STATE OF TAMIL NADU BY INS.OF POLICE VIGILANCE AND ANTI CORRUPTIONversusN. SURESH RAJAN & ORS.

                    [2014] 1 S.C.R. 135


 STATE OF TAMILNADU BY INS.OF POLICE VIGILANCE                   A
             AND ANTI CORRUPTION
                             v.
                N.SURESH RAJAN & ORS.
           (Criminal Appeal No. 22-23 of 2014)
                                                                  B
                    JANUARY 06, 2014.

[CHANDRAMAULI KR PRASAD AND M.Y. EQBAL JJ.]

    CODE OF CRIMINAL PROCEDURE, 1973:
                                                                 ·c
    s. 239 - Discharge of accused - Accused charged with
offences punishable u/s 109 IPC ands. 13(2) r/IN s. 13 (1) (e)
of Prevention of Corruption Act - Acquiring of properties
disproportionate to known sources of income - Held: At the
stage of consideration of an application for discharge, court     D
has to proceed with an assumption that the materials brought
on record by prosecution are true and to evaluate the said
materials and documents with a view to find out whether the
facts emerging therefrom taken at their face value disclose
the existence of all the ingredients constituting the alleged     E
offence - At this stage, probative value of the materials has
to be gone into and court is not expected to. go deep into the
matter and hold that materials would not warrant a conviction
- In the instant case,. while passing the orders of discharge,
court has not sifted the materials for the purpose of finding     F
out whether or not there is sufficient ground for proceeding
against accused, but whether that would warrant a conviction
- Orders impugned suffer from grave error and, as such, are
set aside.

    ss. 227, 239 and 245 - Discharge of accused -                 G
Explained.

    PREVENTION OF CORRUPTION ACT, 1988:

                             135                                  H
    136      SUPREME COURT REPORTS             [2014] 1 S.C.R.

A      s. 13(2) rlw 13(1) (e) ·-A/legations that State Ministers
  purchased properties in the names of their relatives - Income
  tax paid by persons in whose names properties were acquired
  - Held: While passing the order of discharge, the fact that
  accused other thari two Ministers have been assessed to and
B paid income tax cannot be relied upon to discharge the
  accused persons particularly in view of the allegation made
  by prosecution that there was no separate income to amass
  such huge properties - Properly in the name of an income
  tax assessee itself cannot be a ground to hold that it actually
c belongs to such an assessee - Code of Criminal Procedure,
  1973 - S. 239.

       The instant appeals arose out of the orders of
  discharge of the accused of offences punishable u/s 109
  IPC ands. 13(2) read with 13 (1)(e) of the Prevention of
D Corruption Act, 1988 passed u/s 239 of the Code of
  Criminal Procedure, 1973. In respect of accused-
  respondent no. 1 in Crl. A. Nos. 22-23 of 2014, the High
  Court in revision petition set aside the order of the Special
  Judge and discharged the accused; whereas in respect
E of accused-respondent no. 1 in Crl. A. Nos. 26-38 of 2014,
  the revision petition against the order of the Special
  Judge discharging the accused was dismissed by the
  High Court. The allegations against respondents no. 1 in
  both sets of appeals were that while they were Members
F of the State Legislative Assemblies and Ministers in the
  State Government, they acquired and possessed in their
  own names and in the names of other accused, namely,
  the.ir relatives, pecuniary resources and properties
  disproportionate to their known sources of income.
G
          Allowing the appeals, the Court
         HELD: 1.1. The offences punishable under the
    scheme of the Prevention of Corruption Act have to be
    tried by a Special Judge and he may take cognizance of
H
 STATE OF TAMILNADU BY INS.OF POL VIG. AND ANTI CORR.137
                 v. N.SURESH RAJAN
the offence without committal of the accused and the               A
Judge trying the accused is required to follow the
procedure prescribed by the Code of Criminal Procedure,
1973 (the Code) for the trial of warrant- cases by the
Magistrate. The Special Judge holding the trial is deemed
to be a Court of Session. [para 15] (148-C]                        B

     1.2. It is trite that at the stage of consideration of an
application for discharge, the court has to proceed with
an assumption that the materials brought on record by
the prosecution are true and evaluate the said materials           C
and documents with a view to find out whether the facts
emerging therefrom takeri at their face value disclose the
existence of all the ingredients constituting the alleged
offence. At this stage, probative value of the materials has
to be gone into and the court is not expected to go deep
into the matter and hold that the materials would not              0
warrant a conviction. 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. If the court
thinks that the accused might have committed the offence           E
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 cbnclusion that the accused
has committed the offence. The law does not permit a
mini trial at this stage. [para 19] [153-B-F]                      F

      Sheoraj Singh Ahlawat & Ors. vs .. State of Uttar Pradesh
  & Anr., 2012SCR1034: AIR 2013 SC 52,; Onkar Nath
. Mishra v. State (NCT of Delhi), 2007 (13) SCR 716    =  (2008)
2 sec 561 - relied on.                                             G
      Sajjan Kumar v. CBI 2010 (11) SCR 669 = (2010) 9 SCC
  368; Dilawar Batu Kurane v. State of Maharashtra, 2002 (1)
. SCR 75 = (2002) 2 SCC 135 - held inapplicable.
     1.3. Sections 227 and 239 provide for discharge               H
    138      SUPREME COURT REPORTS          [2014] 1 S.C.R.


