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Judgment
Heard Mr. Bendangwabang, learned counsel for the Revisionist/Special Counsel, CBI and Mr. D.K. Pandey, learned counsel alongwith Mr. M. Solo, learned Special Counsel for the Respondent.
By this common Judgment & Order, CRL.REVN./1/2025 and CRL.REVN./2/2025 are disposed of as both of them arise out of the same FIR, i.e., RC-3(A)/2018-IMPH dated 18.12.2018.
The instant criminal revision petitions are filed under Section 482 read with Section 397/401 of the Code of Criminal Procedure, 1973 corresponding to Section 528 read with Section 438/442 of the Bharatiya Nagarik Suraksha Sanhita, 2023 challenging the Order dated 18.11.2024 passed by the learned Special Judge, CBI, Dimapur in connection with R.C.3(A)/2018-IMPH dated 18.12.2018 for the offence punishable under Section 120-B r/w Section 7, 12, 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act.
BRIEF FACTS
On 24.02.2018, a report was submitted by one Rajiv Gautam, Brigadier, Brig. A for GOC to the Central Bureau of Investigation (CBI), ACB, Imphal Branch, containing a report regarding receipt of illegal gratification to the tune of approximately Rs. 82,00,000/- (Rupees Eighty Two Lakhs) by officials of Army Service Corps (ASC) in the procurement of fresh and dry rations for the troops deployed in Nagaland. As per the information about illegal gratifications to the tune of Rs. 82,00,000/-(Rupees Eighty Two Lakhs) was implicated to IC-56153W, then Lt. Col. Amit Sharma (Respondent)and IC-60651A Lt. Col. Sutikshana Rana, who were the successive Officers commanding the 50 Coy. Army Service Corps (Supply) Type C during the period July 2012 to September 2016 in cash, kind and through bank transactions.
Based on the information received, investigation was conducted, and FIR number RC-3(A)/2018-IMP/2018 dated 08.12.2018 was registered for the offense punishable under Sections 7, 12, 13(2) r/w Section 13(1) (d) of the Prevention of Corruption Act, 1988 r/w Section 120B and 420 IPC. During investigation, the following persons were arrayed as accused:
A-1: Lt. Col. Amit Kumar Sharma (Respondent);
A-2: Shri Kapil Kumar Sharma, S/o Makhan Lal Sharma (Late), resident of H/No. C-59, Jivan Park, New Delhi; and
A-3: Jai Prakash Singh, S/o Shiv Pujan Singh, resident of H/No. 467, DC Court Junction, Diphu Road, Dimapur.
The investigation culminated in the filing of the Chargesheet against the Accused/A-1 (Lt. Col. Amit Kumar Sharma) and his brother Shri Kapil Kumar Sharma/A2 in a criminal conspiracy with each other and Shri Jai Prakash Singh/A3, who had obtained illegal gratification of Rs. 10,00,000/- (Rupees Ten Lakhs) from Accused/Abettor, Shri Jai Prakash Singh/A-3. A prima facie case for the offence punishable under Section 120-B/420 IPC r/w Sections 7 and 12 of the PC Act, 1988 and Section 13(2) r/w Section 13(1)(d) of the PC Act, 1988 was laid against the aforesaid 3 (three) accused persons.
Prosecution Sanction order dated 05.11.2020 for the prosecution of Lt. Col. Amit Kumar Sharma (Respondent)/A-1 issued by the competent Authority under Section 19(1)(a) of the Prevention of Corruption Act, 1988 was also enclosed to the Chargesheet. The Chargesheet was submitted to the Special Judge, CBI, Nagaland, Dimapur on 02.02.2021. The matter was then taken up by the said court for consideration of the application for discharge filed by the Respondent in both the cases on 18.11.2024. The learned Special Court, CBI, vide its Order dated 18.11.2024, was of the opinion that there was no sufficient material to proceed against the instant accused persons and discharged the instant Respondent/Accuseds (A-1 & A-2) from the liability of the offence punishable under Section 120-B r/w Sections 7, 12, and 13(2) IPC read with Section 13(1)(d) of the Prevention of Corruption Act.
Being aggrieved by the said order, the instant petitions under Section 528 read with 438/442 BNSS have been filed.
