1. A Criminal Case Was Initially Registered By The Cbi Against The Petitioner, Shri Nar Bahadur Bhandari On 26-5-84 And An Investigation Was Started But Before Charge Sheet Could Be Filed, The State Government of Sikkim, Withdrew The Consent Earlier Accorded By It Under Section 6 of Dspe Act, 1946 Empowering The Cbi/Spe To Conduct Investigation In The State of Sikkim And, Thereafter, The Investigation Was Suspended. Order of Withdrawal of Conssent Was Challenged In The Supreme Court In Writ Petition No. 313/93 Filed By Shri Kazi Lhendup Dorji Former Chief Minister of Sikkim By Way of A Public Interest Litigation. The Writ Petition Was Allowed Vide Order Dated 29-3-1994 And The Hon'ble Supreme Court Found That The Notification Dated 7-1-87 Withdrawing The Consent Operates Only Prospectively And, Therefore, It Did Not Preclude The Cbi From Submitting Its Report Under Section 173, Cr. P.C Before The Competent Court. Thereafter, Investigastion Was Again Started And Charge Sheet Was Filed In The Court of The Special Judge, At Gangtok On 14-4-1994 Against The Petitioner For Offence Punishable Under Section 5(2) (r/w 5 (1) (e) of the Prevention of Corruption Act, 1947 corresponding to Section 13(2) read with 13 (1) (e) of Prevention of Corruption Act, 1988 against the petitioner.

2. The prosecution case, in brief, is that the petitioner, Shri Nar Bahadur Bhandari, former Chief Minister of Sikkim while holding the office of the Chief Minister from October 1979 to May 1984 misused his official position as a public servant and acquired assets disproportionate to his known sources of income in his own name and in the name of his wife, Smt. Dil Kumari Bhandari. The investigation revealed that before becoming the Chief Minister of Sikkim, the petitioner was appointed as a teacher in-the Government Middle School, Chakung on 2-3-68 in the scale of Rs. 90-3-210. He served as a teacher till January 1974 and resigned from the said post w.e.f 2-2-74. He thereafer formed a political party in the name and style of Sikkim Janata Parishad and contested elections to the Sikkim Legislative Assembly in 1974 but was defeated. He again contested the next Assembly elections held in October 1979 and was elected. Thereafter, he was appointed as Chief Minister of Sikkim on 18-10-79 and continued as such till 11-5-84 on which date he was removed from the post of Chief Minister by the Governor of Sikkim.

3. For the purpose of investigation, the entire period during which Shri Bhandari functioned as Chief Minister i.e from 18-10-79 to 11-5-84 was taken as the check period. CBI has given the details of the properties belonging to the petitioner and his wife before 18-10-79. It has also considered the source of income of both the petitioner and his wife during the check period and the expenses incurred by them as also the total value of the property and assets in the name of the petitioner and his wife at the end of the check period and ultimately found that Shri Bhandari was in possession of assets worth Rs. 18,55,072/- as against his likely savings of Rs. 2,17,802/- leaving a gap of Rs. 16,37,270/- which Shri Bhandari could not explain inspite of all opportunities given to him and his wife. Thus he was in possession of assets disproportionate to his own sources of income which he acquired by misusing his official position as a public servant.

4. Notices were issued to the petitioner and after hearing the parties, the Special Judge passed the detailed order dated 11-8-1995 holding that there was a prima facie case against the petitioner for having committed offence punishable under Section 5(2) read with Section 5(1) (e) of the Prevention of Corruption Act, 1947 corresponding to Section 13(2) read with Sections 13 (1) (e) of P.C Act, 1988. Thereafter, the learned Special Judge framed the following charge on 8-9-95.

“CHARGE

I.A.P Subba, Special Judge, P.C Act, Sikkim at Gangtok charge you Shri Nar Bahadur Bhandari as follows:—

That you during the period from 18-10-79 to 11-5-1984 in your capacity as the Chief Minister of Sikkim and thus, being a public servant, acquired assets disproportionate to your known sources of income and on or about 11th May, 1984, you had been in possession of pecuniary resources or property in your name, in the names of your wife Smt. Dil Kumari Bhandari and others, to the extent of Rs. 16,37, 270/- which were disproportionate to your known sources of income and for which you could not satisfactorily account for and you thereby committed an offence punishable under S. 5(2) r/w 5(1) (e) of the Prevention of Corruption Act, 1947 and within the cognizance of this Court.