A before the recording of evidence on the basis of the
  police report, the documents sent along with it and
  examination of the accused after giving an opportunity
  to the parties to be heard. However, the stage of
  discharge u/s 245, on the other hand, is reached only after
B the evidence referred in s. 244 has been taken. Under s.
  227 of the Code, the trial court is required to discharge
  the accused if it "considers that there is not sufficient
  ground for proceeding against the accused". However,
  discharge u/s 239 can be ordered when "the Magistrate
c considers the charge against the accused to be
  groundless". The power to discharge is exercisable u/s
  245(1) when, "the Magistrate considers, for reasons to be
  recorded that no case against the accused has been
  made out which, if not repudiated, would warrant his
  conviction". Thus, there is difference in the language
0
  employed in these provisions. But, notwithstanding these
  differences, and whichever provision may be applicable,
  the court is required at this stage to see that there is a
  prima facie case for proceeding against the accused.
E [para 20] [154-E-H; 155-A-B]
        R.S. Nayak v. A.R. Antulay 1986 (2) SCR 621 = (1986)
    2 sec 716 - referred to.

      1.4. In the instant case, while passing the order of
F discharge, the fact that the accused, other than the two
  Ministers, have been assessed to income tax and paid
  income tax cannot be relied upon to discharge the
  accused persons, particularly, in view of the allegation
  made by the prosecution that the Ministers had acquired
G properties in the names of their relatives and there was
  no separate income to amass such huge properties. The
  property· in the name of an income tax assessee itself
  cannot be a ground to hold that it actually belongs to
  such an assessee. [para 21] [155-H; 156-A-B]
H         1.5. While passing the impugned orders, the court
STATE OF TAMILNADU BY INS.OF POL VIG AND ANTI CORR. 139
                v. N.SURESH RAJAN
has not sifted the materials for the purpose of finding out    A
whether or not there is sufficient ground for proceeding
against the accused, but whether that would warrant a
conviction. This was not the stage where the. court
should have appraised the evidence and discharged the
accused as if it was passing an order of acquittal. Further,   B
defect in investigation itself cannot be a ground for
discharge. The orders impugned suffer from grave error
and call for rectification. The orders of discharge· are,
therefore, set aside. [para 21-23] [1556-C-D and F-G]
                                             '
     State by Deputy Superintendent of Police, Vigilance and   C
Anti Corruption Cuddalore Detachment v., K. Ponumudi & Ors.
(2007-1MLJ-CRL.-100) - Reversed.

     Postmaster General v. Living Media India Ltd., 2012
(1) SCR 1045= (2012) 3· SCC 563, Pundlik Jalam Patil v.        D
Executive Engineer, Jalgaon Medium Project 2008
(15) SCR 135 = (2008) 17 sec 448 - cited.
                    Case Law Reference:
    (2007-1MLJ-CRL.-100) reversed                 para 4       E
    2012 (1 ) SCR 1045       cited                para 8
    2008 (15) SCR 135        cited                para 9
    2010 (11) SCR 669        held inapplicable    para 19
                                                               F
    2002 (1) SCR 75          held inapplicable    para 20
    2012 SCR 1034            relied on            para 21
    2007 (13) SCR 716        relied on            para 21
                                                               G
    1986 (2) SCR 621         referred to .        para 22
    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 22-23 of 2014.

    From the Judgment & Order dated 10.12.201 O of the High    H
    140       SUPREME COURT REPORTS             [2014] 1 S.C.R.


A   Court of Judicature of Madras, Madurai Bench in Crl. R.C. No.
    528 of 2009 and MP (MD) No. 1 of 2009.
                                  WITH
    Criminal Appeal Nos. 26-38 of 2014.

B       Ranjit Kumar, M.S. Ganesh, Soli J. Sorabjee, Dewrat,
    Anup Kumar, M.K. Subramaniam, M. Yogesh Kanna, R. Ayyam
    Perumal, K. Seshachary, Anushree Kapadia, Sukun K.S.
    Chandele, R. Nedumaran, Movita, Meherwaz, Shaunak for the
    appearing parties.
c
          The Judgment of the Court was delivered by

          CHANDRAMAULI KR. PRASAD, J.

     CRIMINAL APPEAL N0.22-23 OF 2014 (@SPECIAL
D LEAVE PETITION(CRL.)Nos.3810-3811 of 2012)

       1. The State of Tamil Nadu aggrieved by the order dated
  10th of December, 2010 passed by the Madras High Court in
  Criminal R.C.No.528 of 2009 and Criminal M.P.(MD) No.1 of
E 2009, setting aside the order dated 25th of September, 2009
  passed by the learned Chief Judicial Magistrate-cum-Special
  Judge, Nagercoil (hereinafter referred to as 'the Special
  Judge'), whereby he refused to discharge the respondents, has
  preferred these special leave petitions.

