Kalanithi Maran ..Petitioner vs The State Represented By

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved on Delivered on 13.03.2019 20.03.2019 CORAM: THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH

Crl.OP Nos.3761 to 3764 of 2019 & 3901 of 2019 and Crl.M.P.Nos.2351 to 2354 & 2412 2019

S.Kannan ..Petitioner in Crl.O.P.No.3761 of 2019 Kalanithi Maran ..Petitioner in Crl.O.P.No.3762/2019 K.S.Ravi ..Petitioner in Crl.O.P.No.3763 /2019

Dayanidhi Maran ..Petitioner in Crl.O.P.No.3764/2019

Vedagiri Gouthaman ..Petitioner in Crl.O.P.No.3901/2019

..Vs..

The state represented by, The Deputy Superintendent of Police, SPE, CBI STF New Delhi. (RC/DST/2013/A/0019/CBI/STF/DL) ..Respondent All Crl.OPs http://www.judis.nic.in 2

COMMON PRAYER : Criminal Original Petitions filed under Section 482

of the Code of Criminal Procedure, to call for the records in C.C.No.12 of

2017 (on the file of Hon'ble XIV Additional Judge CBI Cases Chennai) and

quash the proceedings.

For Petitioner:

in Crl.O.P.No.3761/2019 : Mr.ARL.Sundaresan, Sr. counsel for Mr.A.Selvendran

in Crl.O.P.No.3762/2019 : Dr.Abhishekh Manu Singhvi, Sr. counsel for Mr.J.Ravindran

in Crl.O.P.No.3763/2019 : Mr.G.Masilamani, Sr. counsel for Mr.R.Vivekananthan

in Crl.O.P.No.3764/2019 : Mr.Neeraj Kishan Kaul, Sr. counsel for Mrs.M.Sneha

in Crl.O.P.No.3901/2019 : Mr..P.Wilson, Sr. counsel for Mr.D.Ravichandran

For Respondent : Mr.K.Srinivasan, (in All Crl.OPs) Special Public Prosecutor for CBI Cases

http://www.judis.nic.in COMMON ORDER

3

These Criminal Original Petitions have been filed challenging

the proceedings pending before the Court below against the accused

persons in C.C.No.12 of 2017.

2. Case of the prosecution is that, the 3rd Accused

Dayanidhi Maran, while he was the Minister for Communication and

Information Technology (MOC&IT) in the Government of India during

2004 to 2007 abused and misused his office in connivance with the other

accused A-1 [Brahamadathan], A-2 [M.P.Velusamy] (both were Senior

Officials of BSNL (Chief General Manager), A-4 [V. Vedagiri Gowtham],

Private Secretary, A-5 [K.S.Ravi] Electrician and A-6 [S.Kannan] CTO,

SUN TV, and his brother A-7 [Kalanithi Maran] CMD of SUN TV and had

obtained pecuniary advantage and caused the exchequer a loss of

Rs.1.78 crores by installing a private telephone exchange at his

residences in Boat Club and Gopalapuram at Chennai, Tamil Nadu, which

he used for business transactions involving the Sun Network. More than

700 high-end Telecom lines, having PRA/BRA/ISDN/leased-line, were

installed at the third accused residences in the Boat Club area and

Gopalapuram area of the Chennai City. They were installed under the

service category and bills were not raised for its utilisation. Besides,

illegal installation of Landlines with ISDN facilities, on the instruction of http://www.judis.nic.in the 3rd accused, additional SIM cards for use of mobile phones with 4

fancy numbers were blocked for SUN TV and distributed to private

individuals connected with SUN TV Network. The facilities given to A-3

was excessive, without authority and not in consonance to the Rules and

entitlement of Minister or Member of Parliament. Records were

fabricated and used as genuine to cover up the misdeed. Based on

fabricated documents, accounts were falsified to show as if there are no

outstanding dues from A-3.

3. Based on the above facts and the materials collected

in the course of investigation, a final report came to be filed against the

above said accused persons for an offence u/s 120B r/w 409, 467, 471,

477-A IPC and Section 13(2) r/w 13(1)(c) (d) of the Prevention of

Corruption Act, 1988 and Substantive Offences thereof.

4. To substantiate the above allegations, C.B.I had relied

upon 124 documents most of them are files maintained in the course of

transaction of the BSNL in their day to day activities and the statements

of 62 witnesses recorded under section 161 Cr.P.C.

5. After furnishing the material records relied by the http://www.judis.nic.in prosecution to the persons accused of the offences, as contemplated 5

under Section 207 of Cr.P.C, the trial Court heard the petitions for

discharge filed by four of the accused persons. After hearing both sides,

the trial Court by virtue of the power conferred under Section 239 Cr.P.C,

discharged all the seven accused persons holding that there is no ground

to try the persons accused of the offences alleged.

6. The order of the trial Court, discharging all the

accused persons, became a subject matter of challenge before this Court

in Criminal Revision Petition Nos.671, 682 to 684 of 2018, filed by the

CBI. All the revision petitions were allowed and the trial Court was

directed to frame charges and complete the trial within a period of 12

months.

7. This order was subsequently confirmed by the Hon'ble

Supreme Court. It will be useful to extract the order of the Hon'ble

Supreme Court hereunder:

"Heard the learned counsels for the petitioners and perused the relevant material.

Exemption from filing certified copy of the impugned order is granted.

We are not inclined to interfere. However, as recording our reasons for the above conclusion may affect the trial we refrain from doing so. It will, naturally, be open for each of the accused to urge all contentions before the learned http://www.judis.nic.in trial Court and the trial will be held without being influenced by 6

any of the observations/findings recorded in the impugned order(s).

The Special Leave Petitions are disposed of in the above terms."

8. The trial Court thereafter framed charges against all

the accused persons. This became a subject matter of challenge before

this Court in Crl.O.P.Nos.22121 to 22125 of 2018. This Court, after

hearing all the parties passed the following order.

"84. In the result, these Criminal Original

Petitions seeking to quash the charges are dismissed,

however, with the following directions:-

i. The charges against the accused in

C.C.No.12 of 2017 by the learned XIV Additional

Judge, CBI Cases, Chennai being improperly framed,

the matter is remanded/remitted back to the Trial

Court for consideration and for framing charges afresh.

ii. The Trial Court is directed to carefully

look into all the materials and frame proper and

necessary charges, in respect of the each and every

accused/A1 to A7, in accordance with the procedures,

as contemplated in the Code of Criminal Procedure,

particularly, Chapter XVII of Cr.PC, based on the

http://www.judis.nic.in materials available.

7 iii. If necessary, the Prosecution can assist the

Trial Court, by filing draft charges.

The connected Crl.MPs are dismissed. No

costs".

9. The above order was put to challenge before the

Hon'ble Supreme Court and the Hon'ble Supreme Court by an order

dt.21.01.2019, disposed the appeal as follows:

"2. The grievance raised by the appellants -

accused is with regard to direction No.ii contained in paragraph 84 of the impugned judgment and order dated 9th November, 2018 of the High Court.

3. The contention is that the High Court had directed the learned trial Court to look into all materials and frame proper and necessary charges on an assumption that such materials exist.

4. If the above is the grievance of the appellants - accused we are of the view that the same can be taken care of by directing the learned trial Court not to proceed on any such assumption as perceived by the accused appellants but to look into such materials only if they are already on record and can be considered by the learned trial Court for framing of charges".

10. While the trial Court again took up the case for the

purpose of framing charges, A4, A5 and A6 again approached this Court http://www.judis.nic.in 8

by filing Crl.O.P.Nos.2434 to 2436 of 2019, on the ground that the trial

Court is proceeding to frame charges on the assumption that materials

are already available on record and on the basis of the draft charges

already submitted by the CBI. This Court passed the following order on

29.01.2019.

"10. The Hon'ble Supreme Court has given a clear direction to the trial Court as to the manner in which the charges will have to be framed. Para 4 of the order makes it clear that the trial Court will have to look into the materials and only thereafter proceed to frame the charges. The Hon'ble Supreme Court has specifically held that the trial Court cannot proceed to frame charges on mere assumption. Therefore except for reiterating the order passed by the Hon'ble Supreme Court, there is nothing new that can be added by this Court.

11. The manner in which the charges will have to be framed in a warrant case has been clearly spelt out under Sections 239 and 240 of Cr.P.C. The trial Court has to strictly follow these two provisions at the time of framing of the charges. To reiterate the clarification that has been made by the Hon'ble Supreme Court, the trial Court is directed to strictly consider the materials available on record, which has been collected by the prosecution in the course of investigation and put those materials to each of the accused persons and seek for their explanation. http://www.judis.nic.in Thereafter the trial Court has to assess these materials 9

along with the answers that have been given by the accused persons and thereafter satisfy itself about the framing of the charges.

12. It is made clear that at the time of framing charges, the trial Court only needs to put the materials to the accused persons and there is no requirement to hear the counsel on the sufficiency of the materials. There is no such procedure contemplated under Sections 239 and 240 of Cr.P.C."

11. Pursuant to the above order passed by this Court, the trial Court has framed charges against all the accused persons as follows:

Rank of the Offences for which charges have been framed accused

A 1 to A 4 u/s 120 (B)(1) r/w 409, 467 r/w 471, 477-A IPC & Sec 13(2) r/w 13(1)(c) and 13(1)(d) of Prevention of Corruption Act, 1988.

A5&A6 u/s 120B(1) r/w 477-A IPC r/w 109 IPC and Sec 13(2) r/w 13(1)(c) and 13(1)(d) of the Prevention of Corruption Act, 1988 r/w 109 IPC.

A7 u/s 120B(1) r/w 467 r/w 471, 477-A IPC r/w 109 IPC and Sec 13(2) r/w 13(1)(c) and 13(1)(d) of the Prevention of Corruption Act, 1988 r/w 109 IPC.

A 1 to A 4 u/s 409 IPC. A 1 to A 4 u/s 467 r/w 471 IPC. A7 u/s 467 r/w 471 r/w 109 IPC. A 1 to A 7 u/s 477-A of IPC. A 1 to A 4 u/s 13(2) r/w 13(1)(c) of the Prevention of Corruption Act, 1988.

http://www.judis.nic.in 10

Rank of the Offences for which charges have been framed accused

A 5 to A 7 u/s.13(2) r/w 13(1)(c) of the Prevention of Corruption Act, 1988 r/w 109 IPC.

A 1 to A 4 u/s.13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988.

A 5 to A7 u/s.13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988, r/w 109 IPC.

Fundamental Principles on Framing of Charges :

12. A "charge" or "indictment" is like a table of contents in

a book so that everybody participating in a trial knows what the different

chapters are going to be about. In breaking a stone boulder, one never

knows which blow will strike it open. Hundreds of jabs may rain on it

without any show of strain. But then one more swing and the whole

thing splinters out. If a trial were likened to a stone-breaking effort, on

the part of its participants, the charge framing would be included in one

of the few first and the earliest strokes that pave the way for others to

follow, without minimising their ultimate and lasting significance.

A charge shows the kind of take-off made in a trial to combat the

confronting confusion, in the journey ahead.

Staircase showing the steps involved in judicial decision-making - starting http://www.judis.nic.in 11

from ignorance to knowledge.

Courtesy - How to Frame a Charge by Justice Singhal

13. The art of charge-framing is a practical discipline

requiring a margin of flexibility in order to cater to situations not earlier

envisaged, but admits to vagueness or lethargy on the part of the judge

and may, due to slightest negligence, result in a breakdown of legal

machinery due to unenforceability. Of necessity, it requires a degree of

caution. It is a sort of preliminary testing of the evidence against the

accused person on the basis of information submitted by the police or

the citizens. It is across this stage in a warrant or session trial that the

court while proceeding from the unknown, achieves, more often than http://www.judis.nic.in 12

not, a state of absolute knowledge and the least it can have is a level of

probable cause, where the prosecution either succeeds or fails in bringing

home the guilt of the accused person and the defence in raising, or not,

doubt about the veracity of the prosecution evidence.

14. Procedural laws are ground rules for an otherwise

elusive concept of justice. While all the noble talk about natural, human

and constitutional rights may sound distant and even academic,

procedure is the structure that translates those policies into actual

practice. Charge framing, being part of the criminal procedural justice

system has to be viewed in this perspective. May be, it is a routine

exercise in a criminal trial to frame a charge but that routine has the

sanctity of a time-seasoned jurisdictional concept behind it that "no man

shall be condemned unheard" and that "no man shall be prejudiced in

his defence". The act of charge framing on the part of the judge or the

Magistrate must, therefore, be performed with the seriousness of effort

that it richly deserves and one must avoid the pitfall of routinising it, for

routinising leads to trivialising and trivialising to an ultimate fossilisation.

15. Section 211 of the Code deals with form of charges

and contents of charge. The Form of Charge referred to in Section 211 http://www.judis.nic.in of the Code is available in Form No.32 in Schedule II of the Code. The 13

details of each offence are to be stated with reference to the particular

accused who committed the offence and the person against whom such

offence is committed. It also shows that if the charge is having two or

more heads, each charge must be separately detailed. Legislature

intended that the Court shall frame charge in such a way that the charge

shall contain the necessary details of the distinct offence or offences

which include date, time and place where the offence is committed and

the person who committed the offence and the person against whom

such offence is committed.

