# Om Prakash Jaiswal & Anr v. State of U.P. & Anr

- **Citation:** (2021) 9 ILRA 910
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-31
- **Case number:** U/s 482/378/407. No. 8150 of 2019
- **Bench:** Faiz Alam Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/om-prakash-jaiswal-anr-v-state-of-u-p-anr-47417
- **Pages:** 20

## Headnote

(A) Criminal Law - Indian Penal Code,
1860 - Sections 120-B, 420 - The Code of
criminal
procedure,
1973
-
Section
161,397(2) - Prevention of Corruption
Act,1988
-
Section 13(2)
read
with
13(1)(d) - falsehood or the truthfulness of
the allegations can only be tested in the
trial .(Para -52)

Joint surprise check conducted by a team of CBI
officials, railways vigilance and RDSO officials -
three samples - PVC Insulated Railway Signaling
Cable, PVC Insulated Railway Signaling Cable
and PVC Insulated Railway Signaling power
cable - collected from the sites - sent by the CBI
for quality analysis at the signal lab of RDSO,
Lucknow - sample test report given by the
signal lab - cables found failed in certain vital
parameters
-
did
not
meet
standards
specifications - discharge application by the
applicants and revisionist - rejected by the order
of the Special Judge .(Para - 28,46,48)

HELD:- All the submissions are pertaining to
the factual aspect of the case and the veracity
of claims and counter claims by the applicants/
revisionist
and
the
Central
Bureau
of
Investigation could only be tested during the
trial but at this stage it is not a case where the
proceedings should have been culminated by
discharging the accused persons.
No
illegality appears to have been committed by
the Special Judge by rejecting the prayer of the
applicants/ revisionist of their discharge and
resultantly the revision as well as application
under Section 482 Cr.P.C. moved by the
applicants and revisionist is liable to be
dismissed .(Para - 52,53)

Revision as well as Application U/S 482
Cr.P.C dismissed. (E-7)

List of Cases cited:-

## Text

_Characters 0–39,848 of 67,373. This is a partial read: ask again with offset=39848 for what follows._

910 INDIAN LAW REPORTS ALLAHABAD SERIES
of the Indian Penal Code. Where the case
involves one cognizable offence also
alongwith
non-cognizable
offences
it
should not be treated as a non- cognizable
case for the purpose of sub-section 2 of
Section 155 and that is the intention of
legislation which is manifested in Section
155(4) of the Code of Criminal Procedure.
Therefore, the argument that the learned
Magistrate
could
not
have
taken
cognizance of the offences punishable
under Section 494 and 495 IPC on the
basis of submission of charge sheet, cannot
be accepted and is hereby rejected."

10. Hence, in view of the settled
position of law, the magistrate in this case
has committed no illegality while taking
cognizance as the charge sheet discloses
the commission of more than two offences
out of which at least one is cognizable,
hence, the case shall be treated to be a
cognizable case notwithstanding that the
other offences are non-cognizable.

11. In view of the above, it cannot be
said that there is any illegality committed
by the leaned Magistrate while taking
cognizance. The petition lacks merits and is
accordingly dismissed.
----------
(2021)09ILR A910
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 31.08.2021

BEFORE

THE HON'BLE FAIZ ALAM KHAN, J.

U/s 482/378/407. No. 8150 of 2019
&
Criminal Revision No. 1593 of 2019

Om Prakash Jaiswal & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties
Counsel for the Applicants:
Pramod Kumar Shukla, Ashish Kumar Mishra,
Rohit Kumar Singh

Counsel for the Opposite Parties:
G.A., A.S.G., Anurag Kumar Singh

(A) Criminal Law - Indian Penal Code,
1860 - Sections 120-B, 420 - The Code of
criminal
procedure,
1973
-
Section
161,397(2) - Prevention of Corruption
Act,1988
-
Section 13(2)
read
with
13(1)(d) - falsehood or the truthfulness of
the allegations can only be tested in the
trial .(Para -52)

Joint surprise check conducted by a team of CBI
officials, railways vigilance and RDSO officials -
three samples - PVC Insulated Railway Signaling
Cable, PVC Insulated Railway Signaling Cable
and PVC Insulated Railway Signaling power
cable - collected from the sites - sent by the CBI
for quality analysis at the signal lab of RDSO,
Lucknow - sample test report given by the
signal lab - cables found failed in certain vital
parameters
-
did
not
meet
standards
specifications - discharge application by the
applicants and revisionist - rejected by the order
of the Special Judge .(Para - 28,46,48)

