Nishanth S Nair v. Central Bureau of Investigation

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI FRIDAY, THE 1[ST] DAY OF OCTOBER 2021 / 9TH ASWINA, 1943** **CRL.REV.PET NO. 604 OF 2020** **AGAINST THE ORDER IN CRL.M.P.NO.73/2020 IN CC NO.5/2016 OF THE SPECIAL COURT (SPE/CBI), THIRUVANANTHAPURAM** ## **REVISION PETITIONER/ACCUSED:** **NISHANTH S NAIR AGED 39 YEARS OCC: GOVERNMENT SERVANT, S/O.SOMASEKHARAN NAIR (LATE), RESIDING AT PUTHENMANDON, NANNUR, VALLAMKULAM P.O., THIRUVALLA, PATHANAMTHITTA DISTRICT - 689 542. BY ADVS. BIJU ANTONY ALOOR SHRI.JOBIN ABRAHAM SRI.K.P.PRASANTH SMT.ARCHANA SURESH SRI.RAJESH R. NAIR** ## **RESPONDENT/COMPLAINANT:** **CENTRAL BUREAU OF INVESTIGATION ACB, COCHIN, REPRESENTED BY STANDING COUNSEL, HIGH COURT OF KERALA, ERNAKULAM – 682031.** **BY ADV SHRI.P.VIJAYAKUMAR, ASG OF INDIA** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28/09/2021, THE COURT ON 01.10.2021 DELIVERED THE FOLLOWING:** **Crl.R.P. No.604 of 2020** **2** ## **R. NARAYANA PISHARADI, J ------------------------------------------Crl.R.P. No.604 of 2020** **-------------------------------------------** Dated this the 01[st] day of October, 2021 ## **O R D E R** The revision petitioner is the sole accused in the case C.C.No.5/2016 on the file of the Court of the Special Judge (SPE/CBI), Thiruvananthapuram. 2. The prosecution case against the accused, in short, is as follows: The accused Nishant.S.Nair was employed as Enquiry cum Reservation Clerk in the Reservation Office of the Punlaur Railway Station. One Madhusoodhanan Nair planned a journey along with his wife to Vijayawada by Train No.12625 (Kerala Express). In order to enquire about the availability of tatkal ticket, on 11.05.2016 at about 17:00 hours, he went to the Punalur Railway Station. Upon enquiry, the accused, who was the Booking Clerk, after checking the fare in the system, told him to pay an amount of Rs.5,000/- against the actual fare of Rs.3,710/-. He also told **Crl.R.P. No.604 of 2020** **3** Madhusoodhanan Nair that he would provide him a confirmed tatkal ticket on 12.05.2016 for the journey on 13.05.2016 and if Rs.5,000/- was not paid, the confirmed ticket would not be given. Thus the accused had demanded an excess amount of Rs.1,290/as illegal gratification from Madhusoodhanan Nair for issuing tatkal ticket. The accused further instructed Madhusoodhanan Nair to hand over a filled reservation form by 09:00 hours on 12.05.2016 at the booking counter of the Punalur Railway Station where he would be available and that he would hand over the confirmed ticket after closing the tatkal timings. Since Madhusoodhanan Nair was not willing to pay the amount demanded by the accused, he made a written complaint on 11.05.2016 to the Anti-Corruption Branch of the Central Bureau of Investigation (CBI). On the basis of that complaint, a case was registered against the accused. On 12.05.2016, the accused was caught red-handed while accepting illegal gratification from Madhusoodhanan Nair at the reservation booking counter of the Punalur Railway Station. 3. After completing the investigation of the case, the CBI filed charge-sheet against the accused for the offences punishable under Sections 7 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 (for short 'the Act'). **Crl.R.P. No.604 of 2020** **4** 4. The petitioner filed an application for discharge under Section 239 of the Code of Criminal Procedure, 1973 (for short 'the Code') in the Special Court. As per the impugned order dated 08.09.2020, the Special Court dismissed the aforesaid application. 5. The petitioner has filed this revision petition challenging the aforesaid order passed by the Special Court. 6. Heard the learned counsel for the petitioner and the learned Central Government Standing Counsel who appeared for the CBI. 7. In the final report filed by the CBI, the charges levelled against the petitioner/accused read as follows: ## _“_ _**- CHARGE I**_ _That Shri Nishant S Nair (Accused), while functioning as a public servant, in the capacity of ECRC (Enquiry Cum Reservation Clerk), Punalur Railway Station, Punalur, on 12/05/2016 demanded and accepted illegal gratification of Rs.1,290/- from the complainant Shri Madhusoodhanan Nair, as a reward for providing confirmed Railway Ticket under Tatkal Seva for AC-IIIrd journey on 13.05.2016 by train no.12626 Kerala Express and the said demand was in furtherance to the earlier demand made on 11.05.2016 and thereby Shri Nishant S Nair committed an_ **Crl.R.P. No.604 of 2020** **5** _offence punishable under Section 7 of the Prevention of Corruption Act, 1988._ ## _**- CHARGE II**_ _That Shri Nishant S Nair (Accused), while functioning as a public servant, in the capacity of ECRC (Enquiry Cum Reservation Clerk), Punalur Railway Station, Punalur on 12.05.2016, by corrupt or illegal means and by abusing his official position as a public servant, had obtained pecuniary advantage to the tune of Rs.1,290/- for himself from the complainant Shri Madhusoodhanan Nair, as a reward for providing confirmed Railway Ticket under Tatkal Seva for AC-IIIrd journey on 13.05.2016 by train no.12626 Kerala Express, and thereby committed an offence punishable under Section 13(2) r/w.13(1)(d) of Prevention of Corruption Act, 1988.”