STATE OF RAJASTHANversusASHOK KUMAR KASHYAP

158                       [2021]
               SUPREME COURT     4 S.C.R. 158
                              REPORTS                       [2021] 4 S.C.R.


A                          STATE OF RAJASTHAN
                                        v.
                         ASHOK KUMAR KASHYAP
                        (Criminal Appeal No. 407 of 2021)
B                                 APRIL 13, 2021
               [DR. DHANANJAYA Y. CHANDRACHUD AND
                                M.R. SHAH, JJ.]
             Prevention of Corruption Act, 1988: s. 7 – Offence relating
      to public servant being bribed – On facts, filing of chargesheet
C     against the accused for the offence u/s. 7 – Special Judge on basis
      of the transcript of conversation recorded between the complainant
      and the accused, found that there is a prima facie case of the alleged
      offence u/s. 7, and framed the charges against the accused for the
      said offence – Revision Application thereagainst – High Court
D     discharged the accused of the alleged offence u/s. 7 – Sustainability
      of – Held: Not sustainable – While discharging the accused, the
      High Court exceeded in its revisional jurisdiction and acted beyond
      the scope of s. 227/239 Cr.P.C. – High Court considered in detail
      the transcript of the conversation between the complainant and the
      accused which exercise at that stage was not permissible at all – At
E     the stage of framing of the charge and/or considering the discharge
      application, the mini trial is not permissible – At this stage, even as
      per s. 7, even an attempt constitutes an offence – Thus, the High
      Court erred and/or exceeded in virtually holding a mini trial at the
      stage of discharge application – Order passed by the High Court
F     quashed and set aside, and that of the Special Judge restored.
            Allowing the appeal, the Court
            HELD:1. While discharging the accused, the High Court
      exceeded in its jurisdiction in exercise of the revisional jurisdiction
      and acted beyond the scope of Section 227/239 Cr.P.C. The High
G     Court went into the merits of the case and considered whether
      on the basis of the material on record, the accused is likely to be
      convicted or not. For the aforesaid, the High Court considered
      in detail the transcript of the conversation between the


H
                                       158
    STATE OF RAJASTHAN v. ASHOK KUMAR KASHYAP                           159


complainant and the accused which exercise at this stage to             A
consider the discharge application and/or framing of the charge
is not permissible at all. The Special Judge rightly held that at
the stage of framing of the charge, it has to be seen whether or
not a prima facie case is made out and the defence of the accused
is not to be considered. After considering the material on record
                                                                        B
including the transcript of the conversation between the
complainant and the accused, the Special Judge having found that
there is a prima facie case of the alleged offence under Section 7
of the Prevention of Corruption Act, framed the charge against
the accused for the said offence. The High Court was required to
consider whether a prima facie case has been made out or not            C
and whether the accused is required to be further tried or not. At
the stage of framing of the charge and/or considering the discharge
application, the mini trial is not permissible. At this stage, even
as per Section 7 of the PC Act, even an attempt constitutes an
offence. Therefore, the High Court erred and/or exceeded in
                                                                        D
virtually holding a mini trial at the stage of discharge application.
Furthermore, this Court is not entering into the merits of the
case and/or merits of the transcript as the same is required to be
considered at the time of trial. Defence on merits is not to be
considered at the stage of framing of the charge and/or at the
stage of discharge application. [Para 11, 12][167-B-E; G-H]             E
      2. The impugned judgment and order passed by the High
Court discharging the accused under Section 7 of the PC Act is
unsustainable in law and is quashed and set aside, and the order
passed by the Special Judge framing charge against the accused
under Section 7 of the PC Act is restored. [Para 13][168-A-B]           F
      P. Vijayan v. State of Kerana (2010) 2 SCC 398:[2010]
      2 SCR 78; State of Karnataka Lokayukta, Police
      Station, Bengaluru v. M.R. Hiremath (2019) 7 SCC
      515 : [2019] 8 SCR 713 – relied on.
      Srilekha Sentil Kumar v. Deputy Superintendent of                 G
      Police, CBI, ACB, Chennai (2019) 7 SCC 82; Asim
      Shariff v. National Investigation Agency (2019) 7 SCC
      148 : [2019] 8 SCR 799 – referred to.

                                                                        H
160            SUPREME COURT REPORTS                           [2021] 4 S.C.R.