And I hereby direct you be tried by this Court on the said charge.

Sd/- (A.P Subba)

Special Judge, P.C Act

Sikkim at Gangtok.”

The charge was read over and explained to the petitioner, to which he stated that “he was unable to reply today as his counsel was not available on account of mourning being observed by Bar Assor ciation as a mark of respect to the memory of people who died in the recent landslide at Deorali, Gangtok and prayed for a next date to answer the charge.” Next date for answering the charge was fixed for 16-10-95.

5. This Criminal Revision No. 4/95 along with the stay application was filed in this Court on 7-9-95, and came up for orders on 11-9-95. Learned P.P, Mr. S.P Wangdi submitted that prayer ‘B’ of the Stay Application had become infructuous as charges had already been framed as required by Section 240(1) of the Cr. P.C Thereupon, learned counsel for the petitioner submitted that they would take appropriate steps to challenge the order passed under Section 240(1) of the Cr. P.C Another application was filed on 21-9-95, praying for the quashing of the orders dated 11-8-95 and 8-9-95 as well. Arguments have been heard at length.

6. Shri Arun Jetley, senior counsel for the petitioner has pressed the following issues—

(i) Was Shri N.B Bhandari, a public servant during the check period;

(ii) Whether the learned Special Judge was justified in rejecting to consider the documents filed by the petitioner on 29-6-95 in his defence at the time of framing of charge.

(iii) Whether there was sufficient evidence to come to the conclusion that there was a prima facie case against the petitioner.

We shall take up these points one by one—

As regards point No. 1—

(i) Was Shri N.B Bhandari, a public servant during the check period;

7. Learned Special Judge relying on Emperor v. Sibnath Banerji, AIR 1995 PC 156 (sic); Shiv Bahadur Singh v. State of U.P, AIR 1953 SC 394 : (1953 Cri LJ 1480) and R.S Nayak v. A.R Antulay, (1984) 2 SCC 183 : AIR 1984 SC 684 : (1984 Cri LJ 613), has found that the petitioner was a public servant within the meaning of Section 21 of the Indian Penal Code. This finding of the learned Special Judge has been challenged on the ground that in 1945 Privy Council's case (sic), the question was, whether the Home Minister is an officer subordinate to the Governor. The Privy Council in view of Sections 49, 51 and 59 of the Government of India Act, 1935 came to the conclusion that a Home Minister would be an officer subordinate to the Governor. Such Ministers did not have the constitutional sanction and status which Ministers have after coming into of the Constitution on 26-1-1950. In Shiv Bahadur Singh's case (1953 Cri LJ 1480) (supra) also, the Hon'ble Supreme Court was dealing with a case of offence committed in RIWA in 1948 within the erstwhile United State of Vindhya Pradesh and following the dictum of the Privy Council, it held that the Ministers were public servants under the Government of India Act, 1935. However, the question in the present case is, whether after coming into force of the Constitution, a Minister, unlike a Minister under the Government of India Act, 1935 is an officer in the pay of the State. Article 163 provides that there shall be a council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his function, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion. Article 164 provides that the Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister, and the Minis-ters shall hold office during the pleasure of the Governor. The council of Ministers is responsible to the Legislative Assembly. The Ministers or the Chief Minister is answerable not to the Governor but to the Legislative Assembly. The scheme of the Government of India Act, 1935 was entirely different. A Governor therein had power to look after public order and tranquillity. A Governor could exercise general matters independently. A Minister was appointed and removed by the Governor. The Governor presided over Cabinet meeting. The advice of the council of Ministers was not binding on the Governor. The scheme under the Constitution of India is entirely different. He has further submitted that in Antulay's case (1984 Cri LJ 613), the question was whether an MLA is a public servant or not. The observations in that case that the 1964 amendment made no difference and the position in law remained unaltered was only in relation to an MLA which the learned Special Judge had used erroneously in the context of a Minister. If a Minister was covered under Section 9, the amendment and interpretation of Clause 12 was wholly unnecessary, the legislature consciously used the word “person” in Clause 12 in contradistinction to the word “officers” in Clause 9. Obviously, the legislature intended that the persons not covered within the term “officer” in Clause 9 were to be brought within the ambit of the Act by introducing Clause 12. In this connection, he placed reliance on D.R Jerry v. Union of India, (1974) 3 SCC 554 : AIR 1974 SC 130 and Umed v. Raj Singh, (1975) 1 SCC 76 : AIR 1975 SC 43. He further submitted that a penal provision has to be given a strict interpretation. Persons not included within the definition in Clause 9 could not be so included by liberally construing a penal provision. He placed reliance on Tolaram v. State of Bombay AIR 1954 SC 496 : (1954 Cri LJ 1333). He also submitted that Karunanidhi's case is distinguishable on facts.” In that case, the Court was interpreting the amended Clause 12 where every person in service or pay of the State is a public servant. He has further submitted that this authority does not cover the facts of the present case.