HELD:- All the submissions are pertaining to
the factual aspect of the case and the veracity
of claims and counter claims by the applicants/
revisionist
and
the
Central
Bureau
of
Investigation could only be tested during the
trial but at this stage it is not a case where the
proceedings should have been culminated by
discharging the accused persons.
No
illegality appears to have been committed by
the Special Judge by rejecting the prayer of the
applicants/ revisionist of their discharge and
resultantly the revision as well as application
under Section 482 Cr.P.C. moved by the
applicants and revisionist is liable to be
dismissed .(Para - 52,53)

Revision as well as Application U/S 482
Cr.P.C dismissed. (E-7)

List of Cases cited:-

1. Sajjan Kumar Vs C.B.I., (2010)3 SCC (Cri)
1371 (I)
9 All Om Prakash Jaiswal & Anr. Vs. State of U.P. & Anr.
911
2. St. of Raj. Vs Fatehkaran Mehdu, (2017)3
Supreme Court Cases 198.

3. Sajjan Kumar Vs C.B.I., (2010)3 SCC (Cri)
1371.

4. Sanjay Kumar Rai Vs St. of U.P. & anr. ,
Criminal Appeal No. 472 of 2021 (I)

5. Rakesh Bhajan Lal & ors. Vs St. of U.P. &
anr., 2009 SCC OnLine All 1759

6. Sanghi Brothers (Indore) Private Limited Vs
Sanjay Choudhary & ors., (2008)10 Supreme
Court Cases 681

7. Akbar Hussain Vs St. of J & K & anr. , (2018)
16 Supreme Court Cases 85

8. Raman Bhuraria Vs C.B.I., (2016)92 ACC
page 253

9. Tulsi Ram ETC Vs St. of U.P., AIR 1963
Supreme Court page no. 666

10.
Criminal
Revision
No.
98/15,
Dated
20.2.2015

11. Madhu Limaye Vs St. of Mah. (31.10.1977 -
SC) : MANU/SC/0103/1977

12. Sanjay Kumar Rai Vs St. of U.P. & Ors.
(07.05.2021 - SC) : MANU/SC/0346/2021

13.
St.

of
Bihar
Vs
Ramesh
Singh
MANU/SC/0139/1977 : 1977CriLJ1606

14. St. of Supt. & Remembrancer of Legal
Affairs, West Bengal Vs Anil Kumar Bhunja &
ors. (1979) 4 SCC 274

15. U.O.I. Vs Prafulla Kumar Samal & ors.
(06.11.1978 - SC) : MANU/SC/0414/1978

16.
R.S.
Nayak
Vs

A.R.
Antulay
MANU/SC/0198/1986(para 44) : (1986) 2 SCC 716

17. St. - Anti Corruption Bureau, Hyderabad &
anr. Vs P. Suryaprakasam , 1999 Supreme Court
Cases (Cri) 373

18. St. of Orissa Vs Debendra Nath Padhi,
(2005) 1 SCC 568
19.
St.
of
Bihar
Vs
Ramesh
Singh
MANU/SC/0139/1977:1977CriLJ1606,

20.
St.

of
Delhi
Vs
Gyan
Devi
&
Ors.MANU/SC/0649/2000 ,

21. St. of M.P. Vs S.B. Johari & Ors.
MANU/SC/0025/2000

22. Maharashtra Vs Priya :Sharan Maharaj
MANU/SC/1146/1997: 1997CriLJ2248

23. Corruption Bureau, Hyderabad 2000CriLJ944
& St. of & Ors.

24. St. Anti- & anr. Vs P. Suryaprakasam, 1999
SCC (Crl.) 373

25. Sajjan Kumar Vs C.B.I., (2010) 9 SCC 368

26. Asim Sharif Vs National Investigation
Agency, MANU/SC/0863/2019 : (2019) 7 SCC
149

27. Tarun Jit Tejpal Vs St. of Goa & other:
MANU/SC/1121/2019

28. St. of Raj. Vs Ashok Kumar Kashyap,
MANU/SC/0275/2021

(Delivered by Hon'ble Faiz Alam Khan, J.)

1. Applicants- Om Prakash Jaiswal
and M/s Shankar Cable Industries through
its Proprietor Om Prakash Jaiswal has
moved application under Section 482
Cr.P.C. No. 8150 of 2019 and revisionist
Satyendra Narayan Soni has preferred
Criminal Revision No. 1593 of 2019 with
the prayer to quash the order dated
27.09.2019 passed by learned Special
Judge Anti-Corruption C.B.I.,
(West),
Lucknow in Criminal Case No. 400 / 2016,
pertaining to FIR No. R.C. 0062014
A000027 dated 29.8.2014, Case No.1/2016,
under Sections 120-B, 420 IPC and Section
13(2) read with 13(1)(d) P.C. Act, 1988,
whereby the application for discharge of
the applicants and revisionist has been
912 INDIAN LAW REPORTS ALLAHABAD SERIES
rejected by the Special Judge by passing
common order dated 27.09.2019, as well as
to quash the entire proceedings of the
instant case .

