TaxTMI 
TaxTMI 
2022 (9) TMI 1490
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....used persons) discharging them from the prosecution Under Section 13(2) read with 13(1)(e) of the Prevention of Corruption Act, 1988 (for short, "Act 1988") read with Section 109 of the Indian Penal Code (for short, "the IPC"). FACTUAL MATRIX 4. The Respondents in these appeals are husband and wife. The Respondent No. 1 - R. Soundirarasu at the relevant point of time was serving as a Motor Vehicle Inspector (Grade 1) at Namakkal during the check period, i.e., from 01.01.2002 to 31.03.2004. The Respondent No. 2, namely, Suguna is the wife of the Respondent No. 1. 5. The Respondent No. 2 is a commerce graduate and claims to be having a separate source of income. She was a partner in a partnership firm running in the name of S.K. Mat Industries along with one R. Kumar w.e.f. 23.10.1993. The partnership came to be dissolved on 31.03.2003, and, thereafter she continued as a sole proprietor. 6. It is the case of the Respondent No. 2 that she has been paying the income tax from 1990 onwards and her IT Returns are being scrutinized by the appropriate authorities. 7. It appears from the materials on record that a First Information Report (FIR) came to be registered against th....
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....al value of the properties and pecuniary resources acquired by the Accused during the period from 1.1.2002 to 29.2.2004 has been tentatively estimated to be Rs. 14,66,430/-. Accused's wife Smt. Suguna is a house wife. She is found to have had no sufficient sources of income of her own to acquire the aforementioned assets. So also, Tr. Duraisamy, the father-in-law of the Accused appears to have had no necessity for the purchase and transfer of the property in the name of the grand son (son of the Accused). Thus, the Accused appears to have acquired the above properties in the name of aforesaid persons as his benami (benamis). The total income of the Accused and his family members and expenditure of the Accused and his family during the above said period (i.e. 1.1.2002 to 29.2.2004) have been tentatively assessed as Rs. 8,84,486 and 11,00,198 respectively and hence there was no likely savings for the above said period and on the contrary there was an excess expenditure over the income of the Accused to the extent of Rs. 2,15,712/-. There are grounds to believe that the aforesaid assets are for beyond and disproportionate to the known sources of income o....
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....ating Officer and as such the decision arrived at by the Investigating Officer that the Petitioner has no wherewithals to acquire the properties standing in her name and described in Statement II and to treat the said properties as the properties acquired by the 1st Accused in the name of the Petitioner is totally wrong. The Investigating Officer in his final report has categorically mentioned that no documents were produced during investigation, either by the Petitioner or her husband, to showcase the income derived by the Petitioner by doing money lending business. Even in the present application there is no whisper in this regard by the Petitioner. The contentious issue as to whether the Petitioner derived income from S.K. Mat Industries and through money lending business can be decided only during trial based on the evidence placed before the court in this regard. Hence this Court decides that the above ground urged by the Petitioner is a pre-matured one and thus cannot be entertained at the time of framing charges. 16. In the present case the total value of assets and pecuniary resources held by the Petitioner, her husband and son at the end of the check-period has be....
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....Officer in the proper perspective. The learned Counsel for the Petitioner assiduously argued that through the Income-Tax returns submitted by the wife of the Petitioner, who is arrayed as 2nd Accused in the main case, it established beyond doubt that the Petitioners wife had sufficient source to acquire properties mentioned in Statement II but the Investigating Officer in total disregard to the Income-Tax returns has treated the properties standing in the name of the Petitioner's wife as the properties of the Petitioner on the premise that the Petitioner has purchased the properties benami in the name of his wife and as such the computation made by the Investigating Officer in arriving at the total value of the assets acquired by the Petitioner during the check period at Rs. 28,23,492/- as set out in Statement V is grossly erroneous. As already pointed out the fact that the Petitioner's wife, the 2nd Accused is an Income-Tax Assessee and that she had submitted her Income-Tax returns to the concerned Income-Tax authorities regularly is not seriously disputed. The Petitioner is making an adroit effort to impress upon the court that particulars set out in the Income-T....
