State vs Ajay Mahajan

Virender Singh, Judge

Aggrieved of the order dated 7th November, 2003 of the Learned Special Judge Anti Corruption, Jammu, whereby discharging respondent-

Ajay Mahajan (for short 'respondent') for the offence punishable u/s 165-A R.P.C. read with Section 5(3) of the Jammu and Kashmir Prevention

of Corruption Act, Svt. 2006 (for short 'P.C. Act'), Central Bureau of Investigation (for short 'CBI') has filed the instant revision.

Flash back of the facts in brief:

One Sandeep Pal Singh, a probationer Sub-Inspector died in Police Station on 10.01.1997 because of fire arm shot. After conducting the

Autopsy on his dead body, the doctors of Forensic Medicine Department of Jammu Medical College Hospital found that the cause of death was

fire arm injury over the front of neck from contact range.

It so happened that on 10.01.1997, one Surinder Singh R/o Pachim Puri, partner M/s Laxmi Oil Company, New Delhi, moved a written

complaint to the Senior Superintendent of Police, Jammu against aforesaid S.I. Sandeep Pal Singh and others, alleging therein that on 26.12.1996

he had sent supply of one Tanker bearing No. HYW/759 containing ten thousand (10000) liters of Aromax Oil in favour of M/s Shanti Charan

Sales Corporation, Nehru Market, Jammu through respondent. On 28.12.1996, he was informed by Sub-Inspector Sandeep Pal Singh on his

phone that the said Tanker was seized by him and the driver and the manager were also arrested and asked him (Surinder Singh) to contact him

(S.I. Sandeep Pal Singh) immediately at Jammu, upon which he contacted respondent on telephone and came to Jammu by Air. He reached the

house of respondent, where S.I. Sandeep Pal Singh, accompanied by three gunmen also reached at the fixed time. It was an arranged meeting.

Sandeep Pal Singh introduced him as Officer of Special Task Force and told Surinder Singh that he had seized his Tanker near Transport Nagar,

Jammu and threatened him that he was indulging in black marketing of Aromax Oil, upon which he gave explanation, that there was no question of

black marketing, it was all on bills. Despite that S.I. Sandeep Pal Singh threatened him to pay rupees five lac. (Rs. 5,00,000/- ) in case he wanted

release of his Tanker and the persons arrested. He also threatened that since he was working in Special Task Force, he could go to any extreme

step. It is then alleged that the respondent and some other unknown man became mediator and ultimately, he paid rupees one Lac (Rs. 1,00,000/-

) to S.I. Sandeep Pal Singh on 29.12.1996, as part payment out of the settled amount and then on 30.12.1996 his Tanker and his two persons

detained by S.I. Sandeep Pal Singh were released. However, on checking of the Tanker, he found that it was empty and ten thousand (10000)

liters of Aromax Oil was unloaded from it. In his complaint, he prayed for taking legal action against S.I. Sandeep Pal Singh and others and for

recovery of ten thousand (10000) liters of the said Oil. On these allegations, FIR No. 5/1997 came to be registered on 10.01.1997 in Police

Station, Bahu Fort, Jammu under Sections 382/342 RPC and Section 5(2) of the P.C. Act against aforesaid S.I. Sandeep Pal Singh and others.

S.I. Sandeep Pal Singh was interrogated by Sh. L. Mohanty, the then SSP, Jammu in connection with this case. He, however, died an unnatural

death in the Police Station itself on the same day. The State government considering the sensitive nature of the case entrusted its investigation to

CBI in April 1997 by Govt. Order No. Home-126 (ISA) of 1997 dated 04.04.1997.

Since the family members of the deceased were not satisfied with the investigation being conducted with regard to unnatural death of S.I.

Sandeep Pal Singh in the Police Station, they knocked at the door of this Court through writ petition OWP No. 244/1997 seeking transfer of the

investigation of the case to some other independent Investigating Agency, pleading that it was a case of custodial death deliberately perpetuated on

the young Officer by those, who wanted that the criminal activity of smuggling of Oil which had come to surface dies with him. They asked for

compensation also. This Court ultimately vide order dated 30.12.1998 directed CBI to hold an enquiry into the matter to know, whether it was a

case of suicide or murder or what were the other circumstances under which S.I. Sandeep Pal Singh met his death i.e, there was any link between

the persons engaged in the smuggling of Oil. By way of interim measures, compensation to the tune of Rupees two lac. (Rs. 2,00,000/- ) was also

awarded.

