STATE OF GUJARATversusDILIPSINH KISHORSINH RAO

                 [2023] 13 S.C.R. 847 : 2023 INSC 894



                            CASE DETAILS

                         STATE OF GUJARAT
                                     v.
                   DILIPSINH KISHORSINH RAO
                   (Criminal Appeal No. 2504 of 2023)
                          OCTOBER 09, 2023
       [S. RAVINDRA BHAT AND ARAVIND KUMAR, JJ.]
                             HEADNOTES
      Issue for consideration: Whether the High Court was justified in
allowing the application for discharge filed by the accused; and as such
whether the order of the sanctioning authority is liable to be set aside and
consequently, the charge-sheet filed by Anti-Corruption Bureau is liable
to be quashed.
     Code of Criminal Procedure, 1973 – ss. 397, 227, 401 – Application
for discharge – Principles to be considered:
      Held: The court must proceed on an assumption that the material
brought on record by the prosecution is true and evaluate the said material
to determine whether the facts disclose the existence of the ingredients
necessary of the offence alleged – It is necessary to determine whether a
case has been made out by the prosecution for proceeding with trial and
it would not be necessary to dwell into the pros and cons of the matter by
examining the defence of the accused when an application for discharge
is filed – At that stage, the trial judge has to merely examine the evidence
placed by the prosecution in order to determine whether or not the grounds
are sufficient to proceed against the accused on basis of charge sheet
material – Nature of the evidence recorded or collected by the investigating
agency or the documents produced in which prima facie it reveals that
there are suspicious circumstances against the accused, so as to frame a
charge would suffice and such material would be taken into account for
of framing the charge – If there is no sufficient ground for proceeding
against the accused necessarily, he would be discharged – Furthermore,
the defence of the accused is not to be looked into – Submission of the
                                      847
848          SUPREME COURT REPORTS                          [2023] 13 S.C.R.


accused is to be confined to the material produced by the investigating
agency. [Para 10, 7]
      Code of Criminal Procedure, 1973 – s. 227 – Right of the accused
to file any material or document at the stage of framing of charge:
       Held: At the time of framing of the charge and taking cognizance
the accused has no right to produce any material and call upon the court to
examine the same – No provision in the Code grants any right to the accused
to file any material or document at the stage of framing of charge – Trial
court has to apply its judicial mind to the facts of the case to determine
whether a case has been made out by the prosecution for trial on the basis
of charge-sheet material only – If the accused is able to demonstrate from
the charge-sheet material at the stage of framing the charge which might
drastically affect the very sustainability of the case, it is unfair to suggest
that such material should not be considered or ignored by the court at
that stage – Main intention of granting a chance to the accused of making
submissions as envisaged u/s. 227 is to assist the court to determine whether
it is required to proceed to conduct the trial. [Para 8, 9]
      Code of Criminal Procedure, 1973 – s.397 – Power and jurisdiction
of higher court under – Exercise of:
      Held: The Court is vested with the power to call for and examine
records of an inferior court for satisfying itself as to the legality and
regularities of any proceeding or order made in a case – Object is to set right
a patent defect or an error of jurisdiction or law or the perversity which has
crept in such proceedings. [Para 13]
      Code of Criminal Procedure, 1973 – ss. 397, 227, 401 – Application
for discharge – Filing of, by the accused on the ground that the
investigating officer failed to consider the written explanation offered
by him with supporting documents, that the conclusion reached by the
sanctioning authority that the accused possessed assets disproportionate
to his known source of income is erroneous and that the charge-sheet
material do not reveal any circumstances or evidence to arrive at the
said conclusion – Rejected by the trial court, however, the High Court
allowed application filed u/s. 397/401 – Interference with:
     STATE OF GUJARAT v. DILIPSINH KISHORSINH RAO 849


