Interim Order 15

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF DEEPALI SHARMA
SPECIAL JUDGE: PC ACT: ACB-01:
ROUSE AVENUE COURT COMPLEX: NEW DELHI
CNR No. DLCT11-000042-2023
CC No. 04/2023
State vs. Ct. Sandeep Kumar & Others
FIR No. 07/2014
PS: Anti Corruption Branch
08.05.2024
ORDER
1. By way of this order I shall dispose of application
u/s 91 Cr.P.C. filed by applicant/accused Ishwar Singh for
production of the departmental inquiry proceedings before the
court. It is stated that in the appeal filed against the punishment
of forfeiture of five years in the departmental inquiry proceedings
vide order dated 11.02.2019, the applicant/accused was
exonerated vide order dated 26.03.2019. It is stated that the IO of
the present case got sanction dated 16.06.2022 from the
sanctioning authority against the applicant/accused and on the
other hand the applicant/accused had been discharged in the
departmental inquiry proceedings in the year 2019. Alongwith
the application the certified copy of the evidence of the witnesses
in the departmental inquiry and the order dated 26.03.2019 has
been annexed.
2. Another application has been filed u/s 91 Cr.P.C. on
behalf of accused Hem Raj seeking direction for production of the
departmental inquiry proceedings including the order dated
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11.02.2019 whereby the accused was awarded punishment of
forfeiture of five years approved service permanently entailing
proportionate reduction in his pay. The applicant/accused filed an
appeal against the said order and vide the order dated 29.03.2019,
the impugned order was set aside and the applicant/accused was
exonerated. Alongwith the application he has filed copy of the
order dated 15.12.2017 vide which the departmental inquiry was
initiated, the evidence led in the departmental inquiry and copy of
the orders dated 11.02.2019, 29.03.2019 and 12.11.2021 whereby
the representation of the applicant/accused to consider his
suspension period from 13.01.2014 to 16.11.2016 as period spent
on duty was decided.
3. Another application has been filed on behalf of
accused Subhash u/s 91 Cr.P.C. for production of departmental
inquiry proceedings conducted against the applicant/accused
including the order dated 11.02.2019 whereby the accused was
exonerated from the charge. Alongwith the application he has
filed copy of the order dated 15.12.2017 vide which the
departmental inquiry was initiated, the evidence led in the
departmental inquiry and copy of the order dated 11.02.2019.
4. It is contended by ld. Counsel for the accused
persons that the Hon’ble Delhi High Court in the judgment of
Johnson Jacob vs. State, in Writ Petition Criminal 1279/2021 and
Crl.M.A. 10847/2021 dated of decision 04.07.2022 while
deciding the Writ Petition seeking quashing and setting side the
order on charge and framing of charge u/s 7/13(1)(d) and 13(2) of
PC Act, held as follows :
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“
However, I am of the view that when
departmental proceedings and the criminal
proceedings are a mirror image of each other
and the accused has been exonerated on merits
in the departmental inquiry, and not de to
minor technicalities or irregularities, the
criminal proceedings, on the same set of facts
and circumstances, cannot be permitted to be
continued as the standard of proof in
departmental proceedings is much lower than
the standard of proof in criminal proceedings.
The same principle has been laid down by the
Hon’ble Supreme Court in Ashoo
Surendranath Tewari v. The Deputy
Superintendent of Police (supra).”
5. The counsel for the applicants/accused persons also
relied upon the order dated 14.12.2022 passed in case titled as
Sunil vs. State of GNCTD, Criminal M.C.1346/2022 and
Crl.M.A. 26289/2022 wherein the Hon’ble Delhi High Court
decided a challenge to dismissal of an application u/s 91 Cr.P.C.
r/w section 165 of Indian Evidence Act moved on behalf of the
accused persons in order to place their report of exoneration of
departmental inquiry to aid their arguments at the stage of
framing of charges. It was observed as under :
“2. Learned counsel for the petitioner has
drawn this Court attention to the decisions of
the Hon’ble Supreme Court of NCT of Delhi
vs. Ajay Kumar Tyagi in Crl. Appeal No. 1334
of 2012 and Ashoo Surendranath Tewari V.