F         2. Leave granted.

       3. Short facts giving rise to the present appeals are that
  Respondent No. 1, N Suresh Rajan, during the period from
  13.05.1996 to 14.05.2001, was a Member of the Tamil Nadu
G Legislative Assembly as also a State Minister of Tourism.
  Respondent No. 2, K. Neelkanda Pillai is his father and
  Respondent No. 3, R.Rajam, his mother. On the basis of an
  information that N. Suresh Rajan, during his tenure as the
  Minister of Tourism, had acquired and was in possession of
H
STATE OF TAMILNADU BY INS.OF POL VIG AND ANTI CORR. 141
  v. N.SURESH RAJAN [CHANDRAMAULI KR. PRASAD, J.]

pecuniary resources and properties in his name and in the            A
names of his father and mother, disproportionate to his known
sources of income, Crime No. 7 of 2002 was registered at
Kanyakumari Vigilance and Anti Corruption Department on
14th of March, 2002 against the Minister N. Suresh Rajan, his
father, mother, elder sister and his bother-in-law. During the       B
course of the investigation, the investigating officer collected
and gathered informations with regard to the property and
pecuniary resources in possession of N. Suresh Rajan during
his tenure as the Minister, in his name and in the name of others.
On computation of the income of the Minister from his known          c
sources and also expenditure incurred by him, it was found that
the properties owned and possessed by him are
disproportionate to his known sources of income to the tune of
Rs. 23,77,950.94. The investigating officer not only examined
the accused Minister but also his father and mother as also his      0
sister and the brother-in-law. Ultimately, the investigating
agency came to the conclusion that during the check period,
Respondent No.1, N. Suresh Rajah has acquired and was in
possession of pecuniary resources and properties in his name
and in the names of his father, K. Neelakanda Pillai
                                                                     E
(Respondent No. 2) and mother R. Rajam (Respondent No. 3)
and his wife D.S. Bharathi for total value of Rs. 17,58,412.47.
The investigating officer also came to the conclusion that
Minister's father and mother never had any independent source
of income commensurate wi.th the property and pecuniary
resources found acquired in their names. Accordingly, the            F
investigating officer submitted the charge-sheet dated 4th of
July, 2003 against Respondent No.1, the Minister and. his father
(Respondent No.2) and mother (Respondent No.3) respectively,
alleging commission of an offence under Section 109 of the
Indian Penal Code and Section 13(2) read with Section                G
13(1 )(e) of the Prevention of Corruption Act. Respondents filed
application dated 5th of December, 2003 under Section 239
of the Code of Criminal Procedure, 1973 (hereinafter referred
to as 'the Code'), seeking their discharge. The Special Judge,
by its order dated 25th of September, 2009 rejected their            H
    142        SUPREME COURT REPORTS                 [2014) 1 S.C.R.


A prayer. While doing so, the Special Judge obseNed as follows:

          "At this stage it will be premature to say that there are no
          sufficient materials on the side of the state to frame any
          charge against them and the same would not be according
          to law in the opinion of this court and at the same time this
B
          court has come to know that there are basic materials for
          the purpose of framing charges against the 3 petitioners,
          the petition filed by the petitioners is dismissed and orders
          passed to that effect."

C      4. Aggrieved by the same, respondents filed criminal
  revision before the High Court. The High Court by the impugned
  judgment had set aside the order of the Special Judge and
  discharged the respondents on its finding that in the absence
  of any material to show that money passed from respondent
D No. 1 to his mother and father, latter cannot be said to be holding
  the property and resources in their names on behalf of their son.
  The High Court while passing the impugned order heavily relied
  on its earlier judgment in the case of State by Deputy
  Superintendent of Police, Vigilance and Anti Corruption
E Cudda/ore Detachment v. K. Ponumudi & Ors. (2007-1 MLJ-
    CRL.-100), the validity whereof is also under consideration in
    the connected appeals. The High Court while allowing the
    criminal revision obseNed as follows:

          "12.ln the instant case, the properties standing in the name
F         of the petitioners 2 and 3 namely, A2 and A3 could not be
          held to be the properties or resources belonging to the 1st
          accused in the absence of any investigation into the
          individual income resources of A2 and A3. Moreover, it is
          not disputed that A2 was a retired Head Master receiving
G         pension and A3 is running a Financial Institution and an
          Income Tax assessee. In the absence of any material to
          show that A1's money flow into the hands of A2 and A3,
          they cannot be said to be holding the properties and
          resources in their name on behalf of the first accused.
H         There is also no material to show that A2 and A3 instigated
STATE OF TAMILNADU BY INS.OF POL VIG AND ANTI CORR. 143
  v. N.SURESH RAJAN [CHANDRAMAULI KR. PRASAD, J.]
    A 1 to acquire properties and resources disproportionate         A
    to his known source of income."

     It is in these circumstances that the appellant is before us.

