 30 years old existing scheme carried out with Meghalaya Environment and Wildlife Society (for short “MEWS”,), an NGO duly registered in 1979 supported by the St.Peter’s College and recognized by the United States, World Bank, the scheme namely, scheme, Holistic Cluster Approaches at grass root level for sustainable development in North East Region, to the respondent No.3 to be funded by the Science and Technology Sector of NEC, Shillong primarily to save forest and wild life, upgrade education and help alternative employment generation. For that scheme, St.Pt. College submitted the project report to the NEC on 8.2.2005. The said project report dated 8.2.05 is available at page 16 to 24 of the revision petition. In the said project report dated 8.2.2005, it is stated that the

said scheme had already been initiated at Arunachal Pradesh and make advance expenditure from the own source of the petitioners and the same would be reimbursed in anticipation of NEC sanction. The said project report was forwarded and recommended by the implementing agency, namely Director of Higher and Technical Education, Govt. of Meghalaya, Shillong as required under the procedure vide letter dated 28.2.2005 at Annexure-A1 to the rejoinder affidavit of the petitioners to the affidavit-in-opposition filed by the respondents No.1 & 2. In the said forwarding letter of the implementing agency dated 28.2.2005, i.e. the letter of the Joint Director of Higher and Technical Education, Meghalaya, Shillong to the Director, North Eastern Council, Shillong, it is clearly stated that the project report submitted by the Principal of St. Peter’s College, Shillong was also enclosed therewith which is self explanatory and NEC may kindly consider extending of financial support as per proposal submitted. The NEC under its order dated 18.3.2005 had accorded administrative approval for implementing of the scheme (research based Holistic cluster approaches at grassroots levels for sustainable development in NER) by the St. Peter’s College at a total estimated cost of Rs. 4,98,50,000/- (Rupees four crore ninety eight lacs and fifty thousand)only for a period of 3 years and sanction is subject to the terms and conditions under which projects should be implemented as per the scheme submitted by the St. Peter’s College, Shillong. The copy of the said order dated 18.03.2005 is available at Annexure-II, page 25, of the revision petition, which reads as follows:

“

ORDER

Secretary NEC in exercise of the financial powers authorized by Government of India, Ministry of Home Affairs vide their No.10/586-NE.II dated 8[th]May, 1987 has accorded Administrative Approval for implementation of the scheme “Research –based Holistic Cluster approaches at Grassroots levels for Sustainable Development in NER” by St. Peter’s College at a total estimated cost of Rs.4,98,50,000/- (Rupees four crore ninety eight lakhs and fifty thousand only) for a period of 3 years.

2) The sanction is subjected to the following terms and conditions:

i)The project should be implemented as per the scheme submitted by the St. Peter’s College, Shillong.submitted by the St. Peter’s College, Shillong.

ii)A separate inventory of all computer items, software, laboratory equipments etc. purchased under the scheme should be properly maintained by St. Peter’s College, Shillong. laboratory equipments etc. purchased under the scheme should be properly maintained by St. Peter’s College, Shillong.

iii)The support from NEC will be limited to Rs.4,98,50,000/-. Any escalation in cost would be borne by the implementing agency from their own source. Any escalation in cost would be borne by the implementing agency from their own source.

3) The following are the break-up of the project cost:

Up-gradation of lab - 12000000 Field studies/visits - 1100000 Laboratory Analysis - 3200000 Socio economic surveys for target 5 Villages in Assam, Arunachal Pradesh and Meghalaya - 13500000 Capacity building for alternative Livelihoods - 14000000 Workshops Conferences - 2400000

Preparation of Project Report - 200000 Admin expenses –outsourcing Appointment of staff and resource Persons - 600000 AMC of lab equipment - 950000 Consultancy charge - 500000 Contingency - 1400000 TOTAL = 49850000

2. Further, Secretary NEC in exercise of the financial powers stipulated under para 1 above has accorded sanction for the drawal of Rs.48,06,000/- (Rupees forty eight lakhs and six thousand only) as 1[st] installment by means of crossed demand draft payable to the Principal St. Peter’s College, Shillong.

3. Subsequent release of Funds will be on the basis of submission of progress report quarterly along with expenditure details.

4. The Expenditure on this account would be debitable to the Major Head “2552”NE Areas: 00,800-Other expenditure 02.02-Consultancy & R of D Project, 02.02.28 – Professional Services; 02.02.31 – grant-aid under Grant No.29 of the Department of Development for North East during 2004-3005.

5. This issues with the concurrence of Finance Wing, NEC vide their Dy. No.553 dated 18.3.2005.

Sd/-

(R.P. Kharpuri) i/c Director(S&T), NEC.”