Deputy Superintendant of Police, in appeal no.
575/2020. Even though, the Hon’ble Supreme
Court in Ajay Kumar Tyagi has held that an
exoneration in department proceedings ipso
facto would not lead to exoneration and
acquittal in criminal case, the Hon’ble
Supreme Court in Ashoo Surendranath
Tewari’s case has after culling out the
principles from previous decisions of the
Hon’ble Supreme Court as inter alia stated “in
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case of exoneration, however, on merits where
the allegation is found to be not sustainable at
all and the person is held innocent, criminal
prosecution on the same set of facts and
circumstances cannot be allowed to continue,
the underline principle being the higher
standard of proof in criminal cases.
3. In view of these decisions it would be
appropriate for the learned Special Judge to
take on record the report of departmental
inquiry in respect of qua the petitioner and
examine it during the arguments on charge
which are now listed for 23rd January, 2023, in
accordance with law.”
6. It is accordingly contended by Ld. Counsel for the
accused persons that in view of judgment of the Hon’ble Supreme
Court in
Ashoo Surendranath Tewari V. Deputy Superintendant of
Police, 2020 9 SCC 636, when the accused persons have been
exonerated in the departmental proceedings, criminal proceedings
cannot continue against them. It is urged that the said
proceedings being in the nature of material of sterling quality may
be looked into at the stage of framing of charge in view of settled
law in this regard. It is also urged that the court may direct
further investigation in the matter u/s 173(8) Cr.P.C. for the
production of the departmental inquiry proceedings.
7. On the other hand it is vehemently contended by ld.
Chief.P.P. for the State that at the stage of framing of charge the
documents produced by the accused cannot be looked into and at
that stage only the material produced by the prosecution can be
considered. The accused cannot at the stage of framing of charge
invoke Section 91 Cr.P.C. to seek production of any document
and the accused can seek such a direction only at the stage of
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defence. Ld. Chief P.P. for the State has placed reliance upon the
judgment of the Hon’ble Supreme Court in
State of Orissa vs.
Debendra Nath Padhi, 2001 (1) SCC 568;
State of Gujarat v.
Dilipsinh Kishoresinh Rao, Criminal Appeal No. 2504/2023, date
of decision 09.10.2023 and State of Rajasthan v. Swaran Singh,
Criminal Appeal No. 856/2024 dated of decision 12.02.2024.
8. I have heard ld. counsel for the parties and perused
the record.
9. Section 227 of Cr.P.C. pertains to discharge of the
accused and Section 228 of Cr.P.C. deals with framing of charge
and they are reproduced as under :
“227.Discharge
If, upon consideration of the record of the case
and documents submitted therewith, and after
hearing the submissions of the accused and the
prosecution in this behalf, the Judge considers
that there is not sufficient ground for proceeding
against the accused, he shall discharge the
accused and record his reasons for so doing.”
“228.Framing of charge
(1) If, after such consideration and hearing as
aforesaid, the Judge is of opinion that there is
ground for presuming that the accused has
committed an offence which -
(a) is not exclusively triable by the Court of
Session, he may frame a charge against the
accused and, by order, transfer the case for trial
to the Chief Judicial Magistrate [or any other
Judicial Magistrate of the first class and direct the
accused to appear before the Chief Judicial
Magistrate, or, as the case may be, the Judicial
Magistrate of the first class, on such date as he
deems fit, and thereupon such Magistrate] shall
try the offence in accordance with the procedure
for the trial of warrant-cases instituted on a police
report;
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(b) is exclusively triable by the court, he shall
frame in writing a charge against the accused.