2. As the aforementioned application
under Section 482 Cr.P.C. No. 8150 of
2019 and Criminal Revision No. 1593 of
2019 have been preferred against the same
order dated 27.9.2019 passed by the
Special Judge Anti corruption C.B.I.,
whereby the discharge application of the
applicants no.1 and 2 of petition under
Section 482 Cr.P.C. No. 8150 of 2019 and
revisionist in Criminal Revision No. 1593
of 2019 have been rejected by passing
common
order
dated
27.9.2019,
for
convenience and to avoid repetition of
facts, law and discussion both cases i.e.
petition under Section 482 Cr.P.C. No.
8150 of 2019 and Criminal Revision No.
1593 of 2019 are being disposed of by
passing this common order.

3. In the judgment, now onwards
applicants/ petitioners of 482 Cr.P.C. No.
8150 of 2019 will be called applicants and
revisionist of Criminal Revision No. 1593
of 2019 will be called as revisionist.

4. Heard Shri Jyotindra Mishra,
learned Senior Advocate assisted by Shri
Pramod Kumar Shukla, learned counsel for
the applicants in petition under Section 482
Cr.P.C. No. 8150 of 2019 and Shri
Purnendu Chakarvarty in Crl. Revision No.
1593 of 2019 and Shri Anurag Kumar
Singh, learned counsel appearing for C.B.I.
as well as perused the record.

5. Learned Senior advocate submits that
mere availability of some other remedy in the
Code of Criminal Procedure will not
circumcise the powers of this Court in
entertaining an application under Section 482
Cr.P.C. when the abuse of the process of the
Court is apparent on the face of record.
Learned
counsel
in
support
of
his
submissions has relied on Sajjan Kumar Vs.
Central Bureau of Investigation (2010)3
SCC (Cri) 1371 .

6. Learned Senior Advocate appearing
for the applicants as well as Shri Purnendu
Chakarvarty,
learned
counsel
for
the
revisionist, while referring to the order dated
27.9.2019 passed by the Special Judge
submits that the special court has not
considered the submissions and grounds
taken in discharge application by the
applicants and revisionist in right perspective
and without adverting to the material and
evidence available on record has rejected the
discharge application of the applicants and
revisionist.

7. It is also submitted by them that the
applicants in respect of a purchase order had
supplied 65 Drums of of 2 Core PVC
Insulated Railway Signaling power cable and
the supply was made only after the inspection
of officer of RDSO, Lucknow.

8. It is further submitted by Shri
Jyotindra Mishra Ld. Senior Advocate and
Shri Purenendu Chakarvarty that before the
supply was made the cables were thoroughly
inspected and after receiving the inspection
certificate were dispatched on 18.1.2013 and
19.1.2013 and on 15.10.2013 a team of CBI
Officers, Railway Vigilance and RDSO
Officials alleged to have conducted a search
operation and allegedly collected the samples
of some cables supplied by the applicants,
and other firm in their absence and got them
tested in the lab of RDSO, Lucknow, which
were allegedly failed in some parameters.

9. Highlighting the above factual
matrix it is vehemently submitted by them
9 All Om Prakash Jaiswal & Anr. Vs. State of U.P. & Anr.
913
that there are certain guidelines issued in
the manual of signal engineering which
provides
the
terms
of
storage
and
transportation of the cables by the Indian
Railways but the cable supplied by the
applicant firm was transported and kept
against the guidelines issued in this regard
and there is possibility that due to these
reasons the quality of cables may be
deteriorated by the efflux of time.

10. It is also submitted by them that
the trial court had not taken care of this
aspect of the matter that the cables supplied
by the applicants were stored in open sky
for 9 months and therefore the same has
been deteriorated due to wear and tear
caused by the weather.

11. It is also submitted by them that
no complaint of any kind has ever been
raised by the railways with regard to the
alleged inferior quality of the cable
supplied by the applicants and the whole
quantity of cable supplied by the applicants
has been consumed by them, therefore by
any stretch of imagination it could not be
said that the cable supplied by the
applicants was of inferior quality.

12. It is further submitted by them
that the equipments which were used for
testing of the cables prior to it supply to the
railways by the RDSO officials for pre
supply inspection were of the applicants
and the testing of samples alleged to have
been conducted by the CBI in the lab of
RDSO, Lucknow and therefore minor
differences in the parameters are bound to
take place in the testing result values and
the same could not attract criminal
consequences.

13. It is also submitted by them that
experts who were given the charge of
evaluating the quality of the cable supplied
by the applicants were not qualified enough
to assess the defect and the parameters
which have been mentioned in the charge
sheet filed by the Central Bureau of
Investigation are such which in any case
could not attract any criminal liability.