9. The NEC under its letter dated 29.08.2007, Annexure-III to the revision petition, congratulated all the staff members and the Principal of the St.Peter’s College , Shillong for Research Based Holistic Approaches to Sustainable Development in NER. The Director (S&T)) of the NEC under his letter dated 19.12.2008 to the Principal, St. Peter’s College, Shillong, i.e. the petitioner No.1, disputed that the purchase of the land at the cost of Rs.2.00 crores out of the sanctioned amount of Rs.2.67 crores was not a part of the scheme. The Director (S&T) under his letter dated 26.11.2008 directed the petitioner no.1 to clarify whether or not the purchase of the land was a part of the detailed project report (DPR) submitted to the NEC. The said letters dated 19.12.2008 and 26.11.2008 are available at Annexure-B, .i.e. at pages 19 & 20, of the rejoinder affidavit filed by the petitioners. The petitioner No.1 under his letter dated 21.3.2009 to the Director(S&T), NEC, Shillong clarified that under page no.6 of the scheme under the head “(iii) Holistic ClusterApproach Capacity Building/Training & IT Awareness” wherein it clearly states “Major component would entail infrastructure development of built up space, land of adequate proportion” the purchase of the land is a component of the scheme and if it is not acceptable the petitioner agreed to adjust the cost of land procurement with other components under the scheme as their share of expenditure. The petitioner no.1 under his letter dated 6.5.2009 requested the Director(S&T), NEC Shillong to treat the said letter of the petitioner dated 21.3.2009 and also expenditure components which were controverted by the NEC as withdrawn and may be treated as irrelevant and detailed upto date reconciled statement of

accounts will be submitted in due course. The Director(S&T), NEC under his letter dated 25.5.2009 requested the petitioner to furnish the detail item-wise expenditure incurred under the various sub-heads particularly with reference to Up-gradation of Lab-Built up space, Spatial requirement as well as Capacity Building – Training Centre, etc. vis-à-vis the audited statements already submitted (Annexure-D1 to the rejoinder affidavit). Again, the Director (S&T), NEC requested the petitioner to furnish scheme relevant supporting vouchers, accounts, etc. exclusively against NEC’s grant component of Rs.2.67 crores and also up to date physical progress report of implementation and the list of beneficiaries ( Annexure-D3 to the rejoinder affidavit). It is stated that in response to the said letter of the Director (S&T), NEC, the petitioner No.1 under his letter dated 27.6.2009 (Annexure-D4 to the rejoinder affidavit) submitted the accrual expenditure incurred specifically against the NEC fund released so far as: (1) Rs.67.00 lacs towards R&D etc. activities for which UC has already been submitted; (2) Rs.60.00 lacs for infrastructure development of labs and (3) Rs.140.oo lacs for IT empowerment for various institutions in NE. It is also clarified that the land and buildings have been solely contributed by the petitioners from their end. In that letter dated 27.06.2009, it is clarified that Rs.2.00 crores utilized forpurchasing of the land has been solely contributed by the petitioners from their end as their contribution.The letter dated 27.6.2009 reads as follows:

“LETTER NO.NEC/EOS/0109 27.06.2009

To Director(S&T) NEC Shillong.

Sub: Letter No.NEC/ST/HOLISTIC/344/2005

Sir,

This has a reference to your office letters of above reference dated 16.6.09, 25.5.09. The accrual expenditure incurred specifically against NEC sanction release so far are as follows:

1. Rs.67.00 lakhs towards R&D etc. activities for which UC has Already been sanctioned; has Already been sanctioned;

2. Rs.60.00 lakhs is for Infrastructure Development of labs. 3.Rs.140 lakh for IT equipment for various institutions in NE. 3.Rs.140 lakh for IT equipment for various institutions in NE.

It may be clarified that the land/building etc. component has been solely contributed by us from our end as our contribution.

Thanking You,

Sd/- D. Syiem Vice Principal”

10. Under the letter of the petitioners dated 28.8.2009 they have submitted the progress report for the scheme Research Based Holistic Approaches at Grassroots Level for Sustainable Development in NER to the NEC and the said letter dated 28.8.2009 (Annexure-D5

to the rejoinder) reads as follows:

“ To Dt.28.8.2009 Director(S&T) NEC Shillong Sub:-Progress Report Sir, While we are in the process of preparing out third volume of the Report on progress in the scheme Research based Holistic approaches at grassroots level for sustainable development in NER, we would like to forward a copy of the interim report on progress made.

Enclosed please find a list of institutions to which IT hard and software has been allotted. A number of these have been personally visited by myself and the programme is found to be running smoothly there. Some are yet to collect their equipment, (Ramakrishna Mission has an allotment for 4 more units in remote areas, in addition to RKM Tirap in view of their noble grassroots level work.) while most have received second rounds of hard and software based on their performance. This is ongoing depending on my inspections of various locations.

Also, we have established and set up the laboratories for Remote Sensing and geo Information Systems.

In addition we have also set up a Molecular Biology (DNA) Laboratory.

Further we have also set up a well equipped Digital & Classical Animation Labortory.

These facilities are crucial to our further research efforts.

We take pleasure in inviting you to come and visit these at your convenience, and to please help us to include the paleontological studies in the programme of research as this is your special filed of professionalism.

Thanking you,

Sd/- P.A. Thorose Principal.”