Mr. Bendangwabang, learned Special Counsel for CBI submitted at the outset that the learned Special Court at Dimapur had failed to correctly appreciate the contents of the Chargesheet as well as the documents filed in the final report. According to the learned counsel, the learned Special Judge had entirely confined itself and relied on the dismissal of the private complaint filed by the accused No. 3 against the present Accused (A-1) before the Court of the Judicial Magistrate, First Class as a ground to discharge the Accused, however, the same never form part and parcel of the final report filed in the instant case. But the learned Trial Court had placed heavy reliance on the Order dated 08.09.2017 which was passed therein.
The learned council submitted that the learned Special Judge had also failed to appreciate the true Power of Attorney executed by the Proprietors of M/S H.Y. Sales Enterprise and M/S Narola Lipok in favor of A-3 (i.e., Jai Prakash Singh) and registering the said legal document, based upon which A-3 continued to work as Contractor.
The learned council submitted that the learned Special Judge had failed to appreciate the evidence regarding illegal transaction, transfer, and withdrawal of Rs. 10,00,000/- (Rupees Ten Lakhs) from the account of Shri Gajender Sharma (PW-4) maintained in Vijaya Bank, DB Gupta Road, Paharganj, Delhi from the account of M/S H.Y. Sales Enterprise maintained at SBI Dimapur Branch. The firm on whose behalf A-3 (Jai Prakash Singh) had been supplying rations under a purported Power of Attorney dated 11.08.2014 on the direction of A-3 through Shri Hezheto Yeptho (PW-9) who in turn acted on the instruction of the Accused/A-1 (Amit Kumar Sharma). The learned counsel further pointed out the statement of PW-4 recorded under Section 164 Cr.PC, which clearly highlights the transaction, transfer, and withdrawal.
It is the case of the Revisionist that the learned Special Judge had failed to exercise judicial prudence based on prima facie case which is sufficient enough to frame a charge, and that the learned Special Judge had erroneously conducted microscopic examination of the material which does not form part and parcel of the case and which ultimately led to the passing of the impugned order dated 18.11.2024. In support of his submissions, the learned counsel has placed reliance in the following judgments:
Niranjan Singh Karam Singh Punjabi, Etc. v. Jitendra Bhimraj Bijayaand Others reported in (1990) 4 SCC 76, wherein it was held that after considering the provisions of Sections 227 and 228 Cr.PC, a question was raised whether at the stage of framing of charge, Trial Court should marshal the materials on record as he would do at the conclusion of the trial, to which the Court held that at the stage of framing of charge, inquiry must necessarily be limited to deciding on the facts emerging from materials which constitute the offense with which the accused could be charged, and the Court must peruse the report for that limited purpose and not marshal it with a view to decide the reliability thereof.
State of Rajasthan vs. Ashok Kumar Kashyap reported in 2021 SCC Online SC 314, wherein it was held that at the stage of framing of charge and/or considering the discharge application, a mini-trial is not possible.
State of Bihar vs. Ramesh Singh reported in(1977) 4 SCC 30, wherein it was held that strong suspicion is sufficient for framing of charge and mere absence of proof beyond reasonable doubt is not a ground for discharge.
Sajjan Kumar vs. CBI reported in (2010) 9 SCC 368, wherein it was held that sifting of materials does not amount to conducting mini-trial, however appreciating the report, the Judge is only to consider broad probabilities, and that absence of direct evidence does not always warrant discharge.
Amit Kapoor vs. Ramesh Chandra reported in (2012) 9 SCC 460, wherein it was held that the scope of indifference under Section 227 must be very limited, and that court must refrain from examining whether the evidence will result in conviction, and even if two views are possible, the one which favored the prosecution must be adopted at the time of framing of charge.
Inspector of Police, CBI, ACB Visakhapatnam vs. Elluri Srinivas Chakravarthy reported in 2025 INSC 75, it was also urged by the learned counsel that the use of the legal phrase sine qua non by the learned Special Judge while passing the impugned Order dated 18.11.2024 in respect of A-3 was materially wrong.
The learned counsel further rebutted the submission of the learned counsel for the Respondent by further submitting that the transaction of Rs. 10,00,000/- (Rupees Ten Lakhs) dated 11.8.2014 was done at the behest of A-1 (Respondent) during his tenure as CO, 50 Coy. ASC (Supply) Type ‘C’, which is a clear proof of illegal transaction. The manner in which the Prosecution Sanction was obtained by the CBI is not the issue to be looked into by the learned Trial Court at the stage of consideration of charge, and he also rebutted the argument and assertion by the Respondent that the FIR was filed post-dated after the Accused No. 1 left station on transfer cannot be considered as the same is totally misconstrued, and that in any criminal case, whenever an offense comes to light, the filing of FIR is just and proper.