       Held: High Court erred in interfering with the well-reasoned order
passed by the trial court – Revisional court cannot sit as an appellate court
and start appreciating the evidence by finding out inconsistency which is
not legally permissible – High Courts ought to be cognizant of the fact that
trial court was dealing with an application for discharge – Charge-sheet has
been filed after taking into consideration the written submissions filed by the
accused before the Investigating Authority which included the documentary
evidences tendered by the accused – High Court proceeded to examine the
pros and cons of defense by weighing the defence-evidence and probabilities
of the conclusion – Trial judge noticed that explanation provided by the
accused pertaining to purchase of shop from the loan borrowed and paid
by the accused was outside the check period and hence the explanation
provided by accused is a mere eye wash which has to be thrashed out during
the course of the trial – Thus, the impugned judgment setting aside the trial
court order is set aside. [Para 15-18]

       LIST OF CITATIONS AND OTHER REFERENCES

      State of Tamil Nadu v. N. Suresh Rajan And Others (2014) 11 SCC 709
: [2014] 1 SCR 135; State of Maharashtra Vs. Som Nath Thapa (1996) 4
SCC 659 : [1996] 1 Suppl. SCR 189; State of MP v. Mohan Lal Soni (2000)
6 SCC 338; Amit Kapoor v. Ramesh Chandra (2012) 9 SCC 460 : [2012]
7 SCR 988 – referred to.
       OTHER CASE DETAILS INCLUDING IMPUGNED
              ORDER AND APPEARANCES

     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
2504 of 2023.
     From the Judgment and Order dated 11.01.2018 of the High Court of
Gujarat at Ahmedabad in CRLRA No. 387 of 2016.
     Appearances:
     Ms. Swati Ghildiyal, Ms. Devyani Bhatt, Ms. Neha Singh, Advs. for
the Appellant.
     Shamik Shirishbhai Sanjanwala, Adv. for the Respondent.
850         SUPREME COURT REPORTS                     [2023] 13 S.C.R.



      JUDGMENT / ORDER OF THE SUPREME COURT

                            JUDGMENT
      ARAVIND KUMAR, J.
      1. The proceedings initiated under the Prevention of Corruption
Act, 1988 (hereinafter referred to as ‘Act’) against the respondent
herein came to be questioned by him by filing an application for
discharge on the ground of investigating officer (hereinafter referred
to as ‘IO’) having failed to consider the written explanation offered
by him with supporting documents and the conclusion reached by
the sanctioning authority was also without considering the same
reflecting non-application of mind and thereby the conclusion reached
by the sanctioning authority that respondent accused possessed assets
disproportionate to his known source of income is erroneous and the
charge-sheet material do not reveal any circumstances or evidence
to arrive at a conclusion that accused had disproportionate source of
income. The said application having been rejected by the trial court
by order dated 13.04.2016, respondent moved the High Court under
Section 397 read with Section 401 of Cr.P.C. by filing Criminal
Revision Application No.387 of 2016 and same having been allowed
by the impugned order dated 11.01.2018, the State has approached
this Court.
      2. The sole question that arises for our consideration is whether
the order of the sanctioning authority dated 05.03.2015 is liable to be
set aside and consequently, the charge-sheet filed by Anti-Corruption
Bureau, Anand Police Station on 17.06.2015 is liable to be quashed?
     3. The case of the prosecution as laid in the charge-sheet filed
against the respondent is to the effect that during the period 2005 to
2011 the respondent by misuse of his power while discharging his duties
as Sub-Inspector of Borsad Town Police Station and based on corrupt
practices had acquired assets in his and his wife’s name to the tune of
Rs.1,15,35,319/- which was beyond his known source of income and
it was disproportionate to the tune of Rs.32,68,258/- which is more
than 40% of his known source of income.
     STATE OF GUJARAT v. DILIPSINH KISHORSINH RAO 851
                 [ARAVIND KUMAR, J.]