A                              Case Law Reference
      (2019) 7 SCC 82                   Referred to               Para 6.4
      [2019] 8 SCR 799                  Referred to               Para 6.4
      [2010] 2 SCR 78                   Relied on                 Para 10
B     [2019] 8 SCR 713                  Relied on                 Para 10
            CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
      No. 407 of 2021.
            From the Judgment and Order dated 12.09.2018 of the High
      Court of Judicature for Rajasthan Bench at Jaipur in S.B. Criminal
C
      Revision No. 1270 of 2018.
            Vishal Meghwal, Milind Kumar, Advs. for the Appellant.
            Anuj Bhandari, Adv. for the Respondent.
            The Judgment of the Court was delivered by
D
            M. R. SHAH, J.
             1. In the facts and circumstances of the case and having heard
      the learned counsel for the respective parties, the delay caused in filing
      the special leave petition is hereby condoned.
E           1A. Leave granted.
            2. Feeling aggrieved and dissatisfied with the impugned judgment
      and order dated 12.09.2018 passed by the High Court of Rajasthan,
      Bench at Jaipur in S.B. Criminal Revision No. 1270 of 2018, by which
      the High Court, in exercise of its revisional jurisdiction, has quashed the
F     order passed by the learned Special Judge, Prevention of Corruption
      Act, Bharatpur dated 22.06.2018 framing the charge against the
      respondent-accused for the offence under Section 7 of the Prevention
      of Corruption Act (for short, ‘PC Act’) and consequently has discharged
      the accused of the alleged offence under Section 7 of the PC Act, the
      State has preferred the present appeal.
G
             3. That the respondent herein – original accused was serving as a
      Patwari. That the original complainant Jai Kishore and one another on
      31.08.2010 submitted a written report before the Additional
      Superintendent of Police, Anti-Corruption Bureau, Bharatpur stating that
      for the purpose of issuing Domicile Certificate and OBC Certificate of
H
    STATE OF RAJASTHAN v. ASHOK KUMAR KASHYAP                                  161
                   [M. R. SHAH, J.]

his son, he has submitted an application enclosed with complete certificates   A
before the accused – Patwari Ashok Kumar Kashyap for endorsing his
report. However, the Patwari in lieu of endorsing his report over the said
application demanded a bribe of Rs.2,800/-. Thereafter after conducting
the investigation a chargesheet came to be filed by the investigating
agency against the accused for the offence under Section 7 of the PC
                                                                               B
Act. That the learned Special Judge heard the prosecution as well as the
defence at the time of framing of the charge. After hearing the
prosecution as well as the counsel for the defence and considering the
material on record which included the transcript of conversation recorded
between the complainant and the accused and considering the other
material on record and having found that there is a prima facie case           C
made out and the defence of the accused is not to be considered at this
stage, by order dated 22.06.2018 framed the charge against the accused
for the offence under Section 7 of the PC Act.
      4. Feeling aggrieved and dissatisfied with the order passed by the
learned Special Judge framing the charge against the accused under             D
Section 7 of the PC Act, the accused preferred revision application before
the High Court by filing Criminal Revision No. 1270 of 2018.
       4.1 Before the High Court, it was contended on behalf of the
accused that no case is made out under Section 7 of the PC Act, even
on the basis of the transcript recording the conversation between the          E
complainant and the accused. It was submitted that it is borne out from
the transcript that the accused in fact refused to give bonafide residence
certificate and returned the form on 29.08.2010 and that no work was
pending before him. It was also contended that on reading the entire
transcript the factum of demand of Rs.2,800/- is not revealed.
                                                                               F
        4.2 The revision application was opposed by the learned Public
Prosecutor. Heavy reliance was placed on the decision of this Court in
the case of Chitresh Kumar Chopra v. State (Govt, of NCT of Delhi),
AIR 2010 SC 1446 and it was submitted that as held by this Court that
at the stage of framing of charge, the Court is required to evaluate the
material and documents on record with a view to finding out if the facts       G
emerging therefrom, taken at their face value, disclose the existence of
all the ingredients constituting the alleged offence. It was submitted that
from the transcript it is evident that bribe was demanded from the
complainant.
                                                                               H
162            SUPREME COURT REPORTS                             [2021] 4 S.C.R.