This is how CBI registered its own regular FIR bearing No. RC. 3 (S)/99/SIU-XVI/Jmu u/s 302, 382, 342 RPC read with section 120-B and

Section 5(2) of the Jammu and Kashmir Prevention of Corruption Act, 2006.

After completion of the investigation, the charge sheet was filed against the respondent only u/s 165-A RPC r/w Section 5(3) of the P.C. Act

before the learned Special Judge, Anti Corruption, Jammu. For facility of reference, the final report against respondent reads as under:-

The investigation has shown that accused Ajay Mahajan, son of late Rajinder Mahajan R/o 75/3 Trikuta Nagar, Jammu and owner of Petrol Pump

under the name and style of M/s Rabinder Kumar & Bros in Amphalla Jammu had business dealings in Sale and purchase of lubricants within M/s

Shanti Charan Sales Corporation, Nehru Market, Jammu. During September/October 1996 Sh. Daljit Singh, Proprietor of M/s International (sic)

port Company at Jammu had introduced Surinder Singh of M/s Laxmi Oil Company, Paschim Puri, New Delhi registered firm dealing with sale

and purchase of all kinds of petroleum products to accused Ajay Mahajan. Accused Ajay Mahajan had fraudulently placed an order with Sh.

Surinder Singh on telephone to supply Ten thousand litres of Aromax against the CST No. 5040033 dated 06.11.1986 of M/s Shanti Charan

Sales Corporation, Jammu without its consent and knowledge. The said Delhi based M/s Laxmi Oil Company run by Sh. Surinder Singh had sent

10,000 litres of Aromax on 26.12.1996 @ 6.50 per litre through Tanker No. HYW 759 driven by Sh. Mahesh Chand Chandola and

accompanied by Sh. Ranbir Singh, Manager and Mohinder Singh, cleaner vide Bill No. 3386 dated 26.12.1996 and the said Tanker reached

Lakhanpur Toll Port on 28.12.1996. Sh. Ranbir Singh, after having reached Jammu contacted Sh. Ajay Mahajan telephonically informing him

about the arrival of the Tanker booked by him. Accused Ajay Mahajan directed him to reach with the Tanker to Transport Nagar, Jammu where

he would be reaching to guide it to the desired destination.

The investigation revealed that the accused Ajay Mahajan dishonestly and fraudulently contacted his friend Sandeep Pal Singh PSI then posted

in P.S. Bakshi Nagar, Jammu and informed him about arrival of Tanker No. HYW 759 carrying Aromax at Transport Nagar, Jammu and to

detain the same for pecuniary gains. In furtherance of the said abetment Sandeep Pal Singh PSI reached Transport Nagar along with Rajkamal, the

then Constable No. 1924, Suraj Singh the then SGC No. 1332 in official Police Vehicle No. JK02E-3412 driven by Harvinder Singh the then

Constable No. 396, illegally seized the said Tanker from the place which was not under his jurisdiction and illegally detained it in Maheshpura area

Jammu.

The investigation has also disclosed that Sandeep Pal Singh PSI reached the Petrol Pump of Ajay Mahajan in Amphalla, Jammu and called Sh.

Zaffar Javed there and informed that the Tanker containing Aromax was booked by Ajay Mahajan and then both of them along with accused Ajay

Mahajan had gone where the Tanker was parked. On the way Sandeep Pal Singh PSI had telephoned the complainant Surinder Singh from public

booth at the instance and telephone number given by accused Ajay Mahajan. Without disclosing his identity, he told that he was an officer of the

STF and had seized his Tanker and asked him to reach Jammu immediately, otherwise his attending staff would be arrested. The Tanker was then

shifted to Bakshi Nagar area abreast Siksha Bhawan Hr Secondaiy School Jammu and Sandeep Pal Singh PSI had snatched the ignition key from

the driver and kept them in family quarters adjacent to PS Bakshi Nagar. Accused Ajay Mahajan got the said Tanker moved at his aforesaid

Petrol Pump and got it emptied 54000 litres of Aromax in Petrol dispensing unit of his petrol pump with the assistance of his sales men Sh. Krishan

Chand and Attar Singh.