      4. An application for discharge (Annexure P-29) came to be filed
under Section 227 read with Section 228 of Cr.P.C. contending inter
alia that during investigation, the IO had failed to consider the written
statement dated 13.08.2014 and the permission obtained by him to
visit Australia and also the details of the purchase of movable and
immovable properties furnished to the department on every occasion
of his investment, and yet, the IO had failed to consider the same in
proper perspective. It was also contended that sanction granted by the
department for purchase of the property has also not been taken into
account by the I.O. It was further contended, that error in calculation of
disproportionate asset though brought to the notice of the investigating
agency, same had not been considered as also the statement of the
witnesses who had loaned amounts to the respondent. It was further urged
that the sanctioning authority had failed to consider the documentary
proof furnished for purchase of properties from various sources of income
and investigating agency had failed to take into consideration the amount
which was obtained under loans from friends and family members which
was duly supported by documentary evidences. Hence, contending
that charge-sheet material does not disclose the commission of offence
alleged, respondent pleaded in the application for being discharged.
      5. Trial Court taking into consideration the principles enunciated
by this Court in catena of judgments and applying the ratio laid down
to the facts on hand observed as under:
     “(4)      xxxxx
     Thus, from the afore-stated settled principles and record of the
     case, the following aspects emerges from the record.
     (a) Whether the accused has taken loan from his brother, mother and
     father is a question of fact which is to be decided during the trial;
     (b) The fact of Rs.10 lacs as loan from the friends is also a question
     of fact which is to be decided during the trial;
     (c) Other two friends namely, Iliyashbhai and Niteshbahai who
     have given amount to the accused as loan is also a question of fact
     which is to be decided during the trial;
852          SUPREME COURT REPORTS                      [2023] 13 S.C.R.


      (d) The fact of accused informing with regard to purchase of
      property to the department under the Gujarat Civil Services rules
      does not gave him a clean chit with regards to his income. This can
      merely be said to be complying with the rules and regulations of
      service, however, this does not give him a seal of authenticity with
      regards to the value of consideration which is disproportionate to
      the known source of income.
      (e) The explanation given by the accused with regard to
      disproportionate income is also taken into consideration while
      filing the charge-sheet against the accused and also while granting
      sanction.
      (f) Necessary sanction has been obtained and hence, the question
      where sanction is given without application of mind is also a
      question of fact to be decided at the time of trial.
      (g) The bulk of records placed on record by way of charge-sheet
      papers prima facie shows that if they are taken at their face value
      if discloses all the ingredients of disproportionate income with
      the known source of income;
      (h) Even considering the broad principles whatever defence the
      accused is taking, even if the same are considered, it cannot be
      said that the ingredients constituting the alleged offence are not
      attracted.
      (i) There does not seems to be any basis infirmities prima facie on
      record which nullifies the case of prosecution. Even if two views
      are possible, present case papers clearly creates grave a suspicion
      against the accused with regards to the loan amount taken from
      his brother, father, mother and other friends and also with regards
      to the income of his son, who was residing at Australia and his
      agricultural income and there are sufficient grounds for proceeding
      against the accused.
      (5) Considering the facts recorded hereinabove emerging from the
      documents on record, it cannot be said that the accused is liable
      to be discharged since this Court is not required to make roving
      inquiry into pros and cons of the matter and weighing the evidence
     STATE OF GUJARAT v. DILIPSINH KISHORSINH RAO 853
                 [ARAVIND KUMAR, J.]

     as if the trial is conducted. Even otherwise the allegations with
     regards to the disproportionate assets against the known source of
     income is a subject matter which cannot be decided at the outset
     without conducting full fledge trial, more particularly, when it
     is the accused who has the knowledge with regard to the source
     of income from while purchase of the properties both movable
     and immovable are made by him and the Court at this juncture
     is able to see prima facie case against the accused. Under the
     circumstances, the application is substance less and hence the
     following order is passed.”
     and for the aforesaid reasons dismissed the application by order
dated 13.04.2016 (Annexure P-30).
     6. Being aggrieved by the above said order respondent herein
carried the same in revision before the High Court. As already noticed
hereinabove the High Court by impugned order allowed the Revision
Application by perusing the material on record placed by the respondent
-accused and arrived at a conclusion that trial court had committed
an error in dismissing the application and accepting the plea of the
respondent which was virtually by way of defence and discharged the
respondent.
     DISCUSSION AND FINDINGS
      7. It is trite law that application of judicial mind being necessary
to determine whether a case has been made out by the prosecution for
proceeding with trial and it would not be necessary to dwell into the
pros and cons of the matter by examining the defence of the accused
when an application for discharge is filed. At that stage, the trial judge
has to merely examine the evidence placed by the prosecution in order
to determine whether or not the grounds are sufficient to proceed
against the accused on basis of charge sheet material. The nature of
the evidence recorded or collected by the investigating agency or
the documents produced in which prima facie it reveals that there
are suspicious circumstances against the accused, so as to frame a
charge would suffice and such material would be taken into account
for the purposes of framing the charge. If there is no sufficient ground
for proceeding against the accused necessarily, the accused would be
854          SUPREME COURT REPORTS                      [2023] 13 S.C.R.