11. Superintendent of Police, CBI, ACB, Shillong under his letter dated 21.10.2009 requested the Director(S&T), NEC, Shillong to clarify the expenditure incurred in the said schemes. The letter dated 21.10.2009 is available at Annexure-E to the rejoinder affidavit and it reads as follows:

“To

: The Director(S&T) North Eastern Council Nongrim Hills, Shillong.

Sub: :Investigation in case No.RCSHG2009A0006

Sir,

Please refer to your letter No.NEC/ST/ HOLISTIC/ 344/2005 (PT) dtd.13/10/2009 forwarding photocopies of detailed expenditure vouchers, ledger accounts etc. against the sanction release of Rs.2.67 crore Reference may also kindly be made to your letter No.NEC/ST/HOLLISTIC/344/2005(pt) dtd.22/7/2009 submitted earlier forwarding copies of detailed expenditures to this office where total expenditure incurred have been found to be Rs.3.33 crores (approx).

In this connection, you are requested to kindly clarify the following:-

1) If the expenditure of Rs.2.67 crores sent vide your letter No. /ST/HOLLISTIC/344/2005(pt) dtd. 13.10.2009 have been accepted by NEC as eligible under the scheme;

2) If the expenditure of Rs.3.33 crores sent vide your letter No. /ST/HOLLISTIC/344/2005(pt) dt.22.7.2009 have been accepted by NEC as eligible under the scheme;

3) Whether the expenditure audited by CA for (A) Rs.2.00 crores certified by RNV & Co. vide dtd.27.3.2008, (B) Rs.0.48 crores certified by Susanta Roy & Co. vide dtd.15.6.2005 and (C) Rs.0.69 crores certified by Susanta Roy & Co. vide dated 26.7.2005 have been accepted by NEC and whether the purchase of land is eligible under the scheme.

Further, you are requested to indicate if NEC has so far evaluated the physical achievement of the scheme and if so the Evaluation Report may kindly be furnished to this office. The achievement so far and the remaining work to be done may also be indicated.

Sd/-21.10.09 Superintendent of Police CBI,ACB, Shillong.”

12. In response to the said letter of the CBI dated 21.10.2009, the Director (S&T), NEC had furnished point-wise clarification under his letter dated 27.10.2009 to CBI and the said letter is available at Annexure-VIIA to the revision petition which reads as follows:

“No.NEC/ST/HOLLISTIC/344/2005(pt)

dt.27.10.09

To: The Superintendent of Police CBI CBI-ACB. Oakland Shillong-1. CBI-ACB. Oakland Shillong-1.

Sub: Scheme on “Holistic Cluster Approaches at Grassroots level for sustainable development in NER” by St. Peter’s College Shillong – Expenditure regarding. sustainable development in NER” by St. Peter’s College Shillong – Expenditure regarding.

Ref: Your letter No.DPSHG 2009/5408/RCSHG 2009A0006 dtd 21.10.2009 21.10.2009

Sir,

I am to invite a reference to your letter DPSHG 2009/5408/RCSHG 2009A0006 dtd 21.10.2009 resting on the above subject and to furnish herewith point-wise clarification as desired:

1. The expenditure details of Rs.2.67 Cr. communicated vide our letter of even No. dtd.13.10.09 by and large appears to fit into the scheme head wise components and thus could be acceptable. Some of the photo copies of major expenditure vouchers on equipments etc.have been verified with the original copies produced by the College at the time of submission. This is currently under examination by our finance.

2. The expenditure details communicated vide our letter of even No. dtd. 22.7.2009 is not acceptable since it contains College’s share of expenditure component prior to as well as within period of sanction.

3. The Audited expenditure for (B) Rs.0.48 crore and (C) Rs.0.69 crore which was comprehensively accepted by our Finance for making 2[nd] and 3[rd] installment release could be reconciled with detailed expenditure vouchers (w.e.f.. actual date of sanction) received. However, the question of accepting the expenditure audit for (A) Rs.2 crore does not arise since we were in receipt only a reference photo copy of the statement at a latter stage without any supporting documents and hence purchase of land or building has not been agreed to since it is not explicitly an approved component under the scheme. (copies of relevant correspondence encl) As such we are not concern with any land/building procurement done by the college on their own and whatever expenditure vouchers/ bills etc. relevant to NEC’s sanction component release of Rs.2.67 cr. under the scheme received from the college only have all been communicated as requisitioned by your office apart from all the original file papers lying there.

Following are some of the achievements made so far under the scheme excluding College’s own contributions: scheme excluding College’s own contributions:

Production of 2 volumes of the R & D reports reports Production of 3[rd] volume(released Oct.24 2009) 2009)

Installation of the following ADVANCED LABORATORIES; LABORATORIES; SATELITE IMAGERY &

GEOGRAPHICAL INFORMATION (GIS) Laboratory. Laboratory.

DIOXYNUCLEICACID (DNA) SEQUENCING & MOLECULAR BIOLOGY Laboratory SEQUENCING & MOLECULAR BIOLOGY Laboratory Digital animation Laboratory Digital animation Laboratory Classical animation Laboratory Classical animation Laboratory Village IT empowerment through over 30 institutions spread in the 3 states of Meghalaya, Arunachal Pradesh an Assam. institutions spread in the 3 states of Meghalaya, Arunachal Pradesh an Assam.