14. It is further submitted by them
that after the supply of the cable no
communication with regard to the alleged
inferior quality of the cable was ever made
by the railways and the other suppliers who
supplied the inferior quality of the cables
and whose cables were also failed in the
test have not been prosecuted and it is only
the applicants who have been targeted.

15. It is further submitted by them
that
RTI
answers
procured
by
the
revisionist placed at page 367 and 375 of
the paper book of the criminal Revision
No. 1593 of 2019 would reveal that it is
admitted to the railways that all the cables
supplied by Ms/ Shankar Cable Industries(
applicants) have been consumed by the
railways in different projects.

16. Learned Senior Counsel for the
applicants as well as learned counsel for
revisionist has relied on following case
laws:-

(I)
State
of
Rajasthan
Vs.
Fatehkaran Mehdu (2017)3 Supreme
Court Cases 198.

(II) Sajjan Kumar Vs. Central
Bureau of Investigation (2010)3 SCC (Cri)
1371.

(III) Sanjay Kumar Rai Vs. State
of U.P. and another, Criminal Appeal No.
472 of 2021 dated 7.5.2021 passed by
Hon?ble Supreme Court.
914 INDIAN LAW REPORTS ALLAHABAD SERIES

17. Shri Anurag Kumar Singh
Learned counsel for Central Bureau of
Investigation submits that the submissions
of learned Senior Counsel appearing for the
applicants and learned counsel appearing
for revisionist are against the factual
position of the case and the cable which
was supplied by the applicants has been
found to be of inferior quality in the testing
done at RDSO Lab and the experts were
also of the opinion that the inferior quality
of the cable could not be a result of in
adequate storage or due to the cable stored
in an open place.

18. It is also submitted that the
samples of the cables were taken in the
presence of the RDSO Officers and railway
vigilance officials and as the cable supplied
by the applicants has been found to be of
inferior quality and has failed in vital
parameters, thus the first information report
was
lodged
against
the
applicants/Revisionist
and
during
the
course of investigation it is revealed that on
11.1.2013 and 12.1.10213 the two core
cable supplied by the applicants was tested
by revisionist Shri S.N. Soni, J.E. R.D.S.O.
and the check test was performed by Shri
Silas Minz, the then Deputy Director,
RDSO, on 13.1.2013 at the premises of
applicants at Gorakhpur. However, it is
revealed that revisionist Shri S.N. Soni who
alleged to have conducted the test on
13.1.2013 did not get his tour program
approved and has not booked any ticket for
that purpose. Similarly Shri Silas Minz also
did not get his tour programme approved
and has also not claimed any T.A. nor had
booked any ticket, which shows that both
these officers had in fact had not gone to
Gorakhpur
for
the
purpose
of
preinspection of the cables and as per the
report of the experts there is huge
difference in the quality of the cable (two
core) assessed before and after the supply
and this deterioration could not be the
result of improper storage or due to wear
and tear. The experts have also doubted the
pre-supply inspection report and the
Investigating Officer has found that in
furtherance of a conspiracy, by supplying
inferior quality cable to the railways the
applicants have caused heavy monetary
loss to the railways and the same has been
done in connivance with the above
mentioned
officers
of
the
R.D.S.O.,
Lucknow and thus no illegality has been
committed by the Special Judge while
rejecting the applications of the revisionist
and applicants as there was sufficient
material available for the purpose of
framing charge against the applicants and
revisionist.

19. Learned counsel for the CBI has
relied on the following case laws:-

(I) Rakesh Bhajan Lal and
others Vs. State of U.P. and another 2009
SCC OnLine All 1759.

(II) Sanghi Brothers (Indore)
Private Limited Vs. Sanjay Choudhary
and others (2008)10 Supreme Court Cases
681.

(III) Akbar Hussain Vs. State of
Jammu and Kashmir and another (2018)
16 Supreme Court Cases 85.

(IV) Raman Bhuraria vs. CBI
(2016)92 ACC page 253.

(V) Tulsi Ram ETC vs. State of
U.P. AIR 1963 Supreme Court page no.
666.

(VI)
Criminal
Revision
No.
98/15, Dated 20.2.2015
9 All Om Prakash Jaiswal & Anr. Vs. State of U.P. & Anr.
915

20. Having heard learned counsel for
the parties and having perused the record, it
is evident that so far as the maintainability
of proceeding under 482 Crpc and 397 /401
Crpc is concerned, suffice is to quote the
following paragraphs from Madhu Limaye
vs. The State of Maharashtra (31.10.1977
- SC) : MANU/SC/0103/1977;

"9. At the outset the following
principles may be noticed in relation to the
exercise of the inherent power of the High
Court
which
have
been"
followed
ordinarily and generally, almost invariably,
barring a few exceptions:

(1) That the power is not to be
resorted to if there is a specific provision in
the Code for the redress of the grievance of
the aggrieved party ;

(2) That it should be exercised
very sparingly to prevent abuse of process
of any Court or otherwise to secure the
ends of justice;

(3)
That
it
should
not
be
exercised as against the express bar of law
engrafted in any other provision of the
Code.