8. In the present case we are concerned with the unamended Clause 9 where the word used is “every officer”. A Chief Minister may come within the definition of a person in the pay of the State as enjoined in Clause 12 but not within the meaning of Clause 9 “officer in the pay of the State”.

9. Learned counsel for the respondents has supported the judgment of the learned Special Judge and reiterated that the authorities Emperor v. Sibnath Banerji, AIR 1945 PC 156; Shiv Bahadur Singh v. State of V.P, AIR 1953 SC 394 : (1953 Cri LJ 1480), D.R Jerry v. Union of India, (1974) 3 SCC 554 : AIR 1974 SC 130 and R.S Nayak v. A.R Antulay 1984 SC 684 : (1984 Cri LJ 613) squarely decide the issue. He has further placed reliance on Karunanidhi's case which was also cited before the learned Special Judge but has not been mentioned in the judgment.

10. The I.P.C was extended to Sikkim vide a Notification issued by the Chogval of Sikkim on 10th July 1953 as it existed on that date and the same position continued to remain till 13-9-94 when the I.P.C was extended and brought into force in Sikkim. After Sikkim merged with India on 26-4-75, Article 371 (f) of the Constitution provided that all laws in force in the State of Sikkim before 26-4-75 shall continue to be in force until amended and repealed by a competent legislature or other competent, authority. Thus at the relevant time, between 1979 to 1984, the definition of the words “public servant” as applicable in Sikkim was the definition as on 26-4-75.

11. The Prevention of Corruption Act, 1947, Section 2 substantially incorporates the definition of the words “public servant” of Section 21 of the IPC. Section 21 of the IPC as extended on 10-7-53 in Sikkim had only 11 Clause and the relevant clause therein for the purpose of this clause is as under:—

“21. Public Servant. The words “public servant” denote a person failing under any of the descriptions, hereinafter following, namely:—

………………………………………………………………………………………………….

Ninth. Every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of (the Government), or to make any survey, assessment or contract on behalf of the Government, or to execute any revenue process, or to investigate, or to make, authenticate or keep any document relating to the pecuniary interests of (the Government), or to prevent the infraction of any law of the protection of the pecuniary interests of the Government. Every officer in the service or pay of the Crown or remunerated by fees on commission for the performance of public duty.”

Clause 12 of Section 21 added by amendment of 1964 was not applicable to the State of Sikkim till 13-9-94. Shiv Bahadur Singh's case (1953 Cri LJ 1480) (supra) shows that every officer in the service or pay of the Government is a public servant. In 1962, the Santhanam Committee was constituted by the Parliament which recommended changes in the definition of ‘public servants’ in Section 21. These amendments were brought into force with effect from 18-12-64 when Clause 12 which reads as under was added to Section 21.