16. Section 211 to 213 Cr.P.C, 1973, deals with the

contents and form of a charge and specify the particulars that should be

stated in every charge. The object of such statement is to enable the

accused person to know the substantive charge, he will have to meet and

to be ready for it before the evidence is given. Every charge must

contain the following particulars:

1. A statement of the offence with which the accused is charged.

2. A statement of the law and the section of the law against which the offence is said to have been committed.

3. Particulars as to time and place of the alleged http://www.judis.nic.in offence and the person against whom or the thing in 14

respect of which it was committed.

4. Particulars of the manner in which the alleged offence was committed. This is, however, necessary only where the particulars mentioned in Sections 211 and 212 do not give the accused sufficient notice of the matter, with which he is charged.

17. The extent of the particulars necessary to be given will

depend on the facts and circumstances of each case. In drawing up a

charge all verbiage should be avoided, as also matters which are not

necessary for the prosecution to prove.

18. The provisions relating to the charge are mainly

founded on the valuable right of the accused to have a fair trial in

criminal cases. Those provisions are intended to ensure that no accused

is prejudiced in his defence, in the absence of his knowing the real

nature of allegations made against him. Those provisions are laid down

to guarantee that the accused is given notice of at least the bare

minimum details of the alleged acts committed by him against a

particular person, for effectively defending himself. Those provisions are

also set on the principles of natural justice.

19. Judicial precedents on Framing of Charges and

extent to which an High Court can interfere with it:

http://www.judis.nic.in 15

i. The essence of the procedure governing the framing of

charges under the Code was lucidly explained by Vivian

Bose, J in an oft quoted passage in Willie @ William

Slaney v State of Madhya Pradesh; AIR 1956 SC 116 in

the following words:

“We are unable to find any magic or charm in the ritual of a charge. It is the substance of these provisions that count and not their outward form. To hold otherwise is only to provide avenues of escape for the guilty and afford no protection to the innocent. We agree that a man must know what offence he is being tried for and that he must be told in clear and unambiguous terms and that it must all be "explained to him " so that he really understands (section 271(1) in sessions trials, section 255(1) in warrant cases) but to say that a technical jargon of words whose significance no man not trained to the law can grasp or -follow affords him greater protection or assistance than the informing and the explaining that are the substance of the matter, is to base on fanciful theory wholly divorced from practical reality; and the same applies to the vast bulk of jurors who attend our courts. They are none the wiser because of a formal charge except in a vague and general way that is of no practical account. The essence of the matter is not a technical formula of words but the reality. Was he told? Was it explained to him? Did he understand? Was it done in a fair way?” http://www.judis.nic.in 16

The aforesaid observations of Bose, J has, ever since, been the

governing principle and has been reiterated in Santosh Kumari v. State

of J&K, (2011) 9 SCC 234; wherein it was held as under:

“17. Like all procedural laws, the Code of Criminal Procedure is devised to subserve the ends of justice and not to frustrate them by mere technicalities. It regards some of its provisions as vital but others not, and a breach of the latter is a curable irregularity unless the accused is prejudiced thereby. It places errors in the charge, or even a total absence of a charge in the curable class. That is why we have provisions like Sections 215 and 464 in the Code of Criminal Procedure, 1973.

18. The object of the charge is to give the accused notice of the matter he is charged with and does not touch jurisdiction. If, therefore, the necessary information is conveyed to him in other ways and there is no prejudice, the framing of the charge is not invalidated. The essential part of this part of law is not any technical formula of words but the reality, whether the matter was explained to the accused and whether he understood what he was being tried for.”

ii. In Anant Prakash Sinha v. State of Haryana, (2016) 6 SCC

105, the Hon'ble Supreme Court delineated the wide powers

available to the trial court under Section 216 Cr.P.C, to add or http://www.judis.nic.in alter charges at any stage prior to the pronouncement of 17

judgment. In an instructive passage the Court held as under:

“18. From the aforesaid, it is graphic that the court can change or alter the charge if there is defect or something is left out. The test is, it must be founded on the material available on record. It can be on the basis of the complaint or the FIR or accompanying documents or the material brought on record during the course of trial. It can also be done at any time before pronouncement of judgment. It is not necessary to advert to each and every circumstance. Suffice it to say, if the court has not framed a charge despite the material on record, it has the jurisdiction to add a charge. Similarly, it has the authority to alter the charge. The principle that has to be kept in mind is that the charge so framed by the Magistrate is in accord with the materials produced before him or if subsequent evidence comes on record. It is not to be understood that unless evidence has been let in, charges already framed cannot be altered, for that is not the purport of Section 216 Cr.P.C.

19. In addition to what we have stated herein above, another aspect also has to be kept in mind. It is obligatory on the part of the court to see that no prejudice is caused to the accused and he is allowed to have a fair trial. There are in-built safeguards in Section 216 Cr.P.C. It is the duty of the trial court to bear in mind that no prejudice is caused to the accused as that has the potentiality to affect a fair trial. It has been held in Amar Singh v. State of

http://www.judis.nic.in Haryana13 that the accused must always be made 18

aware of the case against him so as to enable him to understand the defence that he can lead. An accused can be convicted for an offence which is minor than the one he has been charged with, unless the accused satisfies the court that there has been a failure of justice by the non-framing of a charge under a particular penal provision, and some prejudice has been caused to the accused.

20. We have reproduced the aforesaid passages by abundant caution so that while adding or altering a charge under Section 216 Cr.P.C, the trial court must keep both the afore stated principles in view. The test of prejudice, as has been stated in the aforesaid judgment, has to be borne in mind.”

iii. The parameters governing the exercise of power under Section

482 Cr.P.C, to quash the charges framed by the trial Court came

up for consideration before the Hon'ble Supreme Court (K.T

Thomas and M.B Shah, JJ) in State of M.P. v. S.B. Johari,

(2000) 2 SCC 57, wherein it was held as under :

“4. In our view, it is apparent that the entire approach of the High Court is illegal and erroneous. From the reasons recorded by the High Court, it appears that instead of considering the prima facie case, the High Court has appreciated and weighed the materials on record for coming to the conclusion that charge against the respondents could not have been

http://www.judis.nic.in framed. It is settled law that at the stage of framing 19

the charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross- examination or rebutted by defence evidence, if any, cannot show that the accused committed the particular offence. In such case, there would be no sufficient ground for proceeding with the trial. In Niranjan Singh Karam Singh Punjabi v. Jitendra BhimrajBijjayya [(1990) 4 SCC 76 : 1991 SCC (Cri) 47] after considering the provisions of Sections 227 and 228 Cr.P.C, the Court posed a question, whether at the stage of framing the charge, the trial court should marshal the materials on the record of the case as he would do on the conclusion of the trial. The Court held that at the stage of framing the charge inquiry must necessarily be limited to deciding if the facts emerging from such materials constitute the offence with which the accused could be charged. The court may peruse the records for that limited purpose, but it is not required to marshal it with a view to decide the reliability thereof.”

http://www.judis.nic.in iv. In Tej Bir v. State of Haryana, (2011) 11 SCC 556, the Court 20

approved its earlier decision in State of M.P. v. S.B. Johari

(2000) 2 SCC 57, and observed that ;

“the stage of framing of charge, the High Court has to prima facie consider whether there is sufficient ground for proceeding against the accused and the High Court is not required to appreciate the evidence and arrive at the conclusion whether the materials on record are sufficient for conviction of the accused or not. The test at this stage should be, whether after accepting the charge, as framed, any case is made out.”

v. InSatish Mehra .v. State (NCT of Delhi), (2012) 13 SCC 614,

the Supreme Court revisited its earlier decisions on the High

Court’s power under Section 482 Cr.P.C to interdict the framing

of charges and held as under:

“14. The power to interdict a proceeding either at the threshold or at an intermediate stage of the trial is inherent in a High Court on the broad principle that in case the allegations made in the FIR or the criminal complaint, as may be, prima facie do not disclose a triable offence, there can be reason as to why the accused should be made to suffer the agony of a legal proceeding that more often than not gets protracted. A prosecution which is bound to become lame or a sham ought to be interdicted in the interest of justice as continuance thereof will amount to an abuse of the http://www.judis.nic.in process of the law. This is the core basis on which the 21

power to interfere with a pending criminal proceeding has been recognised to be inherent in every High Court. The power, though available, being extraordinary in nature has to be exercised sparingly and only if the attending facts and circumstances satisfy the narrow test indicated above, namely, that even accepting all the allegations levelled by the prosecution, no offence is disclosed. However, if so warranted, such power would be available for exercise not only at the threshold of a criminal proceeding but also at a relatively advanced stage thereof, namely, after framing of the charge against the accused. In fact the power to quash a proceeding after framing of charge would appear to be somewhat wider as, at that stage, the materials revealed by the investigation carried out usually come on record and such materials can be looked into, not for the purpose of determining the guilt or innocence of the accused but for the purpose of drawing satisfaction that such materials, even if accepted in their entirety, do not, in any manner, disclose the commission of the offence alleged against the accused.

16. It would also be worthwhile to recapitulate an earlier decision of this Court in Century Spg. & Mfg.

Co. Ltd. v. State of Maharashtra [(1972) 3 SCC 282

“10. … the order framing a charge affects a person's liberty substantially and therefore it is the duty of the court to consider judicially whether the http://www.judis.nic.in material warrants the framing of the charge.” 22

It was also held that the court ought not to blindly accept the decision of the prosecution that the accused be asked to face a trial.

19. The view expressed by this Court in Century Spg. case [(1972) 3 SCC 282 : 1972 SCC (Cri) 495 : AIR 1972 SC 545] and in L. Muniswamy case [(1977) 2 SCC 699 : 1977 SCC (Cri) 404 : AIR 1977 SC 1489] to the effect that the framing of a charge against an accused substantially affects the person's liberty would require a reiteration at this stage. The apparent and close proximity between the framing of a charge in a criminal proceeding and the paramount rights of a person arrayed as an accused under Article 21 of the Constitution can be ignored only with peril. Any examination of the validity of a criminal charge framed against an accused cannot overlook the fundamental requirement laid down in the decisions rendered in Century Spg. [(1972) 3 SCC 282 : 1972 SCC (Cri) 495 : AIR 1972 SC 545] and Muniswamy[(1977) 2 SCC 699 : 1977 SCC (Cri) 404 : AIR 1977 SC 1489] . It is from the aforesaid perspective that we must proceed in the matter bearing in mind the cardinal principles of law that have developed over the years as fundamental to any examination of the issue as to whether the charges framed are justified or not.”

vi. Very recently in Suresh Kumar Goyal .v. State of Uttar

Pradesh (Criminal Appeal 56 of 2019 decided on 11.01.2019),

the Hon'ble Supreme Court quoted with approval its earlier http://www.judis.nic.in 23

decision in Rajiv Thapar .v. Madal Lal Kapoor(2013 3 SCC

330) wherein a nuanced test was laid down for the exercise of

power under Section 482 Cr.P.C at the stage of framing of

charges. The Court said ;

While dealing with the jurisdiction under Section 482 Cr.P.C, to quash the

proceedings at the stage of issuance of process, or at the stage of

committal, or at the stage of framing of charges, that is to say before the

commencement of actual trial, in the light of material placed on record

by the accused, this Court in Rajiv Thapar v. Madan Lal Kapoor laid

down as under:

“28. The High Court, in exercise of its jurisdiction under Section 482 Cr.P.C, must make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of the allegations levelled by the prosecution/complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused are. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so because it would result in giving finality to the accusations levelled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce http://www.judis.nic.in evidence to substantiate the same. The converse is, 24

however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in a position to succeed by establishing his defences by producing evidence in accordance with law. There is an endless list of judgments rendered by this Court declaring the legal position that in a case where the prosecution/complainant has levelled allegations bringing out all ingredients of the charge(s) levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations levelled, trial must be held.

29. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 Cr.P.C, if it chooses to quash the initiation of the prosecution against an accused at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 Cr.P.C, at the stages referred to herein above, would have far-reaching consequences inasmuch as it would negate the prosecution's/complainant's case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 Cr.P.C, the High Court has to be fully satisfied that the material produced by http://www.judis.nic.in the accused is such that would lead to the conclusion 25

that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false.

In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 Cr.P.C, to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice.

30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashment raised by an accused by invoking the power vested in the High Court under Section 482 Cr.P.C:

30.1 Step one: whether the material relied upon by the accused is sound, reasonable, and http://www.judis.nic.in indubitable i.e the material is of sterling and 26

impeccable quality?

30.2 Step two: whether the material relied upon by the accused would rule out the assertions contained in the charges levelled against the accused i.e the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false?

30.3 Step three: whether the material relied upon by the accused has not been refuted by the prosecution/complainant; and/or the material is such that it cannot be justifiably refuted by the prosecution/complainant?

30.4 Step four: whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?

30.5 If the answer to all the steps is in the affirmative, the judicial conscience of the High Court should persuade it to quash such criminal proceedings in exercise of power vested in it under Section 482 Cr.P.C. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as proceedings arising therefrom) specially when it is clear that the same would not conclude in the conviction of the accused.”

vii. Kanti Bhadra Shah & Another .vs. State of West Bengal

reported in 2001 (1) SCC 722. The relevant paragraphs of the judgment http://www.judis.nic.in 27

is extracted hereunder:

"7. After observing thus learned Single Judge expressed his helplessness in supporting the order framing charges against the appellants. The Metropolitan Magistrate was thereupon directed to peruse the charge-sheet along with other papers submitted to him and satisfy himself again as to the existence of a prima facie case against the accused. The further directions given by the learned Single Judge read thus:

“If he decides to frame charge upon such satisfaction based on perusal of the charge-sheet and other papers submitted therewith, the learned Magistrate must record the fact of such perusal and his satisfaction, only then he shall proceed to frame the charge. If on the other hand upon perusal of the aforesaid documents the learned Magistrate finds that the papers do not disclose any prima facie case against the petitioner for framing charges, it shall be open to him to discharge the petitioners from the case.”