CRIMINAL APPEAL NO. 26-38 OF 2014
                                                                     B
(@SPECIAL LEAVE PETITIONCCRL.)Nos. 134-146 of
2013)

      5. These special leave petitions are barred by limitation.
There is delay of 1954 days in filing the petitions and 217 days     C
in refiling the same. Applications have been filed for condoning
the delay in filing and refiling the special leave petitions.

      6, Mr. Ranjit Kumar, learned Senior Counsel for the
petitioner submits that the delay in filing the special leave
petitions has occurred as the Public Prosecutor earlier gave · D
an opinion that it is not a fit case in which special leave petitions
deserve to be filed. The Government accepted the opinion and
decided not to file the special leave petitions. It is pointed out
that the very Government in which one of the accused was a
Minister had taken the aforesaid decision not to file special E
leave petitions. However, after the change of the Government,
opinion was sought from the Advocate General, who opined
that it is fit case in which the order impugned deserves to be
challenged. Accordingly, it is submitted that the cause shown
is sufficient to condone the delay.                                   F

     7. Mr. Soli J. Sorabjee, learned Senior Counsel appearing
for the respondents, however, submits that mere change of
Government would not be sufficient to condone the inordinate
delay. He submits that with the change of the Government,
many issues which have attained finality would be reopened           G
after long delay, which should not be allowed. According to him,
condonation of huge delay on the ground that the successor
Government, which belongs to a different political party, had
taken the decision to file the special leave petitions would be
setting a very dangerous precedent and it would lead to              H
    144       SUPREME COURT REPORTS                 [2014] 1 S.C.R.


A miscarriage of justice. He emphasizes that there is a life span
  for every legal remedy and condonation of delay is an
  exception. Reliance has been placed on a decision of this Court
  in the case of Postmaster General v. Living Media India Ltd.,
  (2012) 3 sec 563, and our attention has been drawn to
B Paragraph 29 of the judgment, which reads as follows:

          "29. In our view. it is the right time to inform all the
          government bodies, their agencies and instrumentalities
          that unless they have reasonable and acceptable
          explanation for the delay and there was bona fide effort,
c         there is no need to accept the usual explanation that the
          file was kept pending for several months/years due to
          considerable degree of procedural red tape in the
          process. The government departments are under a special
          obligation to ensure that they perform their duties with
D         diligence and commitment. Condonation of delay is an
          exception and should not be used as an anticipated benefit
          for the government departments. The law shelters everyone
          under the same light and should not be swirled for the
          benefit of a few."
E
         8. Mr. Sorabjee further submits that the Limitation Act does
    not provide for different period of limitation for the Government
    in resorting to the remedy provided under the law and the case
    in hand being not a case of fraud or collusion by its officers or
F   agents, the huge delay is not fit to be condoned. Reliance has
    also been placed on a decision of this Court in the case of
    Pundlik Jalam Patil v. Executive Engineer, Ja/gaon Medium
    Project, (2008) 17 sec 448 and reference has been made to
    Paragraph 31 of the judgment, which reads as follows:

G         "31. It is true that when the State and its instrumentalities
          are the applicants seeking condonation of delay they may
          be entitled to certain amount of latitude but the law of
          limitation is same for citizen and for governmental
          authorities. The Limitation Act does not provide for a
H         different period to the Government in filing appeals or
STATE OF TAMILNADU BY INS.OF POL VIG AND ANTI CORR. 145 .
  v. N.SURESH RAJAN [CHANDRAMAULI KR. PRASAD, J.]
    applications as such. It would be a different matter where      A
    the Government makes out a case where public interest
    was shown to have suffered owing to acts of fraud or
    collusion on the part of its officers or agents and where the
    officers were clearly at cross purposes with it. In a given
    case if any such facts are pleaded or proved they cannot        B
    be excluded from consideration and those factors may go
    into the judicial verdict. In the present case, no such facts
    are pleaded and proved though a feeble attempt by the
    learned counsel for the respondent was made to suggest
    collusion and fraud but without any basis. We cannot            c
    entertain the submission made across the Bar without
    there being any proper foundation in the pleadings."

     9. The contentions put forth by Mr. Sorabjee are weighty,
deserving thoughtful consideration and at one point of time we
were inclined to reject the applications filed for condonation of   D
delay and dismiss the special leave petitions. However, on a
second thought we find that the validity of the order impugned
in these special leave petitions has to be gone into in criminal
appeals arising out of Special Leave Petitions (Criminal) Nos.
3810-3811 of 2012 and in the face of it, it shall be unwise to      E
dismiss these special leave petitions on the ground of
limitation. It is worth mentioning here that the order impugned.
in the criminal appeals arising out of Special Leave Petition
(Criminal) Nos. 3810-3811 of 2012, State of Tamil Nadu by
Ins. of Police, Vigilance and Anti Corruption v. N. Suresh          F
Rajan & Ors., has been mainly rendered, relying on the
decision in State by Deputy Superintendent of Police, Vigilance
and Anti Corruption Cuddalore Detachment vs. K. Ponmudi and
Ors.(2007-1MLJ-CRL.-100), which is impugned in the present
special leave petitions. In fact, by order dated 3rd of January,    G
2013, these petitions were directed to be heard along with the
aforesaid special leave petitions. In such circumstances, we
condone the delay in filing and refiling the special leave
petitions.                                              ·
    146       SUPREME COURT REPORTS                [2014] 1 S.C.R.