“Twelfth. Every person—

(a) in the service or pay of the Government or remunerated by fees or commission for the perfor mance of any public duty by the Government;

(b) ……………………………………”

But this amendment was applicable to Sikkim only w.e.f 13-9-94. In Emperor v. Sibnath Banerji's case (AIR 1945 PC 156) (supra) it was held that a Minister under the Government of India Act is an officer subordinate to the Governor. This authority was relied on by the Supreme Court in Shiv Bahadur Singh's case (1953 Cri LJ 1480) and it was held that a Minister of Vindhya Pradesh was an officer of the State of Vindhya Pradesh and, as such, a public servant as defined in Section 21, I.P.C When that case was decided, the Constitution of India had come into force, but still the Hon'ble Supreme Court did not try to distinguish the observations made in 1945 PC 156 on the ground that the position of a Minister was different after the Constitution had come into force from the position under the Government of India Act. The Hon'ble Supreme Court dealing with a similar question in M. Karunanidhi case v. Union of India, (1979) 3 SCC 431 : AIR 1979 SC 898 : (1979 Cri LJ 773), held that a Chief Minister or a Minister is in the pay of the Government and, is therefore, a public servant within the meaning of Section 21(12) of the Penal Code. They have referred and quoted the relevant provisions of the Government of India Act, as also of the Constitution of India in this connection. But they did not distinguish or comment upon the earlier two cases of Privy Council and Shiv Bahadur Singh's case (1953 Cri LJ 1480). On the other hand they placed reliance on both these authorities instead of distinguishing or showing that as those judgments were passed before the commencement of the Constitution, they were not relevant for deciding the controversy before them. The case of Karunanidhi was again relied on by the Supreme Court in A.R Antulay's case (1984 Cri LJ 613). Learned Special Judge after a detailed discussion and considering the authorities and the arguments of the learned counsel for the defence has come to a firm conclusion that the petitioner is covered within the definition of public servant as was in force in the State of Sikkim during the check period. This question of public servant could have been raised before the Hon'ble Supreme Court when the matter was pending by way of Civil Writ Petition No. 31 of 1993. and the Hon'ble Supreme Court could have examined this legal aspect before ordering the CBI to file challan in the special Court but this was not done by the petitioner.

12. I see no reason to interfere with this finding especially in revisional jurisdiction.

Issue No. 2

“(ii) Whether the learned Special Judge was justified in rejecting to consider the documents filed by the petitioner on 29-6-95 in his defence, at the time of framing of charge.”

13. Petitioner had filed an application under Sections 239 and 294 of the Cr. P.C 1947 before the learned Special Judge on 29-6-95 on which date arguments on consideration of charge were heard in part. There is no mention of filing of this application in the order sheet but on the application itself, there is an endorsement by the Special Judge “Filed today. This may be considered at the time of hearing on charge”. Along with this application the petitioner had filed a report of the C.B.I, in another case registered by it against the petitioner and Shri L.P Tewari, Secretary Principal Chief Engineer, Department of Power with a prayer that the same should be taken into consideration at the time of framing of charge, as it was a relevant document and its authenticity could not be questioned. In that case the allegation was that the petitioner while functioning as Chief Minister entered into a Criminal conspiracy with the officials of the Power Department, Government of Sikkim and in pursuance of the said criminal conspiracy, he abused his official position and influenced the said officials of the power department to hire a portion of his multi storeyed building at Church Road at Gangtok at an exhorbitant rate of Rs. 9000/- per month. In the above report, C.B.I, had come to the conclusion that the building belonged to Mrs. D.K Bhandari, wife of the petitioner and there is no case against Mr. Bhandari. However certain lapses on the part of Shri L.P Tewari were established. The prosecution had not filed any reply to the. said application but had objected orally before the learned Special Judge who after taking into consideration the legal submissions made before him, has found that the accused had no right to produce any defence evidence until the prosecution closes its evidence. The Court has to consider only the documents referred to under Section 173 of the Cr. P.C He has further come to the conclusion that even if the said document was to be looked into it did not affect the finding of a prima facie case as it is not of a conclusive nature and also because the materials on record cannot be valued at this stage. Now this finding of the learned Special Judge has been challenged by the learned counsel for the petitioner. He has placed reliance on Thirthraj Upendra Joshi v. State of Karnataka, 1983 Cri LJ 318 (Kant) : 1977 Cri LJ NOC 239; Vinod Kumar & Ors.… v. State Of Haryana…. 1987 Cri LJ 1335; R.S Nayak v. A.R Antulay, (1986) 2 SCC 716 : (1986 Cri LJ 1922) Ananda Bezbaruah v. Union of India, 1994 Cri LJ 12 : (1986 Cri LJ 1922) (Gau) and Janaki Ballav Patnaik v. State of Orissa, 1995 Cr LJ 1110 and has submitted that the Court should consider the documents produced by the defence if they are relevant and have unimpeached authenticity, before framing the charge, because framing of charge affects the liberty of the petitioner as has been held in Shetiyamma Pujari Dhotre… v. State Of Maharashtra…., 1988 Cri LJ 1471 (Bom). He has also referred to State of West Bengal v. Swapan Kumar Guha, (1982) 1 SCC 561 : (1982 Cri LJ 819) and Hindustan Sugar Mills Ltd. v. State of U.P (1994) 4 SCC 149. The Supreme Court has held in Vinod Kumar's case (1987 Cri LJ 1335) (supra).—