8. We wish to point out that if the trial court decides to frame a charge there is no legal requirement that he should pass an order specifying the reasons as to why he opts to do so. Framing of charge itself is prima facie order that the trial Judge has formed the opinion, upon considering the police report and other documents and after hearing both sides, that there is ground for presuming that the

http://www.judis.nic.in accused has committed the offence concerned.

28 Chapter XIX deals with provisions for trial of warrant cases instituted on a police report.

10. It is pertinent to note that this section required a Magistrate to record his reasons for discharging the accused but there is no such requirement if he forms the opinion that there is ground for presuming that the accused had committed the offence which he is competent to try. In such a situation he is only required to frame a charge in writing against the accused.

11. Even in cases instituted otherwise than on a police report the Magistrate is required to write an order showing the reasons only if he is to discharge the accused. This is clear from Section 245. As per the first sub-section of Section 245, if a Magistrate, after taking all the evidence considers that no case against the accused has been made out which if unrebutted would warrant his conviction, he shall discharge the accused. As per sub-section (2) the Magistrate is empowered to discharge the accused at any previous stage of the case if he considers the charge to be groundless. Under both sub-sections he is obliged to record his reasons for doing so. In this context it is pertinent to point out that even in a trial before a Court of Session, the Judge is required to record reasons only if he decides to discharge the accused (vide Section 227 of the Code). But if he is to frame the charge he may do so without recording his reasons for showing why he framed the charge.

12. If there is no legal requirement that the trial http://www.judis.nic.in court should write an order showing the reasons for 29

framing a charge, why should the already burdened trial courts be further burdened with such an extra work. The time has reached to adopt all possible measures to expedite the court procedures and to chalk out measures to avert all roadblocks causing avoidable delays. If a Magistrate is to write detailed orders at different stages merely because the counsel would address arguments at all stages, the snail-paced progress of proceedings in trial courts would further be slowed down. We are coming across interlocutory orders of Magistrates and Sessions Judges running into several pages. We can appreciate if such a detailed order has been passed for culminating the proceedings before them. But it is quite unnecessary to write detailed orders at other stages, such as issuing process, remanding the accused to custody, framing of charges, passing over to next stages in the trial. It is a salutary guideline that when orders rejecting or granting bail are passed, the court should avoid expressing one way or the other on contentious issues, except in cases such as those falling within Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

13. In the present case as the Metropolitan Magistrate has chosen to frame the charge, the High Court, when moved by the accused for quashment of the charge, could have re-examined the records to consider whether the charge framed was sustainable or not. If the High Court decides to quash the charge it is open to the High Court to record the reasons http://www.judis.nic.in thereof. The present order of the High Court is one of 30

setting aside the charge without stating any reason. But the direction to the Magistrate to consider the materials once again and then to frame a charge for the same offence (if the Magistrate reaches the opinion that there is ground for presuming the commission of offence) is simply to repeat what the Metropolitan Magistrate had done once at the first instance. To ask him to do the same thing over again is adding an unnecessary extra work on the trial court. Be that as it may, the State has not challenged the order of the High Court. Hence we are not in a position to set aside the impugned order of the High Court. We leave the order as such by making the afore-stated observations. We leave it to the Metropolitan Magistrate to exercise his functions under Section 239 or Section 240 of the Code as he deems fit in the light of the observations made above.

viii. From the above judgment, it is clear that While framing

charge reasons are not required to be recorded, order framing charge

cannot be quashed merely because it is does not contain reasons. For

framing of charges a detailed order giving reasons is not necessary

under this provision but is so necessary for an order of discharge under

239. At the stage of framing of charge, the trial Court is not called upon

to make a detailed documentation of the materials which are available

against the accused, but what the Court is required to do is to peruse

the same and to pass a reasoned order by indicating the materials in gist http://www.judis.nic.in 31

and substance.

ix. Munna Devi .vs. State of Rajasthan and Another reported

in 2001 (9) SCC 631. The relevant paragraphs of the judgment is

extracted hereunder:

"2. Aggrieved by the framing of charges against him under Sections 376, 511, 451 and 354 of the Indian Penal Code, the accused-respondent filed a revision petition in the High Court which was allowed vide the order impugned in this appeal by quashing the charges framed against him. The appellant- complainant-prosecutrix has filed this appeal submitting that the impugned order is against the provisions of law as the High Court could not prevent the holding of trial by sitting in appeal against the order of framing of charge by sifting and weighing the evidence recorded during the investigation.

3. We find substance in the submission made on behalf of the appellant. The revision power under the Code of Criminal Procedure cannot be exercised in a routine and casual manner. While exercising such powers the High Court has no authority to appreciate the evidence in the manner as the trial and the appellate courts are required to do. Revisional powers could be exercised only when it is shown that there is a legal bar against the continuance of the criminal proceedings or the framing of charge or the facts as stated in the first information report even if they are http://www.judis.nic.in 32

taken at the face value and accepted in their entirety do not constitute the offence for which the accused has been charged. This Court in Kanti Bhadra Shah v. State of W.B. [(2000) 1 SCC 722 : 2000 SCC (Cri) 303] has held that there is no legal requirement for the trial court to write a reasoned or lengthy order for framing the charges.

4. In the instant case the learned Judge ignored the basic principles which conferred the jurisdiction upon the High Court for exercise of revisional powers. It was premature for the High Court to say that the material placed before the trial court was insufficient for framing the charge or that the statement of the prosecutrix herself was not sufficient to proceed further against the accused-respondent.

5. As the impugned order has been passed against the settled position of law, it is unsustainable and is accordingly set aside. The order of framing the charge passed by the trial court against the accused is upheld with directions to it to proceed with the trial of the case and dispose of the same on merits in accordance with law".

x. State of Delhi .Vs. Gyan Devi and Others reported in

2000(8) SCC 239. The relevant paragraphs of the judgment is extracted

hereunder:

"7. In the backdrop of the factual position discussed above, the question formulated earlier arises

http://www.judis.nic.in for our consideration. The legal position is well settled 33

that at the stage of framing of charge the trial court is not to examine and assess in detail the materials placed on record by the prosecution nor is it for the court to consider the sufficiency of the materials to establish the offence alleged against the accused persons. At the stage of charge the court is to examine the materials only with a view to be satisfied that a prima facie case of commission of offence alleged has been made out against the accused persons. It is also well settled that when the petition is filed by the accused under Section 482 Cr.P.C, seeking for the quashing of charge framed against them the court should not interfere with the order unless there are strong reasons to hold that in the interest of justice and to avoid abuse of the process of the court a charge framed against the accused needs to be quashed. Such an order can be passed only in exceptional cases and on rare occasions. It is to be kept in mind that once the trial court has framed a charge against an accused the trial must proceed without unnecessary interference by a superior court and the entire evidence from the prosecution side should be placed on record. Any attempt by an accused for quashing of a charge before the entire prosecution evidence has come on record should not be entertained sans exceptional cases.

8. In this connection we may refer to the case of Radhey Shyam v. Kunj Behari [1989 Supp (2) SCC 572 : 1990 SCC (Cri) 194] in which a Bench of three learned Judges of this Court referring to the decision http://www.judis.nic.in in Mohd. Akbar Dar v. State of J&K [1981 Supp SCC 80 34

: 1982 SCC (Cri) 148] pointed out that at the stage of framing of charges meticulous consideration of evidence and materials by the court is not required. This Court further observed: (SCC p. 575, paras 9-10) “9. The High Court has also deemed it necessary to quash the charge against Respondents 1 to 3 because in its opinion the evidence proposed to be adduced by the prosecution, even if fully accepted, cannot show that Respondents 1 to 3 committed any offence and referred in that behalf to the decision in State of Bihar v. Ramesh Singh [(1977) 4 SCC 39 :

1977 SCC (Cri) 533] . We find that the High Court's conclusion about the inadequacy of the evidence against Respondents 1 to 3, besides being a premature assessment of evidence, is also attributable to the wrong premises on which the High Court's reasoning is based.

10. We, therefore, find that there was no warrant for the High Court to quash the charge against Respondents 1 to 3 in exercise of its powers under Section 482 Cr.PC.”

9. In the case of Minakshi Bala v. Sudhir Kumar [(1994) 4 SCC 142 : 1994 SCC (Cri) 1181] this Court considered the question of quashing of charge by the High Court in invoking its inherent jurisdiction under Section 482 Cr.P.C. In that context, this Court made the following pertinent observations: (SCC p. 145, paras 7-8) “To put it differently, once charges are framed under Section 240 Cr.P.C the High Court in its revisional jurisdiction would not be justified in relying http://www.judis.nic.in 35

upon documents other than those referred to in Sections 239 and 240 Cr.P.C; nor would it be justified in invoking its inherent jurisdiction under Section 482 Cr.P.C to quash the same except in those rare cases where forensic exigencies and formidable compulsions justify such a course. We hasten to add even in such exceptional cases the High Court can look into only those documents which are unimpeachable and can be legally translated into relevant evidence.

Apart from the infirmity in the approach of the High Court in dealing with the matter which we have already noticed, we further find that instead of adverting to and confining its attention to the documents referred to in Sections 239 and 240 Cr.P.C the High Court has dealt with the rival contentions of the parties raised through their respective affidavits at length and on a threadbare discussion thereof passed the impugned order. The course so adopted cannot be supported; firstly, because finding regarding commission of an offence cannot be recorded on the basis of affidavit evidence and secondly, because at the stage of framing of charge the Court cannot usurp the functions of a trial court to delve into and decide upon the respective merits of the case.”

10. In a recent decision in State of M.P. v. S.B. Johari [(2000) 2 SCC 57 : 2000 SCC (Cri) 311] this Court, adverting to the question of quashing of charges in the light of the provisions contained in Sections 227 and 288, 401 and 397 and 482 Cr.P.C did not favour the approach of the High Court in http://www.judis.nic.in meticulously examining the materials on record for 36

coming to the conclusion that the charge could not have been framed for a particular offence. This Court, while quashing and setting aside the order passed by the High Court, made the following observations: (SCC p. 60, paras 3-4) “After considering the material on record, learned Sessions Judge framed the charge as stated above. That charge is quashed by the High Court against the respondents by accepting the contention raised and considering the details of the material produced on record. The same is challenged by filing these appeals.

In our view, it is apparent that the entire approach of the High Court is illegal and erroneous. From the reasons recorded by the High Court, it appears that instead of considering the prima facie case, the High Court has appreciated and weighed the materials on record for coming to the conclusion that charge against the respondents could not have been framed. It is settled law that at the stage of framing the charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, http://www.judis.nic.in even if fully accepted before it is challenged by cross- 37

examination or rebutted by defence evidence, if any, cannot show that the accused committed the particular offence. In such case, there would be no sufficient ground for proceeding with the trial.”

xi. Amit Kapoor .Vs. Ramesh Chader and Others reported

in 2012 (9) SCC 460. The relevant paragraphs of the judgment is

extracted hereunder:

"27. Having discussed the scope of jurisdiction under these two provisions i.e. Section 397 and Section 482 of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but is inherently impossible to state with precision such principles. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be:

27.1. Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be http://www.judis.nic.in exercised very sparingly and with circumspection and 38

that too in the rarest of rare cases.

27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.

27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.

27.4. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers.

27.5. Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused.

27.6. The Court has a duty to balance the freedom of a person and the right of the complainant http://www.judis.nic.in or prosecution to investigate and prosecute the 39

offender.

27.7. The process of the court cannot be permitted to be used for an oblique or ultimate/ulterior purpose.

27.8. Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a “civil wrong” with no “element of criminality” and does not satisfy the basic ingredients of a criminal offence, the court may be justified in quashing the charge.

Even in such cases, the court would not embark upon the critical analysis of the evidence.

27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.

27.10. It is neither necessary nor is the court called upon to hold a full-fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction.

27.11. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained.

http://www.judis.nic.in 27.12. In exercise of its jurisdiction under 40

Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed therewith by the prosecution.

27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie.

27.14. Where the charge-sheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge.

27.15. Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that the interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae i.e. to do real and substantial justice for administration of which alone, the courts exist.

27.16. These are the principles which individually and preferably cumulatively (one or more) be taken into consideration as precepts to exercise of extraordinary and wide plenitude and jurisdiction http://www.judis.nic.in under Section 482 of the Code by the High Court. 41

Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence".

20. From the above judgments, it is clear that the High

Court should not unduly interfere with the proceedings of the trial Court.

The trial Court is not required to conduct a meticulous examination of

the evidence and the High Court should not test the evidence to satisfy

itself that the case will end up in a conviction and this is not the

requirement at the stage of the framing of the charges or the quashing

of the charges. It is neither necessary nor is this Court called upon to

hold a full fledged enquiry or to appreciate evidence collected by the

Investigating Agency to find out whether it is a case of acquittal or

conviction. Quashing of a charge is an exception to the rule of

continuous prosecution. Where the offence is even broadly satisfied, the

Court should be more inclined to permit continuation of the prosecution

rather than its quashing at an initial stage.