10. In most of the cases decided
during several decades the inherent power
of the High Court has been invoked for the
quashing of a criminal proceeding on one
ground or the other. Sometimes the
revisional jurisdiction of the High Court
has also been resorted to for the same kind
of relief by challenging the order taking
cognizance or issuing processes or framing
charge on the grounds that the Court had no
jurisdiction to take cognizance and proceed
with the trial, that the issuance of process
was wholly illegal or void, or that no
charge could be framed as no offence was
made out on the allegations made or the
evidence
adduced
in
Court.
In
the
background aforesaid we proceed to
examine as to what is the correct position
of law after the introduction of a provision
like Sub- section (2) of Section 397 in the
1973 Code.

11. As pointed out in Amar
Nath's case (supra) the purpose of putting a
bar on the power of revision in relation to
any interlocutory order passed in an appeal,
inquiry, trial or other proceeding is to bring
about expeditious disposal of the cases
finally. More often than not, the revisional
power of the High Court was resorted to in
relation to interlocutory orders delaying the
final disposal of the proceedings. The
Legislature in its wisdom decided to check
this delay by introducing Sub-section (2),
in Section 397. On the one hand, a bar has
been put in the way of the High Court (as
also of the Sessions Judge) for exercise of
the revisional power in relation to any
interlocutory order, on the other, the power
has been conferred in almost the same
terms as it was in the 1898 Code.

21. On a plain reading of Section 482,
however, it would follow that nothing in
the Code, which would include Sub-section
(2) of Section 397 also, "shall be deemed to
limit or affect the inherent powers of the
High Court". But, if we were to say that the
said bar is not to operate in the exercise of
the inherent power at all, it will be setting
at naught one of the limitations imposed
upon the exercise of the revisional powers.

22. In such a situation, what is the
harmonious way out ? In our opinion, a
happy solution of this problem would be to
say that the bar provided in Sub-section (2)
of Section 397 operates only in exercise of
the revisional power of the High Court,
916 INDIAN LAW REPORTS ALLAHABAD SERIES
meaning thereby that the High Court will
have no power of revision in relation to any
interlocutory order. Then in accordance
with one of the other principles enunciated
above, the inherent power will come into
play, there being no other provision in the
Code for the redress of the grievance of the
aggrieved party. But then, if the order
assailed is purely of an interlocutory
character which could be corrected in
exercise of the revisional power of the High
Court under the 1898 Code, the High Court
will
refuse
to
exercise
its
inherent
power.But in case the impugned order
clearly brings about a situation which is an
abuse of the process of the Court or for the
purpose of securing the ends of justice
interference by the High Court is absolutely
necessary, then nothing contained in
Section 397(2) can limit or affect the
exercise of the inherent power by the High
Court. But such cases would be few and far
between.

23. The High Court must exercise the
inherent power very sparingly.

24. One such case would be the
desirability of the quashing of a criminal
proceeding initiated illegally, vexatiously
or as being without jurisdiction.

25. The answer is obvious that the bar
will not operate to prevent the abuse of the
process of the Court and/or to secure the
ends of justice. The label of the petition
filed by an aggrieved party is immaterial.
The High Court can examine the matter in
an appropriate case under its inherent
powers."

26. Following paragraphs of Sanjay
Kumar Rai vs. State of Uttar Pradesh
and
Ors.
(07.05.2021
-
SC)
:
MANU/SC/0346/2021 are also relevent ;

"15. The correct position of law
as laid down in Madhu Limaye (supra),
thus, is that orders framing charges or
refusing
discharge
are
neither
interlocutory nor final in nature and are
therefore not affected by the bar of Section
397(2) of Code of Criminal Procedure.
That apart, this Court in the above-cited
cases has unequivocally acknowledged that
the High Court is imbued with inherent
jurisdiction to prevent abuse of process or
to secure ends of justice having regard to
the facts and circumstance of individual
cases. As a caveat it may be stated that the
High Court, while exercising its aforestated jurisdiction ought to be circumspect.
The discretion vested in the High Court is
to be invoked carefully and judiciously for
effective and timely administration of
criminal
justice
system.
This
Court,
nonetheless,
does
not
recommend
a
complete hands off approach. Albeit, there
should be
interference,
may
be,
in
exceptional cases, failing which there is
likelihood of serious prejudice to the rights
of a citizen. For example, when the
contents of a complaint or the other
purported material on record is a brazen
attempt to persecute an innocent person, it
becomes imperative upon the Court to
prevent the abuse of process of law."