_ 8. The relevant portion of the impugned order passed by the learned Special Judge reads as follows: _“13. It is luculent from the materials produced by the prosecution that on the basis of the complaint of CW1, Superintendent of Police, CBI, instructed CW12, Jeejo P.Joseph, Inspector of Police, CBI, to lay a trap on the accused, if he further demands and accepts bribe of Rs.1,290/- from the defacto complainant. At about 7.45 AM on 12/05/2016, the independent witnesses along_ **Crl.R.P. No.604 of 2020** **6** _with CW1 came to the PWD rest house, Punalur, as per the direction of CW12; the complaint of CW1, was read over and explained by the trap laying officer before the official witnesses and CW1 there. CW12 obtained 5 currency notes in the denomination of Rs.1,000/- brought by CW1. Phenolphthalein test was demonstrated by CW12. He noted the serial numbers in the mahazar. Thereafter, CW4 prepared D3, mahazar. Accordingly, the prosecution levels a case that after complying with the legal formalities, CW12 laid a trap at the Punalur Railway Station and the accused was caught in flagrante delicto by CW12 while he was accepting Rs.1,290/- as bribe.”_ _14. Therefore, I am of the considered view that taking note of the statements of the witnesses especially CW9 to CW11, the materials, and the documents produced by the prosecution, there are sufficient grounds to proceed against the petitioner u/s 7, 13(1) (d) r/w 13(2) of the Prevention of Corruption Act,1988.”_ 9. The trial court has considered the statements of witnesses, especially statements of the witnesses CW9 to CW11, and other materials and documents produced by the prosecution and found that there are sufficient grounds to proceed against the **Crl.R.P. No.604 of 2020** **7** petitioner for the offences under Sections 7 and 13(1)(d) read with 13(2) of the Act. The trial court has taken into consideration the relevant statements of witnesses and materials produced by the prosecution along with the final report to ascertain whether the facts emerging from such materials disclose prima facie case against the accused for the offences under Sections 7 and 13(1)(d) read with 13(2) of the Act. 10. Under Section 227 of the Code, the trial court is required to discharge the accused if it “considers that there is not sufficient ground for proceeding against the accused”. However, discharge under Section 239 of the Code can be ordered when “the Magistrate considers the charge against the accused to be groundless”. The power of discharge under Section 245(1) of the Code has to be exercised by the Magistrate when, “the Magistrate considers, for reasons to be recorded that no case against the accused has been made out which, if unrebutted, would warrant his conviction”. 11. There is difference in the language employed in the above provisions. But, notwithstanding these differences, whichever provision may be applicable, the court is required at this stage to see that there is a prima facie case for proceeding against **Crl.R.P. No.604 of 2020** **8** the accused (See **Tarun Jit Tejpal v. State of Goa : 2019 SCC OnLine SC 1053** ). 12. In **Union of India v. Prafulla Kumar Samal : (1979) 3 SCC 4 : AIR 1979 SC 366** , the Supreme Court has held that, at the stage of framing charge, the trial court has the power to sift and weigh the evidence to find out whether there is any prima facie case against the accused and if two views are equally possible and the Judge is satisfied that the evidence gives rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. The Supreme Court further observed that the Judge should not act as a mouth-piece of the prosecution but he has to consider the broad probabilities of the case, the total effect of the evidence, any basic infirmities in the case and so on. The Supreme Court clarified that 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. 