21. It is also clear from the above judgments that this

Court should exercise its jurisdiction u/s 482 of Cr.P.C, only in exceptional

cases and on rare occasions, while this Court is called upon to interfere http://www.judis.nic.in 42

with the framing of charge. More over once a trial Court has framed a

charge against an accused person, the trial must proceed without any

unnecessary interference by a superior Court.

22. The High Court exercising its jurisdiction u/s 482

Cr.P.C cannot indulge in micro managing the decisions taken by trial

Courts at every stage. The above judgments make it very clear that this

Court can interfere with the charges framed only in very rare cases,

where even accepting all the allegations levelled by the prosecution, no

offence is disclosed. To borrow the words of the Hon'ble Supreme Court

"The test at this stage should be whether after accepting the charge, as

framed, any case is made out".

SUBMISSIONS ON THE SIDE OF THE PETITIONERS:

Submissions of Dr.Abhishekh Manu Singvi, Senior Advocate :-

23. The learned Senior counsel representing the petitioner

[A 7] in Crl.O.P.No.3762 of 2019, primarily addressed his submissions

under six heads.

I. There are no materials in order to rope in this petitioner

as an accused in this case.

http://www.judis.nic.in The following submissions were made in order to 43

substantiate this issue.

● In the First Information Report registered by the CBI, this

petitioner was not even shown as an accused and there is

only mention to the role played by "SUN TV" and Sun TV

has not been made as an accused in this case.

● All of a sudden in the Final Report, the name of this

petitioner has been roped in on the ground that this

petitioner is the ultimate beneficiary of the entire crime

and this petitioner has abetted the other accused persons

to commit the alleged offence.

● Even in the Final Report there is no specific overt act

attributed against this petitioner and the entire allegation

proceeds on the basis of assumptions.

● Insofar as this petitioner is concerned only three

witnesses, can at the best, be relied upon and they are

LW-6, LW-7 and LW-55. Even these witnesses have

stated that the facilities/witnesses could have been used

by Sun TV and exchanges might have been installed at

different locations and the facilities could have been

availed by Sun TV. None of these witnesses have spoken

about this petitioner or the actual overt act committed by http://www.judis.nic.in 44

this petitioner in the entire transaction.

● The check period for the entire transaction was from

2004-2007. LW-55 who has admittedly joined M/s. ABS

India Private Limited in the month of July 2012, cannot

speak about what happened during the period

2004-2007. That apart his entire statement is based

upon the records pertaining to the purchase orders of

Sun TV regarding the supply of EPBAX and other tele

communication equipments. This purchase order was

placed to M/s. ABS India Private Limited. This witness

who was not even working in M/s. ABS India Private

Limited during the relevant point of time has spoken

about the interfacing of the exchanges with Sun TV and

he has assumed that based on the purchase order it was

possible to interface the various exchanges to Sun TV.

● This statement of LW-55 cannot be taken into

consideration in view of the fact that LW-7, who was

specifically asked whether any cable connections were

provided to Sun TV by BSNL, has given a specific answer,

BSNL has not provided any OFC connections to Sun TV.

This can be further substantiated from the Final Report http://www.judis.nic.in 45

itself where a reading of para 11, 12 and 14 clearly

shows that there was a point to point connection from

BSNL to Gopalapuram residence of A 3 and subsequently

to the Boat Club residence. This applies both to the

leased line circuits and also the optical fiber connection.

This will again prove that LW-55 has merely made an

assumption regarding the connection which could have

been given to Sun TV.

● LW-57 specifically speaks about the fact that the billing

date pertaining to the exact usage is available with the

billing section for the relevant period from 2004-2008,

and the CD regarding the same was also forwarded to the

Investigating Officer. This vital evidence has been

intentionally not made as part of the materials filed along

with the Final Report. This CD would have clearly shown

whether the facilities were in fact utilised by Sun TV,

based on the metered call units. This non furnishing of a

vital document must lead to taking an adverse inference

against the CBI.

● There are totally 62 witnesses, statements has been

recorded by the Investigating Officer and not a single http://www.judis.nic.in 46

witness has spoken about the part played by this

petitioner.

II. Earlier orders passed by this Court and the Hon'ble

Supreme Court has not been complied with by the High Court at the time

of framing charges.

In order to substantiate this issue, the learned Senior

counsel made the following submissions:

● The orders passed by this Court in Crl.O.P.Nos.22121 to

22125 of 2018, the order passed by the Hon'ble Supreme

Court in Crl.A.Nos.103 & 104 of 2019 and the subsequent

order passed by this Court in Crl.O.P.Nos.2434 to 2436 of

2019, makes it very clear that the trial Court should not

proceed on any assumption that materials are available to

frame charges, and the trial Court was specifically

directed to look into the materials and satisfy itself and

put those materials to the accused persons and seek for

their explanation and only thereafter proceed further to

frame charges.

● The trial Court has not followed these directions and has

proceeded to frame charges against this petitioner in a http://www.judis.nic.in 47

mechanical fashion and the whole process was completed

within a period of 30 minutes.

● The trial Court has proceeded to frame the charges for

criminal conspiracy on the ground that 10 Mobile Sim

Cards were kept for the use of this petitioner in his

capacity as the Chairman and the Managing Director of

Sun TV. The Final Report does not even state whether

these Sim Cards were actually put to use by Sun TV or

this petitioner. Admittedly, these Sim Cards were meant

to be used only by Sun TV and not this petitioner. The

BSNL note file which has been filed as Document No.33

shows that the Sim Card was not put to use. It is a

common practice to reserve fancy numbers for companies

and that by itself cannot be put against this petitioner

and it is very relevant to note that these special numbers,

even according to the prosecution was allotted to Sun TV

and not to this petitioner.

● The trial Court has also presumed criminal conspiracy on

the ground that the entire illegal facilities obtained from http://www.judis.nic.in 48

BSNL was utilised for the benefit of A-7. This was not

even the case either in the FIR or in the Final Report.

● The trial Court has assumed criminal conspiracy also on

the ground that on the approval of A7, A6 has purchased

the telephone exchange equipments from M/s. ABS India

Private Limited, paid by Sun TV and installed in various

places for the usage of Sun Net Work and Dinakaran Net

Work. This was not even the case in the Final Report

wherein at Paragraph No.31, it does not talk about any

approval granted by A-7. Therefore, this is yet another

presumption made by the trial Court.

● The trial Court had also presumed that the petitioner had

illegally utilised the fraudulently obtained facilities for

running Sun TV channel programmes free of cost. The

Final Report does not even talk about any conspiracy on

the part of the petitioner and there is no material to show

that this petitioner had played a role in the allotted

fraudulent facility utilised by Sun TV.

● The trial Court has merely presumed the offence of

criminal conspiracy and abatement against the petitioner http://www.judis.nic.in 49

without there being any material against this petitioner or

any allegation of overt act on the part of the petitioner.

Both the FIR and the Final Report does not show

anything to even prima facie prove the charge of

abatement.

● The entire material does not establish the role of this

petitioner for the offence u/s 477-A IPC. It is alleged that

the letter dated 04.05.2009, has been forged by anti

dating the letter. There is nothing to show that this

petitioner had any role to play in the abatement of the

said offence.

● Similarly there is absolutely no material to show that this

petitioner had abetted any public servant to commit any

offence under the Prevention of Corruption Act. The

petitioner cannot be assumed to be part of the conspiracy

just because he is the bother of A-3, who was the Central

Minister at the relevant point of time. To substantiate

this submission, the learned Senior counsel relied upon

the judgment of the Delhi High Court in Vinay Jain .Vs.

State and Another reported in 2015 SCC Online Del

7363.

http://www.judis.nic.in ● Without taking all these materials into consideration, the 50

Court below has proceeded to mechanically frame

charges against this petitioner.

III. The prosecution has roped in this petitioner as an

accused mainly on the ground that this petitioner is the ultimate

beneficiary:

In order to substantiate this issue, the learned Senior

counsel made the following issues:

● The concept of ultimate beneficiary is alien to criminal

law unless it is shown that the accused person was

benefited on being part of the conspiracy.

● None of the witnesses or the documents filed along with

the Final Report, shows that this petitioner is the ultimate

beneficiary. At the best only Sun TV which is a public

limited Company can be taken to be the beneficiary and

this petitioner cannot be attributed with the offence just

because he is the Chairman and Managing Director of the

Company. In order to substantiate this submission, the

learned Senior counsel relied upon the judgment of the

Hon'ble Supreme Court in Manju Gupta .Vs.

Lt.Col./M.S.Paintal reported in (1982) 2 SCC 412. http://www.judis.nic.in 51

IV. The offence of abatement has not been made out

against this petitioner. In order to substantiate this issue, the learned

Senior counsel submitted that in order to commit the offence of

abatement, there must be either an act of instigation or an act engaging

in a conspiracy or an act of intentionally aiding the other accused

persons and none of these three ingredients were satisfied in this case.

● In order to constitute an offence of abatement, there

must be a specific overt act on the part of the petitioner

and there is absolutely no material for the same except

for the assumptions made by the trial Court.

● In order to substantiate his submissions, the learned

Senior counsel relied upon the following judgments:

a) Central Bureau of Investigation .Vs. V.C. Shukla and

Others reported in (1998) 3 SCC 401.

b) Chitresh Kumar Chopra .Vs. State (Government of

NCT of Delhi), reported in (2009) 16 SCC 605.

c) Kulwant Singh .Vs. State of Bihar reported in

(2007) 15 SCC 670.

d) Amit .Vs. State of Maharashtra, reported in 2018 SCC

On Line Bom 1399.

http://www.judis.nic.in 52

V. Sun TV, which is the Public Limited Company has not

been made as an accused and this petitioner is roped in on the basis of

the concept of vicarious liability.

In order to substantiate this issue, the learned Senior

counsel made the following submissions:

● Even though the petitioner has been roped in as an

accused in his capacity as the Charmain and Managing

Director of Sun TV, Sun TV which is the Public Limited

Company has not been made as an accused in this case.

● Even, if Sun TV is made as an accused in this case, the

criminal liability cannot be fastened against this petitioner

on the principle of vicarious liability unless it is shown

that the petitioner has played an active role coupled with

criminal intent.

● It is the cardinal principle of criminal jurisprudence that

there can be no vicarious liability unless the statute

specifically provides for the same.

● In order to substantiate his submissions, the learned

Senior counsel relied upon the judgment of the Hon'ble

Supreme Court in Sunil Bharti Mittal .Vs. CBI, reported in http://www.judis.nic.in (2015) 4 SCC 609 & HDFC Securities Ltd. and Others 53

.Vs. State of Maharashtra and another reported in

(2017) 2 SCC 640.

VI. The scope of interference that can be made by this

Court in exercise of its jurisdiction u/s 482 of Cr.P.C after the charges are

framed by the trial Court.

In order to substantiate this issue, the learned Senior

counsel relied upon the following judgments of the Hon'ble Supreme

Court:

a) Satish Mehra .Vs. State (NCT of Delhi) reported in

(2012) 13 SCC 614.

b) G.Sagar Suri and Another .Vs. State of U.P. and Others,

reported in (2000) 2 SCC 636.

Submissions of Mr.ARL.Sundaresan, Senior Advocate:

24. The learned Senior counsel appeared on behalf of the

petitioner [A-6] in Crl.O.P.No.3761 of 2019, had made the following

submissions:

● This petitioner was not even shown as an accused in the

FIR.

● This petitioner was all of a sudden roped in as an http://www.judis.nic.in accused person in the Final Report only on the ground 54

that this petitioner had issued supply order for purchase

of equipments/exchanges worth rupees 50 lakhs from

M/s.ABS India Private Limited and got them installed at

Chennai and Delhi residence of A-3 to illegally avail the

facilities provided by BSNL to Sun TV.

● Even though it is true that this petitioner had signed the

purchase order, that by itself cannot make this petitioner

as an accused person unless there are some materials to

show that this petitioner was engaged in conspiracy with

the other accused persons or this petitioner has abetted

the crime committed by the other accused persons.

There are absolutely no materials in order to establish the

same.

● Insofar as this petitioner is concerned, the statements of

LW-3, LW-6, LW-17, LW-36 and LW-55 have been relied

upon. Even if all these statements are taken as it is,

there is nothing to suggest that A-6 was a part of the

conspiracy or A-6 had abetted the other accused persons

to commit a crime. The statement of these witnesses

does not even establish that high-end telephone

connections were used for Sun TV or whether any http://www.judis.nic.in 55

installations were made in that regard. The entire

statement only talks about the possibility or the scope

for using the facilities having been actually made use of

by Sun TV.

● Insofar as the documents that were collected by CBI

during the course of investigation, D-92 to D-96 are the

only relevant documents insofar as this petitioner is

concerned and none of these documents established any

role played by this petitioner in the alleged crime, except

the signature of this petitioner in the purchase order.

● Insofar as the issues regarding the earlier orders not

being complied with by the trial Court at the time of

framing charges, the scope and power u/s 482 of Cr.P.C,

the concept of vicarious liability, the scope and ambit of

the offences of criminal conspiracy and abetment, are

concerned, the learned Senior counsel adopted the

arguments of Dr.Abishek Manu Singvi.