27. Thus without entering into the
academic question of maintainability of the
petitions , keeping in view the aforesaid
law, I intend to proceed to decide the lis on
merits.

28. The case of the prosecution in nut
shell is that on receipt of a reliable
information joint surprise check was
conducted by a team of Central Bureau of
Investigation, Railways Vigilance and
RDSO Official on 15.10.2013 at Gaghra
Ghat, Choaka Ghat Section of N.E.R.,
9 All Om Prakash Jaiswal & Anr. Vs. State of U.P. & Anr.
917
Lucknow Division and also at the store of
senior section Engineer (S.S.D.)/ Signal /
CON/NER Aishbagh, Lucknow.

29. The FIR was lodged and after
investigation the charge sheet was filed
against revisionist Satyendra Narayan Soni,
Silas Minz and applicants- Om Prakash
Jaiswal and Ms/ Shankar Cable through its
proprietor. It is stated in the charge sheet
that in pursuance of the purchase order
dated 28.9.2012 issued by the Chief
Material Manager, N.E.R. Gorakhpur Ms
Shankar Cable Industries has supplied (65
Drums) of 2 Core PVC Insulated Railway
Signaling power cable and the supply was
made on the basis of inspection certificate
issued by RDSO, Lucknow. Subsequently
on the basis of further demand 7 Drums out
of 65 drums were provided to the SSE
Aishbagh vide issue note dated 6.9.2013.
On 15.10.2013 a surprise check was
conducted by the CBI along with the
officers of Railways and RDSO Vigilance
and samples of the cables supplied by the
applicants as well as by the other firm were
collected in the presence of the railway
officials as well as RDSO Officers and the
samples so collected were forwarded to
RDSO, Lucknow Lab for its testing and
quality analysis and as per the summary of
test results the first sample of 2 Core Cable
was found failed in six parameters and
sample of six Core 1.5 Sq. m.m., Railway
signaling cable was found failed in 4
parameters while first sample of 12 Core x
1.5 sq. m.m. Railway signaling cable was
found failed in 8 parameters Thereafter 2nd
and 3rd out of above types were tested by
signal lab of RDSO, Lucknow and they
were also found failed in 6 parameters.

30. During the course of investigation
it was also found that the accused Silas
Minz and revisionist accused S.N. Soni had
not conducted the pre supply testing and
has given report without visiting the firm of
the applicants. During the course of
investigation the statement of technical
experts e.g. Shri M.P. Singh, Senior
Provisional Signal Tel. Com. Engineer
(Works) N.E.R., Lucknow, Sarvada Nand
Pandey, Senior Section Engineer (Signal)
complainant, NER Lucknow and Dr.
Gauthama,
Associate
Professor
IIT,
Kanpur, Dr. Pradeep Maji, Assistant
Professor IIT, Rurki and Shri Modit Anand,
Joint Director Signal Lab RDSO, Lucknow
and
others
were
recorded
by
the
Investigating Officer who had specifically
stated that the reading recorded by the
accused RDSO Officials (accused persons)
pertaining to pre inspection of the cables
are unlikely to be the result of a genuine
laboratory test and difference in parameters
found in the sample report prepared by
RDSO Lab in respect of failed parameters
with regard to 2 Core cable supplied by the
applicants, vis a vis pre inspection
parameters, could not be the result of
environmental effect or due to man
handling in transportation.

31. It is also stated in the charge sheet
that all the cables supplied by the
applicants and other company were kept in
similar
conditions
and
therefore
Investigating Officer had concluded that
the applicants had conspired with accused
revisionist Satyendra Narayan Soni, J.E.
RDSO, Lucknow , accused Silas Minz.,
Deputy Director to cheat railways by
supplying the sub standard cable , who
have also issued certificate of pretesting
without actually testing the cable at the
premises of Shankar Cable Industries at
Gorakhpur and in furtherance of the
criminal conspiracy had caused a huge
monetary loss to the railways and monetary
gain to the accused persons.
918 INDIAN LAW REPORTS ALLAHABAD SERIES

32. Perusal of the order of the
subordinate court would also reveal that
Special Judge was of the view that the
allegation as has been levelled in the charge
sheet filed by the CBI could only be tested
during the course of trial having regard to
the quality of evidence which will be
produced by the prosecution. The trial court
was also of the view that as to whether
proper samples have been collected at the
time of inspection is the subject matter of
evidence. It is also opined by the Special
Judge
that
during
the
course
of
investigation the opinion of the experts has
also been recorded wherein it is revealed
that the quality of cables supplied by
applicants, as is evident by the parameters
recorded in the lab, could not be
deteriorated due to improper storage of the
cables or due to man handling during
transportation. The Special Judge also
opined that the fact as to whether the
inspection certificates were issued by the
co-accused persons revisionist Shri S.N.
Soni and Silas Minz after testing the cable
or as claimed by the prosecution without
visiting the site of the applicants could only
be determined after full fledged trial and
also that at the stage of framing of charge
only a prima facie case is to be seen and the
charge could also be framed even on the
basis of strong suspicion founded upon the
material presented before the court and thus
discharge application moved on behalf of
the applicants was dismissed.