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....considered by the Investigating Officer even though the same has been set out in the Income-Tax returns submitted by the Petitioner's wife, the 2nd Accused Suguna. The Petitioner further allege that the properties of the Petitioner's wife and son more fully described in Statement II ought to have been excluded but strangely the Investigating Officer has included the same, which again clearly demonstrate that computation has not been made in proper line. Based on the above said contentions the Petitioner challenging the very methodology adopted by the Investigating Officer, seek an order of discharge. As elaborately discussed in the earlier part of this order, the question as to whether the properties standing in the name of the Petitioner's wife and son are in reality their self acquired properties or whether those properties were in fact acquired by the Petitioner through his financial resources can be decided only at the time of trial based on the evidence adduced by both parties in this regard. Since the nature of properties standing in the name of the Petitioner's wife and son cannot be decided at this stage, at no stretch of imagination it can be contended that....
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....Petitioner is not entitled for an order of discharge. 16. In the result the application is dismissed. 16. Thus, while rejecting the discharge applications filed by the Respondents herein, the learned Special Judge recorded a categorical finding that there was more than a prima facie case against the Accused persons to put them to trial for the alleged offence. The learned Special Judge recorded a clear finding that the charges levelled against the Accused persons cannot be said to be groundless so as to discharge them from the prosecution in exercise of powers Under Section 239 of the Code of Criminal Procedure. 17. The Respondents, being dissatisfied with the orders passed by the Special Court rejecting their discharge applications, went before the High Court and challenged the orders by filing Criminal Revision Application Nos. 702 and 703 of 2016 reply. Both the Revision Applications came to be heard by the High Court analogously and came to be allowed by the common impugned judgment and order dated 27.04.2017. The Respondents herein came to be discharged from the prosecution. While allowing the Revision Applications, the High Court held as under: 41. Tak....
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....rosecution who alleges that the Accused has committed the offence with requisite mens rea and so the burden lies upon the prosecution to prove the same. 45. As observed in the preceding paragraphs the Accused is not bound to prove his innocence beyond all reasonable doubt. All that he has to do is, to bring out a preponderance of probability. The phrase 'preponderance of probability' appears to have been taken from Charless R. Cooper v. F.W. Slade, (1857-59) 6 HLC 746. The observations made therein make it clear that what 'preponderance of probability' means is 'more probable and rational view of the case', not necessarily as certain as the pleadings should be. 46. Section 397(1) confers a sort of supervisory power. The purpose is to rectify miscarriage of justice. The main consideration was whether substantial justice was done since this Section confers the revisional jurisdiction upon both the Sessions Court as well as the High Court (Criminal). Nobody can claim it as a matter of right as it confers supervisory jurisdiction. When there is a clear illegality in the order passed by the lower Court, a revision could be entertained. ....
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....ces punishable Under Section 13(1)(e) of the Act, is obliged only to explain as regards the alleged assets disproportionate to the known sources of his income on the principle of preponderance of probability. d) As no prima facie case could be said to have been made out against the Accused persons, they deserve to be discharged from the prosecution in exercise of revisional powers meant for doing substantial justice. 19. In view of the aforesaid, the State being aggrieved and dissatisfied with the impugned orders passed by the High Court is here before this Court with the present appeals. SUBMISSIONS ON BEHALF OF THE Appellant 20. Mr. V. Krishnamurthy, the learned Additional Advocate General appearing on behalf of the State vehemently submitted that the High Court committed a serious error in discharging the Accused persons from the prosecution. He would submit that the whole approach of the High Court, more particularly the finding that "when the prosecuting agency has come forward with a specific occasion, that the Petitioners have amassed wealth which is disproportionate to their known source of income, it is incumbent on the part of the prosecution, to prove t....
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....ce has been committed and not whether a ground for convicting the Accused has been made out. To put it differently, if the court thinks that the Accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the Accused has committed the offence. The law does not permit a mini trial at this stage. 25. In such circumstances referred to above, the learned Counsel appearing for the State prayed that there being merit in his two appeals, those may be allowed and the impugned orders passed by the High Court may be set aside. SUBMISSIONS ON BEHALF OF THE ACCUSED 26. Dr. K. Radhakrishnan, the learned Senior Counsel appearing for the Accused persons, on the other hand, vehemently opposed both the appeals submitting that no error, not to speak of any error of law, could be said to have been committed by the High Court in passing the impugned orders discharging the Accused persons from the prosecution. 27. The learned Senior Counsel would submit that without considering the explanation furnished by the Respondent No. 1 and without calling for any ....