In view thereof, the learned counsel has prayed to set aside the Order dated 18.11.2024 passed by the learned Special Court CBI, wherein the Accused/Respondent Nos. 1 and 3were discharged, and thereafter pass consequential orders regarding the proceedings based on the aforesaid Chargesheet.
On the other hand, Mr. D.K. Pandey learned counsel for the Respondent/Accused Nos. 1 and 2 submitted that the jurisdiction invoked by the Revisionist is under Sections 438/442/528 BNSS and that revisionally jurisdiction is narrow and different when only light in case of competent irregularity purported miscarriage of justice and palpable error, non-compliance with law and a completely erroneous decision or irreparable exercise of discretion. Learned counsel narrated the facts and also the chronology of offence. He further submitted that the Court at the stage of consideration of charge has the liberty to sift and weight materials only to see where prima facie case if grave suspicion exists. According to the learned counsel, where two views are possible and evidence raised only on suspicion the Accused is entitled to be discharged and the learned Special Judge has correctly applied the test which can be found in the decision of the Apex Court in the case of:-
Union of India vs. Prafulla Kumar Samal reported in (1979) 3 SCC 4,
Dilawar Balu Kurane vs. State of Maharashtra reported in (2002) 2 SCC 135, and
Sajjan Kumar vs. CBI reported in (2010) 9 SCC 368.
It is next argued by the learned counsel that in the absence of any demand, there can be no illegal gratification and as such no offense. According to the learned counsel, the final report with all the Annexures does not contain any proof, any material to prove the demand and acceptance of illegal gratification which is a sine quanon for the offense under Sections 7 and 13(1)(d) of the Prevention of Corruption Act, and in this regard he has placed reliance in the case of K. Shanthamma vs. State of Telangana reported in(2022) 4 SCC 574.
The learned counsel also submitted that no witness had ever spoken of any demand or illegal gratification by or payment made to the respondent. It is further submitted by the learned counsel that PW-9, PW-11, and PW-12 are hearsay witnesses and they spoke of loan and not demand, PW-4 (Gajendra Sharma) never met the Respondent (A-1) for any transaction nor did he make any statement to the effect that the instant Respondent/A-1had demanded and accepted anything from him. His statement under Section 164 Cr.PC is not a substantive evidence and it does not link the Respondents to the offence. In fact, the money went to third party's account and there is no recovery from the Respondent and there is no proof of receipt by the Respondent.
It is next argued that the Chargesheet does not establish any nexus to the official act of the Respondent/A-1. The Chargesheet shows no preferential treatment to any Contractor, no substandard supply, and no loss.
According to the learned counsel, while justifying the loan, he submitted that Defense Service Regulations (DSR) are only directives and guiding principles for army personnel and they are not statutory provisions, and for this reason, no punishment was imposed to the respondent by the army.
It is next argued that the Chargesheet does not contain any averment to constitute the offence of conspiracy and cheating, there is no element of meeting of minds, deception, inducement, or wrongful loss. It is the case of the respondent that the CBI, the instant case is based on the same cause of action of Rs. 10,00,000/- (Rupees Ten Lakhs) transaction, which is relabeled as 'loan' after the Complainant failed before the Criminal Court and before the Army Authorities, and there is no fresh incriminating material to continue prosecution against the same Accused in respect of the same money by giving another color.
The learned counsel therefore submitted that there is no irregularity or perversity in the order passed by the learned Special Court and the content of the final report is clearly lacking to proceed against the instant accused, and therefore prays to affirm the order of the learned Special Court.
ANALYSIS AND DECISION WITH REASONS
The first paragraph of the Order states that the application for discharge was filed on 08.11.022, however, the same was lying pending till the date of the said Discharge Order i.e., 18.11.2024. In this regard it may be noted that the criminal law amendment came into effect from 01.07.2024.
Section 51 of the Prevention of Corruption Act, 1988 provides that the Special Judge shall follow the procedure prescribed in the Cr.PC, 1973 for the trial of warrant cases by the Magistrate. Section 5(3) further provides that the Court of the Special Judge shall be deemed to a Court of Session and a person conducting the prosecution before Special Judge shall be deemed to be a Public Prosecutor. Under Section 531(2)(a) BNSS, 2023 states that “if immediately before the date on which the Sanhita comes into force, there is any appeal, application, trial, inquiry or investigation pending, then, such appeal, application, trial, inquiry all investigation shall be disposed of, continued, held or made, as the case may be, in accordance with the provisions of the court of CPC, 1973 (2) of 1974, as in force immediately before such commencement (herein after referred to as the said Code), as if this Sanhita had not come into force”.