33. Keeping in view the submissions
of learned Counsel for the applicants and
revisionist that the Court below has
materially
erred
in
rejecting
their
applications of discharge which has also
occasioned failure of justice, the facts of
the instant case are required to be seen in
the background of various submissions
made
by
learned
Counsel
for
the
applicants/ revisionist in the backdrop of
settled law on this point. It is fruitful at this
stage to recall the settled law on the
subject.

34. In State of Bihar v. Ramesh
Singh
MANU/SC/0139/1977
:
1977CriLJ1606 , considering the scope of
Sections 227 and 228 of the Code, it was
held as under :-

"...the
evidence
which
the
Prosecutor proposes to adduce are not to
be meticulously judged. Nor is any weight
to be attached to the probable defence of
the accused. It is not obligatory for the
Judge at that stage of the trial to consider
in any detail and weigh in a sensitive
balance whether the facts, if proved, would
be incompatible with the innocence of the
accused or not. The standard of test and
Judgment which is to be finally applied
before recording a finding regarding the
guilt or otherwise of the accused is not
exactly to be applied at the stage of
deciding the matter under Section 227 or
Section 228 of the Code. At that stage the
Court is not to see whether there is
sufficient ground for conviction of the
accused or whether the trial is sure to end
in his conviction.

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 stage is not in the sense of the law
9 All Om Prakash Jaiswal & Anr. Vs. State of U.P. & Anr.
919
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.

An
exhaustive
list
of
the
circumstances to indicate as to what will
lead to one conclusion or the other is
neither possible nor advisable. We may just
illustrate the difference of the law by one
more example. If the scales of pan as to the
guilt or innocence of the accused are
something like even at the conclusion of the
trial, then, on the theory of benefit of doubt
the case is to end in his acquittal. But if. on
the other hand, it is so at the initial stage of
making an order under Section 227 or
Section 228, then in such a situation
ordinarily and generally the order which
will have to be made will be one under
Section 228 and not under Section 227."

35. Hon?ble Supreme Court in the case
of State of Supt. And Remembrancer of
Legal Affairs, West Bengal Vs. Anil
Kumar Bhunja and others (1979) 4 SCC
274 has held as under:-

"18. It may be remembered that
the case was at the stage of framing
charges; the prosecution evidence had not
yet commenced. The Magistrate had
therefore, to consider the above question
on a general consideration of the materials
placed! before him by the investigating
police officer. At this stage, as was pointed
out by this Court in State of Bihar v.
Ramesh Singh MANU/SC/0139/1977 :
1977Cri LJ 1606, the truth, veracity and
effect of the evidence which the prosecutor
proposes to adduce are not to be
meticulously judged. The standard of test,
proof and judgment which is to be applied
finally before finding the accused guilty or
otherwise, is not exactly to be applied at
the stage of Section 227 or 228 of the
CrPC, 1973. At this stage, even a very
strong suspicion founded upon materials
before the Magistrate, which leads him to
form a presumptive opinion as the
existence
of
the
factual
ingredients
constituting the offence alleged; may justify
the framing of charge against the accused
in respect of the commission of the
offence.?

36. Hon?ble Supreme Court in the
case of Union of India (UOI) vs. Prafulla
Kumar Samal and Ors. (06.11.1978 - SC)
: MANU/SC/0414/1978 held as under:-

"10. Thus, on a consideration of
the authorities mentioned above, the
following principles emerge :

(1)
That
the
Judge
while
considering the question of framing the
charges under Section 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.
920 INDIAN LAW REPORTS ALLAHABAD SERIES

(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 largo 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 under Section 227 of the Code
the Judge which under the present Code is
a senior and experienced 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 evidence 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
evidence as if he was conducting a trial."