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....w laid down by this Hon'ble Court. This Hon'ble Court in the case of Divine Retreat Centre v. State of Kerala (2008) 3 SCC 542, has held that no judicial order can ever be passed by any court without providing a reasonable opportunity of being heard to the person likely to be affected by such order and particularly when such order results drastic consequences of affecting one's own reputation. v. Respondent-R. Soundirarasu in his explanation had explained that his wife Tmt. Suguna has independent source of income. She is a commerce graduate and was a partner in a S.K. Matt Industries along with one R. Kumar with effect from 23.10.1993. The partnership was dissolved on 31.3.2003 and thereafter she continued as the sole proprietor. She had been paying income tax from 1990 onwards and her IT returns were scrutinized by the appropriate authorities. She had been regularly filed her income tax returns even beyond the end of the check period. vi. It is respectfully submitted that the Investigating Officer while collecting necessary details from both the income tax authority as well as the Respondent R. Soundirarasu, had failed to consider them in proper persp....
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....e attributed to the Respondent. 17. It is submitted that items 2, 3, 4, 5 of Schedule III pertains to Respondent's wife Tmt. S. Suguna and the same cannot be attributed to the Respondent. 18. It is submitted that in respect of Statement IV, i. Item No. 2, the expenditure towards repayment of LIC housing loan to the extent of Rs. 1,19,934.30 cannot be shown towards Respondent's expenditure as the loan was availed and repaid by his wife Tmt. S. Suguna out of her own resources. ii. Similarly, the expenditure being Rs. 1,80,000/- shown under item No. 3 should not have been shown in Respondent's account, since the loan was obtained by his wife independently and repaid so far with interest by her, out of her own resources. iii. Item No. 5, Telephone charges of Rs. 26,854/- were paid by Respondent's wife out of her own resources. iv. Item No. 10, the house tax was paid by Respondent's wife out of her own resources. v. Item No. 09, the transaction pertains to Respondent's wife. Therefore, the loss should not have been shown in Respondent's account. vi. Item No. 11 is subscription towards Sri....
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.... seek prior permission from the prescribed authority for acquisition or disposal of immovable properties by the members of his family Under Clause (a), if the immovable property in question is not acquired from the resources of the Government servant concerned. The IO ought to have considered this provision before taking the properties and other resources into account. 21. It is respectfully submitted that the High Court has decided the matter by following the principles of law laid down by this Hon'ble Court. The High Court has only looked at the materials relied upon in the chargesheet to ascertain whether a prima facie case is made out or not. It is submitted that the High Court has rightly arrived at the conclusion that the prosecution has not examined the materials and the explanation afforded by the Respondent. After examining the facts emerging from of the materials brought on record by the prosecution, the High Court has concluded that prima facie the materials on record does not disclose the existence of all the ingredients constituting the offences alleged against the Respondents. The High Court has rightly concluded that the evidences tagged along w....
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....e.,) Rs. 9,97,888-00 (-) Rs. 6,16,376-50). (g) The value of disproportionate assets acquired by the Accused and his family members as shown in the Statement No. VII is calculated at Rs. 24,41,980-00. (h) The percentage of disproportionate assets acquired by the Accused and his family members to the known sources of their income is calculated at 244.71% (Rs. 24,41,980-00 divided by Rs. 9,97,888-00 multiplied by 100). Thus, in view of the aforesaid, the case of the prosecution is that the Accused No. 1 (public servant) was found to be in possession of assets disproportionate to the known sources of his income to the extent to Rs. 24,41,980/- as on 31.03.2004. ANALYSIS 32. Having heard the learned Counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is whether the High Court committed any error in discharging both the Accused from the charges levelled against them? 33. We have no hesitation in observing that the impugned orders passed by the High Court are utterly incomprehensible. We shall explain in details why we say so. PREVENTION OF CORRUPTION ACT, 1988 34. Section....
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....nishment as also by the addition of the Explanation to Section 13(1)(e) is materially different from Section 5 of the 1947 Act. The presumption permitted to be raised under the Explanation to Section 13(1)(e) was not available to be raised Under Section 5(1)(e) of the 1947 Act. This difference can have a material bearing on the case. 36. The explanation to Section 13(1)(e) of the Act 1988 has the effect of defining the expression "known sources of income" used in Section 13(1)(e) of the Act 1988. The explanation to Section 13(1)(e) of the Act 1988 consists of two parts. The first part states that the known sources of income means the income received from any lawful source and the second part states that such receipt should have been intimated by the public servant in accordance with the provisions of law, Rules and orders for the time being applicable to a public servant. 37. Referring to the first part of the expression "known sources of income" in N. Ramakrishnaiah v. State of A.P., 2009 Crl.L.J. 1767, this Court observed as under: 15. The emphasis of the phrase "known sources of income" in Section 13(1)(e) (old Section 5(1)(e)) is clearly on the word "income". It ....