discharged, but if the court is of the opinion, after such consideration
of the material there are grounds for presuming that accused has
committed the offence which is triable, then necessarily charge has
to be framed.
     8. At the time of framing of the charge and taking cognizance the
accused has no right to produce any material and call upon the court
to examine the same. No provision in the Code grants any right to the
accused to file any material or document at the stage of framing of
charge. The trial court has to apply its judicial mind to the facts of the
case as may be necessary to determine whether a case has been made out
by the prosecution for trial on the basis of charge-sheet material only.
      9. If the accused is able to demonstrate from the charge-sheet
material at the stage of framing the charge which might drastically
affect the very sustainability of the case, it is unfair to suggest that
such material should not be considered or ignored by the court at that
stage. The main intention of granting a chance to the accused of making
submissions as envisaged under Section 227 of the Cr.P.C. is to assist
the court to determine whether it is required to proceed to conduct
the trial. Nothing in the Code limits the ambit of such hearing, to oral
hearing and oral arguments only and therefore, the trial court can
consider the material produced by the accused before the I.O.
      10. It is settled principle of law that at the stage of considering
an application for discharge the court must proceed on an assumption
that the material which has been brought on record by the prosecution
is true and evaluate said material in order to determine whether the
facts emerging from the material taken on its face value, disclose the
existence of the ingredients necessary of the offence alleged. This
Court in State of Tamil Nadu Vs. N. Suresh Rajan And Others (2014)
11 SCC 709 adverting to the earlier propositions of law laid down on
this subject has held:
      “29. We have bestowed our consideration to the rival submissions
      and the submissions made by Mr. Ranjit Kumar commend us.
      True it is that at the time of consideration of the applications for
      discharge, the court cannot act as a mouthpiece of the prosecution
      or act as a post office and may sift evidence in order to find out
     STATE OF GUJARAT v. DILIPSINH KISHORSINH RAO 855
                 [ARAVIND KUMAR, J.]

     whether or not the allegations made are groundless so as to pass
     an order of discharge. It is trite that at the stage of consideration
     of an application for discharge, the court has to proceed with an
     assumption that the materials brought on record by the prosecution
     are true and evaluate the said materials and documents with a view
     to find out whether the facts emerging therefrom taken at their face
     value disclose the existence of all the ingredients constituting the
     alleged offence. 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.”
      11. The defence of the accused is not to be looked into at the
stage when the accused seeks to be discharged. The expression “the
record of the case” used in Section 227 Cr.P.C. is to be understood as
the documents and articles, if any, produced by the prosecution. The
Code does not give any right to the accused to produce any document
at the stage of framing of the charge. The submission of the accused
is to be confined to the material produced by the investigating agency.
      12. The primary consideration at the stage of framing of charge
is the test of existence of a prima-facie case, and at this stage, the
probative value of materials on record need not be gone into. This Court
by referring to its earlier decisions in the State of Maharashtra Vs.
Som Nath Thapa (1996) 4 SCC 659 and the State of MP Vs. Mohan
Lal Soni (2000) 6 SCC 338 has held the nature of evaluation to be
made by the court at the stage of framing of the charge is to test the
existence of prima-facie case. It is also held at the stage of framing of
charge, the court has to form a presumptive opinion to the existence of
856          SUPREME COURT REPORTS                        [2023] 13 S.C.R.