The investigation has also revealed that accused Ajay Mahajan in order to obtain pecuniary gains lied to the complainant Sh. Surinder Singh

when he contacted him telephonically from Delhi on 28.12.1996 and on his arrival at Jammu on 29.12.1996 along with his friend Rajan Thappa

that he did not know the STF officer who had seized the Tanker. Accused Ajay Mahajan then called the complainant Surinder Singh along with his

friend Rajan Thappa to his residence in Trikuta Nagar, Jammu and also arranged the availability of Sandeep Pal Singh PSI through Zaffar Zaved

and caused the payment of bribe amount of Rs. one lakh to Sandeep Pal Singh PSI by Surinder Singh on 29.12.1996. Out of the bribe money Rs.

One Lakh, Rs. 40,000/- was taken by the deceased Sandeep Pal Singh PSI and Rs. 60,000/- was given to the accused Ajay Mahajan. Sandeep

Pal Singh PSI then had released Mahesh Chand Chandola, the driver of the said Tanker on 29.12.1996 and Sh. Ranbir Singh on 30.12.1996 and

the aforesaid Tanker was found at the Petrol Pump of Ajay Mahajan, empty, in the morning of 30.12.1996. Accused Ajay Mahajan deliberately

avoided all attempts of the complainant Surinder Singh to contact him on 30.12.1996.

The investigation has further revealed that on 30.1.1996 accused Ajay Mahajan along with Sandeep Pal Singh PSI Zaffar Javed had disclosed

aforesaid facts to Sh. Sanjay Choudhary that accused Ajay Mahajan who not only had booked the Tanker but also got the same seized through

Sandeep Pal Singh PSI, emptied the Aromax in his Petrol Pump and Sandeep Pal Singh PSI committed suicide on 10.01.1997.

The aforesaid facts disclose the commission of offences punishable u/s 165-A RPC r/w 5(3) of J&K Prevention of Corruption Act 2006

against accused Ajay Mahajan for abetting Sandeep Pal Singh PSI (since deceased) for accepting the illegal gratification of Rs. One Lakh from

Surinder Singh. It is therefore prayed that accused Ajay Mahajan who is presently on bail, be summoned in the Court of law and be tried for the

commission of aforesaid offences.

It is pertinent to mention here that after filing of the charge sheet against the respondent, he moved an application before the learned Special

Judge for dropping of the proceedings initiated against him, asserting therein that the applicability of P.C. Act was not made out against him, as he

was not a government employee and, therefore, filing of the challan against him u/s 5(3) of the P.C. Act is not correct. The other attack was that

the challan against the respondent even for the offence punishable u/s 165-A RPC was also not maintainable as S.I. Sandeep Pal Singh, who was

allegedly abetted by the respondent was not arrayed as accused and therefore, no cognizance of the offence u/s 165-A RPC could be taken

against him. It was further contended that no cognizance could be taken against him u/s 165-A RPC on account of the limitation provided u/s 538-

B Cr.P.C. as the limitation for producing the challan for an offence punishable with imprisonment for a period exceeding one year but not

exceeding three years is only three years and since offence u/s 165-A RPC is punishable with imprisonment for three years and the challan in this

case has been produced after a lapse of three years, as such, hit by limitation.

The learned Special Judge did not agree with any of the contention raised by the respondent and dismissed his application vide order dated

19.12.2001 observing that Section 538-B Cr.P.C. is not attracted in this case, as the punishment provided u/s 5(3) of P.C. Act is upto seven

years and that S.I. Sandeep Pal Singh, who was allegedly abetted by the respondent, was a public servant and on the abetment of the respondent

only, he had allegedly seized the Tanker. Since the respondent has been charge sheeted u/s 165-A RPC read with Section 5(3) of P.C. Act, the

limitation provided u/s 538-B Cr.P.C. would also not apply. Similarly, the other objections, raised by the respondent, were also repelled by

entering into a detailed discussion. Aggrieved of the said order, the respondent moved this Court vide Criminal Revision No. 69 of 2001,

reiterating the same issue, which also came to be dismissed vide order dated 07.06.2002. Admittedly, the order of this Court is not challenged by

the respondent.