A      10. In these petitions the State of Tamil Nadu impugns the
  order dated 11th of August, 2006 passed by the Madras High
  Court whereby the revision petitions filed against the order of
  discharge dated 21st of July, 2004 passed by the Special
  Judge/Chief Judicial Magistrate, Villupuram (hereinafter
B referred to as 'the Special Judge'), in the Special Case No. 7
  of 2003, have been dismissed.

          11. Leave granted.

        12. Shorn of unnecessary details, facts giving rise to the
C present appeals are that K. Ponumudi, respondent No. 1
  herein, happened to be a Member of the State Legislative
  Assembly and a State Minister in the Tamil Nadu Government
  during the check period. P. Visalakshi Ponmudi (Respondent
  No.2) is his wife, whereas P.Saraswathi (Respondent No.3)
D (since deceased) was his mother-in-law. A.Manivannan
  (Respondent No.4) and A.Nandagopal (Respondent No.5)
  (since deceased) are the friends of the Minister (Respondent
  No.1 ). Respondent Nos. 3 to 5 during their lifetime were
  trustees of one Siga Educational Trust, Villupuram.
E
        13. In the present appeals, we have to examine the validity
  of the order of discharge passed by the Special Judge as
  affirmed by the High Court. Hence, we consider it unnecessary
  to go into the details of the case of the prosecution or the
  defence of the respondent at this stage. Suffice it to say that,
F according to the prosecution, K. Ponmudi (Respondent No.1 ),
  as a Minister of Transport and a Member of the Tamil Nadu
  Legislative Assembly during the period from 13.05.1996 to
  30.09.2001, had acquired and was in possession of pecuniary
  resources and properties in his name and in the names of his
G wife and sons, which were disproportionate to his known
  sources of income. Accordingly, Crime No. 4 of 2002 was
  registered at Cuddalore Village, Anti-Corruption Department on
   14th of ~arch, 2002 under Section 109 of the Indian Penal
  Code read with Section 13(2) and Section 13(1)(e) of the
H Prevention of Corruption Act, hereinafter referred to as 'the Act'.
STATE OF TAMILNADU BY INS.OF POL VIG AND ANTI CORR. 14 7
  v. N.SURESH RAJAN [CHANDRAMAULI KR. PRASAD, J.]
During the course of investigation it transpired that between the A
period from 13.05.1996 to 31.03.2002, the Minister had
acquired and possessed properties at Mathirimangalam,
Kaspakaranai, Kappiampuliyur villages and other places in
Villupuram Taluk, at Vittalapuram village and other places in
Thindivanam Taluk, at Cuddalore and Pondicherry Towns, at B
Chennai and Trichy cities and at other places. It is alleged that
respondent No.1-Minister being a public servant committed the
offence of criminal misconduct by acquiring and being in
possession of pecuniary resources and properties in his name
and in the names of his wife, mother-in-law and also in the name   c
of Siga Educational Trust, held by the other respondents on
behalf of Respondent No. 1, the Minister, which were
disproportionate to his known sources of income to the extent
of Rs.3,08,35,066.97. According to the prosecution, he could
not satisfactorily account for the assets and in this way, the
                                                                  0
Minister had committed the offence punishable under Section
13(2) read with Section 13(1)(e) of the Act.

      14. In the course of investigation, it further transpired that
during the check period and in the places stated above, other
accused abetted the Minister in the commission of the offence E
by him. Respondent No. 2, the wife of the Minister, aided in
commission of the offence by holding on his behalf a substantial
portion of properties and pecuniary resources in her name as
well as in the name of M/s. Visal Expo, of which she was the
sole Proprietor. Similarly, Respondent No. 3, the mother-in-law, F
aided the Minister by holding on his behalf a substantial portion
of properties and pecuniary resources in her name as well as
in the name of Siga Educational Trust by purporting to be one
of its Trustees. Similarly, Respondent No. 4 and Respondent
No. 5 aided the Minister and held on his behalf a substantial G
portion of the properties and pecuniary resources in the name
of Siga Educational Trust by purporting to be its Trustees. It is
relevant here to mention that during the course of investigation,
the statement of all other accused were taken and in the opinion
of the investigating agency, after due scrutiny of their statements H
    148       SUPREME COURT REPORTS                  (2014] 1 S.C.R.


A   and further verification, the Minister was not able to satisfactorily
    account for the quantum of disproportionate assets.
    Accordingly, the Vigilance and Anti Corruption Department of
    the State Government submitted charge-sheet against the
    respondents under Section 109 of the Indian Penal Code and
s   Section 13(2) read with Section 13( 1)(e) of the Act.