● This petitioner has merely carried out his duties in the

course of his employment with Sun TV as a Chief

Technical Officer that there are absolutely no materials to

show the involvement of this petitioner in any of the http://www.judis.nic.in 56

offences alleged by the prosecution.

● The Court below has framed the charges in a mechanical

fashion and none of the offences for which charge has

been framed against this petitioner, is supported by either

the statements of the witnesses or the documents

collected in the course of investigation.

Submissions of Mr.P.Wilson, Senior Advocate:

25. The learned Senior counsel representing the petitioner

[A 4] in Crl.O.P.No.3901/2019, made the following submissions:

● This petitioner was not shown as an accused in the FIR,

and he has been made as an accused in the Final Report

only on the ground that he was the additional Private

Secretary to A-3.

● No offence has been made out as against A-3, and

consequently no offence has been made out against this

petitioner also.

● There is no law prescribing any restriction on the

http://www.judis.nic.in telephone facilities provided to a Minister. The Salary, 57 Allowances and Pension of Members of Parliament Act,

1954, is sought to be relied upon and applied to a Minister

and the same is totally unsustainable. Since Section 2(b) of

the Act, clearly states that a member does not include a

Minister, and therefore housing and the members of

Parliament (Travelling and Daily Allowances) Rules, 1957,

also cannot be made applicable to a Minister.

● The Salaries and Allowances of Ministers Act, 1952, does

not provide for the telephone facilities that can be provided

to a Minister.

● The Constitution specifically deals separately with the

allowances for Ministers and allowances for the member of

Parliament and it is dealt with in separate heads in the

Union list. Therefore, Allowances of Members of Parliament

should not be read into the allowances and facilities

provided to a Minister.

● This petitioner has been roped in the Final Report only on

the ground that this petitioner converted his residential

telephone connection into RSTC category illegally and

without any entitlement. This ground is totally http://www.judis.nic.in 58

unsustainable since RSTC facility is available even to the

staff of the Minister and this is evident from Document

No.104.

● The RSTC facility was provided after following a detailed

procedure which is evident from the various file notings

made by different officers in Document No.34.

● LW-2, LW-8, LW-15, LW-16, LW-17, LW-27, LW-40,

LW-44, LW-48, LW-56, LW-74 and LW-75 are the only

witnesses who refer to the name of this petitioner.

However, none of these statements in any way inculpate

this petitioner for the alleged offence and no one has

spoken or attributed any specific overt act against this

petitioner.

● Document Nos.26, 34, 37, 63 and 104 are the only

documents relevant insofar as this petitioner is concerned.

None of these documents point out anything incriminating

against this petitioner.

● A combined reading of the statements of the witnesses

and the relevant documents, at the best only reveals the http://www.judis.nic.in 59

fact that this petitioner was working as an additional

Secretary to A-3 and this petitioner was present during the

visits by the various Officials or this petitioner was

transferring the calls received from the outsiders to the

Minister or this petitioner used the office of A-3. Even

though two of the witnesses speak about the so called

assistance and coordination by this petitioner for providing

the facilities, there is absolutely no material to substantiate

the same.

● Document No.73, is the circular which has been put

against the accused persons to show that the petitioner is

not entitled for the RSTC facility. This circular only applies

to BSNL employees and not to outsiders. That apart this

circular cannot be given the status of law, and therefore

even assuming without admitting that the terms of the

circular has been violated, the same by itself will not

amount to any offence.

● The trial Court has framed charges in a mechanical

fashion without reference to any material that has been http://www.judis.nic.in 60

collected by the prosecution. None of the charges

regarding conspiracy or abatement or forgery or criminal

breach of trust or falsification of accounts, have been made

out against this petitioner.

● The Court below did not adhere to the requirements of

Section 211, 212 and 213 of Cr.P.C at the time of framing of

charges.

● The order of the Hon'ble Supreme Court in Crl.A.Nos.103

& 104 of 2019 and which was subsequently reiterated by

this Court, has restored the right of the accused persons u/s

239 of Cr.P.C and therefore if no materials are found against

the petitioner to frame charges, the petitioner has to be

necessarily discharged from the case.

● The learned Senior counsel in order to substantiate his

submissions on facts and in order to substantiate the

proposition of law, relied upon the following judgments.

S.No. Proposition of Law Citation

1 Charge should be clear, un-ambiguous Willie (William) Slaney and not defective filing which it is an .Vs. http://www.judis.nic.in incurable illegality and is substantial in The State of Madhya Pradesh 61

nature. [1955] 2 SCR 1140

2 Irregular exercise of discretion by Natwarlal Sakarlal Mody magistrate in Framing charges. .Vs. The State of Bombay [1963] 65 Bom LR 660.

Defects in framing charges

3 Fundamental defect in framing of State [NCT of Delhi] .Vs. charges. Navjot Sandhu [2005] 11 SCC 600

4 Charge framed in violation of Rameshan & Others .Vs.

mandatory provision is held illegal. State of Kerala 2007 Cri LJ 1637

5 Charge should contain the mandatory KLM Vijayachandran K.K. & particulars. Anr .Vs. The Supdt., of Police & Anr.

[2008] 2 KLJ 751

Principle for framing of charges

6 Principles relating to framing of Main Pal .Vs. State of charges Haryana [2010] 10 SCC 130

S.No. Proposition of Law Citation

Order under S.239 of http://www.judis.nic.in Cr.P.C. does not prevent 62

framing charges under S.240 of Cr.P.C.

7 Challenging of discharge of J.Duraimunusamy .Vs. State dismissal of same will not prevent by The Additional from challenging the framing of Superintendent of Police charges. Criminal O.P.No.23479 of 2010

No evidence Charges can be quashed by High Court

8 Requirements of charge of State through Central Bureau conspiracy. of Investigation .Vs. Dr.Anup Kumar Srivastava [2017] 15 SCC 560

9 The charge can be quashed if the State of Orissa .Vs. evidence which the prosecutor Debendra nath Padhi proposes to adduce to prove the [2005] 1 SCC 568 guilt of the accused, even if fully accepted, cannot show that the accused committed the particular offence.

No single charge for several conspiracies/all offences

S.No. Proposition of Law Citation

http://www.judis.nic.in10 . How the charge should be. S. Muralidharan .Vs. State 63

. The charge should not mislead the [2018] SCC Online Mad accused. 1359 . The court should avoid framing common charges for all offenses. 11 A single charge of conspiracy is not R. .Vs. Griffths and Ors. maintainable when there are several [1965] 2 ALL E.R. 448 different conspirators with separate conspiracy. Forgery & A beneficiary cannot be tried for forgery 12 A charge of forgery cannot be Sheila Sabastian .Vs. imposed merely because he is R.Jawaharaj and Another beneficiary. [2018] 7 SCC 581

Quashing of charges under S.482 of Cr.P.C. is maintainable

13 Framing of charges can be challenged Asian resurfacing of Road under Section 482 Agency Pvt.Ltd. .Vs. Central Bureau of Investigation [2018] SCC Online SC 310

Particulars of charges- Accused is entitled to know

14 The Accused is entitled to know with Kedar Nath Chakravarti and

certainty and accuracy, the exact Ors. .Vs. The King-Emperor version of charge brought again him AIR 1924 Cal 603

S.No. Proposition of Law Citation

15 When the person is charged with S.K.Roy Chowdhury .Vs. The criminal offence, he must be telling Kind http://www.judis.nic.in that not only the acts he has alleged AIR 1941 Rang 1 64

to have committed which is said to constitute but also what is the law which he is said to have infringed.

Vague and general nature of charges 16 If the charge is framed in such a Emperor .Vs. Makhan vague manner that the necessary AIR 1945 ALL 81 particulars with which the accused is convicted is not brought out in the charge within a period is defective.

Charge must contain particulars 17 While framing of charges, when The state there is no particulars as to the .Vs. Time, Place and persons it is not a Rasool and Ors. proper charge. AIR 1955 ALL 620 Responsibility of court in framing charges

18 The court may attach blindly the Century Spinning and decision of the prosecution to frame Manufacturing Co.Ltd. and Ors. charge. .Vs. State of Maharastra [1972] 3 SCC 282

Framing of charges is an important

19 Framing of charges and examination Sajjan Sharma of accused under Section 313 of .Vs. Cr.P.C. are two very important stages State of BIhar of criminal trial. [2011] 2 SCC 206 Cause omissus

S.No. Proposition of Law Citation

20 It is not competent to any court to Nalikhya Bysack proceed upon the assumption that .Vs. http://www.judis.nic.in the legislature has made a mistake. Shyam Sundar 65

The court must proceed on the Haldar and Ors. footing that the legislature intended AIR 1953 SC 148 what it has said.

21 The legislative casus omissus cannot Unique Butyle Tube Industries be supplied by judicial interpretative (P) Ltd. process. A casus omissus cannot be .Vs. supplied by the court except in the U.P. Financial Corporation and case of clear necessity and when the Ors. reason for it is found in the four [2003] 2 SCC 455 corners of the statute itself but at the same time a casus omissus should not be readily inferred. Hearing opportunity to the accused under S.239 and 240 of the Cr.P.C.

22 The code enjoins on the court to give Satish Mehra audience to the accused for deciding .Vs. whether it is necessary to proceed to Delhi Administration and the next stage. There is nothing in Another the code which shrinks the scope of [1996] 9 SCC 766 such audience to oral arguments.

23 Under S.239 and 240 of Cr.P.C. at the State Anti-Corruption Bureau, time of framing of the charges, the Hyderabad and Another judge is first required to consider the .Vs. police report and documents sent P.Suryaprakasam with it and can examine the accused, [2008] 14 SCC 13 if he thinks necessary, and give an opportunity to the prosecution and the accused of being heard.

S.No. Proposition of Law Citation

24 The judges are duty bound to S.Yuvaraj take case of the constitutional right .Vs. http://www.judis.nic.in of the accused persons. They shall The Inspector of 66

see the accused is not prejudiced. Police,Gobichettypalayam Their right should not be abridged, 2013 (6) CTC 320 curtained, jeopardized for reasons beyond their control. 'Hear before Condemn is the basic of "Principles of Natural Justice." Code of conduct not having statutory power is not enforceable by law

25 It can't be sought to enforce the R.Sai bharathi code through contained therein is .Vs. only having ethical or moral effect J.Jayalalitha and Others and any breach thereof cannot be [2004] 2 SCC 9 treated to be lawful or even illegal.

Un amended S.464 of IPC, 1860 26 Form 32

Submissions of Mr. Neeraj Kishan Kaul , Senior Advocate:

26. The learned Senior counsel representing the petitioner

[A 3] in Crl.O.P.No.3764 of 2019, made the following submissions:

● The trial Court has mechanically framed charges against the

petitioner without application of mind and without

considering the materials available on record, in

contravention to the orders passed by the Hon'ble Supreme

Court and this Court.

● This petition filed u/s 482 of Cr.P.C challenging the entire

http://www.judis.nic.in proceedings in C.C.No.12 of 2017, has to be considered 67

independently without any reference to the previous orders

passed on the earlier occasions. If on an independent

assessment of the material available on record, this Court

comes to a conclusion that no charges can be framed against

the petitioner, this Court is entitled to quash the proceedings

and while doing so, the earlier orders passed by this Court will

not have any bearing.

● The entire proceedings hinges upon a pure question of law,

being that of entitlement of the petitioner to

telephone/telecom facilities in his capacity as the Minister. For

deciding the same, whether the rules applicable to the

member of Parliament can be applied to a Minister will have

to be considered and if it is held that those rules will not

apply to a Minister, the entire bedrock of the case of the

prosecution will fall and the natural consequence will be that

no offence will be made out against the petitioner. In that

case, the petitioner and the other accused persons need not

be made to face a meaningless criminal trial.

● The CBI in its charge sheet has based the entire case by

assessing the entitlement of the petitioner under Rule 4 of

the Members of Parliament Rules, 1956. Based on this rule http://www.judis.nic.in 68

the CBI is contending that as a Minister, the petitioner is

entitled to only three phones, one at his Delhi residence, one

at his Constituency and one for broadband connection. Such

reliance on the said rules is totally misplaced since u/s 2(b) of

the 1954 MP's Act specifically excludes a Minister from the

definition of a member. Therefore, a Cabinet Minister is only

governed by the 1952, Act.

● The legislature has clearly intended to treat MPs and

Ministers differently insofar Salaries, Allowances and other

facilities are concerned.

● Section 3 of the 1952, Act makes provision only for salary

of a Minister and not for any other allowances. Even after

the amendment and coming into force of the 1954 Act,

specific provisions have been made only for the medical,

housing, telephone and postal facilities for the MPs and no

corresponding amendment was carried out for the Ministers.

● When the Act was further amended in the year 1985,

constituency allowance was also included as one of the

allowances available to an MP. Similarly Section 3 of the

Ministers Act of 1952, was also amended to entitle a Minister

to a constituency allowance.

http://www.judis.nic.in 69

● After the 1985 amendment, a Minister who is governed by

the 1952 Act, is equated to a Member of Parliament governed

by 1954 Act, only for the limited purpose of determining the

salary per month, allowance per day and constituency

allowance and for no other purpose. Therefore the natural

consequence is that the other facilities of the Minister,

including telephone services is not governed by the MPs Act

of 1954, and the rules made thereunder.