Both the aforesaid orders are available on record.

After the dismissal of revision petition by this Court, the case of prosecution was considered for charge, where the respondent joined issue

before the Learned Special Judge, asserting that on the final report submitted by CBI u/s 173(2) of Cr.P.C. and the documents placed on record

in support thereof, there appears no sufficient ground for proceedings against him, as such prayed for discharge which found favour with the

learned Judge, as such order of discharge which is now assailed by CBI.

Heard, Mr. Dubey learned counsel for CBI and Mr. Mishra learned counsel for the respondent. Trial Court record has also been perused by

me.

Mr. Dubey submits that after in depth investigation, CBI came to the conclusion that it was a case of suicide by S.I. Sandeep Pal Singh in the

Police Station itself and not of murder. However, reiterating what is said in the final report filed by CBI, Mr. Dubey submits that the nexus of the

respondent with S.I. Sandeep Pal Singh is prima facie made out, as the respondent had hatched conspiracy with S.I. Sandeep Pal Singh a public

servant to abstract money from Surinder Singh and also deprive him of ten thousand (10000) liters of Aromax Oil (Petroleum Product). In fact, it

was brain child of respondent only, who placed the orders with Surinder Singh for dispatch of ten thousand (10000) liters of Aromax Oil in the

name of M/s Shanti Charan Sales Corporation, Nehru Market, Jammu a fictitious firm. According to him, the finding recorded by the trial Court in

favour of the respondent is totally against the settled legal principles to be followed at the time of framing of the charge.

Mr. Dubey then submits that but for the statement of Surinder Singh-the complainant, the trial Court has totally ignored the statement of other

important witnesses recorded during the investigation. Not only that the trial Court has gone to state a fact which is contrary to the record. It is said

in the order impugned that the statement of Sh. L. Mohanty, SSP, was not recorded during the investigation, whereas it is available on record.

While drawing the attention of this Court to the statement of certain other witnesses also, learned counsel submits that there is sufficient material on

record to frame the charges against the respondent for the alleged offences, as spelled out in the charge sheet submitted by the prosecution.

Per contra, Mr. Mishra, learned counsel for the respondent, once again wants to join issue with regard to the maintainability of the challan

against the respondent taking all the pleas, which were taken earlier before the learned Judge asking for dropping of the proceedings, reference

thereof already made herein above. Since the finding already returned against the respondent in this regard has attained finality by dismissal of

revision by this Court in year 2002 which admittedly has not been questioned by him, Mr. Mishra, therefore, cannot be permitted to re-agitate this

issue once again at this stage.

Mr. Mishra then submits that even otherwise, prima facie, prosecution has no case against the accused at all for the alleged offence(s) and

therefore, continuation of the trial against him would be flogging of a dead horse. He contends that even otherwise the scope of interference in the

revision petition is very limited, that too, when some grave irregularity or manifest illegality is apparent on record, resulting into miscarriage of

justice, which is not the situation in the case at hand.

Mr. Mishra further submits that may be the learned Special Judge has reproduced the entire statement of complainant Surinder Singh in the

order impugned, but this exercise does not amount evaluation of his evidence for the purposes of holding the respondent guilty or not. It has been,

in fact, appreciated by the learned Judge with a limited purpose, as to find out, whether the evidence collected by the prosecution discloses the

ingredients of the alleged offences. Testing the present case on that yardstick only, the learned Judge has recorded a favourable finding. Therefore,

according to the learned counsel, it cannot be said to be erroneous in any manner.

Mr. Mishra submits that it appears that a futile attempt has been made by CBI to involve the respondent simply that its case does not die its

death at the initial stage itself, whereas he cannot be remotely connected with the commission of alleged offences even on the basis of suspicion.

On the strength of aforesaid submissions, Mr. Mishra submits that the present revision petition does not call for showing any indulgence by this

Court while exercising its revisional jurisdiction, as such, prays for its dismissal.