        15. It is relevant here to state that the offences punishable
  under the scheme of the Act have to be tried by a Special
  Judge and he may take cognizance of the offence without
  commitment of the accused and the Judge trying the accused
C is required to follow the procedure prescribed by the Code for
  the trial of warrant cases by the Magistrate. The Special Judge
  holding the trial is deemed to be a Court of Sessions. The
  respondents filed petition for discharge under Section 239 of
  the Code inter alia contending that the system which the
D prosecution had followed to ascertain the income of the
  accused is wrong. Initially, the check period was from
  10.05.1996 to 13.09.2001 which, during the investigation, was
  enlarged from 13.05.1996 to 31.03.2002. Not only this,
  according to the accused, the income was undervalued and the
E expenditures exaggerated. According to Respondent No. 1, the
  Minister, income of the individual property of his wife and that
  of his mother-in-law and their expenditure ought not to have
  been shown as his property. According to him, the allegation
  that the properties in their names are his benami properties is
F wrong. It was also contended that the valuation of the properties
  has been arrived at without taking into consideration the entire
  income and expenditure of Respondent No. 1. Respondents
  have also alleged that the investigating officer, who is the
  informant of the case, had acted autocratically and his action
G is vitiated by bias. The Special Judge examined all these
  contentions and by order dated 21st of July, 2004 discharged
   Respondents on its finding that the investigation was not
  conducted properly. The Special Judge further held that the
  value of the property of Respondent Nos. 2 to 5 ought not to
H have been clubbed with that of the individual properties and
STATE OF TAMILNADU BY INS.OF POL VIG AND ANTI CORR. 149
                                                         .
  v. N.SURESH RAJAN [CHANDRAMAULI KR. PRASAD, J.]

income of Respondent No. 1 and by doing so, the assets of           A
Respondent No. 1 cannot be said to be disproportionate to his
known sources of income. On the aforesaid finding the Special
Judge discharged all the accused. Aggrieved by the same, the
State of Tamil Nadu filed separate revision petitions and the
High Court, by the impugned order, has dismissed all the            B
revision petitions. The High Court, while affirming the order of
discharge, held that the prosecution committed an error by
adding the income of other respondents, who were assessed
under the Income Tax Act, in the income of Respondent No.1.
In the opinion of the High Court, an independent and unbiased       c
scrutiny of the entire documents furnished along with the final
report would not make out any ground of framing of charges
against any of the accused persons. While doing so, the High
Court has observed as follows:

    "18. The assets which admittedly, do not belong to              D
    Accused 1 and owned by individuals having independent
    source of income which are assessed under the Income
    Tax Act, were added as the assets of Accused -1. Such a
    procedure adopted by the prosecution is not only
    unsustainable but also illegal. An independent and              E
    unbiased scrutiny of the entire documents furnished along
    with the final report would not make out any ground for
    framing of charge as against any of the accused persons.
    The methodology adopted by the prosecution to establish
    the disproportionate assets with reference to the known         F
    source of income is absolutely erroneous.

    xxx                          xxx               xxx
    The theory of Benami is totally alien to the concept of trust
    and it is not legally sustainable to array the accused 3 to     G
    5 as holders of the properties or that they are the benamies
    of the accused. The benami transaction has to be proved
    by the prosecution by producing legally permissible
    materials of a bona fide character which would directly
    prove the fact of benami and there is a total lack of           H
    150         SUPREME COURT REPORTS                [2014] 1 S.C.R.


A         materials on this account and hence the theory of benami
          has not been established even remotely by any evidence.
          On a prima-facie evidence it is evident that the other
          accused are possessed of sufficient funds for acquiring
          their properties and that A1 has nothing to do with those
B         properties and that he cannot be called upon to explain the
          source of income of the acquisition made by other persons.

          19 ......... Admittedly the accused are not possessed of
          the properties standing in the name of Trust and controlled
          by the Accused A3 to AS. The trust is an independent legal
c         entity assessed to income tax and owning the properties.
          Only to boost the value of the assets the prosecution
          belatedly arrayed the Trustees of the Trust as accused 3
          to 5 in order to foist a false case as against A1.

D         xxx                           xxx               xxx
          21 ......... All the properties acquired by A2 and A3 in their
          individual capacity acquired out of their own income have
          been shown in the Income Tax Returns, which fact the
          prosecution also knows and also available in the records
E
          of the prosecution. The prosecution has no justification or
          reason to disregard those income tax returns to disallow
          such income wrile filing the final report. The documents
          now available on record also would clearly disprove the
          claim of benami transaction."
F
          The High court ultimately concluded as follows:
          "24 ............ Therefore, the trial court analyzing the
          materials and documents that were made available at the
G         stage of framing charges and on their face value arrived
          at tne right conclusion that charges could not be framed
          against the respondents/accused."

      16. Now we proceed to consider the legal position
  concerning the issuH of discharge and validity of the orders
H impugned in these appeals in the background theraof. Mr. Ranjit
STATE OF TAMILNADU BY INS.OF POL VIG AND ANTI CORR. 151
  v. N.SURESH RAJAN [CHANDRAMAULI KR. PRASAD, J.]
Kumar submits that the order impugned suffers from patent             A
illegality. He points out that at the time of framing of the charge
the scope is limited and what is to be seen at this stage is as
to whether on examination of the materials and the documents
collected, the charge can be said to be groundless o~ not. He
submits that at this stage, the court cannot appraise the             B
evidence as is done at the time of trial. He points out that while
passing. the impugned orders, - the evidence has been
appraised and the case of the prosecution has been rejected,
as is done after the trial while acquitting the accused.