Remaining works left to be done:

Capacity building/Training Centre upgradation & outsourcing/ infrastructure upgradation & outsourcing/ infrastructure -Lab upgradation remaining works Lab upgradation remaining works -Field studies visits/Environmental Training/ protection Field studies visits/Environmental Training/ protection -Laboratory analysis Laboratory analysis Socio economic surveys for upliftment/ protection works Socio economic surveys for upliftment/ protection works Seminars Reports/AMC/Consultancy/Contingency/ Admin expenses Reports/AMC/Consultancy/Contingency/ Admin expenses

Sd/- (Dr.U.K. Mishra) Director(S&T)”

13. The Director (S&T), NEC under his letter dated 17.12.2009 to the CBI-ACB, Shillong clarified that the implementing agency, i.e. the petitioner has spent more than what has been released by the NEC so far and the said letter dated 17.12.2009 is available at Annexure-VIIB to the revision petition and it reads as follows:

“No.NEC/ST/HOLISTIC/344/2005(Pt) dt.17.12.2009

I am to invite a reference to your letter No.DPSHG2009/6368/RCSHG2009A006dtd 14.12.2009 and to confirm our acceptance in principle to the expenditure of Rs.2.67 crores incurred under the scheme pending upto date audit report. In fact it would appear from our records that the implementing agency has spent more than what has been released by NEC so far.

It is also clarified that the implementing agency has the flexibility to accommodate the list of beneficiaries/ institutions under the scheme after obtaining adequate feedback We had only suggested a list of 23 institutions for possible coverage which is enclosed.

Sd/- r.U.K. Mishra) Director (S&T)”

14. The Director (S&T), NEC under his letter dated 5.2.2010 requested the petitioner to furnish original documents and information, i.e. audited statement. The petitioners under letter dated 22.7.2010 had furnished copy of the books of accounts, original copies of expenditure vouchers of St. Peter’s College under the Scheme of “Holistic Sustainable Development in NER” to the NEC and the said letter dated 22.7.2010 is available at Annexure-H to the rejoinder affidavit which reads as follows:

To: The extension officer(Seismology North Eastern Council Secretariat, Shillong.

Sub: Submission of a copy of Books Accounts & Original Copies of remaining Expenditure Vouchers of St.Peter’s College, Dhankheli, Shillong-793003 under the Scheme of “Holistic Sustainable Development in NER”.

Dear Sir,

Please refer the above and find herewith the following Books of Account, Original remaining Voucher files for your records and consideration:-

1. A. Book containing – Income and Expenditure Account for a the period from 22[nd]March, 2005 to 31[st] March, 2009 – 3 Written pages, Trial Balance – 1 Written page, Cash Book – 63 Written pages, Bank Book – 3 Written pages, Journal Book – 27 Written Pages, Ledger Account – 11 Written Pages . Total 208 Written Pages excluding cover pages.

2. Original Voucher File Sl.No.1 for the period 22.03.2005 to 31.03.2009 with original Cash Memos/Bills/Invoices/ Vouchers/Receipts for A/c Field Visits – containing 350 sheets

3. Original Voucher File Sl.No.2 for the period 22.03.2005 to 31.03/2009 with Original Cash Memos/Bills/Documents/ Receipts for A/c Lab Consumables – containing 32 sheets.

4. Original Vouchers File Sl.No.3 for the period 22.03.2005 to 31.03.2009 with Original Cash Memos/Bills./Receipts etc. for A/c Research Books – containing 127 sheets.

5. Original Voucher File Sl.No.4 for the period 22.03.2005 to 31.03/2009 with Original Cash Memos/Bills/Receipts etc for A/c Equipment, Machineries & Furniture – containing 22 sheets.

6. Original Voucher File Sl.No.5 for the period 22.03.2005 to 31.03/2009 with Original Cash Memos/Bills/Receipts for A/c Spatial Requirement – containing 9 sheets.

7. Original Voucher File Sl.No.6 for the period 22.03.2005 to 31.03/2009 with Original Cash Memos/Bills/Vouchers/ Slips etc.for A/c Workshop Requirement – containing 13 sheets.

8. Original Voucher File Sl.No.7 for the period 22.03.2005 to 31.03/2009 with Original Vouchers, etc. for A/c Outsourcing/Staff/Resource Persons – containing 121sheets.

9. Original Voucher File Sl.No.8 for the period 22.03.2005 to 31.03/2009 with Original Cash Memos/Bills/Receipts etc. for A/c Equipment maintenance Expenses – containing 39 sheets.

10. Original Voucher File Sl.No.9 for the period 22.03.2005 to 31.03/2009 with Original Cash Memos/Bills/Receipts etc. for A/c Lab Repair & maintenance – containing 109 sheets.

11. Original Voucher File Sl.No.10 for the period 22.03.2005 to 31.03/2009 with Original Cash Memos/Bills/Vouchers for A/c Printing Stationery – containing 13 sheets.