In the case at hand, the application was admittedly filed in 08.11.2022 but remained pending till the disposal of the same on 18.07.2024. Therefore, in view of the provision of Section 531(2)(a) BNSS, the learned Special Judge was required to decide the application under Section 239 Cr.PC read with Section 5(1) of the Prevention of Corruption Act, 1988 (PC Act) inasmuch as the provision of Section 5(1) PC Act provides that the procedure to be followed by the Special Judge is the procedure for the trial of warrant cases by Magistrate as provided under the Cr.PC. Therefore, the determination would have to be in line with the provision of Section 239 Cr.PC.
“Section 239. When accused shall be discharged.
—If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing”.
Accordingly, in view of Section 239 Cr.PC, the Court is required to consider the police report along with all the documents which are sent under Section 173 Cr.PC in the final report; the examination of the accused if considered necessary and submission of the prosecution and the accused and thereafter, if the charge reflected in the final Form/ Chargesheet is considered to be groundless, the Court may discharge the accused and record reasons.
The instant petitions are filed under Section 482 r/w Sections 397/401 Cr.PC, 1973 corresponding to Section 528 BNSS r/w Sections 438/442 BNSS wherein this Court has to examine the correctness, legality or propriety of the finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of an inferior Court. Accordingly, the Order dated 18.11.2024 will be examined within the scope of the provision contained under Sections 438/442 BNSS read with Section 528, BNSS.
From a perusal of the Order dated 18.11.2024, it is seen that the learned Trial Court after recording the submissions of the learned counsel had taken into consideration the Criminal Complaint Case No. 7/2016 filed by Jai Prakash Singh (A-3) which was disposed of vide Order dated 08.09.2017 discharging the Accused person. The learned Trial Court had also principally concentrated on the fact that the money transferred to A-2 wherein the transfer was described by A-3 as friendly loan. It has also observed that the complainant in the instant case namely Brigadier Sanjeev Gautam has referred the same case to the CBI which was already before the Court of the learned JMFC as indicated as before. The allegation against the present Accused (Lt. Col. Amit Kumar Sharma) was for obtaining illegal gratification in cash and in kind to the tune of Rs. 58,62,198/- (Rupees Fifty Eight Lakhs Sixty Two Thousand One Hundred Ninety Eight) wherein the CBI upon completion of investigation submitted the Chargesheet wherein evidence could be collected only to the tune of Rs. 10,00,000/- (Rupees Ten Lakhs) as illegal gratification. The next discussion was on the fact that a sum of Rs. 10,00,000/- (Rupees Ten Lakhs) was transferred from the account M/S H.Y. Sales Enterprise through Shri Hezheto Yeptho to the A-2 (Kapil Kumar Sharma)wherein it was stated that A-3 (Jai Prakash Singh), Sub-Contractor of M/S H.Y. Sales Enterprise were involved in the supply work with 50 coy. ASC (Supply) Type “C” at the relevant time. Thereafter, without further discussion into the charges, the learned Trial Court had drawn its conclusion as “Thus, from perusal of the material placed on record, I do not find sufficient material showing prima facie, that the Accused No. 3 has paid money to the present accused as an illegal gratification and on the other hand the material placed on record by the applicant pertaining to the Criminal Complaint shows otherwise, prima facie discrediting the prosecution story”. The learned Special Judge thereafter indicated that the Power of Attorney purportedly executed between A-3, Jai Prakash Singh with M/S H.Y. Sales Enterprises also indicate otherwise, of the A-3 having business dealings with 50 Coy. ASC (Supply) Type ‘C’ during the tenure of A-1, Amit Kumar Sharma. By relying on the decision of Prafulla Kumar Samal (Supra)and Dilawar Balu Kuranea (Supra)concluded that the material placed on record by the prosecution does raise any grave suspicion and on weighing the material evidence no sufficient material was found to proceed against instant Respondents/A-1 and A-2 and thus recorded an Order of Discharge.