“3. ………………………

Thus I am of the considered view that that the Learned Magistrate in suggesting to postpone admission of these documents at this stage on the ground that the complainant was not before him, tendered to thwart the rights of the accused to have his documents admitted at that stage so as to be considered while considering the question of charge. Thus, in the interest of justice, it becomes essential to quash his impugned order and regulate the trial by suitable directions.”

He further submitted that a High Court even in exercise of powers under Section 482 can look into documents whose veracity cannot be questioned provided they are relevant.

14. On the other hand, learned counsel for the prosecution has submitted that no affidavit has been filed support of the application dated 29-6-95. Moreover he had received the copy of the application only on 21-7-95 when he was replying to the arguments of the defence counsel. So no reply to the said application was filed before the Special Judge. The application does not show whether this report had been actually filed in the Court, whether the matter was pending or what orders were passed by the Court in that case. Even if such a report was filed before that Court, it was for that Court to accept such a final report or close the case and ask the prosecution for further investigation in the matter. He has placed reliance on Supdt. & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja, (1979) 4 SCC 274 : (1979 Cri LJ 1390) as also the observations of the Supreme Court in Antulay's case (supra) and the lastest decision in State of J & K v. Sudershan Chakkar, 1995 SCC (Cri) 664 : ((1995) 4 SCC 181 : AIR 1995 SC 1954).

15. The learned Special Judge after considering various judgments relied on by the learned counsel for the parties has come to the finding that the accused cannot lead any defence evidence until the Prosecution closes its evidence. He has further opined that if the said document was to be looked into, it does not affect the consideration of the prima facie case as it is not of a conclusive nature and also because the materials on record cannot be evaluated critically at this stage.

16. I have gone through the reasons given by the learned Special Judge and I do not find any error in the same. The Hon'ble Supreme Court in Anil Kumar Bhunja's case (1979 Cri LJ 1390) has very clearly observed that the Magistrate has to consider the question of sufficiency on ground for proceeding against the accused on a general consideration of the materials placed before him by the investigating police officer. Later on Supreme Court has taken a step further and observed that for “framing of charges the Court has to confine to the document referred to under Section 173 of the Cr. P.C only.” The word “only” used by their Lordships is very significant and does not leave any room for doubt that the Court should only look into those documents filed by the prosecution under Section 173 of the Cr. P.C Learned counsel for the petitioner has very vehemently submitted that the observations in Antulay's case mean that the documents filed by the defence have also to be looked into. The relevant portion of the observations in that judgment is reproduced hereunder:—

“43…… It is a fact that Sections 227 and 239 provide for discharge being ordered before the recording of evidence and the consideration, as to whether charge has to be framed or not is required to be made on the basis of the record of the case, including documents and oral hearing of the accused and the prosecution or the police report, the documents sent along with it and examination of the accused and after affording an opportunity to the two parties to be heard.”