We are in full hope that you will be fully satisfied with the records with documents filed as stated above.

Dt.22[nd] July,2010

Sd/- Vice Principal St. Peter’s College”

It is also stated that earlier to 22.7.2010, the petitioner under his letter dated 2.2.2010 (Annexure-I) submitted the copies of the original documents regarding expenditure of the fund sanctioned to the NEC. The Director (S&T), NEC under his letter dated 23.02.2010 furnished all the relevant documents and information consisting of 264 pages which will be required in the investigation of the case to the CBI. The said letter dated 23.02.2010 is available at Annexure-F3 to the rejoinder affidavit which reads as follows:

No.NEC/ST/HOLISTIC/344/2005(Pt) 23[rd]/02/2010

To

The Head of Branch

CBI, ACB, Shillong Oakland, Shillong0793001

Sub: Investigation in case No.RCSHG2009A006

Ref: (i) Your letter No.DPSHG2009/0555/RCSHG2009A 006 dated 5.2.2010 006 dated 5.2.2010

(ii) Our letter No. NEC/ST/HOLISTIC/344/2005(Pt) Dtd.15.2.2010 Dtd.15.2.2010

Sir,

As desired vide your letter under reference above, kindly find enclosed the relevant information (264 pages) along with forwarding letter obtained from St. Peter’s College.

Sd/

(Dr.U.K. Mishra) Director (S&T)”

15. It is the clear cut case of the petitioner in the present revision petition that if the documents mentioned above and also the documents annexed to the revision petition are considered at the time of framing of charge, there shall not be prima facie case for framing the charges against the petitioners by the trial court.

16. The CBI had submitted the charge sheet hastily on 30.7.2010 without considering and also without annexing above documents and also the CBI had completely overruled the documents mentioned above.

17. It is fairly settled that the inherent powers U/S 482 of the Cr.PC has to be exercised sparingly, carefully and cautiously and for ex debito justitiae to do real and substantial justice for which alone the Court exists. It is neither feasible nor desirable to lay down any inflexible rules which govern the exercise of inherent jurisdiction of the Court. Exercise of the inherent powers would depend on the facts and circumstances of each case but all the decisions on the subject are that the court would be justified in invoking its inherent jurisdiction where the allegation made in the complaint or the charged sheet as the case may be taken at their face value and accepted in entirety do not constitute the offence alleged. The Apex Court in the case of State of State of Haryana & Ors. – Vrs – Bhajan Lal & Ors, reported in 1992 Supp (1) SCC 335 laid down the broad guidelines for exercise of the inherent powers U/S 482 Cr.PC and extraordinary powers under Article 226 of the Constitution of India. Paras 97, 98, 99, 100, 101 & 102 of the SCC in Bhajan Lal (Supra) read as under:

“97. Fazal Ali, J. reiterating his earlier view in Nagawwa (Smt) v. Veeranna Shivalingappa Konjalgi 1976) 3 SCC 736:1976 SCC (Cr)507:1976 Supp SCR 123, wherein he has given certain category of cases in which an order of the Magistrate issuing process against the accused can be quashed or set aside and further stating that the same principle laid down in that decision would apply mutatis mutandis to a criminal complaint also, has explained the position of law in Pratibha Rani v. Suraj Kumar: (1985) 2 SCC 370,395:1985 SCC (Cri) 180 as follows: (SCC p.295, para 59)

“It is well settled by a long course of decisions of this Court that for the purpose of exercising its power under section 482 CrPC to quash a FIR or a complaint the High Court would have to proceed entirely on the basis of the allegations made in the complaint or the documents accompanying the same per se. It has no jurisdiction to examine the correctness or otherwise of the allegations.”

“98. Speaker for the bench, Ranganath Mishra, J, as he then was in Madhavrao Jiwaji Rao Scindia v. Sambhajirao Chandrojirao Angre: (1988) 1 SCC 692 has expounded the law as follows: (SCC p.695, para 7)

“The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appears in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilized for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceedings even though it may be at a preliminary stage.”

“99. Venkatachaliah, J in State of Bihar v. Murad Ali Khan: (1988) 4 SCC 655 has stated that the jurisdiction under Section 482 of the Code has to be exercised sparingly and with circumspection and has given the working that in exercising that jurisdiction, the High Court should not embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not.”

“100. See also Talab Haji Hussain v. Madhukar Purshottam Mondkar: 1958 SCR 1226: AIR 1958 SC 376:1958 Cri LJ 701; L.V. Jadhav V. Shankarrao Abasaheb POawar: *1983) 4 SCC 231,240:1983 SCC (Cri)813 and J.P. Sharma v. Vinod Kumar Jain: (1986) 3 SCC 67: 1986 SCC (Cri) 216.”