A           4.3 That by the impugned judgment and order, the High Court has
      allowed the said revision application and has quashed and set aside the
      order passed by the learned Special Judge framing the charge against
      the accused for the offence under Section 7 of the PC Act and
      consequently discharged the accused from the alleged offence by
      observing in paragraphs 10 & 11 as under:
B
            “10. In the present case in hand, complainant himself when he
            moved to the Anti Corruption Department mentioned that petitioner
            had returned the form without making report. From the transcript
            which is available on record, it is evident that some prior transactions
            pertaining to bank file was pending between the parties and matter
C           pertained to Rs. 4,850/- out of which as per the petitioner, Rs.
            4,000/- was to be paid to the bank and in the transcript he has
            explained the total amount which was payable by the complainant.
            There is no specific demand for making a bonafide residence
            certificate, rather, petitioner had mentioned in the transcript that
D           as the complainant and his son are residing in Agra (U.P.), a
            bonafide residence certificate cannot be issued. No trap
            proceedings were conducted in the case and the matter has
            remained pending with the Anti Corruption for a period of more
            than five years. There is no specific demand of money by petitioner
            and on the date of transcript no matter was pending before him.
E
            11. In view of the same, it is evident from bare reading of the
            transcript that offence under Section 7 of the Prevention of
            Corruption Act would not be made out against the petitioner.”
            5. Feeling aggrieved and dissatisfied with the impugned judgment
F     and order passed by the High Court, discharging the accused and quashing
      and setting aside the order of framing charge by the learned Special
      Judge, in exercise of its revisional jurisdiction, the State has preferred
      the present appeal.
             6. Mr. Vishal Meghwal, learned Advocate appearing on behalf of
G     the State has vehemently submitted that in the facts and circumstances
      of the case, the High Court has erred in discharging the accused of the
      charged offence when there is ample material and evidence on record
      against the accused and sufficient grounds are available for proceeding
      against the accused.

H
    STATE OF RAJASTHAN v. ASHOK KUMAR KASHYAP                                 163
                   [M. R. SHAH, J.]

       6.1 It is submitted that the High Court has failed to appreciate       A
that at the stage of framing of charge and/or consideration of an
application for discharge, the Court is to consider whether there is any
prima facie case made out against the accused or not and at that stage
the Court is required to evaluate the material and documents relied on
by the prosecution only with a view to find out whether the facts emerging
                                                                              B
therefrom, if taken at their face value, disclose the existence of all the
ingredients constituting the alleged offence or not.
      6.2 It is submitted that in the present case the High Court has
committed a grave error in evaluating the transcript/evidence on merits
which at the stage of considering the application for discharge is not
permissible.                                                                  C

       6.3 It is further submitted by the learned Advocate appearing on
behalf of the State that in the present case even otherwise from the
transcript recording the conversation between the complainant and the
accused a case of demand of illegal gratification has been made out. It
is submitted that the accused has been charged for the offence under          D
Section 7 of the PC Act and therefore even an attempt is sufficient to
attract the offence under Section 7 of the PC Act. It is submitted that
therefore the High Court has erred in evaluating the evidence on record
on merits at the stage of considering the discharge application which, as
such, is impermissible and beyond the scope of the exercise of the            E
revisional jurisdiction.
       6.4 Learned Advocate appearing on behalf of the State has heavily
relied upon the decisions of this Court in the cases of P. Vijayan v. State
of Kerana, (2010) 2 SCC 398; Srilekha Sentil Kumar v. Deputy
Superintendent of Police, CBI, ACB, Chennai, (2019) 7 SCC 82;                 F
Asim Shariff v. National Investigation Agency (2019) 7 SCC 148;
and State of Karnataka Lokayukta, Police Station, Bengaluru v.
M.R. Hiremath, (2019) 7 SCC 515.
       7. Learned Advocate appearing on behalf of the respondent-
accused has vehemently submitted that in the facts and circumstances          G
of the case and as it was found from the transcript recording the
conversation between the complainant and the accused that no case, at
all, has been made out against the accused for the offence under Section
7 of the PC Act, the High Court has rightly discharged the accused by
quashing and setting aside the order passed by the learned Special Judge
                                                                              H
164             SUPREME COURT REPORTS                           [2021] 4 S.C.R.