The main issue before this Court is, whether there is sufficient evidence available on record for the purposes of framing of charge against the

respondent; and whether the approach adopted by the Court below while discharging the respondent was legally permissible.

Section 227 of Code of Criminal Procedure (Central Code) is in pari-materia to Section 268 of Code of the Criminal Procedure Svt. 1989

(State Code). It reads thus:-

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 no sufficient ground for proceedings against the accused he shall discharge the accused

and record his reasons for so doing.

Scope of Section 227 Cr.P.C. came to be considered in the case State of Bihar Vs. Ramesh Singh, , wherein their Lordships observed as

follows :-

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. The presumption

of the guilt of the accused which is to be drawn at the initial sage is not in the sense of the law governing the trial of criminal cases in France where

the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should

proceed with the trial or not. If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted

before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then

there will be no sufficient ground for proceeding with the trial.

In a subsequent decision in case Union of India v. Prafulla Kumar Samal reported in 1979 SCC (Cri) 609, in which after adverting to various

decisions, the Hon'ble Supreme Court has enumerated the following principles:-

(1) That the Judge while considering the question of framing the charges u/s 227 of the Code has the undoubted power to sift and weigh the

evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.

(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will

be fully justified in framing a charge and proceeding with the trial.

(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal

application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving

rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.

(4) That in exercising his jurisdiction u/s 227 of the Code the Judge which under the present Code is a senior and experienced Court cannot act

merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence

and the documents produced before the Court, any basic infirmities appearing in the case and son on. This however does not mean that the Judge

should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

Again in the case Niranjan Singh Karam Singh Punjabi and Others Vs. Jitendra Bhimraj Bijja and others, , it was held:-

Can he marshal the evidence found on the record of the case and in the documents placed before him as he would do on the conclusion of the

evidence adduced by the prosecution after the charge is framed? It is obvious that since he is at the stage of deciding whether or not there exists

sufficient grounds for framing the charge, his enquiry must necessarily be limited to deciding if the facts emerging from the record and documents

constitute the offence with which the accused is charged. At that stage he may sift the evidence for that limited purpose but he is not required to

marshal the evidence with a view to separating the grain from the chaff. All that he is called upon to consider is whether there is sufficient ground to

frame the charge and for this limited purpose he must weigh the material on record as well as the documents relied on by the prosecution. In the

State of Bihar v. Ramesh Singh this Court observed that at the initial stage of the framing of a charge if there is a strong suspicion evidence 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. 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 the defence evidence, if any, cannot show that the

accused committed the offence, then there will be no sufficient ground for proceeding with the trial. In Union of India v. Prafulla Kumar Samal this

Court after considering the scope of Section 227 observed that the words no sufficient ground for proceeding against the accused clearly show

that the Judge is not merely a post office to frame charge at the behest of the prosecution but he has to exercise his judicial mind to the facts of the

case in order to determine that a case for trial has been made out by the prosecution. In assessing this fact it is not necessary for the Court to enter

into the pros and cons of the matter or into weighing and balancing of evidence and probabilities but he may evaluate the material to find out if the

facts emerging therefrom taken at their face value establish the ingredients constituting the said offence.

In Dilawar Balu Kurane v. State of Maharashtra {2002 SCC (Cri) 310}, the above principles enunciated in Prafulla Kumar Samal's case

(Supra) were reiterated. It was observed thus:-

while exercising powers u/s 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of

framing the charges under the said section has the undoubted powers to sift and weigh the evidence for the limited purpose of finding out whether

or not a prima facie case against the accused has been made out and where the materials placed before the Court disclose grave suspicion against

the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial. It was further

held that by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some

suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused. However, their lordship has held that the

Judge would not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

Then in case Soma Chakravarty Vs. State through CBI, , the Apex Court held thus:-

the settled legal position is that if on the basis of material on record the Court could form an opinion that the accused might have committed an

offence it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has

committed the offence. It was further held that at the time of framing of the charges the probative value of the material on record cannot be gone

into, and the material brought on record by the prosecution has to be accepted as true. It was further held in the said judgment that before framing

a charge, the Court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the

accused was possible. Whether, in fact, the accused has committed the offence, can only be decided in the trial. Charge may although be directed

to be framed when there exists a strong suspicion but it is also trite that the Court must come to a prima facie finding that there exist some materials

therefor. Suspicion alone, without anything more, cannot form the basis therefore or held to be sufficient for framing charge.