(2) Where the Jude fames any charge under
clause (b) of sub-section (1), the charge shall be
read and explained to the accused and the
accused shall be asked whether he pleads guilty
of the offence charged or claims to be tried.”
10. The law on the point as to whether the material filed
by the accused can be looked into by the Trial Court at the time of
framing of charge has been laid down by the Hon’ble Supreme
Court in
State of Orissa vs. Debendra Nath Padhi (Supra). In that
case the Hon’ble Supreme Court in para 2 of the judgment noted
the judgment of the Hon’ble Supreme Court in
Satish Mehra v.
Delhi Administration, 1996 (9) SCC 766 and made the following
observations :
“In Satish Mehra v. Delhi Administration
and Another [(1996) 9 SCC 766], a two judge
Bench judgment, it was observed that if the
accused succeeds in producing any reliable
material at the stage of taking cognizance or
framing of charge which might fatally affect
even the very sustainability of the case, it is
unjust to suggest that no such material should
be looked into by the court at that stage. It was
held that the object of providing an opportunity
to the accused of making submissions as
envisaged in Section 227 of the Code of
Criminal Procedure, 1973 (for short, 'the
Code') is to enable the court to decide whether
it is necessary to proceed to conduct the trial. If
the materials produced by the accused even at
that early stage would clinch the issue, why
should the court shut it out saying that such
documents need be produced only after
wasting a lot more time in the name of trial
proceedings. It was further observed that there
is nothing in the Code which shrinks the scope
of such audience to oral arguments and,
therefore, the trial court would be within its
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power to consider even material which the
accused may produce at the stage
contemplated in Section 227 of the Code.”
11. Accordingly, the Hon’ble Supreme Court in
Debendranath Padhi case took note of
Satish Mehra case in
which the two Judge Bench of the Hon’ble Supreme Court held
that the Trial Court had power to consider even materials which
the accused may produce at the stage of framing of charge.
12. The Hon’ble Supreme Court thereafter discussed
Section 227 and 228 of Cr.P.C. and in para 8 of the judgment
discussed the meaning of expression “the record of the case”
used in Section 227 Cr.P.C. and observed as under :
“What is to the meaning of the expression 'the
record of the case' as used in Section 227 of
the Code. Though the word 'case' is not
defined in the Code but Section 209 throws
light on the interpretation to be placed on the
said word. Section 209 which deals with the
commitment of case to Court of Session when
offence is triable exclusively by it, inter alia,
provides that when it appears to the Magistrate
that the offence is triable exclusively by the
Court of Session, he shall commit 'the case' to
the Court of Session and send to that court 'the
record of the case' and the document and
articles, if any, which are to be produced in
evidence and notify the Public Prosecutor of
the commitment of the case to the Court of
Session. It is evident that the record of the
case and documents submitted therewith as
postulated in Section 227 relate to the case and
the documents referred in Section 209. That is
the plain meaning of Section 227 read with
Section 209 of the Code. No provision in the
Code grants to the accused any right to file
any material or document at the stage of
framing of charge. That right is granted only at
the stage of the trial.”
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13. It was accordingly observed that the expression
“record of the case” used in Section 227 of the Code has to be
read in the light of Section 209 of Cr.P.C. and it was observed
that the record of the case and documents relate to the case and
documents referred in Section 209 Cr.P.C. and that was the plain
meaning of Section 227 r/w Section 209 Cr.P.C. It was also
observed that no provision in the code grants to the accused any
right to file any material or document at the stage of framing of
charge. That right is granted only at the stage of trial.
14. The Hon’ble Supreme Court also discussed the
earlier decisions having bearing on the point and also dealt with
the argument of the accused that the procedure which deprives
the accused to seek discharge at initial stage by filing
unimpeachable and unassailable material of sterling quality was
illegal and violative of Article 21 of the Constitution since that
would result in accused having to face trial for a number of years
despite the fact that he is liable to be discharged if granted an
opportunity to produce the material and on persual of the same
by the court.