……………………………………………….

His argument was that the words “including documents and oral hearing” appearing in the above passage signifies the documents submitted by the accused and oral hearing of the accused. But in my opinion this interpretation is not correct because after the phrase, “on the basis of records of the case,” there is a ‘comma’, which is followed by “including documents” and it is followed by “and oral hearing of the accused” which means that the Court should look into the records of the case including the documents filed by the prosecution and oral hearing of the accused. The words i.e documents sent by the prosecution or police report under Section 173, Cr. P.C which appear after the phrase “oral hearing of the accused” were only to emphasise what was” said-in the earlier part of the order. Bare reading of Sections 227, 228 and 239 makes it very clear that the intention of the legislature was that at the times of framing of charges, the Court should take into consideration only the police report and the documents sent with it under Section 173. Moreover the report of the police officer is not per se legal evidence of the facts stated therein as has been held in 16 Cr LJ 445 (sic).

17. And in this view of the matter, I see no reason to interfere with this finding also.

Issue No. 3.

“(iii) Whether there was sufficient evidence to come to the conclusion that there was a prima facie case against the petitioner.”

18. Coming to the above point, learned counsel for the defence has very vehemently argued that the prosecution has failed to prove a prima facie case against the petitioner. He has submitted that the prosecution has clubbed the properties, assets of the wife of the petitioner along with the properties of the petitioner as per the list of properties mentioned in the charge sheet. The prosecution has not taken into consideration and has considerably ignored the in dependent, economic, commercial, political and social status of Smt. Bhandari and also the political activities of the petitioner as he was also the President of the Sikkim Sangram Parishad. He has submitted that it is a case of no evidence and the findings of the learned Special Judge is perverse and no two views were possible with regard to the existence of materials on record except that there was no prima facie case against the petitioner. He placed reliance on (1972) 3 SCC 282 : AIR 1972 SC 545 and 1985 Cri LJ 1943 (Bom). He has further submitted that the prosecution has failed to prove much less even to allege that the properties and assets of Smt. D.K Bhandari were only benami and in fact they belonged to the petitioner. Therefore, the properties and assets belonging to Smt. D.K Bhandari should not have been added to that of the petitioner and in this connection, has placed reliance on (1977) 1 SCC 816 : AIR 1977 SC 796 : (1977 Cri LJ 566) which has been followed in (1992) 4 SCC 39 and (1992) 4 SCC 45 : (1993 Cri LJ 308). Statements of several witnesses relied on by the trial Court were also read by him to show that they do not support the prosecution case but only support the statement that the properties and assets belonged to Mrs. Bhandari. He has further submitted that the Court should not blindly accept the case of the prosecution as stated in the charged sheet. The Court should shift the evidence to see whether the prosecution is able to prove a prima facie case and if the charges appear to be mala fide and the chances of conviction are bleak and there is also lack of material, no charges should be framed and placed reliance on (1972) 3 SCC 282 : AIR 1972 SC 545 : (1977) 2 SCC 699 : AIR 1977 SC 1489 : (1977 Cri LJ 1125) : 1988 SC 789 (sic) and (1990) 4 SCC 76 : AIR 1990 SC 1962 : (1990 Cri LJ 1869). On the other hand, learned counsel for the prosecution has very vehemently submitted that the petitioner in fact has not even challenged the finding of the Special Judge in this revision petition. He has further submitted that the scope of revision is very limited and this Court should not interfere when the order passed by the Special Judge is a reasoned and a detailed one and he placed reliance on 1981 Supp SCC 80 : AIR 1981 SC 1548 : (1981 Cri LJ 1135) and 1959 Cri LJ 256 : (AIR 1959 SC 144). He further submitted that as per Section 5(1) (e) of the Prevention of Corruption Act, the prosecution has only to prove the possession of properties and assets and it is not necessary for the prosecution to prove that these properties were owned by the accused at the relevant time.

19. The question whether the properties were benami or not is not an abstract question of law but is a matter of evidence and cannot be considered at this stage.