“101. Mr. Parasaran, according to whom the allegations in the present case do not make out an offence, drew our attention to a recent judgment of this Court in State of UP v. V.R.K. Srivastava: (1989) 4 SCC 59 to which one of us (S. Ratnavel Pandian, J) was a party. In that case, it has been ruled that if the allegations made in the FIR, taken on the face value and accepted in their entirety, do not constitute an offence, the criminal proceedings instituted on the basis of such FIR should be quashed. The principle laid down in this case does not depart from the proposition of law consistently propounded in a line of decisions of this court and one the other hand it reiterates the principle that the court can exercise its inherent jurisdiction of quashing a criminal proceeding only when the allegations made in the FIR do not constitute an offence and that it depends upon the faces and circumstances of each particular case.”

“102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustrations wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formula and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(23) of the Code.(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can everreach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provisions in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a viewto spite him due to private and personal grudge.”

18. The broad guidelines laid down by the Apex Court in Bhajan Lal (Supra) had been followed in a catena of cases. The Apex Court in Gian Singh Vs. State of Punjab & Anr. reported in (2012) 10 SCC 303 held that the guidelines for exercise of inherent powers U/S 482 Cr.PC is to prevent the abuse of process in Court or otherwise to secure the ends of justice. Section 482 confers no new powers on the High Court, it merely safeguards existing inherent powers possessed by the High Court and it is necessary to prevent the abuse of process in Court to secure the end of justice. This is founded on the legal maxim quando lex aliquid alicui concedit, conceditur et id sine qua res ipsa esse non potest. Paras 53, 54, 55 & 56 of the SCC in Gian Singh (Supra) read as follows:

“53. Section 482 of the Code, as its very language suggests, saves the inherent power of the High Court which it has by virtue of it being a superior court to prevent abuse of the process of any court or otherwise to secure the ends of justice. It begins with the words, “nothing in this Code” which means that the provisions is an overriding provisions.

These words leave no manner of doubt that none of the provisions of the Code limits or restricts the inherent power. The guideline for exercise of such power is provided in Section 482 itself i.e. to prevent abuse of the process of any court or otherwise to secure the ends of justice. As has been repeatedly stated that Section 482 confers no new powers on the High Court; it merely safeguards existing inherent powers possessed by the High Court necessary to prevent abuse of the process of any court or to secure the ends of justice. It is equally well settled that the power is not to be resorted to if there is specific provisions in the Code for the redress of the grievance of an aggrieved party. It should be exercised very sparingly and it should not be exercised as against the express bar of law engrafted in any other provision of the Code.”

“54. In different situations, the inherent power may be exercised in different ways to achieve its ultimate objective. Formation of opinion by the High Court before it exercises inherent power under Section 482 on either of the twin objectives, (i) to prevent abuse of the process of any court, or (ii) to secure the ends of justice, is a sine qua non.”

“55. In the very nature of its constitution, it is the judicial obligation of the High Court to undo a wrong in course of administration of justice or to prevent continuation of unnecessary judicial process. This is founded on the legal maxim quando lex aliquid alicui concedit, conceditur et id sine qua res ipsa esse non potest.The full import of which is whenever anything is authorized, and especially if, as a matter of duty, required to be done by law, it is found impossible to do that thing unless something else not authorized in express terms be also done, may also be done, then that something else will be supplied by necessary intendment. Ex debito justitiae is inbuilt in such exercise; the whole idea is to do real, complete and substantial justice for which it exists. The power possessed by the High Court under Section 482 of the Code is of wide amplitude but requires exercise with great caution and circumspection.”

“56. It needs no emphasis that exercise of inherent power by the High Court would entirely depend on the facts and circumstances of each case. It is neither permissible nor proper for the court to provide a straitjacket formula regulating the exercise of inherent powers under Section 482. No precise and inflexible guidelines can also be provided.”

19. The Apex Court in Amit Kapoor –Vrs – Ramesh Chander &Anr. reported in (2012) 9 SCC 460 had considered revisional powers U/S 397 Cr.PC vis-à-vis inherent jurisdiction U/S 482 Cr.PC and also the scopes of Sections 227 and 228 Cr.PC. Paras 12,13,17,18,20 and 21 of the SCC in Amit Kapoor (supra) read as under:

“12. Section 397 of the Code vests the Court with the power to call for and examine the records of an inferior court for the purpose of satisfying itself as to the legality and regularity of an proceedings or order made in a case. The object of this provisions is to set right a patent defect or an error of jurisdiction or law. There has to be a well founded error and it may not be appropriate for the court to scrutinize the orders, which upon the face of it bears a token of careful consideration and appears to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits.”

“13. Another well accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is amuch advance staged in the proceedings under the Cr.PC.”

“17. Framing of a charge is an exercise of jurisdiction by the trial court in terms of Section 228 of the Code, unless the accused is discharged under Section 227 of the Code. Under both these provisions, the court is required to consider the “record of the case” and documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. Once the facts and ingredients of the section exists, then the court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. This presumption is not a presumption of law as such. The satisfaction of the court in relation to the existence of constituents of an offence and the facts leading to that offence is a sine qua non for exercise of such jurisdiction. It may even be weaker than a prima facie case. There is a fine distinction between the language of Sections 227 and 228 of the Code. Section 227 is the expression of a definite opinion and judgment of the Court while Section 228 is tentative. Thus, to say that at the stage of framing of charge, the Court should form an opinion that the accused is certainly guilty of committing an offence, is an approach which is impermissible in terms of Section 228 of the Code.”