15. The Hon’ble Supreme Court rejected the aforesaid
contention and made the following observations in para 18 of the
judgment :
“We are unable to accept the aforesaid
contention. The reliance on Articles 14 and 21
is misplaced. The scheme of the Code and
object with which Section 227 was
incorporated and Sections 207 and 207 (A)
omitted have already been noticed. Further, at
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the stage of framing of charge roving and
fishing inquiry is impermissible. If the
contention of the accused is accepted, there
would be a mini trial at the stage of framing of
charge. That would defeat the object of the
Code. It is well-settled that at the stage of
framing of charge the defence of the accused
cannot be put forth. The acceptance of the
contention of the learned counsel for the
accused would mean permitting the accused to
adduce his defence at the stage of framing of
charge and for examination thereof at that
stage which is against the criminal
jurisprudence. By way of illustration, it may
be noted that the plea of alibi taken by the
accused may have to be examined at the stage
of framing of charge if the contention of the
accused is accepted despite the well settled
proposition that it is for the accused to lead
evidence at the trial to sustain such a plea. The
accused would be entitled to produce materials
and documents in proof of such a plea at the
stage of framing of the charge, in case we
accept the contention put forth on behalf of the
accused. That has never been the intention of
the law well settled for over one hundred years
now. It is in this light that the provision about
hearing the submssions of the accused as
postulated by Section 227 is to be understood.
It only means hearing the submissions of the
accused on the record of the case as filed by
the prosecution and documents submitted
therewith and nothing more. The expression
'hearing the submissions of the accused'
cannot mean opportunity to file material to be
granted to the accused and thereby changing
the settled law. At the state of framing of
charge hearing the submissions of the accused
has to be confined to the material produced by
the police.” (emphasis supplied)
16. Hence, the Hon’ble Supreme Court rejected the
aforesaid contention and held that at the stage of framing of
charge hearing of the submissions of the accused has to be
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confined to the record of the case as filed by the prosecution and
documents submitted therewith and nothing more.
17. It is also relevant to note the observations of the
Ho’ble Supreme Court in para 21 of the judgment which are as
follows :
“It is evident from the above that this Court
was considering the rare and exceptional cases
where the High Court may consider
unimpeachable evidence while exercising
jurisdiction for quashing under Section 482 of
the Code. In the present case, however, the
question involved is not about the exercise of
jurisdiction under Section 482 of the Code
where along with the petition the accused may
file unimpeachable evidence of sterling quality
and on that basis seek quashing, but is about
the right claimed by the accused to produce
material at the stage of framing of charge.”
(emphasis supplied)
18. Accordingly, it was held by the Hon’ble Supreme
Court that the Trial Court cannot look into the material of sterling
quality produced by the accused at the stage of framing of
charge, which can be looked into by the Hon’ble High Court
while exercising its jurisdiction for quashing u/s 482 Cr.P.C.
19. In para 23 of the judgment, the Hon’ble Supreme
Court held as follows :
“As a result of aforesaid discussion, in
our view, clearly the law is that at the time of
framing charge or taking cognizance the
accused has no right to produce any material.
Satish Mehra's case holding that the trial court
has powers to consider even materials which
accused may produce at the stage of Section
227 of the Code has not been correctly
decided.” (emphasis supplied)
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20. Thus, it has been categorically held by the Hon’ble
Supreme Court that at the time of framing of charge or taking
cognizance the accused has no right to produce any material and
the judgment in
Satish Mehra case was accordingly over-ruled.
