B.H Srinivas v. The State And ANR.

IN THE HIGH COURT AT CALCUTTA

[CIRCUIT BENCH AT PORT BLAIR ] *** CRR/12/2024 B.H.Srinivas Vs The State and another Mr. Mohammed Tabraiz ... for the petitioner Mr. Sumit Karmakar ... for the State October 04, 2024 [AKB] Item No.1 This criminal revision application is filed under Section 397 read with Section 401 of the Code of Criminal Procedure against the order dated 09.06.2023 passed by the learned Special Judge (Prevention of Corruption Act), Andaman & Nicobar Islands, Port Blair by which the charge was framed against this petitioner in connection with Special Case No. 18 of 2020 registered in connection with FIR No. 01 of 2020 under Section 7/13(2) of the Prevention of Corruption Act, 1988. By filing this application the petitioner prays for quashing/ setting aside the order dated 09.06.2023 passed by the learned Trial Court in respect of framing of charge against the petitioner under the provisions of the Prevention of Corruption Act.

The instant case was started on the basis of a complaint lodged by the defacto complainant dated 10.02.2023 by which FIR bearing No. 01/2020 was registered at PS Anti Corruption under Section 7/13(2) of the Prevention of Corruption Act, 1988. It is said in the written complaint by the defacto complainant that an application was submitted before the

Tehsildar, Ferrargunj with a prayer for demarcation of the land and preparation of sketch map in the month of August 2019, but the same has not been carried out by the concerned revenue officer and till date it is pending with the present petitioner who was a Surveyor, AC Settlement office, Port Blair. The defacto complainant met with this petitioner in his office and requested him to demarcate the land at the earliest as this matter was pending since long. It is stated by the defacto complainant that on 07.02.2020 when he met with this petitioner at his office in connection with the above matter he had demanded the amount of Rs. 40,000/- as bribe for carting out demarcation and preparation of sketch map of their land. This petitioner demanded Rs. 15,000/- as advance and this defacto complainant said that he would pay the said amount on Monday i.e. 10.02.2020.

On basis of the said complaint the criminal case was set in motion and the present petitioner was arrested and produced before the court of learned Special Judge, Port Blair. Subsequently he was granted bail by the Trial Court on 13.03.2020. After completion of investigation charge sheet was submitted against the petitioner on 27.09.2021 by the investigating agency and the same was received in the Trial Courts record on 04.07.2022 and the copy of the same was made available to this accused petitioner on the same day. The charge was made by the Trial Court on 09.01.2024 under Sections 7/13(2) of Prevention of Corruption (Amendment) Act, 1988.

The order of framing of charge is assailed by the present petitioner in this criminal revisional application. Mr. Tabraiz, learned counsel appearing on behalf of the petitioner submits that no cognizance was taken by the learned Trial Court and as such the charge as framed by the learned Trial Court is defective and cannot stand under the provisions of law. It is further contended by the learned counsel that the investigation had proceeded on the basis of alleged complaint to the extent that the defecto complaint had made application for demarcation and preparation of sketch map before the Tehsildar and the same was pending and the present petitioner had demanded the amount of Rs. 40,000/- and initial payment of Rs. 15,000/- has been made by the defacto complainant.

But on perusal of the charge sheet it would be transpired that no application was ever made by the complainant for demarcation of his land and for preparation of sketch map nor any such application was collected by the investigating agency during investigation and tagged with the charge sheet. Mr. Tabraiz, learned counsel further assailed that the investigating agency did not conduct any preliminary investigation to find out correctness or veracity of the complaint and investigated the case on presumption of allegation as made by the defacto complainant to be a gospel truth and on the basis of said alleged complaint the petitioner was impleaded as an accused in this case and was arrested.

The attention of this court is drawn by the learned counsel to the complaint as made by the defacto complainant and annexed at page 36 of this record, wherein the defacto

complainant stated that he submitted an application to the Tehsildar, Ferrargunj for demarcation of the land and preparation of sketch map in the month of August, 2019. The main thrust of argument of the learned Advocate is that the said application has not been tagged with the charge sheet in the list of documents. Further attention of this Court is drawn by the learned counsel to the Section 7 and Section 13 of the Prevention of Corruption Act, 1988 and submits that the allegations as made by the defacto complainant and charge so framed by the learned Trial Court does not come within the preview of the said sections. As per submission of the learned counsel that though the mandatory requirements under Section 7 and Section 13 (2) of Prevention of Corruption Act, 1988 is absent in the charge sheet but the learned Special Judge mechanically proceeded with the matter and the charge was framed by it. As such, the order dated 09.06.2023 by which charge was framed against the present accused/petitioner is bad in facts and law.

As the ingredients of Section 7/13(3) of Prevention of Corruption Act, 1988 is absent as such the present petitioner cannot be tried for the commission of the alleged offence. Mr. Sumit Karmakar, learned counsel appearing on behalf of the state raises objection to the submissions as advanced by the learned counsel appearing on behalf of the petitioner.

It is contended by the learned counsel that the present petitioner never filed any application under Section 227 of the Code of Criminal Procedure before the Trial Court with a prayer

for discharging the accused. Without filing any application under Section 227 of the Code of Criminal Procedure the present revisional application is filed on behalf of the accused/petitioner under Section 397 read with Section 401 of the Cr.P.C with prayer for setting aside the charge framed by the learned Trial Court.

I have considered the rival submissions as advanced by both the parties. I have also gone through the materials on record.

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 therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. The court is not expected to go deep into the probative value of the material on record at the time of framing of charge. 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.

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. So it is clear that the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence, then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused.

the guilt of the accused which is to drawn at the initial stage is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. If the evidences so gathered by the prosecution prima facie proves the guilt of the accused then the charge should be framed by the court against the accused. Roving enquiry in pros and cons of matter and weighing of evidence as is done in trial is not permissible at this stage. Charge has to be framed if court feels that there is strong suspicion that accused has committed offence. It appears from the materials on record that the charge under Section 7/13(2) of the Prevention of Corruption (Amendment) Act, 1988 was framed by the Trial Court after taking into consideration the materials so produced by the prosecution.

It is clear that at the initial stage, if there is a strong suspicion which leads the court to think that there is ground for presuming that the accused has committed an offence, then it is not open to the court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is only for the purpose of deciding prima facie whether the court should proceed with the trial or not. No application under Section 227 of the Cr.P.C is filed by the petitioner with a prayer to discharge him from the case at the time of framing of charge by the Trial Court. This accused/petitioner has straight away come before this Court by filing this application under Section 397 read with Section 401 of the Cr.P.

by this Court against the petitioner, which is not permissible under the provisions of law.

So, I am of the opinion that if materials as to innocence or guilt of the accused are even, charge is to be framed. Court is to see only whether prima-facie materials exist and not conclusive evidence required for conviction. Strong suspicion may form the basis of charge.

The Trial Court considered the materials prima faciely and framed the charge against the accused.

In view of the above facts and circumstances and discussion made above I am of the view that the present criminal revisional application is devoid of any merit and is liable to be dismissed.

Accordingly, CRR/12/2024 is hereby dismissed. Urgent photostat certified copy of this order be issued to the parties upon compliance of the usual formalities. (Prasenjit Biswas, J.)