Issues

“18. It may also be noticed that the revisional jurisdiction exercised by the High Court is in a way final and no inter court remedy is available in such cases. Of course, it may be subject to jurisdiction of this Court under Article 136 of the Constitution of India. Normally, a revisional jurisdiction should be exercised on a question of law. However, when factual appreciation is involved, then it must find place in the class of cases resulting in a perverse finding. Basically, the power is required to be exercised so that justice is done and there is no abuse of power by the court. Merely an apprehension or suspicion of the same would not be a sufficient ground for interference in such cases.”

“20. The jurisdiction of the Court under Section 397 can be exercised so as to examine the correctness, legality or propriety of an order passed by the trial court or the inferior court, as the case may be. Though the section does not specifically use the expression “prevent abuse of process of any court or otherwise to secure the ends of justice”, the jurisdiction under Section 397 is a very limited one. The legality, propriety or correctness of an order passed by a court is the very foundation of exercise of jurisdiction under Section 397 but ultimately it also requires justice to be done. The jurisdiction could be exercised where there is palpable error, non-compliance with the provisions of law, the decision is completely erroneous or where the judicial discretion is exercised arbitrarily. On the other hand, Section 482 is based upon the maxim quando lex aliquid alicui concedit, concedere videtur id sine quo res ipsa esse non potest i.e. when the law gives anything to anyone, it also gives all those things without which the thing itself would be unavoidable. The section confer very wide power on the Court to do justice and to ensure that the process of the court is non permitted to be abused.”

21. It may be somewhat necessary to have a comparative examination of the powers exercisable by the court under these two provisions. There may be some overlapping between these two powers because both are aimed at securing the ends of justice and both have an element of discretion. But, at the same time, inherent power under Section 482 of the Code being an extraordinary and residuary power, it is inapplicable in regard to matters which are specifically provided for under other provisions of the Code. To put it simply, normally the court may not invoke its power under Section 482 of the Code where a party could have availed of the remedy available under Section 397 of the Code itself. The inherent powers under Section 482 of the Code are of a wide magnitude and are not as limited as the power under Section 397. Section 482 can be invoked where the order in question is neither an interlocutory order within the meaning of Section 397(2) nor a final order in the strict sense. Reference in this regard can be made to Raj Kapoor v. State: (1980) 1 SCC 43:1980 SCC (Cri)72:AIR 1980 SC 258. In that very case, this Court has observed that inherent power under section 482 may not be exercised if the bar under Sections 397(2) and 397(3) applies, except in extraordinary situations, to prevent abuse of the process of the Court. This itself shows the fine distinction between the powers exercisable by the Court under these two provisions. In that very case, the Court also considered as to whether the inherent powers of the High Court under Section 482 stand repelled when the revisional power under Section 397 overlaps. Rejecting the argument, the Court said that the opening words of Section 482 contradict this contention because nothing in the Code, not even Section 397, can affect the amplitude of the inherent powers preserved in so many terms by the language of Section 482. There is no total ban on the exercise of inherent powers where abuse of the process of the court or any other extraordinary situation invites the court’s jurisdiction. The limitation is self-restraint, nothing more. The distinction between a final and interlocutory order is well known in law. The orders which will be free from the bar of Section 397(2) would be the orders which are not purely interlocutory but, at the same time, are less than a final disposal. They should be the orders which do determine some right and still are not finally rendering the court functus officio of the lis. The provisions of Section 482 are pervasive. It should not subvert legal interdicts written into the same Code but, however, inherent powers of the Court unquestionably have to be read and construed as free of restriction.”

20. The Apex Court in P.S. Rajya –Vs- State of Bihar: (1996) 9SCC 1 taking into consideration of the peculiar facts of that case had considered the documents which are neither annexed in the charged sheet nor relied upon by the prosecution for quashing the order for framing the charge. The facts of the case are in paras 4,5,6,7,8, and decisions in paras 20 & 21 of the SCC in P.S. Rajya (supra), which read as follows:

“4. Short factds are as under.”

“5. The appellant started his career in a college in the year 1955 and switched over to TISCO in the year 1959 till he was selected and appointed as Inspector in the Income Tax Service in the year 1961. The appellant’s wife was also a teacher in the Central School at Bokaro steel city. She was allotted on long lease a plot at Bokaro in the year 1980 for a sum of Rs.20,000 by the Steel Authority of India Limited (for short “SAIL”). As per terms and conditions imposed by SAIL, shops in the ground floor and residence at first floor were construed by the appellant with his earnings as well as the earnings of his wife. The construction was strictly under the supervision and on the drawings supplied freely by SAIL township authority. Subsequently the building was valued by SAIL township engineer at Rs.4.75 lakhs.”