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....s case, because the Section requires the Accused person to "satisfactorily account" for the possession of pecuniary resources or property disproportionate to his known sources of income. Ordinarily, an Accused person is entitled to acquittal if he can account for honest possession of property which has been proved to have been recently stolen (see illustration (a) to Section 114 of the Indian Evidence Act, 1872). The Rule of law is that if there is a prima facie explanation of the Accused that he came by the stolen goods in an honest way, the inference of guilty knowledge is displaced. This is based upon the well-established principle that if there is a doubt in the mind of the court as to a necessary ingredient of an offence, the benefit of that doubt must go to the Accused. But the legislature has advisedly used the expression "satisfactorily account". The emphasis must be on the word "satisfactorily", and the legislature has, thus, deliberately cast a burden on the Accused not only to offer a plausible explanation as to how he came by his large wealth, but also to satisfy the court that his explanation was worthy of acceptance. 6. Another argument bearing on the same as....
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....o him to prove those other sources of income which have not been taken into account or brought into evidence by the prosecution. (Emphasis supplied) 40. Even after Section 5(3) was deleted and Section 5(1)(e) was enacted, this Court in the case of Wasudeo Ram Chandra Kaidalwar (supra) has observed that the expression "known sources of income" occurring in Section 5(1)(e) has a definite legal connotation which in the context must mean the sources known to the prosecution and not sources relied upon and known to the Accused. Section 5(1)(e), it was observed by this Court, casts a burden on the Accused for it uses the words "for which the public servant cannot satisfactorily account". The onus is on the Accused to account for and satisfactorily explain the assets. Accordingly, in Wasudeo Ram Chandra Kaidalwar (supra) it was observed: 11. The provisions of Section 5(3) have been subject of judicial interpretation. First the expression "known sources of income" in the context of Section 5(3) meant "sources known to the prosecution". The other principle is equally well- settled. The onus placed on the Accused Under Section 5(3) was, however, not to prove his innocenc....
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....that burden never shifts. Notwithstanding the general Rule that the burden of proof lies exclusively upon the prosecution, in the case of certain offences, the burden of proving a particular fact in issue may be laid by law upon the Accused. The burden resting on the Accused in such cases is, however, not so onerous as that which lies on the prosecution and is discharged by proof of a balance of probabilities. The ingredients of the offence of criminal misconduct Under Section 5(2) read with Section 5(1)(e) are the possession of pecuniary resources or property disproportionate to the known sources of income for which the public servant cannot satisfactorily account. To substantiate the charge, the prosecution must prove the following facts before it can bring a case Under Section 5(1)(e), namely, (1) it must establish that the Accused is a public servant, (2) the nature and extent of the pecuniary resources or property which were found in his possession, (3) it must be proved as to what were his known sources of income i.e. known to the prosecution, and (4) it must prove, quite objectively, that such resources or property found in possession of the Accused were disproportionate to ....
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....ccused. The explanation applies and relates to the mode and manner of investigation to be conducted by the prosecution, it does away with the requirement and necessity of the prosecution to have an open, wide and rowing investigation and enquire into the alleged sources of income which the Accused may have. It curtails the need and necessity of the prosecution to go into the alleged sources of income which a public servant may or possibly have but are not legal or have not been declared. The undeclared alleged sources are by their very nature are expected to be known to the Accused only and are within his special knowledge. The effect of the explanation is to clarify and reinforce the existing position and understanding of the expression "known sources of income" i.e. the expression refers to sources known to the prosecution and not sources known to the Accused. The second part of the explanation does away with the need and requirement for the prosecution to conduct an open ended or rowing enquiry or investigation to find out all alleged/claimed known sources of income of an Accused who is investigated under the PC Act, 1988. The prosecution can rely upon the information furnished ....
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....eet filed by him must contain such averment. The failure to mention that requirement would vitiate the charge-sheet and renders it invalid. This submission, if we may say so, completely overlooks the powers of the Investigating Officer. The Investigating Officer is only required to collect material to find out whether the offence alleged appears to have been committed. In the course of the investigation, he may examine the Accused. He may seek his clarification and if necessary, he may cross check with him about his known sources of income and assets possessed by him. Indeed, fair investigation requires as rightly stated by Mr. A.D. Giri, learned Solicitor General, that the Accused should not be kept in darkness. He should be taken into confidence if he is willing to cooperate. But to state that after collection of all material the Investigating Officer must give an opportunity to the Accused and call upon him to account for the excess of the assets over the known sources of income and then decide whether the accounting is satisfactory or not, would be elevating the Investigating Officer to the position of an enquiry officer or a judge. The Investigating Officer is not holding an e....