factual ingredients constituting the offence alleged and it is not expected
to go deep into probative value of the material on record and to check
whether the material on record would certainly lead to conviction at
the conclusion of trial.
     13. The power and jurisdiction of Higher Court under Section 397
Cr.P.C. which vests the court with the power to call for and examine
records of an inferior court is for the purposes of satisfying itself as
to the legality and regularities of any proceeding or order made in a
case. The object of this provision is to set right a patent defect or an
error of jurisdiction or law or the perversity which has crept in such
proceedings. It would be apposite to refer to the judgment of this court
in Amit Kapoor Vs. Ramesh Chandra (2012) 9 SCC 460 where scope
of Section 397 has been considered and succinctly explained as under:
      “12. Section 397 of the Code vests the court with the power
      to call for and examine the records of an inferior court for the
      purposes of satisfying itself as to the legality and regularity of any
      proceedings or order made in a case. The object of this provision is
      to set right a patent defect or an error of jurisdiction or law. There
      has to be a well-founded error and it may not be appropriate for
      the court to scrutinise the orders, which upon the face of it bears
      a token of careful consideration and appear to be in accordance
      with law. If one looks into the various judgments of this Court,
      it emerges that the revisional jurisdiction can be invoked where
      the decisions under challenge are grossly erroneous, there is no
      compliance with the provisions of law, the finding recorded is
      based on no evidence, material evidence is ignored or judicial
      discretion is exercised arbitrarily or perversely. These are not
      exhaustive classes, but are merely indicative. Each case would
      have to be determined on its own merits.
      13. Another well-accepted norm is that the revisional jurisdiction
      of the higher court is a very limited one and cannot be exercised in
      a routine manner. One of the inbuilt restrictions is that it should not
      be against an interim or interlocutory order. The Court has to keep
      in mind that the exercise of revisional jurisdiction itself should
      not lead to injustice ex facie. Where the Court is dealing with
     STATE OF GUJARAT v. DILIPSINH KISHORSINH RAO 857
                 [ARAVIND KUMAR, J.]

     the question as to whether the charge has been framed properly
     and in accordance with law in a given case, it may be reluctant
     to interfere in exercise of its revisional jurisdiction unless the
     case substantially falls within the categories aforestated. Even
     framing of charge is a much advanced stage in the proceedings
     under the CrPC.”
     14. This Court in the aforesaid judgement has also laid down
principles to be considered for exercise of jurisdiction under Section
397 particularly in the context of prayer for quashing of charge framed
under Section 228 Cr.P.C. is sought for as under:
     “27. Having discussed the scope of jurisdiction under these two
     provisions i.e. Section 397 and Section 482 of the Code and the
     fine line of jurisdictional distinction, now it will be appropriate for
     us to enlist the principles with reference to which the courts should
     exercise such jurisdiction. However, it is not only difficult but is
     inherently impossible to state with precision such principles. At
     best and upon objective analysis of various judgments of this Court,
     we are able to cull out some of the principles to be considered for
     proper exercise of jurisdiction, particularly, with regard to quashing
     of charge either in exercise of jurisdiction under Section 397 or
     Section 482 of the Code or together, as the case may be:
     27.1. Though there are no limits of the powers of the Court under
     Section 482 of the Code but the more the power, the more due
     care and caution is to be exercised in invoking these powers. The
     power of quashing criminal proceedings, particularly, the charge
     framed in terms of Section 228 of the Code should be exercised
     very sparingly and with circumspection and that too in the rarest
     of rare cases.
     27.2. The Court should apply the test as to whether the uncontroverted
     allegations as made from the record of the case and the documents
     submitted therewith prima facie establish the offence or not. If the
     allegations are so patently absurd and inherently improbable that
     no prudent person can ever reach such a conclusion and where the
     basic ingredients of a criminal offence are not satisfied then the
     Court may interfere.
858          SUPREME COURT REPORTS                     [2023] 13 S.C.R.