In a recent judgment in case Sajjan Kumar v. Central Bureau of Investigation (2010) 3 SCC (Cri) 1371, the Apex Court on considering its

previous judgments rendered on the point, has laid down the following principles to be followed while considering the prosecution case for charge:-

(i) The Judge while considering the question of framing the charges u/s 227 Cr.P.C. has the undoubted power to sift and weigh the evidence for the

limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case

would depend upon the facts of each case.

(ii) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will

be fully justified in framing a charge and proceeding with the trial.

(iii) The Court cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the

total effect of the evidence and the documents produced before the Court, any basic infirmities, etc. However, at this stage, there cannot be a

roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

(iv) If on the basis of the material on record, the Court could form an opinion that the accused might have committed offence, it can frame the

charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.

(v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the Court

must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.

(vi) At the stage of Sections 227 and 228, the Court is required to evaluate the material and documents on record with a view to find out if the

facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited

purpose, sift the evidence as it cannot be expected even at that 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.

(vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered

to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal.

Now keeping in view the above principles of law, let us examine the case at hand.

Chronological synopsis of evidence in brief:

On 24.12.1996, Ajay Mahajan placed order for supply of ten thousand liters of Aromax Oil to the owner of Laxmi Oil Company Pachim Puri,

New Delhi. This is clear from the written complaint lodged by Surinder Singh, the owner of Laxmi Oil Company, who says that the respondent had

also provided him the CST number of the firm and then he sent Tanker No. HYW-759.

On 26.12.1996, Tanker left for Jammu.

On 27.12.1996, Surinder Singh informed the respondent over telephone.

On 28.12.1996, manager-Ranbir Singh contacted Ajay Mahajan as directed by Surinder Singh-complainant. On 28.12.1996 itself, Surinder Singh

was informed by S.I. Sandeep Pal Singh that his Tanker was seized and directed him to reach Jammu.

On 29.12.1996, Surinder Singh reached Jammu afternoon. On the same day, he went to the residence of the respondent, where one Zaffar,

friend of the respondent, came to the residence where S.I.Sandeep Pal Singh reached at 6.00 p.m. as per the fixed time through one Zaffar. S.I.

Sandeep Pal Singh, who had projected himself as officer of Special Task Force was with three gunmen and asked Surinder Singh to accompany

him to Police Station as he was doing illegal business of Aromax Oil, upon which the respondent asked S.I. Sandeep Pal Singh to settle the matter

and ultimately, deal was settled and a sum of Rs. One Lac was given to S.I. Sandeep Pal Singh in the house of respondent only.

On 30.12.1996, the Tanker which was parked at the Petrol Pump of Ajay Mahajan was checked by the driver and the manager. It was

empty.

Surinder Singh lodged a written complaint with SSP, Jammu alleging therein that S.I.Sandeep Pal Singh had taken bribe of Rs. One Lac from

him upon which FIR No. 5/1997 was lodged on 10.01.1997 in Police Station, Bahu Fort, Jammu under Sections 382/342 RPC and Section 5(2)

of the P.C. Act against him. S.I.Sandeep Pal Singh committed suicide on 10.01.1997 in the Police Station itself.

Upto this stage, one can not find the direct or indirect involvement of the respondent as the entire accusation was against S.I. Sandeep Pal

Singh only. It is when, on the direction of the High Court, CBI took over the investigation, statement of Surinder Singh-owner of Laxmi Oil

Company Pachim Puri, New Delhi was once again recorded. Statement of other witnesses were also recorded, which included. Ranbir Singh-

Manager of Laxmi Oil Company, one Zaffar Javed Sanjay Choudhary, Issar Rajan Thapa, L. Mohanty, IPS, the then SSP, Jammu, who had

interrogated S.I. Sandeep Pal Singh with regard to FIR No. 5/1997 registered against him, may be for a day or so. These statements available on

record, in my view could not be ignored while considering the question of charge.