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....t (prosecution) as well had called in evidence the income tax returns/orders and thus, it cannot object to the admissibility of the records produced by the defence. To reiterate, even if such returns and orders are admissible, the probative value would depend on the nature of the information furnished, the findings recorded in the orders and having a bearing on the charge levelled. In any view of the matter, however, such returns and orders would not ipso facto either conclusively prove or disprove the charge and can at best be pieces of evidence which have to be evaluated along with the other materials on record. Noticeably, none of the Respondents has been examined on oath in the case in hand. Further, the income tax returns relied upon by the defence as well as the orders passed in the proceedings pertaining thereto have been filed/passed after the chargesheet had been submitted. Significantly, there is a charge of conspiracy and abetment against the Accused persons. In the overall perspective therefore neither the income tax returns nor the orders passed in the proceedings relatable thereto, either definitively attest the lawfulness of the sources of income of the Accused perso....
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....ition of assets disproportionate to the known lawful sources of income as contemplated under the PC Act and that further scrutiny/analysis thereof is imperative to determine as to whether the offence as contemplated by the PC Act is made out or not. x x x x x 60. At the very outset, we must categorically hold that the documents which have been relied upon by the Respondents cannot form the basis of quashing the FIR. The value and weight to be ascribed to the documents is a matter of trial. Both the parties have cited previous decisions of two Judge Benches of this Court in order to support their submissions. There is no clash between the decisions in Kedari Lal (supra) and J. Jayalalitha (supra) for two reasons: (i) the judgment in J. Jayalalitha (supra) notes that a document like the Income Tax Return, by itself, would not be definitive evidence in providing if the --source of one's income was lawful since the Income Tax Department is not responsible for investigating that, while the facts in the judgment in Kedari Lal (supra) were such that the --source of the income was not in question at all and hence, the Income Tax Returns were relied upon conclusively; ....
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....scharge, relatable to: (i) a sessions trial or, (ii) a trial of warrant case, or (iii) a summons case, are contained in three pairs of Sections under the Code of Criminal Procedure. These are Sections 227 and 228 reply in so far as, the sessions trial is concerned; Sections 239 and 240 reply relatable to the trial of warrant cases; and Sections 245(1) and 245(2) reply in respect of summons case. The relevant provisions read as follows: Section 227. Discharge - If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the Accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the Accused, he shall discharge the Accused and record his reasons for so doing. Section 228. Framing of charge.--(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the Accused has committed an offence which-- (a) is not exclusively triable by the Court of Session, he may, frame a charge against the Accused and, by order, transfer the case for trial to the Chief Judicial Magistrate....
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....cused by the Court of Sessions Under Section 227 in a case triable by it, cases instituted upon a police report are covered by Section 239 and cases instituted otherwise than on a police report are dealt with in Section 245. The three Sections contain somewhat different provisions in regard to discharge of the Accused. As per Section 227, the trial judge is required to discharge the Accused if "the Judge considers that there is not sufficient ground for proceeding against the Accused". The obligation to discharge the Accused Under Section 239 arises when "the Magistrate considers the charge against the Accused to be groundless". The power to discharge Under Section 245(1) is exercisable when "the Magistrate considers, for reasons to be recorded, that no case against the Accused has been made out which, if unrebutted would warrant his conviction". Sections 227 and 239 reply provide for discharge being made before the recording of evidence and the consideration as to whether the charge has to be framed or not is required to be made on the basis of the record of the case, including the documents and oral hearing of the Accused and the prosecution or the police report, the documents se....
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.... trial is concerned; (ii) Sections 239 and 240 reply relatable to the trial of warrant cases; and (iii) Sections 245(1) and (2) qua the trial of summons cases, which dealt with the question of framing of charge or discharge, stated thus: (SCC p. 671, para 32). 32...if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the court were to think that the Accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the Accused has committed the offence. It is apparent that at the stage of framing of a charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage. 57. In a later decision in Mohanlal Soni (supra), this Court, referring to several of its previous decisions, held that: (SCC p. 342, para 7) 7. The crystallised judicial view is that at the stage of framing charge, the court has to prima facie consider whether there is sufficient ground for proceeding....