21. Another contention was raised by the accused that
the documents can be ordered to be produced u/s 91 of Cr.P.C. In
that regard the Hon’ble Supreme Court held that the necessity or
desirability of the document will have to be seen with reference
to the stage when a prayer is made for the production. If any
document is necessary or desirable for the defence of the
accused, the question of invoking Section 91 Cr.P.C. at the initial
stage of framing charge would not arise since defence of the
accused is not relevant at that stage. At the stage of Section 227
Cr.P.C. the accused cannot invoke Section 91 Cr.P.C. to seek
production of any document to show his innocence. It was
further observed that Section 91 Cr.P.C. does not confer any right
on the accused to produce document in his possession to prove
his defence. The Hon’ble Supreme Court in para 28 also
observed as under :
“…….If any document is necessary or
desirable for the defence of the accused, the
question of invoking Section 91 at the initial
stage of framing of a charge would not arise
since defence of the accused is not relevant at
that stage. When the section refers to
investigation, inquiry, trial or other
proceedings, it is to be borne in mind that
under the section a police officer may move the
Court for summoning and production of a
document as may be necessary at any of the
stages mentioned in the section. In so far as the
accused is concerned, his entitlement to seek
order under Section 91 would ordinarily not
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come till the stage of defence. When the
section talks of the document being necessary
and desirable, it is implicit that necessity and
desirability is to be examined considering the
stage when such a prayer for summoning and
production is made and the party who makes it
whether police or accused. If under Section
227 what is necessary and relevant is only the
record produced in terms of Section 173 of the
Code, the accused cannot at that stage invoke
Section 91 to seek production of any document
to show his innocence. Under Section 91
summons for production of document can be
issued by Court and under a written order an
officer in charge of police station can also
direct production thereof……..”
22. Thereafter in para 29 the Hon’ble Supreme Court
again dealt with the argument of the accused that accused would
have to face trial despite being in a position to produce material
of sterling quality and observed as under :
“Regarding the argument of accused
having to face the trial despite being in a
position to produce material of unimpeachable
character of sterling quality, the width of the
powers of the High Court under Section 482
of the Code and Article 226 of Constitution of
India is unlimited whereunder in the interests
of justice the High Court can make such
orders as may be necessary to prevent abuse of
the process of any Court or otherwise to
secure the ends of justice within the
parameters laid down in Bhajan Lal's case.”
23. In its recent decision in the matter of
State of
Gujarat v. Dilipsinh Kishoresinh Rao, Criminal Appeal No.
2504/2023, date of decision 09.10.2023, the Hon’ble Supreme
Court held as under :
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“11. The defence of the accused is not to be
looked into at the stage when the accused
seeks to be discharged. The expession “the
record of the case” used in Section 227 Cr.P.C.
is to be understood as the documents and
articles, if any, produced by the prosecution.
The Code does not give any right to the
accused to produce any document at the stage
of framing of the charge. The submission of
the accused is to be confined to the material
produced by the investigating agency.
12. The primary consideration at the stage of
framing of charge is the test of existence of a
prim-facie case, and at this stage, the probative
value of materials on record need not be gone
into......”
24. Similarly recently in
State of Rajasthan v. Swaran
Singh, Criminal Appeal No. 856/2024 date of decision
12.02.2024, the Hon’ble Supreme Court reiterated the legal
position settled in
Debendranath Padhi case (Supra) while also
taking note of the decision in
Nitya Dharmananda Vs. Gopal
Sheelum Reddy, 2018 (2) SCC 93, and held that the accused
cannot and would not have right to invoke Section 91 Cr.P.C. at
the stage of framing of charge. Recently Hon’ble Delhi High
Court in
Kuldeep Singh Vs. State of NCT of Delhi, 2024 SCC
Online Delhi 2587 date of decision 05.04.2024 upheld the order
of the Ld. ASJ dismissing the application u/s 91 Cr.P.C., which
was filed at the stage of charge, while relying upon the aforesaid
decisions of the Hon’ble Supreme Court.
25. Accordingly, in view of the aforementioned
decisions of the Hon’ble Supreme Court even if the material is of
sterling quality, it cannot be taken note of by the Trial Court at
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the stage of framing of charge.