     17. Mr. Sorabjee as also Mr. N.V. Ganesh appearing on            C
behalf of the respondents-accused, however, submit that when
the court considers the applications for discharge, it has to
examine the materials for the purpose of finding out as to
whether the allegation made is groundless or not. They submit
that at the time of consideration of an application for discharge,    D
nothing prevents the court to sift and weigh the evidence for the
purpose of ascertaining as to whether the allegations made on
the basis of the materials and the documents collected are
groundless or not. They also contend that the court while
considering such an application cannot act merely as a post-          E
office or a mouthpiece of the prosecution. In support of the
submission, reliance has been placed on a decision of this
Court in the case of Sajjan Kumar v. CBI, (2010) 9 SCC 368
and our attention has been drawn to Paragraph 17(4) of the
judgment, which reads as follows: ·                                   F

     "17. In Union of India v. Prafulla Kumar Sama/ & Anr.,
     1979 (3) sec 4, the scope of Section 227 CrPC was
     considered. After adverting to various decisions, this Court
     has ei:iumerated the following principles:
                                                                      G
     xxx   xxx                     xxx
     (4) That in exercising his jurisdiction under Section 227 of
     the Code the Judge which under the present Code is a
     senior and experienced court cannot act merely as a post         H
    152       SUPREME COURT REPORTS                  [2014] 1 S.C.R.


A         office or a mouthpiece of the prosecution, but has to
          consider the broad probabilities of the case, the total effect
          of the evidence and the documents produced before the
          court, any basic infirmities appearing in the case and so
          on. This however does not mean that the Judge should
B         make a roving enquiry into the pros ahd cons of the matter
          and weigh the evidence as if he was conducting a trial."

      18. Yet another decision on which reliance has been
  placed is the decision of this Court in the case of Dilawar Batu
  Kurane v. State of Maharashtra, (2002) 2 SCC 135, reference
C has been made to the following paragraph of the said judgment:

          "12. Now the next question is whether a prima facie case
          has been made out against the appellant. In exercising
          powers under Section 227 of the Code of Criminal
D         Procedure, the settled position of law is that the Judge
          while considering the question of framing the charges
          under the said section 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 the accused has
E         been made out; where the materials placed before the
          court disclose grave suspicion against the accused which
          has not been properly explained the court will be fully
          justified in framing a charge and proceeding with the trial;
          by and large if two views are equally possible and the
F         Judge is satisfied that the evidence produced before him
          while giving rise to some suspicion but not grave suspicion
          against the accused, he will be fully justified to discharge
          the accused, and in exercising jurisdiction under Section
          227 of the Code of Criminal Procedure, the Judge cannot
          act merely as a post office or a mouthpiece of the
G
          prosecution, but has to consider the broad probabilities of
          the case, the total effect of the evidence and the documents
          produced before the court but should not make a roving
          enquiry into the pros and cons of the matter and weigh the
          evidence as if he was conducting a trial ,.
H
STATE OF TAMILNADU BY INS.OF POL VIG AND ANTI CORR. 153
  v. N.SURESH RAJAN [CHANDRAMAULI KR. PRASAD, J.]
       19. We have bestowed our consideration to the rival               A
submissions and the  ' submissions made by Mr. Ranjit Kumar
commend us. True it is that at the time of consideration of the
applications for discharge, the court cannot act as a
mouthpiece of the prosecution· or act as a post-office and may
si~ evidence in order to find out whether or not the allegations         B
rrfade are groundless so as to pass an order of discharge. It
is trite that at the stage of consideration of an application for
discharge, the court has to proceed with an assumption that
the materials brought on record by the prosecution are true and
evaluate the said materials and documents with a view to find            c
out whether the facts emerging therefrom taken at their face
value disclose the existence of all the ingredients constituting
the alleged offence. At this stage, probative value of the
materials has to be gone into and the court is not expected to
go deep into the matter and hold that the materials would not
                                                                         0
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 committed the
offence on the basis of the materials on record on its probative         E
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.
 Reference in this connection can be made to a recent decision
of this Court in the case of Sheoraj Singh Ahlawat & Ors. vs.            F
State of Uttar Pradesh,& Anr., AIR 2013 SC 52, in which, after
analyzing various decisions on the point, this Court endorsed
the following view taken in Onkar Nath Mishra v. State (NCT
of Delhi), (2008) 2 sec 561:
                                                                         G
     "11. It is trite 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 emerging there
     from, taken at their face value, disclosed the existence of
     all the ingredients constituting the alleged offence. At that       H
    154        SUPREME COURT REPORTS                [2014] 1 S.C.R.