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....vision to the advantage of the Accused, and its breach is not permissible under the law. But if the Judge, upon considering the record, including the examination, if any, and the hearing, is of the opinion that there is "ground for presuming" that the Accused has committed the offence triable under the chapter, he is required by Section 240 to frame in writing a charge against the Accused. The order for the framing of the charge is also not an empty or routine formality. It is of a far-reaching nature, and it amounts to a decision that the Accused is not entitled to discharge Under Section 239, that there is, on the other hand, ground for presuming that he has committed an offence triable under Chapter XIX and that he should be called upon to plead guilty to it and be convicted and sentenced on that plea, or face the trial. (See: V.C. Shukla v. State through CBI AIR 1980 SC 962). 61. Section 239 of the Code of Criminal Procedure lays down that if the Magistrate considers the charge against the Accused to be groundless, he shall discharge the Accused. The word 'groundless', in our opinion, means that there must be no ground for presuming that the Accused has committed the....
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....ss, he must discharge the Accused. This Sub-section has to be read along with Sub-section (3), according to which, if after hearing the arguments and hearing the Accused, the Magistrate thinks that there is ground for presuming that the Accused has committed an offence triable under Chap. XXI of the Code within the Magistrate's competence and for which he can punish adequately, he has to frame in writing a charge against the Accused. Reading the two Sub-sections together, it clearly means that if there is no ground for presuming that the Accused has committed an offence, the charges must be considered to be groundless, which is the same thing as saying that there is no ground for framing the charges. (Emphasis supplied) 65. Thus the word 'groundless', as interpreted by this Court, means that there is no ground for presuming that the Accused has committed an offence. 66. This Court has again dealt with this aspect of the matter in Superintendent and Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja AIR 1980 SC 52. This Court has stated in the said case as: At this stage, even a very strong suspicion found upon materials before the Ma....
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....39 of the Code of Criminal Procedure. The trial court will have to consider, whether the materials relied upon by the prosecution against the applicant herein for the purpose of framing of the charge, if unrebutted, make out any case at all. 70. The provisions of discharge Under Section 239 of the Code of Criminal Procedure fell for consideration of this Court in K. Ramakrishna and Ors. v. State of Bihar and Anr. (2000) 8 SCC 547, and it was held that the questions regarding the sufficiency or reliability of the evidence to proceed further are not required to be considered by the trial court Under Section 239 and the High Court Under Section 482. It was observed as follows: 4. The trial court Under Section 239 and the High Court Under Section 482 of the Code of Criminal Procedure is not called upon to embark upon an inquiry as to whether evidence in question is reliable or not or evidence relied upon is sufficient to proceed further or not. However, if upon the admitted facts and the documents relied upon by the complainant or the prosecution and without weighing or sifting of evidence, no case is made out, the criminal proceedings instituted against the Accused are req....
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....to discharge the Accused Under Section 239 arises when the Magistrate considers the charge against the Accused to be "groundless". The Section mandates that the Magistrate shall discharge the Accused recording reasons, if after (i) considering the police report and the documents sent with it Under Section 173, (ii) examining the Accused, if necessary, and (iii) giving the prosecution and the Accused an opportunity of being heard, he considers the charge against the Accused to be groundless, i.e., either there is no legal evidence or that the facts are such that no offence is made out at all. No detailed evaluation of the materials or meticulous consideration of the possible defences need be undertaken at this stage nor any exercise of weighing materials in golden scales is to be undertaken at this stage - the only consideration at the stage of Section 239/240 is as to whether the allegation/charge is groundless. 73. This would not be the stage for weighing the pros and cons of all the implications of the materials, nor for sifting the materials placed by the prosecution- the exercise at this stage is to be confined to considering the police report and the documents to decide whe....
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....ge is called for in the rarest of rare case only to correct the patent error of jurisdiction. 78. The High Court has acted completely beyond the settled parameters, as discussed above, which govern the power to discharge the Accused from the prosecution. The High Court could be said to have donned the role of a chartered accountant. This is exactly what this Court observed in the case of Thommandru Hannah Vijayalakshmi @ T.H. Vijayalakshmi (supra). The High Court has completely ignored that it was not at the stage of trial or considering an appeal against a verdict in a trial. The High Court has enquired into the materials produced by the Accused persons, compared with the information complied by the investigation agency and pronounced a verdict saying that the explanation offered by the Accused persons deserves to be accepted applying the doctrine of preponderance of probability. This entire exercise has been justified on account of the investigating officer not taking into the explanation offered by the public servant and also not taking into consideration the lawful acquired assets of the wife of the public servant i.e. the Respondent No. 2 herein. 79. By accepting the ent....