13. In **State of Maharashtra v. Som Nath Thapa : (1996) 4 SCC 659 : AIR 1996 SC 1744** , the Supreme Court has held that, if there is ground for presuming that the accused has committed the offence, it can be said that a _prima facie_ case has **Crl.R.P. No.604 of 2020** **9** been made out against the accused but at the stage of framing of charge, the probative value of the materials on record should not be gone into. ## 14. In **State v. Anup Kumar Srivastava : (2017) 15 SCC** ## **560 : AIR 2017 SC 3698** , the Apex Court has held as follows: _“Framing of charge is the first major step in a criminal trial where the court is expected to apply its mind to the entire record and documents placed therewith before the court. Taking cognizance of an offence has been stated to necessitate an application of mind by the court but framing of charge is a major event where the court considers the possibility of discharging the accused of the offence with which he is charged or requiring the accused to face trial….. The legal position is well settled that at the stage of framing of charge the trial court is not to examine and assess in detail the materials placed on record by the prosecution nor is it for the court to consider the sufficiency of the materials to establish the offence alleged against the accused persons. At the stage of charge the court is to examine the materials only with a view to be satisfied that a prima facie case of commission of offence alleged has been made out against the accused persons. The court is required to consider the “record of the case” and documents submitted therewith and, after hearing the parties,_ **Crl.R.P. No.604 of 2020** **10** _may either discharge the accused or where it appears to the court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. The satisfaction of the court in relation to the existence of constituents of an offence and the facts leading to that offence is a sine qua non for exercise of such jurisdiction.”_ (emphasis supplied) ## 15. In **State v. S. Selvi : (2018) 13 SCC 455 : AIR 2018 SC 81** , it has been held as follows: _“The Judge cannot act merely as a Post Office or a mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the statements and the documents produced before the Court, any basic infirmities appearing in the case and so 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 materials as if he was conducting a trial.”_ _(emphasis supplied)_ ## 16. In **Asim Shariff v. National Investigating Agency :** **(2019) 7 SCC 148 : AIR 2019 SC 3083** , the Apex Court has held as follows: _“It is settled that the Judge while considering the question of framing charge under Section 227_ **Crl.R.P. No.604 of 2020** **11** _Cr.P.C. in sessions cases (which is akin to Section 239 Cr.P.C. pertaining to warrant cases) 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; where the material placed before the Court discloses grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing the charge; by and large if two views are possible and one of them giving rise to suspicion only, as distinguished from grave suspicion against the accused, the trial Judge will be justified in discharging him. It is thus clear that while examining the discharge application filed under Section 227 Cr.P.C, it is expected from the trial Judge to exercise its judicial mind to determine as to whether a case for trial has been made out or not. It is true that in such proceedings, the Court is not supposed to hold a mini trial by marshalling the evidence on record”._ (emphasis supplied) 17. It is well-settled that at the stage of framing the charge, the trial court is required to evaluate the materials and documents on record with a view to find out whether the facts emerging therefrom, taken at their face value, disclose the existence of the ingredients constituting the offences alleged against the accused (See **State v. M.R. Hiremath: (2019) 7 SCC 515 : AIR 2019 SC** **Crl.R.P. No.604 of 2020** **12** ## **2377** ). 18. In the present revision petition itself, the petitioner has admitted that there are materials against him produced by the prosecution. It is stated as Ground No.7 in the revision petition as follows: _“It is pertinent to mention that except the statements of interested witnesses (De-facto Complainant) and there is no incriminating circumstances against the Petitioner to prosecute and frame charge U/Sec.228 of Cr.P.C against the Petitioner for the alleged offences fasten against the Petitioner, nevertheless the Ld.Trial Court initiated the petitioner with trial without getting any material on records.”_ 19. Again, it is mentioned as Ground No.11 in the revision petition as follows: _“It is pertained to mention that the investigating agency as cited 4 independent witnesses (PW2, PW3, PW9 &PW10) and these witnesses never voluntary given a statement against the Petitioner even though the investigating agency recorded the statement of these witnesses under the threat and influence of the De-facto Complainant, otherwise no independent witnesses could not be found_ **Crl.R.P. No.604 of 2020** **13** _against the Petitioner in order to prosecute and filed charge sheet against the Petitioner, even though the statements of these witness there is no incriminating materials available to frame charge against the Petitioner.”