What one finds from the order of the learned Special Judge is he has mainly relied upon the statement of Surinder Singh recorded by CBI u/s

161 Cr.P.C. for recording a finding in favour of the respondent. Learned Judge appears to have not given due weight-age to the other evidence

collected by the Investigating Agency. May be Surinder Singh-owner of Laxmi Oil Company is said to be architect of the entire case being the

Complainant, as is observed by the learned Judge and the case of prosecution revolves around him primarily, that does not mean that the other

evidence is to be ignored altogether. We cannot pick the evidence favouring the accused and leave the evidence against him. Overall case of the

prosecution has to seen at this juncture and that too for a limited purpose. Therefore, necessity for referring to the other evidence.

It may be disturbing to note that the learned trial Court has even gone out of record to say that the statement of Sh. L. Mohanty, IPS has not

been recorded, whereas his statement is there on record. The learned Judge in the order says:

The case has been investigated for too a long period but despite that the most important witness that is, the then SSP, Jammu, namely Sh. L.

Mohanty who interrogated the deceased and before whom the deceased is said to have confessed to have received the bribe has not been

examined in the instant case.

His examination would have clinched so many issue.

How could the statement of aforesaid Sh. L. Mohanty available on the file escaped the attention of the learned Judge.

Sh. L. Mohanty, the then SSP, Jammu, in his statement has stated:-

Later on S.I. Sandeep Pal Singh agreed Rs. one Lac had been extorted out of which Rs. 10,000/- each was given to three constables and Rs.

15,000/- paid to Sona ullah, the then SHO, Police Station, Bakshi Nagar, for using his vehicle. S. I Sandeep Pal said that Rs. 55,000/- , plus the

sale proceeds of Aromax oil was lying with Ajay Mahajan. Sandeep Pal also stated that this fact can be verified from Zaffar R/o Jullaka Mohalla.

The staff of Police Station were informed to call Ajay Mahajan and Zaffar Javed. It is a fact that when they were collectively called by me, they did

not admit about extortion. On being segregated, they however admitted the same.

PW-Ranbir Singh-manager of Surinder Singh has said:-

.....The aforesaid Tanker reached Jammu around noon on 28.12.1996 at Bari Brahmna, in compliance with instruction of Sh. Surinder Singh who

had given me the telephone number of Sh. Ajay Mahajan, contacted him on telephone at Bari Brahmna Shri Ajay Mahajan asked me to bring the

Tanker in Transport Nagar Jammu near any Petrol Pump, I reached Transport Nagar about 1500 hours near a Petrol Pump. Around 1600 hrs

one Sub Insp alongwith three constables in Police Uniform reached near the Tanker and caught me by my hair and asked me to produce the

papers. He told me that the Aromax in the Tanker was illegally brought and he will take action against him. He asked me to follow his Vehicle.

Two constables got in the Tanker and asked the Driver to follow the Vehicle of SI and his Tanker was parked in a street behind PS Bakshi Nagar

around 1700 hrs. I requested the SI to allow me to contact Surinder Singh, the owner of the Tanker and this was not illegally brought as there was

order from the party in Jammu. The Sub Inspr told me that there was no need of contacting Surinder Singh as he already contacted him on Mobile

Phone. To my query as how he had got the Mobile Telephone number of Shri Surinder Singh, he replied that it was not my business to know. I

made it clear that Mobile Telephone number of Shri Surinder Singh was within the knowledge of self, Driver Mahesh Chander and Ajay Mahajan.

I and the driver had not disclosed the telephone number to the Sub Inspector During the conversation with the Constable I came to know that Sub

Inspr was Sandeep Pal posted in PS Bakshi Nagar.

