State Represented by the Deputy Superintendent of Police Vigilance and Anti Corruption, Tamil Nadu vs J. Doraiswamy Etc.

CRIMINAL APPEAL Nos.445­446 OF 2019 (Arising out of S.L.P.(Crl.) Nos.5675­5676 of 2017)

State Represented by the Deputy Superintendent of Police Vigilance and Anti Corruption, Tamil Nadu ….Appellant(s)

VERSUS

J. Doraiswamy Etc. ….Respondent(s)

JUDGMENT

Abhay Manohar Sapre, J.

1. Leave granted.

Signature Not Verified

2. These appeals are directed against the final Digitally signed by ASHOK RAJ SINGH Date: 2019.03.07 17:29:09 IST

judgment and order dated 14.07.2016 passed by Reason:

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the High Court of Judicature at Madras in Crl. R.C.

Nos.825 and 826 of 2015 whereby the High Court

dismissed the revisions filed by the appellant­State

and affirmed the order of the Special Judge/Chief

Judicial Magistrate, Tiruvannamalai by which the

respondents herein were discharged under Section

227 of the Criminal Procedure Code, 1973

(hereinafter referred to as “the Crl.P.C.”) from the

Criminal Proceedings filed against them in Special

Case No.4 of 2014 under the Prevention of

Corruption Act, 1988 (hereinafter referred to as “the

PC Act”).

3. These appeals involve a short point as would

be clear from the facts mentioned infra.

4. Respondents (A­1 and A­2) were working as

Inspector of Police and Sub­inspector of Police

respectively in the State Tamil Nadu Police Services.

Both the respondents were prosecuted for

2 commission of the offences punishable under

Section 7 read with Section 13(1) (d) of the PC Act in

Crime Case No.3 of 2008/Special Case No. 4 of

2014 in the Court of Special Judge and Chief

Judicial Magistrate, Tiruvannamalai.

5. On charge­sheet being filed by the State

Prosecuting Agency against the respondents after

obtaining necessary sanction as required in law,

both of them filed applications under Section 227 of

the Cr.P.C. (Crl.M.P.Nos.648/2014 & 113/2015)

before the CJM praying therein for their discharge

from the case. In substance, the respondents

contended that no prime facie case is made out

against them under the PC Act and in the charge­

sheet hence both the respondents are liable to be

discharged.

6. The Chief Judicial Magistrate, by order dated

29.06.2015, allowed the applications and

3 discharged them from the case. The State felt

aggrieved by the order dated 29.06.2015 passed by

the Chief Judicial Magistrate and filed two revisions

in the High Court. By impugned order, the High

Court dismissed the revisions and affirmed the

order of the Chief Judicial Magistrate, giving rise to

filing of these appeals by the State by way of special

leave in this Court.

7. So, the short question, which arises for

consideration in these appeals, is whether the

Courts below were justified in allowing the

discharge applications filed by the respondents

under Section 227 of the Cr. P.C.

8. Heard Mr. S. Partha Sarathi, learned counsel

for the appellant and Mr. Neeraj Jain, learned

Senior counsel and Mr. S. Thananjayan, learned

counsel for the respondents.

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9. Having heard the learned counsel for the

parties and on perusal of the record of the case

including the written submissions filed by the

respondents, we are inclined to allow the appeals

and while setting aside the impugned order, dismiss

the applications filed by the respondents under

Section 227 of the Cr.P.C. and remand the case to

the Special Judge/CJM for its trial on merits in

accordance with law.

10. We have gone through the record including the

impugned order with a view to find out as to

whether any prima facie case is made out against

the respondents on the basis of documents filed by

the State along with the charge­sheet.

11. Having gone through the documents, the

contents of the charge­sheet and the impugned

order, we are of the view that though the High Court

referred to the law laid down by this Court on the

5 subject in the case of Yogesh alias Sachin Jagdish

Joshi vs. State of Maharashtra [(2008) (10) SCC

394), but erred in not properly applying the

principles laid down therein thereby committed an

error in allowing the applications filed by the

respondents under Section 227 of the Cr.P.C. for

their discharge.

12. We find that the High Court acted like an

Appellate Court than as a Revisionary Court as if it

was hearing the appeal against the final verdict of

the Special Court.

13. It is clear from the perusal of the entire order

including its concluding Para 14, which reads as

under:

“14. That being so, when the charges which are identical, could not be established in the departmental proceedings, for the same set of facts, for framing a charge in the criminal proceedings, chance of conviction would be very remote. At the same time, this Court is also well aware of the legal position that mere exoneration from the departmental

6 proceedings, cannot be taken as a sole ground to allow the discharge petition. Therefore, it is necessary to see as to whether any prime facie case has been made out by the prosecution to frame charge against an accused. In this case, the case of the prosecution is mainly relied upon the statement of witness/complaint sundarrajan and his cousin brother Sekar. As observed by the trial court, there are inconsistencies in the statements of prosecution witnesses. Moreover as observed by the trial court, the prosecution has not produced any evidence much less documentary evidence to show that A1 and A2 were present in room No.4 of the said Arunachala Lodge/Guest House. Though it is the case of the prosecution that the said sum of Rs.5 lakhs was paid in the said Room No.4 in the said Lodge, in the statement of Sekar recorded under section 161 Cr.P.C. on 14.09.2010 before Subbiah­ Additional Superintendent of Police, DV & AC, Special Investigation Team, Chennai, he has referred to the date of payment of money as 15.01.2004, but in the statement before ADSP­Crime (Vellore) – Juilan on 09.07.2004, he has stated that the said amount was paid one or two days before 15.02.2004.

Therefore, there is material contradiction, more particularly with regard to the date of the above said payment of Rs.5 Lakhs to A1 and A2. Except the ipse­dixit statement of the said Sekar, absolutely there is no other material before this Court to prove the demand of money by A1 and A2.”

14. In our view, such approach of the High Court

while deciding the discharge applications of the

7 respondents (accused) is not legally correct and,

therefore, it cannot be upheld.

15. In our view, consideration of the record for

discharge purpose is one thing and the

consideration of the record while deciding the

appeal by the Appellate Court is another thing.

16. While considering the case of discharge sought

immediately after the charge­sheet is filed, the

Court cannot become an Appellate Court and start

appreciating the evidence by finding out

inconsistency in the statements of the witnesses as

was done by the High Court in the impugned order

running in 19 pages. It is not legally permissible.

17. We have neither set out the facts and nor the

evidence (which is yet to be led and tested in the

trial) in detail and have also refrained ourselves

from recording any finding on the merits of the case,

8 else it will cause prejudice to the rights of the

parties while prosecuting their case in the trial.

18. All that we say while allowing these appeals is

that there is no prime facie case made out for

discharge of the respondents at this stage of the

trial. They, therefore, have to stand for trial on

merits in the light of the documents and contents of

charge­sheet filed pursuant to the order of the

Court. The Special Court (CJM) should have,

therefore, allowed the State to adduce the evidence

on merits in support of the charge­sheet to prove

the charges.

19. In view of the foregoing discussion, the appeals

succeed and are accordingly allowed. The impugned

order is set aside. As a consequence, the

applications filed by the respondents under Section

227 of the Cr.P.C. are dismissed.

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20. The Special Court(CJM) is directed to proceed

with the trial and conclude it within six months in

accordance with law.

21. The Special Court will decide the case strictly

on the basis of evidence adduced by the parties in

the trial in accordance with law uninfluenced by

any observations made by the High Court and this

Court in these proceedings.

………...................................J. [ABHAY MANOHAR SAPRE]

....……..................................J. [DINESH MAHESHWARI] New Delhi;

March 07, 2019.

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