● The CBI in the charge sheet itself has specifically stated

that there are no separate rules in respect of Ministers and

the rules framed under the 1954 Act, is also incorporated in

the salaries and allowances and pensions of the Ministers Act,

1952, as afar as telephone facilities are concerned. This

assumption made by CBI is totally baseless and such reading

of the provisions of another Act and Rules into the 1952

Minister's Act is alien to the rule of interpretation.

● The 2013 circular, referred by CBI in its charge sheet

clarifies that telephone connections would be made available

on demand for the Minister. If that is the case it cannot be

contended that 1956 rules governed the allotment of http://www.judis.nic.in 70

telephone facilities to Ministers.

● The statement given by LW-34 and also the extensive file

notings approving such connections and the fact that the

petitioner immediately after demitting office asked for the

closure of the connections, clearly shows that the telephone

connections was not made in violation of any rules and it was

granted only as per the legitimate entitlement as a Minister.

● The further allegation of the CBI is that this petitioner was

having 764 connections. This petitioner was actually having

only 10 connections. Under the PRA/PRI connections one

telephone connection will have child numbers attached to it

and the entire service will be teated as one connection. In

this case, the prosecution has construed each child number

as a separate connection and has projected as if there are

300 connections and has again shown it twice in the old

residence and new residence. This has been done with the

sole intention to sensationalize the case.

● A reference to Document Nos.26, 27, 34, 41, 71 and 72 will

clearly substantiate the contention that there are only 10

connections at Gopalapuram residence and 10 new identical

connections at Boat Club Road after the shifting of the http://www.judis.nic.in 71

residence. None of the witnesses [7 officials of BSNL] have

stated that these lines were mis utilized.

● There is absolutely no material to show that the telephone

connections were utilized for the benefit of SUN TV. In the

Final Report it is stated that EPABX equipment was ordered

by SUN TV by placing a purchase order and it was installed at

19 places, including the residence of the petitioner both in

Chennai and New Delhi. According to the Final Report, this

equipment can be used for running a private exchange or

could have been utilized by SUN Head Office or capable of

PRI/BRI connections.

● For the purpose of substantiating the same the statement

of LW-17 has been heavily relied upon. The entire reading of

the statement given by this witness does not in any way

establish telephone connections being used for the benefit of

SUN TV. The entire statement is vague and based on

conjectures and surmises without any actual specific fact.

● The chart that is contained in the Final Report is based on

the statement LW-55, who has joined the ABS Company in

the year 2012, and this person talks about the purchase of

EPBX machines in the year 2005, and the probable use it http://www.judis.nic.in 72

could have been put to.

● The prosecution should have at the minimum provided the

actual call/usage records, which according to LW-57, is

available and for reasons best known this has not been

produced along with the Final Report.

● With regard to the allegations of 67 mobile SIMs allotted to

the petitioner, documents on record shows that there were

only 19 SIM cards and that to for the Ministry and not to the

petitioner. This is clear from D.No.102 produced along with

the Final Report.

● The investigation revealed that 10 pre-paid connections

were blocked for SUN TV. There is absolutely no material to

show that it was actually given or utilised by SUN TV.

Therefore, even assuming that 10 fancy numbers were

reserved for SUN TV, without it being used or any loss has

occasioned by putting it to use, no criminal culpability can be

alleged against the petitioner.

● Insofar as the allegation of forgery is concerned, the

prosecution is relying upon the alteration of the letter dated

04.05.2009, by adding the words and interpolation said to

have been done by M.P.Velusamy [A-2]. This does not satisfy http://www.judis.nic.in 73

the requirement of Section 463 of IPC since it does not

amount to making of a false document.

● Insofar as the allegation of ante-dating of the letter which

is said to have been prepared on 11.05.2009, being ante-

dated to 06.05.2009, it does not satisfy the requirement of

making of a false document. The statement of LW-56 relied

upon by the prosecution is falsified by the file notings which

shows that it has gone through various Officers at different

levels.

● A conjoint reading of Section 409 of IPC and Section 13

(1)(c) and 13(1)(d) of the Prevention of Corruption Act,

would reveal that for an act to amount to a criminal breach of

trust or criminal misconduct, the act of the public servants

must be dishonest and/or fraudulent and in total disregard of

the clear legal provision or established guidelines or rule.

These charges can never be put against this petitioner since

the prosecution is not even able to establish the allegation

regarding entitlement against the petitioner and the loss as

projected by the prosecution to the Government exchequer is

a notional loss without providing any details as to how that

loss was arrived at.

http://www.judis.nic.in 74

● The charge regarding forgery is totally unsustainable since

even if the case projected by the prosecution is taken as it is,

the same does not satisfy the requirement of making of a

false document.

● Section 447(A) speaks about a clerk, officer or servant

destroying, altering, mutilating any documents, valuable

security etc, which is in the possession of the employer or

has been received by him for or on behalf of the employer.

By no stretch this provision can be used against the

petitioner.

● The charge of conspiracy is being made only on mere

conjectures and surmises and not even a single material is

available to substantiate the charge of conspiracy.

● In order to substantiate the above submissions, the

learned Senior counsel relied on the following judgments

which are listed hereunder:

S.No. Case Law (Title & Citation)

ABSENCE OF INGREDIENTS FOR SEC 477-A IPC http://www.judis.nic.in 75

S.No. Case Law (Title & Citation)

1. Central Bureau of Investigation .vs. V.C. Shukla & Ors. 1998 (3) SCC 410

2. Common Cause (A Registered Society) & Ors. Vs. Union of India and Ors.; 2017 SCC OnLine SC 41

3. J.Jayalalitha & Ors. V. State, rep.by Dirctor of Vigilance and Anti Corruption, Chennai. 2001 SCC OnLine Mad 875

4. Dhanya Naik .V. State (1976) 2 Kant LJ 163

5. Parminder Kaur .V. State of Uttar Pradesh and Another., (2010) 1 SCC 322.

ABSENCE-DISHONEST INTENTION-INGREDIENTS OF SEC 13(1)PCA

6. J.Jayalalitha and Ors. .v. State, rep. by Director of Vigilance and Anti-

Corruption, Chennai-2001 SCC OnLine Mad 875.

7. C.K.Jaffer Sharief .v. State; (2013) 1 SCC 205

8. Md.Ibrahim & Ors. V. State of Bihar & Anr. (2009) 8 SCC 751.

9. Manakula Vinayagar Educational Trust .vs. Deputy Superintendent of Police; 2015 SCC OnLine Mad 6629.

http://www.judis.nic.in 76

S.No. Case Law (Title & Citation)

NO CRIMINAL CASE BASED ON ASSUMPTIONS AND PRESUMPTIONS

10. Shivaji Sahebrao Bobabe .vs. State of Maharashtra, 1973 (2) SCC 793.

11. J.Jayalalitha and Ors. .vs. State rep. by Director of Vigilance and Anti-Corruption, Chennai- 2001 SCC OnLine Mad 875.

12. Sharad Birdhichand Sarda .v. State of Maharashtra, (1984) 4 SCC 116.

ABSENCE OF CRIMINAL CONSPIRACY

13. Addl. Superintendent of Police, CBI, .vs. G.B.Anbalagan, MANU/TN/1698/2014.

14. State of U.P. through CBI .vs. Dr.Sanjay Singh and another 1994 Supp (2) SCC 707.

15. CBI Hyderabad .V. K.Narayana Rao., (2012) 9 SCC 512.

16. Vinay Jain .v. State and Another., 2015 SCC Online Del 7363.

17. R.Sai Barathi .v. J.Jayalalitha and others., (2004) 2 SCC 9.

ABSENCE OF MENSREA U/S 409,467 & 471 OF IPC

18. Radha Pisharassiar Amma .v. State of Kerala., (2007) 13 SCC 410.

http://www.judis.nic.in 77

S.No. Case Law (Title & Citation)

SCOPE OF SEC.482

19. Sathish Mehra .v. State (NCT of Delhi), (2012) 13 SCC 614.

20. Duraimunuswamy 2011(2) MWN Cr 47

21. R.P.Kapur .v. State of Punjab, (1960) 3 SCR 388

22. State of Karnataka .v. L.Muniswamy & Ors;

AIR 1977 SC 1489

ABSENCE - CRIMINAL BREACH OF TRUST-INGREDIENTS OF SEC 409 OF IPC

23. R.Sai Barathi .v. J.Jayalalitha and others., (2004) 2 SCC 9

24. Common Cause (A Registered Society) & Ors. .Vs. Union of India and Ors.;

2017 SCC OnLine SC 41.

Submissions of Mr.G.Masilamani , Senior Advocate:

27. The learned Senior counsel representing the petitioner

[A-5] in Crl.O.P.No.3763 of 2019, made the following submissions:

● The name of the petitioner did not find place in the FIR. This petitioner was added as an accused in the final report on the ground that the petitioner is working as an electrician and is an employee of Sun TV.

● The statement given by LW5 and LW48 shows that

whenever if, as technicians belonging to BSNL visited the http://www.judis.nic.in residence of A3, this petitioner attended the telephone 78

instrument installed at the residence of A3.

● The statement given by LW15, LW 48 clearly establishes

the fact that Gita Tikku, Anandhi and several others

maintained the telephones and video conferencing

equipments. Therefore, a mere allegation of maintenance

of telephones at the residence of A3 by this petitioner,

itself does not in any way indicate the complicity of this

petitioner inspite of any offence charged regarding the

alleged misuse of the telephones at the residence of A3 to

benefit Sun TV.

● There is no evidence that A5 assisted the other accused

persons with the alleged misuse of the telephone

connection at the residence of A3 to benefit Sun TV.

● There is no evidence to indicate that this petitioner had

knowledge about the alleged misuse of the telephones in

the residence of A3 to benefit Sun TV and that he was

aware that he was indirectly assisting such misuse of the

telephone connection. Even if the case of the prosecution

is taken as it is, the role played by this petitioner to

maintain the telephone connection will arise only after the

telephone connection are provided by BSNL at the http://www.judis.nic.in 79

residence of A3. Therefore, by no stretch this petitioner

can be attributed within the charge of conspiracy to instal

and misuse the telephone connection.

● There is absolutely no material to substantiate the charge

of abatement against this petitioner, except for the

allegation that this petitioner was in charge of maintaining

the telephone connection installed at the residence of A3.

● There is no specific date or period, of the alleged

conspiracy and occurrence of the alleged offences

mentioned in the final report. The entire charges are

vague with reference to the date / period of offence.

Therefore,it is impossible for the petitioner to defend

himself in the case in the absence of specific allegation

against the petitioner.

● Insofar as this petitioner is concerned, there are only four

witnesses whose statement may be relevant and they are

LW15, 17, 48 and 60. Even if their statements are taken as

it is, none of the charges framed against this petitioner is

sustainable and the Court below has proceeded to frame

charges merely based on assumption and surmises.

● Except for a mere assertion that this petitioner is an http://www.judis.nic.in 80

employee of SUN Network, there is nothing to show that

this petitioner was involved in the offence of creating false

documents or committing forgery or had falsified valuable

security or accounts of an employer with an intent to

defraud the employer.

● The charges framed against this petitioner for an offence

under prevention of Corruption Act is totally unsustainable

since this petitioner is neither a public servant not is there

any material to show that this petitioner had abated any

public servant to commit an offence.

● Even if the entire documents and statements filed by the

petitioner along with the final report is taken to be true

and correct, no offence has been made out against this

petitioner and Court below has mechanically framed

charges against this petitioner without there being any

material available against this petitioner and therefore, the

continuance of the proceedings against this petitioner is an

abuse of process of law.

Submissions on the side of CBI:

28. Per contra, Mr.K.Srinivasan, learned Special Public

Prosecutor appearing on behalf of the CBI submitted that the petitioners http://www.judis.nic.in 81

are attempting to re argue the entire case and all the points that has

been raised by the petitioners was considered by this Court at the stage

of discharge and all these arguments were rejected and this Court found

that there are sufficient materials to frame charges against the

petitioners. This judgment was also confirmed by the Hon'ble Supreme

Court. Therefore, the petitioners should not be permitted to raise the

very same issues in the guise of challenging the charges framed by the

trial Court and in the guise of challenging the entire proceedings. The

learned Special Public Prosecutor further submitted that quashing the

proceedings, as sought for by the petitioners will amount to reviewing

the earlier order passed by this Court and the same is not permissible in

exercise of jurisdiction u/s 482 of Cr.PC, by this Court. The learned

Special Prosecutor submitted that the materials available before the trial

Court was sufficient to frame charges against the petitioners and the

petitioners should not be allowed to put forth contentions which goes

into the merits of the case and the petitioners will have to establish their

defence only in the course of trial.

29. The learned Special Public Prosecutor submitted the

entire contention of the CBI in the form of chart and the same is http://www.judis.nic.in extracted hereunder:

82 Sl. Questions Reply No.

1) No. of connections given 364 connections - by K.B.Brahmadathan, to Dayanidhi Maran at (A-1),(to bring these connections under Gopalapuram residence Service Category, the

correspondence/billing address of office CGM, BSNL was used illegally.) Proved from Advice Notes available in D-3 to D-10 and statement of relevant witnesses i.e. LW-24, LW-54, LW-59.

04 Leased Line Circuits as proved from D-

29 to D-32. Statement of relevant witnesses i.e. LW-11, LW-23.

