Docid # IndiaLawLib/281365
(2000) 1 AICLR 512 : (2000) AIR(SCW) 189 : (2000) AIR(SC) 665 : (2000) 1 AllCrlRulings 278 : (2000) 1
AllCrlRulings 278 : (2000) 1 AndhLD(Criminal) 554 : (2000) 1 ApexCourtJournal 400 : (2000) 1 BBCJ 102 :
(2000) CriLJ 944 : (2000) CriLR 407 : (2000) 1 Crimes 165 : (2000) 1 CTC 428 : (2000) 1 ECrC 226 : (2000)
ILR(Karnataka) 2142 : (2000) 1 JabLJ 142 : (2000) 1 JabLJ 142 : (2000) 1 JT 169 : (2000) 1 KLT(SN) 55 : (2000)
2 MadWN(Cri) 295 : (2000) 3 MPHT 164 : (2000) 2 MPLJ 322 : (2000) RajdhaniLR 151 : (2000) 1
RCR(Criminal) 523 : (2000) 1 SCALE 138 : (2000) 2 SCC 57 : (2000) SCC(Cri) 311 : (2000) 1 Supreme 142
SUPREME COURT OF INDIA
DIVISION BENCH
( Before : M. B. Shah, J; K. T. Thomas, J )
STATE OF M.P. — Appellant
Vs.
S.B. JOHARI AND OTHERS — Respondent
Criminal Appeal No. 49 of 2000 (Arising out of S.L.A. (Criminal) No. 2854 of 1999) and Criminal A. No. 50 of 2000 (Arising
out of S.L.A. (Criminal) No. 2855 of 1999)
Decided on : 17-01-2000
Criminal Procedure Code, 1973 (CrPC) - Section 227, Section 228, Section 319
Penal Code, 1860 (IPC) - Section 120
Prevention of Corruption Act, 1988 - Section 13
Criminal Procedure Code, 1973 (CrPC) - Sections 397, 227, 228 - Charge - Quashing of - Powers
of High Court - High Court is not empowered to appreciate and weigh materials on record to
conclude that charge could not have been framed - High Court should consider prima facie
case against accused.
Criminal Procedure Code, 1973 (CrPC) - Section 228 - Framing of charge - Appreciation of
material produced by prosecution - Permissibility - 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
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then a charge has to be framed. The charge can be quashed if the evidence which the
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prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before
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it is challenged by cross - examination or rebutted by defence committed the particular
offence. In such case there would be no sufficient ground for proceeding with the trial.
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Criminal Procedure Code, 1973 (CrPC) - Section 397 - Quashing of charge - Appreciation of
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material produced by prosecution - Permissibility - While quashing the charge the High Court
instead of considering the prima facie case has appreciated and weighed the materials on
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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, even if fully accepted before it is challenged by cross - examination or rebutted by
defence committed the particular offence. In such case there would be no sufficient ground
for proceeding with the trial.
Criminal Procedure Code, 1973 (CrPC) - Sections 397, 227, 228 - Quashing of charge - Charge
framed by additional Sessions Judge - High Court quashing it after appreciating materials
produced by prosecution at stage of framing of charge - Not proper. While quashing the
charge the High Court instead of considering the prima facie case 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, even if fully accepted before
it is challenged by cross-examination or rebutted by defence committed the particular
offence. In such case there would be no sufficient ground for proceeding with the trial.
Cases Referred
Niranjan Singh Karam Singh Punjabi and Others Vs. Jitendra Bhimraj Bijja and others, AIR 1990 SC 1962 : (1990)
CriLJ 1869 : (1990) 3 JT 408 : (1990) 2 SCALE 193 : (1990) 4 SCC 76 : (1990) 3 SCR 633
Supdt. and Remembrancer of Legal Affairs, West Bengal Vs. Anil Kumar Bhunja and Others, AIR 1980 SC 52 : (1979)
CriLJ 1390 : (1979) 4 SCC 274 : (1979) SCC(Cri) 1038 : (1980) 1 SCR 323
State of Bihar Vs. Ramesh Singh, AIR 1977 SC 2018 : (1977) CriLJ 1606 : (1977) 4 SCC 39 : (1978) 1 SCR 257 : (1977)
9 UJ 788
Union of India (UOI) Vs. Prafulla Kumar Samal and Another, AIR 1979 SC 366 : (1979) CriLJ 154 : (1979) 3 SCC 4 :
(1979) SCC(Cri) 609 : (1979) 2 SCR 229
ORDER
M.B. Shah, J.—Leave granted
2. The aforesaid appeals are filed by the State of Madhya Pradesh challenging the orders passed by the High Court of
Madhya Pradesh, Bench at Indore allowing Criminal Revision Applications Nos. 613 of 1998 and 159 of 1999 and
quashing the charges framed by the Additional Sessions Judge, Indore in Special Case No. 28/96 against the respondents
for the offences punishable under Sections 5(1)(d) and 5(2) of the Prevention of Corruption Act, 1948 read with Section
120-B I PC and in the alternative for the offence punishable u/s 13(1)(d)/13(2) of the Prevention of Corruption Act,
1988.
3. FIR was lodged at the Police Station Bhopal to the effect that there was criminal conspiracy in purchase of medicines
for S.G. Cancer Hospital, Indore. At the relevant time, Dr. C.P. Tiwari was posted as Dean, Medical College, Dr. M.S.