_ 20. The above grounds mentioned in the revision petition would show that the petitioner admits that there are statements of witnesses and materials against him produced by the prosecution. But his plea is that the witnesses have given such statement not voluntarily but on threat and influence made by the complainant. This is a matter to be decided after the witnesses have given evidence before the trial court. This Court or the trial court cannot now pre-judge the value of the evidence that would be given by the witnesses during the trial of the case. 21. Learned counsel for the petitioner contended that there are no materials produced by the prosecution to find that the petitioner had demanded any amount from the complainant as illegal gratification for making available tatkal ticket. Learned counsel would contend that proof of demand is absolutely necessary to establish the offences alleged against the petitioner. 22. The above contention also cannot be accepted at this stage of the case. The prosecution has produced sufficient **Crl.R.P. No.604 of 2020** **14** materials to prove that the accused had demanded Rs.5,000/from the complainant for making him available tatkal ticket of the fare of only Rs.3,710/-. The written complaint given to the CBI by Madhusoodhanan Nair, the complainant, discloses the demand for money made by the petitioner. It is sufficient to establish a prima facie case of demand made by the accused. 23. Learned counsel for the petitioner has contended that the CBI had not obtained any sanction for prosecution against the petitioner. There is no basis for this contention. Sanction for prosecution against the petitioner has been given under Section 19(1)(c) of the Act by the competent authority. The order issued by the competent authority in that regard has been produced by the prosecution along with the final report. 24. If a petition under Section 482 of the Code is filed for quashing the FIR/complaint, then the allegations in the FIR/complaint only are required to be considered and whether a cognizable offence is disclosed or not is required to be considered. However, thereafter, when the statements are recorded, evidence is collected and the charge-sheet is filed after conclusion of the investigation, the matter stands on different footing and the Court is required to consider the material/evidence collected during the **Crl.R.P. No.604 of 2020** **15** investigation. Even at this stage, the High Court is not required to go into the merits of the allegations and/or enter into the merits of the case as if the High Court is exercising the appellate jurisdiction and/or conducting the trial. (See **Kaptan Singh v. State of Uttar Pradesh : AIR 2021 SC 3931** ). ## 25. Recently, in **Saranya v. Bharathi : AIR 2021 SC** **3948** , the Apex Court has observed as follows: _“Before considering the rival submissions of the parties, few decisions of this Court on the principles which the High Court must keep in mind while exercising the jurisdiction Under Section 482 Code of Criminal Procedure/at the stage of framing of the charge while considering the discharge application are required to be referred to and considered._ _7.1. In the case of Deepak (supra), to which one of us (Dr. Justice D.Y. Chandrachud) is the author, after considering the other binding decisions of this Court on the point, namely, Amit Kapoor v. Ramesh Chander: (2012) 9 SCC 460; State of Rajasthan v. Fatehkaran Mehdu : (2017) 3 SCC 198 and Chitresh Kumar Chopra v. State (Government of NCT of Delhi): (2009) 16 SCC 605, it is observed and held that at the stage of framing of charges, the Court has to consider the material only with a view to find out if there is a ground for "presuming" that the accused had committed the offence. It is observed and held that at that stage, the High_ **Crl.R.P. No.604 of 2020** **16** _Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, take at their face value, disclose the existence of all the ingredients constituting the alleged offence or offences. It is further observed and held that at this stage the High Court is not required to appreciate the evidence on record and consider the allegations on merits and to find out on the basis of the evidence - recorded the accused charge sheeted or against whom the charge is framed is likely to be convicted or not”._ 26. Applying the above principles to the facts of this case, it can be found that there are sufficient materials produced by the prosecution, which prima facie disclose commission of the offences punishable under Sections 7 and 13(1)(d) of the Act by the petitioner/accused. The trial court has rightly dismissed the application for discharge filed by the petitioner. The revision petition is liable to be dismissed. 27. Even according to the learned counsel for the petitioner, the trial of the case has commenced and two witnesses have already been examined by the prosecution. The petitioner would be at liberty to raise all his contentions at the appropriate stage of the trial of the case. **Crl.R.P. No.604 of 2020** **17** Consequently, the revision petition is dismissed. **Sd/-R. NARAYANA PISHARADI JUDGE** lsn