26. The applicants/accused persons have relied upon the
decision of the Hon’ble Delhi High Court in Johnson Jacob case
(supra) to contend that the departmental inquiry proceedings
ought to be taken into consideration at the stage of framing of
charge. As held by the Hon’ble Supreme Court the powers of the
Hon’ble High Court in that regard are unlimited whereas the
Trial Court cannot look into material of sterling quality produced
by the accused at the stage of framing of charge. It is noteworthy
that the judgment in
Johnson Jacob case (Supra) was passed by
the Hon’ble Delhi High Court in a Writ Petition seeking quashing
and setting aside of the order on charge. Infact in the present
case the the applicant/accused persons have not claimed that the
departmental enquiry proceedings are a mirror image of the
criminal proceedings as held in that case. The order dated
14.12.2022 passed by the Hon’ble Delhi High Court in
Sunil
Kumar case (Supra) has been passed in the facts and
circumstances of that case qua the petitioner therein. The order
further notes that it should not be taken as an observation on the
merits of the matter. Another decision of the Hon’ble Delhi High
Court in
Captain Arvind Katpalia (Supra) case has been passed
by the Hon’ble Delhi High Court in a petition u/s 482 Cr.P.C.
27. It is also to be noted that as per the reply filed by the
IO, during investigation of the case, no order dated 29.03.2019
passed by Additional Commissioner of Police, Armed Police
regarding exoneration of the applicant/accused persons Hemraj
and Ishwar was received / provided. The prosecution sanction
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u/s 19 of PC Act has been granted by DCP, West District, Delhi,
vide office letter dated 22.06.2022 qua accused Hemraj. The
prosecution sanction u/s 19 of PC Act has been granted by DCP
Fifth Battalion, DAP, Delhi, vide office letter dated 16.06.2022
qua accused Ishwar.
28. Further it is also to be noted that as per the reply
filed by the IO, during investigation of the case no order dated
11.02.2019 passed by Deputy Commissioner of Police, Armed
Police regarding discharge/ exoneration of the applicant/accused
Subhash was received / provided. The prosecution sanction u/s
19 of PC Act has been granted by DCP, Head Quarters-II, Police
Head Quarters, Delhi, vide office letter dated 01.07.2022.
29. Hence, the order dated 29.03.2019 passed by
Additional Commissioner of Police, Armed Police and order
dated 11.02.2019 passed by Deputy Commissioner of Police,
Armed Police are not the part of the record of the case and same
are not even unrelied documents of the case. Accordingly, since
the said documents were not collected during investigation and
they do not form part of unrelied documents, hence, IO cannot be
directed to file them.
30. Accordingly, the contentions raised by the
applicants/accused persons for production of the departmental
inquiry proceedings by way of an application u/s 91 Cr.P.C. at the
stage of framing of charge are squarely covered by the decision
of the Hon’ble Supreme Court in
Debendranath Padhi case
(Supra) and the recent decisions of the Hon’ble Supreme Court in
Dilipsinh Kishoresinh Rao (Supra) and
Swaran Singh (Supra)
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and in light of the said decisions the present applications filed by
the applicants/accused persons u/s 91 Cr.P.C. are dismissed.
31. Another application has been filed on behalf of
applicant/accused Ishwar Singh u/s 156(3) r/w Section 173(8)
Cr.P.C. for further investigation regarding the departmental
enquiry proceedings conducted against the applicant/accused
wherein the applicant/accused was eventually discharged.
32. In this context it is noted that the departmental
inquiry proceedings already stand concluded as per the version of
the applicant/accused and hence, there is no requirement of any
further investigation on that aspect. However, the accused is at
liberty to place reliance on the record of the departmental inquiry
proceedings in his defence and have it summoned during trial.
The application of the accused for further investigation is
accordingly dismissed.
Announced in the open court ( Deepali Sharma )
on 8th day of May, 2024 Special Judge, PC Act (ACB-01)
RADC, New Delhi.
08.05.2024
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