The Single Bench (SB) of the High Court of J&K comprised of Justice Rajnesh Oswal has held that while considering the issue of framing of charge/discharge, the court has to examine the material placed on record by the investigating officer and if on the basis of the material based on record, the court is of the opinion that the necessary ingredients of offence are present, the court can frame the charges against the accused.
In the instant case, the learned Special Judge Anti-Corruption (CBI Cases), J&K Jammu vide order dated 19-07-2013 had framed the charges against the petitioner along with others for commission of offences under Section 120-B read with 420, 465, 467, 468, 471 of RPC and 5(1)(d) read with 5(2) of the prevention of Corruption Act Samvat 2006 and Section 30 of the Arms Act. Aggrieved of the order, the petitioner sought quashment of the criminal proceedings as well as framing of charges under Section 561-A CrPC.
As per the Prosecution, the Petitioner issued Arms license dishonestly for extraneous considerations by abusing his official position as a public servant in violation of the provisions of Arms Act and Rules made there-under and the licenses were issued on the false and forged documents and on the basis of false Police verification.
Mr. P. N. Raina learned senior counsel appearing on behalf of the petitioner submitted that the Ld. trial Court has not considered the final report of the investigation, as conducted by the Crime Branch and further the very documents those have been alleged to be forged have not been seized and as such no offence for commission of offence of forgery is made out against the petitioner.
Observations of the Court:
The Court rejected the contentions of the petitioner and observed that;
“ It is settled law that while considering issue of framing of charge/discharge, the court has to examine the material placed on record by the investigating officer and if on the basis of the material based on record, the court is of the opinion that the necessary ingredients of offence are present, the court can frame the charges against the accused. As rightly observed by the trial court, the court is not required to conduct mini trial for the purpose of forming an opinion.”
The Court placed reliance on the judgement of the Supreme Court in case titled State of Karnataka vs. M. R. Hiremath, ((2019 7 SCC 151) wherein the court has held;
“25. The High Court ought to have been cognizant of the fact that the trial court was dealing with an application for discharge under the provisions of Section 239 CrPC. The parameters which govern the exercise of this jurisdiction have found expression in several decisions of this Court. It is a settled principle of law that at the stage of considering an application for discharge the court must proceed on the assumption that the material which has been brought on the record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary to constitute the offence. In State of T.N. v. N. Suresh Rajan [State of T.N. v. N. Suresh Rajan, (2014) 11 SCC 709], adverting to the earlier decisions on the subject, this Court held: (SCC pp. 721-22, para 29)
“29. … At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage.”
The Court further observed “In the instant case, the mode and manner in which the arms licenses have been issued on the basis of fake, false and forged documents to the persons, who have never been the residents of the Jammu District, itself suggests that the accused persons have acted in tandem with each other. The petitioner was the issuing authority of arms license being the Additional District Magistrate and was not supposed to act as rubber stamp only. The petitioner cannot be absolved of his wrongdoings.”
The Court held that there is no illegality in the order impugned and the trail Court has passed the order well within the parameters of law laid down by Apex Court.
In view of the observations made by the Court, the petition was dismissed as found to be without merit.
Case Title and No: Dalip Singh vs CBI – CRMC No. 268/2013
Coram: Justice Rajnesh Oswal
Mr. P. N. Raina, Sr. Counsel and Mr. J A Hamal, Advocate appeared for the Petitioner
Ms. Monika Kohli, Appeared for the Respondent (CBI, Jammu)