20. One cannot lose sight of the fact that the Prevention of Corruption Act, 1947 has been repealed and a new Act, Prevention of Corruption Act, 1988 has been replaced. Section 30 of the 1988 Act provides about the Repeal and Saving of the Old Act of 1947 and also 30 (2) which reads as under:—

“30. Repeal and Saving (1)………………

(2) Notwithstanding such repeal, but without prejudice to the application of Section 6 of the General Clauses Act, 1897 (10 of 1897), anything done or any action taken or purported to have been done or taken under or in pursuance of the Acts so repealed shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under or in pursuance of the corresponding provisions of this Act.”

Sub-clause (3) of Section 19 of the Act provides—

“19. PREVIOUS SANCTION NECESSARY FOR PROSECUTION.—

(1) No Court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction—

………………………………

(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),—

(a)………………………

(b) no Court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;

(c) no Court shall stay the proceedings under this Act on any other ground and no Court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.”

The whole purpose of providing this sub-section is that the cases under Prevention of Corruption Act should be disposed of at the earliest. So under the present Act, no revision lies against an interlocutory order. It has been held in Satyanarayan Mohapatra v. State of Orissa, 1992 Cri LJ 2904 (Ori), relying on V.C Shukla v. State, 1980 Supp SCC 92 : AIR 1980 SC 962 : (1980 Cri LJ 690) and Mahdu Limaye v. State of Maharashtra, (1977) 4 SCC 551 : AIR 1978 SC 47 : (1978 Cri LJ 165), that the order framing charges is an interlocutory order and no revision lies against such an order. And, therefore, inherent powers also cannot be resorted to quash it.

21. Reference may also be made to V.C Shukla v. State, 1980 Supp SCC 92 : AIR 1980 SC 962 : (1980 Cri LJ 690), where their Lordships have firmly held that the order of framing of charge is interlocutory and, therefore, no appeal lies against the same under Section 11 of the Special Courts Act. In Krishnanand v. State of M.P, their Lordships observed:

“Sub-section (3) of Section 5 consist of two parts. The first part sets out facts which if provided give rise to a rebuttable presumption. It requires, in order to the raising of this presumption, that the accused must be shown to be in possession of pecuniary resources or property disproportionate to his known sources of income and he should be unable to satisfactorily account for such pecuniary resources or property. If these facts are shown to exist a presumption would be raised by the Court trying the offence that the accused was guilty of criminal misconduct in the discharge of his official duty. This presumption would of course be a rebuttable presumption and it would be open to the accused to establish that despite the disproportion of his pecuniary resources or property to his known sources of income, he is not guilty of criminal misconduct in the discharge of his official duty. The burden of displacing the presumption would be on the accused and if he fails to discharge the burden, he would be liable to be convicted for the offence under subsection (2) of Section 5.”

In State Of Bihar v. Ramesh Singh, (1977) 4 SCC 39 : AIR 1977 SC 2018, their Lordships held—

“Reading Ss. 227 and 228 together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction.”

“Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused.”

22. It may be pertinent to note that Hon'ble Supreme Court while disposing of Writ Petition No. 313 of 1993 filed by Kazi Lhendup Dorji in 1994 Supp (2) SCC 116, observed as under:—

“15………Having regard to the seriousness of the allegations of corruption that have been made against a person holding the high public office of Chief Minister in the State which have cast a cloud on his integrity, it is of utmost importance that the truth of these allegations is judicially determined. Such a course would subserve public interest and public morality because the Chief Minister of a State should not function under a cloud. It would also be in the interest of respondent No. 4 to have his honour vindicated by establishing that the allegations are not true.”

In the face of these observations, I think it will be in the interest of all that no interference is made in the revision petition and the petitioner is allowed to vindicate his honour by establishing that the allegations are not true after having them judicially determined.

23. The learned Special Judge has discussed all the materials at great length and has also considered the legal submissions which were identical to the one made before this Court and has come to the conclusion that there is a prima facie case for framing of charge. In my revisional jurisdiction, I would not like to interfere.

24. Hence, this revision petition has no force and is dismissed with no order as to costs.

25. Petition dismissed.