A     framing charge against the accused. It is vehemently submitted by the
      learned Advocate for the respondent-accused that, as such, the accused
      refused to issue residence certificate and caste certificate having come
      to know about the complaint being the permanent resident of Agra. It is
      submitted that in fact the complainant wanted a false residence certificate
      and caste certificate illegally to be made in the State of Rajasthan, though
B
      he was the permanent resident of Agra. It is submitted that in fact the
      respondent-accused gave a report rejecting the request of the complainant
      on 29.08.2010 and therefore, as such, there was nothing pending before
      the accused and the decision regarding his application was already taken.
            7.1 It is submitted that in fact even as per the case of the
C     prosecution and even the complainant the trap failed and the accused
      refused to accept the bribe in the trap proceedings.
             7.2 It is submitted that at the time of conversation two persons
      were present, (1) the complainant – Jai Kishore; and (2) Devi Singh. It
      is submitted that there was a mixing of the conversation with the
D     complainant as well as Devi Singh. It is submitted that so far as the
      complainant is concerned, the accused categorically refused to accept
      any bribe. However, it is submitted that the appellant has tried to confuse
      and mislead the Court by mixing the conversation of Devi Singh regarding
      his dues of Rs.4,850-/ to the bank against which he has paid Rs.2,000/-
E     and the remaining amount of Rs.2,850/- was due to the bank. It is
      submitted that therefore so far as the complainant is concerned, neither
      there was any acceptance nor there was any demand of bribe and
      therefore having found on the basis of the material/evidence on record
      that no case is made out against the accused for the offence under
      Section 7 of the PC Act, the High Court has rightly discharged the
F     accused.
             7.3 Learned counsel appearing on behalf of the accused has heavily
      relied upon the decision of this Court in the case of Dilawar Balu Kurane
      v. State of Maharashtra, (2002) 2 SCC 135 and has submitted that as
      held by this Court the Court while exercising powers under Section 227
G     Cr.P.C. and while considering the question of framing of the charge has
      the undoubted power to sift and weigh the evidence for the limited purpose
      of finding out whether or not a prima facie case against accused is made
      out and where the material placed before the Court discloses grave
      suspicion against the accused which has not been properly explained,
H     the court will be fully justified in framing of the charge and proceeding
    STATE OF RAJASTHAN v. ASHOK KUMAR KASHYAP                                  165
                   [M. R. SHAH, J.]

with the trial, however, by and large if two views are equally possible        A
and the Judge is satisfied that the evidence produced before him will
give rise to some suspicion but not grave suspicion against the accused,
he will be fully justified to discharge the accused. It is submitted that
therefore in the present case the High Court was justified in evaluating
the evidence on record to come to a conclusion whether there is any
                                                                               B
sufficient material/evidence making out a case for the offence under
Section 7 of the PC Act or not.
       7.4 Number of other submissions have been made by the learned
counsel for the respective parties on merits after taking us in detail to
the transcript recording the conversation between the complainant and
the accused. However, at the stage of framing of the charge and/or             C
while considering the discharge application, we do not propose to go into
in detail on merits of the allegations and the evidence on record as for
the reasons stated hereinbelow the same is not permissible at this stage.
      8. We have heard the learned counsel for the respective parties.
                                                                               D
        By the impugned judgment and order, the High Court in exercise
of its revisional jurisdiction has set aside the order passed by the learned
Special Judge framing the charge against the accused under Section 7
of the PC Act and consequently has discharged the accused for the said
offence. What has been weighed with the High Court while discharging
the accused is stated in paragraphs 10 & 11 of the impugned judgment           E
and order, which are reproduced hereinabove.
       9. While considering the legality of the impugned judgment and
order passed by the High Court, the law on the subject and few decisions
of this Court are required to be referred to.
                                                                               F
        9.1 In the case of P.Vijayan (supra), this Court had an occasion
to consider Section 227 of the Cr.P.C. What is required to be considered
at the time of framing of the charge and/or considering the discharge
application has been considered elaborately in the said decision. It is
observed and held that at the stage of Section 227, the Judge has merely
to sift the evidence in order to find out whether or not there is sufficient   G
ground for proceeding against the accused. It is observed that in other
words, the sufficiency of grounds would take within its fold the nature of
the evidence recorded by the police or the documents produced before
the Court which ex facie disclose that there are suspicious circumstances
against the accused so as to frame a charge against him. It is further
                                                                               H
166            SUPREME COURT REPORTS                           [2021] 4 S.C.R.