It is an admitted position that charge sheet was submitted against the instant A-1(Lt. Col. Amit Kumar Sharma) and A-2 (Kapil Kumar Sharma) for the offence punishable under Section 120(B), 420 IPC read with Sections 7 & 12 of the PC Act, 1988 and Section 13(2) read with 13(1)(d) of the PC Act, 1988. It may be noted that the provision of Section 13(1)(d) existed prior to 2018 amendment w.e.f. 26.07.2018.
From a reading of the Provision of Section 239 Cr.PC, the court upon receipt of the Police report along with the document under Section 173 Cr.PC and examination of the accused has to determine and come to a conclusion as to whether the charge against the accused is groundless so as to discharge the accused. The provision clearly provided that the reason for doing so is to be mentioned. The expression ‘the charge against the accused’ has to be understood in the context of the charges leveled against the accused.
It is not necessary at this stage for the Court to examine all the ingredients of each of the offence separately. At the stage of considering discharge, the Court is not merely required to arrive at the conclusion that there is no sufficient material against the Accused. It must apply its judicious mind to the offences/charges laid against the Accused in the Chargesheet and determine whether the material disclosed sufficient grounds to proceed against the Accused in respect of those offences. By doing so, it does not mean that the Court is not expected to write a detailed judgment on each of the offence/charge laid out in the charge sheet. But the Order of the Court must demonstrate at least briefly that the essential ingredients of the offences contained in the Chargesheet and the materials relied by the prosecution in order to prove the charge have been appreciated.
In the case at hand, several offences are alleged against the Accuseds, however, upon perusal of the impugned Order, it appears that the learned Trial Court had appreciated on the one transaction without examining or indicating its opinion on the sufficiency or deficiency of the materials in respect of the ingredients of other offences for which Chargesheet was submitted. When several offences are alleged, the Court is expected to consider whether the materials disclosed from the Chargesheet are sufficient to proceed in respect of each of them. In the instant case, the learned Special Judge has principally concentrated on one question i.e Whether the Rs.10,00,000/- (Rupees Ten Lakhs) transferred by A-3 was a friendly loan or illegal gratification? Having accepted the possibility that it was a friendly loan, the learned Special Judge proceeded to discharge the Respondents from the entire case. However, the Order does not disclose a discernable finding as to whether the materials disclose a prima facie case of conspiracy under Section 120-B IPC; Whether the alleged acts of the Respondent could constitute obtaining an undue advantage under Section 7 of the PC Act; Whether there was any material indicating abetment under Section 12 of the PC Act; Whether the circumstances disclosed criminal misconduct under Section 13(1)(d) punishable under Section 13(2) of the PC Act; Whether the allegations and materials disclosed the ingredients of cheating under Section 420 IPC, if that offence formed part of the final Chargesheet. It is possible that the same evidence may be relevant to all the offences. Nevertheless, the Court must consider the legal ingredients of each offence before concluding that no charge can be framed for all the charges. If some offences are found groundless but sufficient grounds exist for proceedings with the others, the Court by issuing a blanket order of discharge cannot discharge the Accused from the entire case indiscriminately.
It is well settled that at the stage of consideration of discharge, the Court is required to examine whether the materials placed by the prosecution, taken at their face value, disclose the existence of the ingredients constituting the alleged offences. In State of Tamil Nadu vs. N. Suresh Rajan & Others, reported in(2014) 11 SCC 709, the hon'ble Supreme Court reiterated that the Court must ascertain whether there is sufficient ground for presuming that the Accused has committed the offence and not whether the materials are sufficient to warrant conviction.
18. CONCLUSION
From the above discussion and upon appreciation of the impugned Order as a whole, it appears that the same does not demonstrate that all the essential ingredients for which charge was laid in the Chargesheet was not examined by the learned Special Judge before passing blanket Order of Discharge for all the offences appearing in the Chargesheet. Therefore, there was irregularity affecting the correctness, legality and propriety of the finding recorded therein.
In view thereof, the impugned Order dated 18.11.2024 is set aside and quashed.
The matter is remitted back to the court of the learned Special Judge, CBI, Dimapur with a direction to consider the matter fresh.
Considering the fact that Chargesheet was filed in 22.12.2020 and the discharge application was filed as way back in the year 08.11.2022 (as reflected in the impugned Order), the learned Special Judge is expected to finish the entire exercise within 2 (two) months from the date of receipt of this Order alongwith the relevant case record.
Return the case record of the Learned Trial Court.
With the above observation the revision petition stands disposed of.