      27.3. The High Court should not unduly interfere. No meticulous
      examination of the evidence is needed for considering whether
      the case would end in conviction or not at the stage of framing
      of charge or quashing of charge.
      27.9. Another very significant caution that the courts have to
      observe is that it cannot examine the facts, evidence and materials
      on record to determine whether there is sufficient material on the
      basis of which the case would end in a conviction; the court is
      concerned primarily with the allegations taken as a whole whether
      they will constitute an offence and, if so, is it an abuse of the
      process of court leading to injustice.
      27.13. Quashing of a charge is an exception to the rule of
      continuous prosecution. Where the offence is even broadly
      satisfied, the Court should be more inclined to permit continuation
      of prosecution rather than its quashing at that initial stage. The
      Court is not expected to marshal the records with a view to decide
      admissibility and reliability of the documents or records but is an
      opinion formed prima facie.”
     15. The revisional court cannot sit as an appellate court and start
appreciating the evidence by finding out inconsistency in the statement
of witnesses and it is not legally permissible. The High Courts ought to
be cognizant of the fact that trial court was dealing with an application
for discharge.
      16. In the teeth of the above analysis of law when the impugned
order of the High Court is perused, it would not detain us for too long
to brush aside the contentions raised by the respondent-accused for
reasons more than one. Firstly, the charge-sheet has been filed after
taking into consideration the written submissions filed by the accused
before the Investigating Authority which included the documentary
evidences tendered by the respondent accused. Secondly, the statement
of friends and acquaintances from whom loans of large amounts had
been borrowed by the accused which had been relied upon by the
accused to stave off the prosecution in his written submissions filed
before the Investigating Authority and which material had persuaded the
High Court to accept the same on its evaluation to be true, is nothing
     STATE OF GUJARAT v. DILIPSINH KISHORSINH RAO 859
                 [ARAVIND KUMAR, J.]

but short of accepting the same as defence evidence and examining the
truthfulness of its contents even before trial could be commenced or
held. Thirdly, the High Court has proceeded to examine the pros and
cons of defense by weighing the defence-evidence and probabilities
of the conclusion that may ultimately be arrived at, as the basis
for exercising the revisional jurisdiction which was impermissible.
Fourthly, the purported loans said to have been obtained by the
respondent accused from his mother, brother and father are all question
of facts which requires adjudication and this could be done only during
trial and the explanation relating to borrowing of large sums raises
a reasonable suspicion, which has been termed by the Investigating
Agency as strong material to file the charge sheet and based on such
material the sanctioning authority also recorded its satisfaction under
sanction order dated: 05.03.2015 to prosecute the respondent-accused.
Hence, raising reasonable suspicion cannot be held or construed at the
primary stage for discharging the accused.
      17. The plea or the defence when requiring to be proved during
course of trial is itself sufficient for framing the charge. In the instant
case, the learned Trial Judge has noticed that explanation provided by
the respondent accused pertaining to purchase of shop No.7 of Suman
City Complex of plot No.19, Sector-11 from the loan borrowed and
paid by the respondent was outside the check period and hence the
explanation provided by respondent is a mere eye wash. This is an issue
which has to be thrashed out during the course of the trial and at the
stage of framing the charge mini trial cannot be held. That apart the
explanation offered by the respondent accused with regard to buying of
Maruti Wagon-R car, Activa scooter, purchase of house etc., according
to the prosecution are all the subject matter of trial or it is in the nature
of defence which will have to be evaluated after trial.
     18. In the afore-stated circumstances we are of the considered
view that High Court had committed a serious error in interfering with
the well-reasoned order passed by the trial court. Hence, the impugned
judgment dated 11.01.2018 passed in Criminal Revision Application
No.387 of 2016 setting aside the trial court order dated 13.04.2016
requires to be set aside and accordingly it is set aside and appeal is
860            SUPREME COURT REPORTS                    [2023] 13 S.C.R.


allowed. The trial court shall proceed with the trial having regard to the
fact that charge-sheet has been filed in the year 2015 and shall conclude
the trial expeditiously and preferably within a period of one year.


Headnotes prepared by:                                       Appeal allowed.
Nidhi Jain