“6. The appellant in the meanwhile got promotion and was functioning as Income Tax Officer, A Ward, Dhanbad from 1981 to 1985. It appears that in the course of discharge of his duties, he impounded the books of accounts of certain business people who seemed to have complained to the local Congress Party M.P. who in turn complained about the appellant to the Minister of Finance with a request to transfer the appellant and to order for a CBI enquiry. Accordingly, an FIR was lodged on 9.4.1986 and the appellant’s residence and office were raided on 11.4.1986 However, nothing worth mentioning was found. Ultimately a charge-sheet was filed on 31.7.1989 showing the assets of the appellant consisting of cash, immovable property (house) and jewellery as follows:

-------------------

“7. As against this the estimated savings for the check period (1973 to March 1986) was arrived at in the sum of Rs.6,30,000 and on that basis it was alleged that the assets were disproportionate to the extent of Rs.3,57,439.00.”

“8. The appellant aggrieved by the above charge being taken cognizance of by the Special Judge challenged the same by moving the Patna High Court under Section 482 Cr.PC. The High Court by order dated 3.8.1990 allowed the petition and remitted the matter back to the Special Judge directing him to get a preliminary enquiry conducted by higher authority of the appellant or do it himself before taking cognizance of the matter.”

“20. Moreover a perusal of Ex.S-20 reveals that Shri Vasudev, Executive Engineer has recorded a note as follows:

‘Hence the valuation of Shri S.N. Jha was never superseded by any other estimates. As is confirmed from the records, his estimated figures were only accounted for by the ITO Bokaro.’

Thus according to Shri Vasudev, who was the seniormost among the three CPWD engineers who prepared Ex.S-20, the valuation of ground floor remains at Rs.1,82,600 plus Rs.20,000 for the cost of land. The first floor as per Ex.S-20 was estimated at Rs.2,55,600 and a total of all this comes to Rs.4,57,600 which is very near to the declaration of actuals to the income tax authority and also the estimated cost by the Bokaro Steel Township Engineer and the government approved valuer.”

“21. The present case can be brought under more than one head given above without any difficulty.”

21. The ratio in P.S. Rajya case (supra) is that the Court, for doing justice, can even look into the documents and evidence which are not annexed in the charged sheet and not relied upon by the prosecution for quashing prosecution case or for setting aside the charge.

22. The Apex Court in (1) Anita Malhotra –vrs – Apparel Export Promotion Council & Anr.: reported in (2012) 1 SCC 520(Para-20) and (2) Harshendra Kumar D. V. Rebatilata Koley: (2011)3SCC351:(2011)1 SCC (Civ) 717: (2011) 1 SCC(Cri) 1139had considered as to when defence case to be considered and heard. The Apex Court in Anita Malhotra case (supra) clearly held that though it is not proper for the High Court to consider the defence of the accused or conduct a roving enquiry in respect of merits of the accusation, but if on the face of the document which is beyond suspicion or doubt, placed by the accused and if it is considered that the accusation against her cannot stand, in such a matter, in order to prevent injustice or abuse of process, it is incumbent on the High Court to look into those document/documents which have a bearing on the matter even at the initial stage and grant relief to the person concerned by exercising jurisdiction under Section 482 of the Code. From the ratio laid down by the Apex Court in Anita Malhotra case (supra), it is clear that in order to prevent injustice and abuse ofprocess it is incumbent of the High Court or the Court to look into those document(s) which have a bearing on the matters at the initial stage. Therefore, it is clear that there is no straight jacket formula that the trial court has to consider only the charged sheets and the documents relied upon by the prosecution and not the documents produced by the accused at the time of consideration of the charge.

23. The Apex Court in Harshendra Kumar D case (Supra) held in para 25 of the SCC that from the ratio deci dendi in Harshendra Kumar D(supra) it is clear that in an appropriate case, if on the face of the documents which are not suspicion or doubts placed by the accused, accusation against him cannot stand, the Court for promotion of justice or to prevent injustice or abuse of process can look into the materials which have significant bearing on the matter at prima facie stage. The framing of charge U/S 228 of the Cr.PC, as clearly discussed and held by the Apex Court in Anita Kapoor case(supra), is at the stage of prima facie case. As such even at the time of framing of charge in a particular case the Court can look into the defence of the accused or the documents produced by the accused.

24. For the foregoing discussions, in the given case, the trial court can look into the material evidence produced by the petitioners accused at the time of framing of charge and the core question no.1 formulated above is answered accordingly. The core question no.2 formulated above is also answered that this Court can exercise its jurisdiction under Section 482 Cr.PC in the present revision petition and present revision petition is maintainable. Corollary of the answers are that the trial court shall look into the documents mentioned above and also the documents annexed to the revision petition, if not suspicious, at the time of consideration of the charge or at the time of consideration as to whether or not prima facie case against the present petitioners has been made out. The accused petitioners are to place the documents mentioned above and the documents annexed to the present revision petition before the trial court at the time of consideration of the charge.

25. With the above observations and directions, revision petition is disposed of.

26. The Registry is directed to sent down the LCR forthwith.

JUDGE

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