PW-Sanjay Choudhary states:-

....Sh. Ajay Mahajan then disclosed that ""The party had reached Jammu the next day and negotiation had taken place in his house at Trikuta

Nagar."" He further told that"" he along Zaffar had extorted Rs. 1 Lac from the party Ajay continued that ""he had taken Rs. 60,000/- from Sandeep

Pal Singh as loan for a few days out of this amount."" Sh. Zaffar then said that ""Half of the tanker was also emptied by Ajay. ""YE AJAY SALA

ITNA BADMAS HAI KI ADHA TANKER BHI APNE PETROL PUMP MEI UTAR LIYA"". Upon hearing this I asked Ajay why he had

involved Sandeep Pal Singh in such illegal activities as Transport Nagar was neither under his jurisdiction nor was he from STF. He was still a

probationer and if any thing went wrong he would be in trouble. Ajay then told that nothing will happen and no one would come to know the

identity of Sandeep pal Singh. He further told that since Sandeep Pal had seized the tanker he should earn something. Then advised Sandeep Pal

singh not to indulge in such unlawful activity and he realised his mistake.

Statement of PW-Zaffar Javed Ahmad reveals that after the death of S.I. Sandeep Pal Singh, he had asked Ajay Mahajan as to why he had

played a game of getting Aromax Oil from Delhi and then got the same seized by S.I. Sandeep Pal Singh, which led to his death, Ajay Mahajan

told him that S.I. Sandeep Pal Singh confided in him and asked him to get some case so that some money could be made out of it. Ajay Mahajan

further told him that he got the supply of Aromax Oil fraudulently in the name of some other firm only to help S.I. Sandeep Pal Singh for making

good bucks.

On one hand, the learned trial Court has recorded finding in favour of the respondent after having made roving enquiry into the pros and cons

of the prosecution case, primarily weighing the evidence of Surinder Singh-Complainant only, as if he was conducting the regular trial in order to

determine, whether to acquit or convict the respondent. Not only that he has gone to the extent of seeing the prosecution case with a jaundice eye

on the point of delay in recording the statement of the witnesses. Settled legal position is that probative value of the material cannot be gone into at

this stage, so deeply as is done by the learned Trial Court. On the other hand, the learned Trial Judge has ignored the sufficient evidence available

on record, prima facie, fingering towards the respondent. So, on both the counts, the approach adopted by the Trial Judge appears to be

unwarranted.

Sufficient ground for proceeding as contemplated in Section 268 of the State Code does not contemplate sufficient ground for conviction or

acquittal but a ground for putting the accused on trial. The expression 'sufficient ground' would mean availability of such material on record, if

accepted at its face value, it suggests a strong possibility that the accused has committed the offence charged with. That is the reason that it is firmly

established principle of law that where the material collected during investigation creates even a grave suspicion in the mind of the Court/that the

accused has committed the offence, the charge must be framed.

In totality of the circumstances narrated above, I would conclude that there is sufficient evidence available on record indicating the commission

of alleged offences by the respondent. Therefore, the charge(s) ought to have been framed against him. As such, finding recorded by the learned

trial Court is erroneous and unsustainable in the eye of law.

Resultantly, the order impugned is set aside and the case is remitted back to the learned trial Court with a direction to frame and formally draw

the charges against the respondent for commission of alleged offences, as depicted in the charge sheet submitted by the prosecution.

Since the respondent already stands discharged of his bail bonds furnished before the learned trial Court, his presence shall be secured by

issuing fresh process against him, in accordance with law.

I am conscious of the fact that the delay is also a very relevant factor and every accused is entitled to speedy justice in view of Article 21 of

Constitution of India, which encompasses all the stages, namely, the stage of investigation, enquiry, trial, appeal, revision and retrial. But ultimately

it depends upon various factors, reasons, of an individual case. The instant revision petition could not be decided for long seven years for one

reason or the other, as is borne out from the record and putting the prosecution case on trial at this stage would certainly be a pricking factor for

the respondent, as for him the prosecution case stood closed, the day he earned the order of discharge way back in November, 2003. But it is

said in criminal justice, 'a crime never dies', as it is considered to be a wrong against the State and the Society, although it is committed against an

individual. Delay when pitted against justice, justice must prevail.

Viewed thus, the learned Special Judge is directed to take the present case on priority basis by putting it on fast track, may be by disturbing his

regular calender so that the trial is wrapped up at the earliest preferably within six months from the date of framing of charges.

Send down the original record, which 1 have noticed, is maintained in haphazard manner. Registry is directed to arrange it systematically

before it is remitted back to the Court concerned. Registrar Judicial to take note of it.

The instant revision petition is allowed and disposed of accordingly.