A         stage, the court is not expected to go deep into the
          probative value of the material on record. What needs to
          be considered is whether there is a ground for presuming
          that the offence has been committed and not a ground for
          convicting the accused has been made out. At that stage,
B         even strong suspicion founded on material which leads the
          court to form a presumptive opinion as to the existence of
          the factual ingredients constituting the offence alleged
          would justify the framing of charge against the accused in
          respect of the commission of that offence."
c         20. Now reverting to the decisions of this Court in the case
    Sajjan Kumar (supra) and Dilawar Balu Kurane (supra), relied
    on by the respondents, we are of the opinion that they do not
    advance their case. The aforesaid decisions consider the
    provision of Section 227 of the Code and make it clear that at
D   the stage of discharge the Court can not make a roving enquiry
    into the pros and cons of the matter and weigh the evidence
    as if it was conducting a trial. It is worth mentioning that the
    Code contemplates discharge of the accused by the Court of
    Sessions under Section 227 in a case triable by it; cases
E   instituted upon a police report are covered by Section 239 and
    cases instituted otherwise than on a police report are dealt with
    in Section 245. From a reading of the aforesaid sections it is
    evident that they contain somewhat different provisions with
    regard to discharge of an accused. Under Section 227 of the
F   Code, the trial court is required to discharge the accused if it
    "considers that there is not sufficient ground for proceeding
    against the accused". However, discharge under Section 239
    can be ordered when "the Magistrate considers the charge
    against the accused to be groundless". The power to discharge
G   is exercisable under Section 245(1) when, "the Magistrate
    considers, for reasons to be recorded that no case against the
    accused has been made out which, if not repudiated, would
    warrant his conviction". Section 227 and 239 provide for
    discharge before the recording of evidence on the basis of the
H   police report, the documents se'1t along with it and examination
STATE OF TAMILNADU BY INS.OF POL VIG AND ANTI CORR. 155
  v. N.SURESH RAJAN [CHANDRAMAULI KR. PRASAD, J.]
of the accused after giving an opportunity to the parties to be A 1
heard. However, the stage of discharge under Section 245, on
the other hand, is reached only after the evidence referred in
Section 244 has been taken. Thus, there is difference in the
language employed in these provisions. But, in our opinion,
notwithstanding these differences, and whichever provision may . 8
be applicable, the court is required at this stage to see that
there is a prima facie case for proceeding against the accused.
Reference in this connection can be made to a judgment of this
Court in the case of R.S. Nayak v. A.R. Antulay, (1986) 2 SCC
716. The same reads as follows:
                                                                    c
    "43 .................. Notwithstanding this difference in the
    position there is no scope for doubt that the stage at which
    the magistrate is required to consider the question of
    framing of charge under Section 245(1) is a preliminary
    one and the test of "prima facie" case has to be applied.       D
    In spite of the difference in the language of the three
    sections, the legal position is that if the Trial court is
    satisfied that a prima facie case is made out, charge has
    to be framed."
                                                                    E
     21. Bearing in mind the principles aforesaid, we proceed
to consider the facts of the present case. Here the allegation
against the accused Minister (Respondent No.1 ), K. Ponmudi
is that while he was a Member of the Tamil Nadu Legislative
Assembly and a State Minister, he had acquired and was in
possession of the properties in the name of his wife as also        F
his mother-in-law, who along with his other friends, were of Siga
Educational Trust, Villupuram. According to the prosecution, the
properties of Siga Educational Trust, Villupuram were held by
other accused on behalf of the accused Minister. These
properties, according to the prosecution, in fact, were the         G
properties of K.Ponumudi. Similarly, accused N. Suresh Rajan
has acquired properties disproportionate to his known sources
of income in the names of his father and mother. While passing
the order of discharge, the fact that the accused other than the
two Ministers have been assessed to income tax and paid             H
    156      SUPREME COURT REPORTS                [2014] 1 S.C.R.


A income tax cannot be relied upon to discharge the accused
  persons particularly in view of the allegation made by the
  prosecution that there was no separate income to amass such
  huge properties. The property in the name of an income tax
  assessee itself cannot be a ground to hold that it actually
8 belongs to such an assessee. In case this proposition is
  accepted, in our opinion, it will lead to disastrous
  consequences. It will give opportunity to the corrupt public
  servants to amass property in the name of known persons, pay
  income tax on their behalf and then be out from the mischief of
C law. While passing the impugned orders, the court has not sifted
  the materials for the purpose of finding out whether or not there
  is sufficient ground for proceeding against the accused but
  whether that would warrant a conviction. We are of the opinion
  that this was not the stage where the court should have
  appraised the evidence and discharged the accused as if it
D was passing an order of acquittal. Further, defect in investigation
  itself cannot be a ground for discharge. In our opinion, the order
  impugned suffers from grave error and calls for rectification.

       22. Any observation made by us in this judgment is for the
E purpose of disposal of these appeals and shall have no bearing
  on the trial. The surviving respondents are directed to appear
  before the respective courts on 3rd of February, 2014. The Court
  shall proceed with the trial from the stage of charge in
  accordance with law and make endeavour to dispose of the
F same expeditiously.

        23. In the result, we allow these appeals and set aside the
    order of discharge with the aforesaid observation.

    R.P.                                          Appeals allowed.