67 Mobile SIMs were issued to Sh.Dayanidhi Maran and also to various persons in their names under references of MOCIT out of which the following 19 mobile SIMs were creating under one account bearing No.500708377, as post paid connections in the name of Minister of Communication. Out of the above SIMs, 10 SIMs were kept reserved for the use of SUN TV (Page-27 of D-37). As proved from the file related to mobile connections bearing No.D-37, statement of relevant witnesses i.e. LW-29, LW-44, LW-74, LW-

76. http://www.judis.nic.in 83

Sl. Questions Reply No.

2) No.of connections given 353 connections by accused M.P.Velusamy to Dayanidhi Maran (A-2), (to bring these connections under given at boat club Service Category, the designation of CGM, residence. Chennai Telephones was used as subscriber illegally.) Proved from Advice Notes available in D-13 to D-20 and Statement of relevant witnesses i.e. LW-10, LW-12, LW-25.

3. At some point of time The connections at Boat Club Road was connections in both the sanctioned on duplicate basis without residences were existing disconnecting the connections at parallel. Gopalapuram and the connections at both the residences continued to function till July, 2007 as proved from various Advice Notes available in the files related to both the residences vide D-3 to D-10 and D-13 to D-20. The connections were issued on duplicate basis and the previous existing connections at Gopalapuram were not disconnected as evident from as proved from D-26 and statement of Sh.G.Selvam, LW-16, LW-30.

4. Deliberately bringing The office address of CGM in case of A-1 those connections under and the designation of CGM in case of A-2 service category in order was used to deliberately bringing these to evade payment of connections under Service Category and to tariff. evade payments. As proved from D-3 to D-10 and D-13 to D-20. From the statements of witnesses i.e. LW-10, LW-12, LW-24, LW-25, LW-54, LW-59.

http://www.judis.nic.in 84

Sl. Questions Reply No. 5. Creation of an exchange The SUN TV purchased High End EPBAX in order to help SUN TV and two of these EPBAX were installed at

for utilisation of those Delhi and Chennai residences of A-3 with connections. main exchange at SUN HO. These exchanges were so configured that SUN TV exchange could use the facility of any other exchange. As proved from D-93, D-

94 to D-96, D-117, 118 and statement of Sh.A.Prabhakar (LW-3), Sh.Nimesh Bhat (LW-36), Sh. Upendra Bhatnagar (LW-55), Sh.Hansraj Saxena (LW-17), opinion of Sh.Sunil Bhadu LW-52 (only opinion cited as D-117) and Sh.Y.K.Sharma (only opinion cited as D-118.

6. Then A4 personal The residential phone of A-4 was also secretary of Dayanidhi converted into Service Category illegally Maran was also as evident from D-63. Statement of extended benefit under relevant witness i.e.LW-8. service category.

7. Antedated documents The letter written by A-3 to A-2, involving A2, A3 and purportedly written on 04.05.2009 was witness Meenalochiny. antedated and actually received in the office on 06.05.2009 (as evident from the statement of Smt.V.Meenalochiny). A hand written line was inserted in the said letter by A-2 himself as evident from D-33 and specimen/admitted handwriting of A-

2 and CFSL opinion cited as D-111 to D-

114. Finally a reply stating that only one connection was issued and there was nothing outstanding against A-3 was provided to A-3 at the instance of A-2 despite having knowledge of so many number of connections issued to A- 3 as evident from the statement of Smt.V.Meenalochiny and D-88 and D-89.

http://www.judis.nic.in 85

Sl. Questions Reply No. 8. Involvement of From the statements of E.Iniya Nehru,

V.Gowthaman (A-4) and Senior Technical Director, NIC, Chennai K.S.Ravi (A-5) in (LW-15) and S.Subramanian, the then SDE, managing and BSNL (LW-48).

maintaining the telephone connections installed illegally.

9. OFC connectivity was From the statements of LW-38, LW-43, also provided at the LW-52,D-42,D-43,D-45,D-47,D-49,D-50,D-84. residence of A-3

10. Video Conferencing From the statement of LW-15 and LW-26, system were also (D-90, D-91, D-97, D-98) provided by NIC, Delhi and Chennai.

30. In order to substantiate each and every question

referred above, the learned Special Public Prosecutor read the statement

of all the relevant witnesses and also brought to the notice of this Court

the contents of the relevant documents.

31. The learned Special Public Prosecutor relied upon the

following judgments in order to substantiate the above contentions.

1. Asian Resurfacing of Road Agency Pvt.Ltd. .Vs. Central

Bureau of Investigation reported in 2018 SCC OnLine SC 310.

http://www.judis.nic.in 2. Sushil Ansal .Vs. State Through Central Bureau of 86

Investigation reported in (2014) 6 SCC 173.

32. The learned Special Public Prosecutor appearing for

the CBI ultimately contended that this Court should not adopt the

approach of weighing the probabilities and re-appreciating the materials.

This Court can interfere with the framing of charges only in exceptional

situations for correcting a patent error of lack of jurisdiction and exercise

of such jurisdiction has to be limited to the rarest of rare cases. The

learned Special Public Prosecutor submitted that this case certainly does

not fall in the category of a rarest of rare cases.

REPLY SUBMISSIONS ON THE SIDE OF THE PETITIONERS:

33. The respective Senior counsels appearing on behalf of

the petitioners apart from reiterating their earlier submissions mainly

concentrated on two issues by way of reply.

● The first issue is that even if submissions made by the

learned Special Public Prosecutor appearing for the

respondent and the chart submitted by him as a whole is

taken into consideration, there are absolutely no

materials to frame charges against any of the petitioners.

Therefore, the petitioners cannot be made to face the

http://www.judis.nic.in ordeal of trial where the materials do not even satisfy 87

the framing of charges.

● The second issue that has been focussed is the latest

judgement of the Hon'ble Supreme Court in Civil Appeal

No.2434 of 2019 [Khoday Distilleries Limited Vs. Sri

Mahadeshwara Shankara Sakkare Karkhane Ltd.,] dated

01.03.2019. By relying upon this judgement, it was

submitted that even though the order of the Hon'ble

Supreme Court passed in SLP Nos.6196 to 6199 of 2018

will not merge with the orders passed by this Court in

Crl.RC Nos.671, 682 to 684 of 2018, the observations

made by the Hon'ble Supreme Court will bind both the

parties as well as the Court in any proceedings

subsequent there to, by way of Judicial discipline. In

Short, it was submitted that the order of the Hon'ble

Supreme Court has virtually effaced the order passed by

this Court in Criminal Revision petitions. A specific

reference in this regard was made to paragraph No.27 of

the judgement.

DISCUSSION :

34. This Court has carefully considered the submissions http://www.judis.nic.in 88

made on either side. This Court before dealing with the submissions

made by the learned Senior counsels appearing on behalf of the

petitioners, wanted to satisfy itself regarding the availability of the prima

facie materials for the purpose of framing charges against the petitioners.

Therefore, this Court went through the entire material relied upon by the

prosecution.

35. Even though the petitioners tried to give an

impression that what is challenged is only the charges framed by the

trial Court in exercise of its powers u/s 240 of Cr.P.C, the arguments

advanced by the learned Senior counsels appearing for the petitioners

will make it very clear that the petitioners are making one more attempt

seeking for a discharge from the case, in the guise of challenging the

entire proceedings. All the submissions made by the respective Senior

counsels, were also put forth before this Court twice earlier, in the

Criminal Revision Petition Nos.671, 682 to 684 of 2018 and the Criminal

Original Petition Nos.22121 to 22125 of 2018 referred supra. It is only

after considering those submissions, orders were passed by two learned

Judges of this Court. Both the learned single Judges came to a very

categorical conclusion that there are sufficient materials for framing

charges against the accused persons. This Court in exercise of its http://www.judis.nic.in jurisdiction u/s 482 of Cr.P.C cannot now come to a different conclusion 89

based on the very same materials and very same submissions made

earlier before two other learned single Judges.

36. If this Court were to come to a different conclusion, it

will virtually amount to reviewing the two earlier orders passed by two

other learned Judges of this Court. It will be relevant at this stage to

recall the judgment of the Hon'ble Supreme Court in Central Bureau of

Investigation and Others .Vs. Keshub Mahindra & Others reported in

2011 6 SCC 2016. The relevant portion of the judgment is extracted

hereunder:

"11. No decision by any court, this Court not excluded, can be read in a manner as to nullify the express provisions of an act or the code and the 1996 judgment never intended to do so. In the 1996 judgment, this Court was at pains to make it absolutely clear that its findings were based on materials gathered in the investigation and brought before the Court till that stage. At every place in the judgment where the Court records the finding or makes an observation in regard to the appropriate charge against the accused, it qualifies the finding or the observation by saying “on the materials produced by the prosecution for framing charge”. “At this stage”, is a kind of a constant refrain in that judgment. The 1996 judgment was rendered at the stage of Sections 209/228/240 of the Code and we are completely unable to see how the judgment can be read to say that it removed from the Code Sections 323, 216, 386, 397, 399, 401, etc. or denuded a competent court of the powers under those provisions. In our view, on the basis of the material on record, it is wrong to assume that the 1996 judgment is a fetter against the proper exercise of powers by a court of competent jurisdiction under the relevant provisions of the Code".

Even, while this Court exercises its powers u/s 482 of Cr.P.C, this Court http://www.judis.nic.in 90

must bear in mind the restriction to review an order or judgment

imposed u/s 362 of Cr.PC. It will be useful to recall the judgment of the

Hon'ble Supreme Court in State of Kerala .Vs. M.M.Manikandan Nair,

reported in 2001 4 SCC 752. The relevant portions of the judgment is

extracted hereunder:

"6. The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the court after it has signed its judgment or final order disposing a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no criminal court can review its own judgment or order after it is signed. By the first order dated 31.05.2000, the High Court rejected the prayer of the respondent for quashing the criminal proceeding. This order attained its finality. By the impugned order, the High Court reversed its earlier order and quashed the criminal proceeding for want of proper sanction. By no stretch of imagination it can be said that by the impugned order the High Court only corrected any clerical or arithmetical error. In fact the impugned order is an order of review, as the earlier order was reversed, which could not have been done as there is no such provision under the Code of Criminal Procedure, but there is an interdict against it.

7. This court in Hari Singh Mann versus Harbhajan Singh Bajwa & Ors. [2001 (1) SCC 169] held that Section 362 of the Criminal Procedure Code mandates that no court, when it has signed its judgment or final order http://www.judis.nic.in 91

disposing of a case shall alter or review the same except to correct a clerical or an arithmetical error and that this section is based on an acknowledged principle of law that once a matter is finally disposed of by a court, the said court in the absence of a specific statutory provision becomes functus officio and dis entitled to entertain a fresh prayer for the same relief unless the former order of final disposal is set aside by the court of competent jurisdiction".

37. This is the third round before this Court, where the

accused persons have approached "at the stage of framing charges".

This Court took pains to write detailed orders in the Criminal Revision

Petitions and also the Criminal Original Petitions, pointing out that there

are sufficient grounds and materials for framing charges against the

accused persons. Both the orders were also confirmed by the Hon'ble

Supreme Court.

38. The Hon'ble Supreme Court while confirming the order

passed by this Court in the criminal revision petitions made it very clear

that the Court is not inclined to interfere with the order. There is also a

very clear indication in the said order that it will be open to the accused

persons to urge all the contentions before the trial Court, and the trial

will be held without being influenced by any of the observations or

findings recorded in the order passed in the revision petitions. http://www.judis.nic.in 92

39. It will be relevant to rely upon the judgement of the

Hon'ble Supreme Court in Khoday Distilleries Limited referred supra. The

relevant portions of the judgement is extracted hereunder :-

"10. The reason for referring the matter to a larger Bench is the conflicting views by different Benches of this Court which have been taken note of in the referral order. Those judgements will be discussed at the appropriate stage. At the same time, we would like to reproduce the following passages from the reference order:

"12. We may also point out in this connection that Article 136 of the Constitution does not confer any right of appeal on any party but it confers a discretionary power on the Supreme Court to interfere in suitable cases. Clause (1) of Article 136 of the Constitution confers very wide and extensive powers on the Supreme Court. The article commences with a non obstante clause, the words are of overriding effect and clearly indicate the intention of the Framers of the Constitution that it is a special jurisdiction and residuary power unfettered by any statute or other provisions of Chapter IV of Part V of the Constitution. The jurisdiction under Article 136 of the Constitution, of course, cannot be barred by statute since it is extraordinary power under Article 136. Article 136 is an extraordinary power which cannot be taken away by legislation. 13. We also notice that several statutes confer on aggrieved parties right of appeal to the Supreme Court in contradistinction with the powers conferred on the Supreme Court under Article 136 of the Constitution, for instance, Section 15-Z of the Securities and Exchange Board of India (SEBI) Act, 1992 confers a right of appeal to any person aggrieved by any decision or order of the Securities Appellate Tribunal. http://www.judis.nic.in So also various regulatory legislations provide for statutory 93

right of appeal. To what extent the principle of res judicata and merger would apply in respect of a decision rendered by this Court while exercising its statutory power of appeal as well as the one rendered while entertaining an appeal invoking Article 136 is not seen considered by the larger Bench either in Abbai Maligai or Kunhayammed case, which is also, in our view, an issue to be considered by the larger Bench. 14. We notice that considerable arguments are being raised before this Court as well as before various High Courts in the country on the maintainability of review petitions after the disposal of the special leave petition without granting leave but with or without assigning reasons on which also conflicting views are being expressed by the two-Judge Benches of this Court. In order to resolve those conflicts and for proper guidance to the High Courts, we feel it would be appropriate that this matter be referred to a larger Bench for an authoritative pronouncement.”