37. Hon'ble Supreme Court in the
case of R.S. Nayak v. A.R. Antulay
MANU/SC/0198/1986(para 44) : (1986) 2
SCC 716. opined as follows:

?44...The
Code
contemplates
discharge of the accused by the Court of
Sessions under Section 227 in a case triable
by it; cases instituted upon a police report
are covered by Section 239 and cases
instituted otherwise than on police report are
dealt with in Section 245. The three sections
contain some what different provisions in
regard to discharge of the accused. Under
Section 227, the trial Judge is required to
discharge the accused if he 'considers that
there is not sufficient ground for proceeding
against the accused.' Obligation to discharge
the accused under Section 239 arises when
"the Magistrate considers the charge against
the accused to be groundless." The power to
discharge is exercisable under Section 245(1)
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." It
is a fact that Sections 227 and 239 provide
for discharge being ordered before the
recording of evidence and the consideration
as to whether charge has to be framed or not
is required to be made on the basis of the
record of the case, including documents and
oral hearing of the accused and the
prosecution or the police report, the
documents sent along with it and examination
of the accused and after affording an
opportunity to the two parties to be heard.
The stage for discharge under Section 245,
on the other hand, is reached only after the
evidence referred to in Section 244 has been
taken.

Notwithstanding this difference in
the position there is no scope for doubt that
the stage at which the magistrate is required
to consider the question of framing of charge
under Section 245(1) is a preliminary one
and the test of "prima facie" case has to be
applied. In spite of the difference in the
language of the three sections, the legal
position is that if the Trial Court is satisfied
that a prima facie case is made out, charge
has to be framed."

38. Hon'ble Supreme Court in the
case of State- Anti Corruption Bureau,
Hyderabad
and
another
Vs.
P.
Suryaprakasam reported in 1999 Supreme
Court Cases (Cri) 373 has held as under:

"5. ...........we are constrained to
say that the settled law is just the reverse of
what the High Court has observed in the
9 All Om Prakash Jaiswal & Anr. Vs. State of U.P. & Anr.
921
above- quoted passage as would be evident
from even a cursory reading of Sections
239
and 240Cr.P.C.,which admittedly
govern
the
case
of
therespondent.According
to
the above
sections, at the time of framing of a charge
what the trial court is required to, and can,
consider are only the police report referred
to under Section 173 Cr.P.C. and the
documents sent with it. The only right the
accused has at that stage is of being heard
and nothing

beyond that......."

39. Hon?ble Supreme Court in the case
of State of Orissa Vs. Debendra Nath
Padhi (2005) 1 SCC 568 has held as under:

"6. At the stage of framing charge,
the trial court is required to consider whether
there are sufficient grounds to proceed
against the accused. Section 227 of the Code
provides for the eventuality when the accused
shall be discharged. If not discharged, the
charge against the accused is required to be
framed under Section 228. ..

7. Similarly, in respect of warrant
cases triable by Magistrates, instituted on a
police report, Sections 239 and 240 of the
Code are the relevant statutory provisions.
Section 239 requires the Magistrate, to
consider 'the police report and the documents
sent with it under Section 173' and, if
necessary, examine the accused and after
giving accused an opportunity of being
heard, if the Magistrate considers the charge
against the accused to be groundless, the
accused is liable to be discharged by
recording reasons thereof.

8. What is to the meaning of the
expression 'the record of the case' as used
in Section 227 of the Code. Though the
word 'case' is not defined in the Code but
Section
209
throws
light
on
the
interpretation to be placed on the said
word. Section 209 which deals with the
commitment of case to Court of Session
when offence is triable exclusively by it,
inter alia, provides that when it appears to
the Magistrate that the offence is triable
exclusively by the Court of Session, he shall
commit 'the case' to the Court of Session
and send to that court 'the record of the
case' and the document and articles, if any,
which are to be produced in evidence and
notify the Public Prosecutor of the
commitment of the case to the Court of
Session. It is evident that the record of the
case and documents submitted therewith as
postulated in Section 227 relate to the case
and the documents referred in Section 209.
That is the plain meaning of Section 227
read with Section 209 of the Code, No
provision in the Code grants to the accused
any right to file any material or document
at the stage of framing of charge. That
right is granted only at the stage of the
trial.

9. Further, the scheme of the Code
when examined in the light of the provisions of
the old code of 1898, makes the position more
clear. In the old code, there was no provision
similar to Section 227. Section 227 was
incorporated in the Code with a view to save
the accused from prolonged harassment which
is a necessary concomitant of a protracted
criminal trial. It is calculated to eliminate
harassment to accused persons when the
evidential
materials
gathered
after
investigation fall short of minimum legal
requirements. If the evidence even if fully
accepted cannot show that the accused
committed the offence, the accused deserves to
be discharged. In the old Code, the procedure
as contained in Sections 207 and 207(a) was
fairly lengthy. Section 207, inter alia, provided
922 INDIAN LAW REPORTS ALLAHABAD SERIES
that the Magistrate, where the case is
exclusively triable by a Court of Session in any
proceedings instituted on a police report, shall
follow the procedure specified in Section
207(a).