A     observed that if the Judge comes to a conclusion that there is sufficient
      ground to proceed, he will frame a charge under Section 228 Cr.P.C., if
      not, he will discharge the accused. It is further observed that while
      exercising its judicial mind to the facts of the case in order to determine
      whether a case for trial has been made out by the prosecution, it is not
      necessary for the court to enter into the pros and cons of the matter or
B
      into a weighing and balancing of evidence and probabilities which is
      really the function of the court, after the trial starts.
            9.2 In the recent decision of this Court in the case of M.R.
      Hiremath (supra), one of us (Justice D.Y. Chandrachud) speaking for
      the Bench has observed and held in paragraph 25 as under:
C
            25. The High Court ought to have been cognizant of the fact that
            the trial court was dealing with an application for discharge under
            the provisions of Section 239 CrPC. The parameters which govern
            the exercise of this jurisdiction have found expression in several
            decisions of this Court. It is a settled principle of law that at the
D           stage of considering an application for discharge the court must
            proceed on the assumption that the material which has been brought
            on the record by the prosecution is true and evaluate the material
            in order to determine whether the facts emerging from the material,
            taken on its face value, disclose the existence of the ingredients
E           necessary to constitute the offence. In State of T.N. v. N. Suresh
            Rajan [State of T.N. v. N. Suresh Rajan, (2014) 11 SCC 709,
            adverting to the earlier decisions on the subject, this Court held:
            (SCC pp. 721-22, para 29)
            “29. … At this stage, probative value of the materials has to be
F           gone into and the court is not expected to go deep into the matter
            and hold that the materials would not warrant a conviction. In our
            opinion, what needs to be considered is whether there is a ground
            for presuming that the offence has been committed and not whether
            a ground for convicting the accused has been made out. To put it
            differently, if the court thinks that the accused might have
G           committed the offence on the basis of the materials on record on
            its probative value, it can frame the charge; though for conviction,
            the court has to come to the conclusion that the accused has
            committed the offence. The law does not permit a mini trial at this
            stage.”
H
    STATE OF RAJASTHAN v. ASHOK KUMAR KASHYAP                                  167
                   [M. R. SHAH, J.]

      10. We shall now apply the principles enunciated above to the            A
      present case in order to find out whether in the facts and
      circumstances of the case, the High Court was justified in
      discharging the accused for the offence under Section 7 of the
      PC Act.
        11. Having considered the reasoning given by the High Court and        B
the grounds which are weighed with the High Court while discharging
the accused, we are of the opinion that the High Court has exceeded in
its jurisdiction in exercise of the revisional jurisdiction and has acted
beyond the scope of Section 227/239 Cr.P.C. While discharging the
accused, the High Court has gone into the merits of the case and has
considered whether on the basis of the material on record, the accused         C
is likely to be convicted or not. For the aforesaid, the High Court has
considered in detail the transcript of the conversation between the
complainant and the accused which exercise at this stage to consider
the discharge application and/or framing of the charge is not permissible
at all. As rightly observed and held by the learned Special Judge at the       D
stage of framing of the charge, it has to be seen whether or not a prima
facie case is made out and the defence of the accused is not to be
considered. After considering the material on record including the
transcript of the conversation between the complainant and the accused,
the learned Special Judge having found that there is a prima facie case
of the alleged offence under Section 7 of the PC Act, framed the charge        E
against the accused for the said offence. The High Court materially
erred in negating the exercise of considering the transcript in detail and
in considering whether on the basis of the material on record the accused
is likely to be convicted for the offence under Section 7 of the PC Act or
not. As observed hereinabove, the High Court was required to consider          F
whether a prima facie case has been made out or not and whether the
accused is required to be further tried or not. At the stage of framing of
the charge and/or considering the discharge application, the mini trial is
not permissible. At this stage, it is to be noted that even as per Section 7
of the PC Act, even an attempt constitutes an offence. Therefore, the
High Court has erred and/or exceeded in virtually holding a mini trial at      G
the stage of discharge application.
      12. We are not further entering into the merits of the case and/or
merits of the transcript as the same is required to be considered at the
time of trial. Defence on merits is not to be considered at the stage of
framing of the charge and/or at the stage of discharge application.            H
168                SUPREME COURT REPORTS                    [2021] 4 S.C.R.


A           13. In view of the above and for the reasons stated above, the
      impugned judgment and order passed by the High Court discharging the
      accused under Section 7 of the PC Act is unsustainable in law and the
      same deserves to be quashed and set aside and is accordingly hereby
      quashed and set aside and the order passed by the learned Special Judge
      framing charge against the accused under Section 7 of the PC Act is
B
      hereby restored. Now the case is to be tried against the accused by the
      competent court for the offence under Section 7 of the PC Act, in
      accordance with law and its own merits.

      Nidhi Jain                                                Appeal allowed.
C




D




E




F




G




H