25. Having noted the aforesaid two judgements and particularly the fact that the earlier judgement in the case of Abbai Maligai Partnership Firm is duly taken cognisance of and explained in the latter judgment, we are of the view that there is no conflict insofar as ratio of the two cases is concerned. Moreover, Abbai Maligai Partnership Firm was decided on its peculiar facts, with no discussion on any principle of law, whereas Kunhayammed is an elaborate discourse based on well accepted propositions of law which are applicable for such an issue. We are, therefore, of the view that detailed judgment in Kunhayammed lays down the correct law and there is no need to refer the cases to larger Bench, as was contended by the counsel for the appellant.

27. From a cumulative reading of the various judgements, we sum up the legal position as under: http://www.judis.nic.in 94

(a) The conclusions rendered by the three Judge Bench of this Court in Kunhayammed and summed up in paragraph 44 are affirmed and reiterated.

(b) We reiterate the conclusions relevant for these cases as under:

"(iv) An order refusing special leave to appeal may be a non-speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed.

(v) If the order refusing leave to appeal is a speaking order, i.e., gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country. But, this does not amount to saying that the order of the court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting the special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties.

(vi) Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely http://www.judis.nic.in 95

affirmation.

(vii) On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before the Supreme Court the jurisdiction of High Court to entertain a review petition is lost thereafter as provided by sub-rule (1) of Rule 1 of Order 47 CPC.”

(c) Once we hold that law laid down in Kunhayammed is to be followed, it will not make any difference whether the review petition was filed before the filing of special leave petition or was filed after the dismissal of special leave petition. Such a situation is covered in para 37 of Kunhayammed case".

40. It will be more relevant to focus on paragraph No.27

(b) (v), wherein, the Hon'ble Supreme Court was dealing with a case

where a leave is refused but there is a speaking order giving reasons for

refusing grant of leave. This becomes more relevant since the order

passed by the Hon'ble Supreme Court in SLP Nos.6196 to 6199 of 2018

falls within this category. The Hon'ble Supreme Court has categorically

held that even such orders will not merge with the order of the Court

which became a subject matter of challenge. In other words, the order

passed by this Court in Criminal Revision petitions will not merge with the

order passed by the Hon'ble Supreme Court in SLP Nos.6196 to 6199 of

2018. The effect therefore will be that the order passed by this Court in

the Criminal revision petitions remains intact. http://www.judis.nic.in 96

41. The learned senior counsel appearing on behalf of the

petitioners by relying upon the clause in the judgement submitted that a

speaking order giving reasons for refusing the grant of leave will bind the

parties there to and also the Court in the subsequent proceedings. By

developing this argument, emphasis was made to the observations made

by the Hon'ble Supreme Court in the said order to the effect that it will

be open to each of the accused person to urge all contentions before the

learned Trial Court and the trial will be held without being influenced by

any observations/findings recorded in the judgement passed in the

Criminal Revision petitions. This according to the learned Senior counsel

appearing for the respective petitioners would mean that de-hors the

findings of the learned single judge in the criminal revision petitions, the

order of the Hon'ble Supreme Court will eclipse the order passed by this

Court and as a result, the sufficiency of materials for framing charges

should be gone into afresh.

42. This Court is not in agreement with the aforesaid

proposition canvassed by the learned senior counsel appearing for the

petitioners . It should be kept in mind that the Hon'ble Supreme Court

categorically stated in the order that the Court is not inclined to interfere

with the order passed by this Court in the Criminal Revision Petitions. http://www.judis.nic.in 97

This statement makes it clear that the order passed by this Court in the

criminal Revision petitions was left untouched and intact. The subsequent

observations made by the Hon'ble Supreme Court was only to safeguard

the rights of the accused persons to defend themselves during trial, since

the trial Court should not get influenced with the observations made by

this Court in the Criminal Revision Petitions touching upon the merits of

the case. No other meaning can be ascribed to the observations made by

the Hon'ble Supreme Court.

43. The learned senior counsel appearing for the

petitioners would submit that the process of trial starts with the framing

of charges. Therefore, the supreme Court while using the word trial in

the above said order also had in its mind the process of framing of

charges. That being so, the petitioners are entitled to question the

sufficiency of materials again at the time of framing charges.

44. It is a settled law that the order / Judgement of a

Court cannot be read like a statute. It cannot be given interpretations to

suit a litigants requirements. The wordings used in an order should be

understood as it is without attempting to read in between lines. The

Hon'ble Supreme Court has categorically upheld the availability of http://www.judis.nic.in 98

sufficiency of materials that was found by this Court in the Criminal

Revision Petitions. The only safeguard that was given to the petitioners

was that the Trial Court will not get influenced by the observations made

on the merits of the case and the trial court will independently apply its

mind during trial. In the considered view of this Court, no other meaning

can be ascribed to the order of the Hon'ble Supreme Court.

45. The observations/findings given by this Court in

Crl.O.P.Nos.22121 to 22125 of 2018 at para 64, 82 and 83 make it very

clear that the petitioners did not succeed in assailing the issue qua the

availability of material to frame charges. On appeal, the Hon'ble

Supreme Court granted leave and disposed the appeal upholding the

judgment dated 09.11.2018. The petitioners consciously restricted their

grievance before the Hon'ble Supreme Court to paragraph 84 ("II") of

the order of this Court. This was the only issue addressed by the

Hon'ble Supreme Court and the observation made by the Hon'ble

Supreme Court at para 4 of the order makes it clear that the Hon'ble

Supreme Court did not interfere with the findings in the order except to

state that a) trial Judge shall look into the material available on record;

and b) such material shall be considered by the trial Judge for framing

charges. It must be kept in mind that this order was passed by the http://www.judis.nic.in Hon'ble Supreme Court after granting leave and as a result of the same, 99

the order dated 09.11.2018, passed by this Court had merged with the

order of the Hon'ble Supreme Court and the resultant position is

summarised as under:

a.The order passed in the revision Petitions dated

25.07.2018 reversing the order of the CBI judge and holding that

there were “heaps and heaps of material”, had attained finality.

Even the Hon’ble Supreme Court did not think fit to interfere with

this order.

b. The second round in Crl.o.p.Nos.2434 to 2436 of

2019,dated 29.01.2019, was a re-hash of the earlier round. But

the learned single Judge negatived the attack on sufficiency and

held that the sufficiency of material was already decided in the

earlier round and the only error, if any, was in the mode and

manner of framing of the charges.

c. On appeal, the Hon’ble Supreme Court upheld the

findings in the judgment, including the aforesaid finding at

paragraph 82, but thought it fit only to modify paragraph 84 by

stating that the trial judge ought to consider only the material

already on record and material that “can be considered” for

framing charges. The finding on sufficiency was expressly left

untouched. By virtue of the grant of leave to appeal the order of

this court merged with that of the Supreme Court.

d.The order passed on 29.01.2019 did not dilate on the

scope of the direction contained in the order dated 21.01.2019.

In fact, at paragraph 10 it has been made abundantly clear that

all that is being done is a reiteration of the direction given by the http://www.judis.nic.in Supreme Court.

100

e. It follows that that the question of sufficiency of material

has already attained finality vide two orders of the Supreme Court

dated 30.07.2018 and 21.01.2019.

46. The entire attempt of the petitioners seem to be to

again conduct the case as if this Court is considering their case for

discharge. In other words, what the petitioners failed to achieve in the

discharge petition, is now sought to be achieved in the guise of

challenging the charges framed by the Court below. The petitioners

wants the Court below to write a detailed order showing the reasons for

framing the charges against the accused persons. That is not a

requirement under law as held by the Hon'ble Supreme Court in Kanti

Bhadra Shah and another .vs. State of West Bengal referred supra,

Magistrate is obliged to record his reasons, if he decides to discharge the

accused. But, there is no such requirement if he forms the opinion that

there is ground for framing a charge. Framing of charge itself is a prima

facie order that the trial Judge has formed the opinion, upon considering

the Police Report and other materials collected during the course of

investigation.

47. In the instant case the Court below has satisfied the

requirements of Section 211 to 213 of Crl.P.C and has applied its mind http://www.judis.nic.in 101

to all the materials collected by the prosecution and sufficiently read and

explained the charges to the accused persons in writing. From the

answers given by the accused persons it is clear that they have also

perfectly understood the charges framed against them.

48. This Court is of the considered view that this case

does not fall within the rarest of rare cases, requiring interference in

exercise of its jurisdiction u/s 482 of Crl.P.C.

49. The attempt made by the petitioners in these

petitions, is to give a skewed meaning for the observations made by the

Hon'ble Supreme Court in Crl.A.No.104 of 2019, dated 21.01.2019, and

this Court in Crl.O.P.Nos.2434 to 2436 of 2019, dated 29.01.2019. The

Hon'ble Supreme Court and this Court merely directed the trial Court to

look into the materials and satisfy itself before undertaking the exercise

of framing charges, in accordance with the requirements of the Code of

Criminal Procedure. The relevant procedure has already been stated in

detail herein above, and this Court is convinced that the trial Court has

fulfilled all the requirements before framing the charges in this case.

There is absolutely no ground to interfere with the charges framed by

the trial Court. A combined reading of Section 215 and 464 of Cr.P.C, http://www.judis.nic.in makes it very clear that unless irregularity or omission in framing charges 102

has mislead or caused prejudice to the accused in his defence and had

occasioned a failure of justice, it will not vitiate the trial. Such

irregularity is even curable u/s 465 of Cr.P.C.

50. The challenge, at this juncture, is to the charge sheet

on the basis that there exists no material against the accused and that

the trial would be an abuse of process. However, to pass muster under

the Bhajan Lal test, the accused must show that the case against them

do not “prima facie” make out any offence, or that they are so “absurd or

inherently improbable” (paragraphs 102 (1)(3)(5) of Bhajan Lal).

However, this would in effect be another bite at the cherry as the finding

at paragraph 89 of the order dated 25.07.2018 stares at the accused.

“89. Considering the police report and the documents, only opinion any judicial mind could form is that, there are grounds to presume all the 7 accused have committed offence and not otherwise.”

51. If the High Court were to take a different view and

record a conflicting decision it would, in effect, be a review which is

barred under Section 362 of the Code. This is more so in view of the fact

that the material that was available then and the material now sought to

be assailed are one and the same. This conclusion is fortified by the

decision of the Supreme Court in Simrikhia v. Dolley Mukherjee,

(1990) 2 SCC 437, wherein it was observed as under:

http://www.judis.nic.in 103

“3. The inherent power under Section 482 is intended to prevent the abuse of the process of the court and to secure ends of justice. Such power cannot be exercised to do something which is expressly barred under the Code. If any consideration of the facts by way of review is not permissible under the Code and is expressly barred, it is not for the court to exercise its inherent power to reconsider the matter and record a conflicting decision. If there had been change in the circumstances of the case, it would be in order for the High Court to exercise its inherent powers in the prevailing circumstances and pass appropriate orders to secure the ends of justice or to prevent the abuse of the process of the court. Where there is no such changed circumstances and the decision has to be arrived at on the facts that existed as on the date of the earlier order, the exercise of the power to reconsider the same materials to arrive at different conclusion is in effect a review, which is expressly barred under Section 362.

52. If the petitioners are confident enough that they have

a strong case for defence and none of the charges framed by the Court

below can be sustained by the prosecution, they must willingly go ahead

facing the trial and get an Hon'ble acquittal. The petitioners have

ensured that this case does not cross the threshold of framing of charges

and they come up with the same plea every time by giving it a different

form. In a case where the prosecution has levelled allegations bringing

out all ingredients of the charges levelled, and have placed materials

before the Court, prima facie evidencing the truthfulness of the

allegations levelled, trial must be held. But the petitioners do not want http://www.judis.nic.in 104

to face a trial and establish their defence in accordance with law.

53. The petitioners have consumed sufficient judicial time

of this Court and this is the third time, this Court is called upon to

interfere with the proceedings of the trial Court, at the stage of framing

charges. This Court cannot interfere with the proceedings of the trial

Court at each and every step and that is not the purport and scope of

exercising its jurisdiction u/s 482 of Cr.P.C.

54. In the result, all the criminal original petitions are

dismissed. The Court below is directed to proceed further with the trial,

and complete the proceedings within a period of four months from the

date of receipt of copy of this order. The trial shall be conducted strictly

in line with Section 309 of the Code of Criminal Procedure and the

guidelines given by the Hon'ble Supreme Court in Vinod Kumar .vs.

State of Punjab reported in [2015 (1) MLJ (crl) 288]. If the

petitioners adopt any dilatory tactics, it is open to the trial Court to insist

upon their presence and remand them to custody as laid down by the

Hon'ble Supreme Court in State of Uttar Pradesh .Vs. Shambhu Nath

Singh reported in [JT 2001 (4) SC 319]. Consequently, connected

miscellaneous petitions are closed.

http://www.judis.nic.in 105

20.03.2019

KP

Internet: yes

Index: yes

N. ANAND VENKATESH,. J.

KP

http://www.judis.nic.in 106

Pre-Delivery Common Order made in

Crl.OP Nos.3761 to 3764 of 2019 & 3901 of 2019

Delivered on: 20.03.2019

http://www.judis.nic.in