Dwivedi was working as Superintendent, Mr. S.B. Johari (Respondent No. 1 in SLP No. 2854/99) was working as
Medical Officer In-charge of Stores and Mr. Sudhir Pingle (Sole Respondent in SLP No. 2855/99) was working as
Accountant in the hospital. It is alleged that all the aforesaid accused entered into criminal conspiracy with some local
businessmen of Indore by misusing their posts and also by using some forged documents that caused wrongful loss to the
Government. It has been stated that though many of the items have not been purchased, amount is paid on bogus
vouchers. On the basis of the material on record, it was pointed out that some medicines were purchased at Jabalpur at
lesser price, roughly at half the rate. After considering the material on record, learned Sessions Judge framed the charge
as stated above. That charge is quashed by the High Court against respondents by accepting the contention raised and
considering details of material produced on record. The same is challenged by filing these appeals.
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 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, even if fully accepted
before it is challenged by cross examination or rebutted by defence evidence, if any, cannot show that 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 and Others Vs. Jitendra Bhimraj Bijja and others, , after considering the provisions
of Sections 227 and 228, Cr.P.C., Court posed a question, whether at the stage of framing the charge, 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
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purpose, but it is not required to marshal it with a view to decide the reliability thereof. The Court referred to earlier
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decisions in State of Bihar Vs. Ramesh Singh, , Union of India (UOI) Vs. Prafulla Kumar Samal and Another, and Supdt.
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and Remembrancer of Legal Affairs, West Bengal Vs. Anil Kumar Bhunja and Others, , and held thus:-
From the above discussion it seems well settled that at the Sections 227-228 stage the court is required to evaluate
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the material and documents on record with a view to finding out if the facts emerging therefromtaken at their face value
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disclose the existence of all the ingredients constituting the alleged offence. The court may for this limited purpose shift
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the evidence as it cannot be expected even at the initial stage to accept all that the prosecution states as gospel truth
even if it is opposed to common sense or the broad probabilities of the case.
(emphasis supplied) In
5. In the present appeals dealing with the contention of respondent Dr. Johri, Mr. A.P. Acharya and Dr. O.P. Tiwari,
the High Court observed that role of Dr. Johri in purchase of the medicines was limited to the extent that he prepared
only a comparative statement of tenders and that the other two persons were members of the Purchase Committee. The
Court arrived at the conclusion that comparison of different prices at different places at different periods on the basis of
different transactions between different persons cannot straightway by made the basis for alleging corruption or corrupt
practice on the part of the accused. The Court further observed that the trial court has not properly appreciated that
there is a difference of about 550 miles between Jabalpur and Indore and therefore price difference in purchase of
medicines would be there. The Court also held that the medicines were purchased at two places during different periods
and therefore also, there would be a price difference. With regard to A.P. Acharya and Dr. O.P. Tiwari the Court
observed that they were not shown to have any control over the purchase of the goods and, therefore, they cannot be
saddled with the criminal prosecution. The Court further considered that as per the statement of Manufacturing
Company the quotations given by the M/s. Allied Medicine Agency, Indore were genuine and, therefore, held that
charges leveled against the respondents Dr. Johri, Mr. A.P. Acharya and Dr. Tiwari cannot stand for a minute. Similarly,
dealing with the contention of respondent Sudhir Pingle in Crl. Revision No. 159 of 1999, the High Court observed that it
cannot be disputed that respondent had prepared the bills on account of instructions given to him by superiors, namely,
Dr. Johri and Dr. Tiwari and that on his own account he could not have prepared the said bills for making payment to
M/s. Allied Medical Agency. The Court also observed that he was neither empowered to place orders nor competent to
make payment thereof unless the same was approved by the doctors who were actually in charge of the hospital. The
Court, therefore, held that there was no sufficient material available for framing the charge against him.
6. In our view the aforesaid exercise of appreciating the materials produced by the prosecution at the stage of framing
of the charge is wholly unjustified. The entire approach of the High Court appears to be as if the Court was deciding the
case as to whether accused are guilty or not. It was done without considering the allegations of conspiracy relating to the
charge u/s 120-B. In most of the cases, it is only from the available circumstantial evidence an inference of conspiracy is
to be drawn. Further, the High Court failed to consider that medicines are normally sold at a fixed price and in any set of
circumstances, it was for the prosecution to lead necessary evidence at the time of trial to establish its case that purchase
of medicines for the Cancer Hospital at Indore was at a much higher price than the prevailing market rate. Further again
non-joining of two remaining members to the Purchase Committee cannot be a ground for quashing the charge. After
framing the charge and recording the evidence, if Court finds that other members of the Purchase Committee were also
involved, it is open to the Court to exercise its power u/s 319 of the Criminal Procedure Code. Not only that, the Court
erroneously considered the alleged statement of manufacturing company that quotations given by M/s. Allied Medicine
Agency, Indore were genuine without there being any cross-examination. The High Court ignored the allegation that
many of the items have not been purchased and the amount is paid on bogus vouchers. Hence, there was no justifiable
reason for the High Court to quash the charge framed by the trial court.
7. In this view of the matter, the impugned orders passed by the High Court require to be quashed and set aside and
we do so. The appeals are allowed accordingly.
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