SUPREME COURT: SIMPLE & NECESSARY INQUIRY TO BE CONDUCTED WHILE EXAMINING PRIMA FACIE CASE FOR DISCHARGE U/SEC 227 CRPC

The Supreme Court in the case Kanchan Kumar vs State of Bihar observed that a simple and necessary inquiry can be conducted while considering discharge plea to find out whether a prima facie case is made out

The bench comprising of Justice BR Gavai and the Justice PS Narasimha observed that the threshold of scrutiny required to adjudicate an application under Section 227 Cr.P.C. is to consider the broad probabilities of the case and the total effect of the material on record, including the examination of any infirmities appearing in the case.

In the present case, an discharge application was filled by a person accused under Prevention of Corruption Act, 1988 (for having possessed assets disproportionate to his known sources of income) was dismissed by the Trial Court. Thus, the Trial Court refused to consider this objection on the ground that a roving inquiry is not permissible the stage of discharge. The Challenge was dismissed by the Patna High Court against this order.

In an appeal, the counsel, Senior Advocate Sunil Kumar, who appeared for the appellant- accused, contended that, the basic objection relating to the calculation and wrongful inclusion of certain items was sufficient for the Trial Court to discharge the accused. AoR Abhinav Mukerji, appearing for the respondent contended that the courts could not have conducted a roving inquiry while adjudicating an application.

The bench while perusing the materials on record founded that there is no prima facie case made out by the prosecution and therefore the Appellant was entitled to be discharged.

It was stated by the court that the conclusions that this court have drawn are based on materials placed before us, which are part of the case record. This is the same record that was being available with the Special Judge (Vigilance) when the application under Section 227 of the Cr.P.C. was taken up. Despite of the fact that the Special Judge (Vigilance) dismissed the discharge application on the simple ground that a roving inquiry is not permitted at the stage of discharge. What we have undertaken is not a roving inquiry, but a necessary and simple inquiry for a proper adjudication of an application for discharge. However, the Special Judge (Vigilance) was bound to conduct a similar inquiry for coming to a conclusion that a prima facie case is made out for the Appellant to stand trial. Unfortunately, the same mistake was committed by the High Court as that of the Special Judge (Vigilance).

Also, the court noticed that the allegation relating to Appellant’s disproportionate income in the period between 1974 and 1988 was levelled in an FIR filed twelve years after the said period concluded. The charge­sheet came to be filed in seven years after the registration of the FIR. On 28.03.2016, the application for discharge came to be dismissed, the same is almost after a decade of filing of the charge sheet. “Thereafter, the dismissal was affirmed by the High Court seven months i.e., on 05.10.2016. Finally, and most unfortunately, the present SLP has been pending for the last six years before this Court. In the meanwhile, in 2010 the appellant superannuated from service but had no option except to contest the case. He is now 72 years of age and the Continuation of the prosecution, apart from the illegality as indicated hereinabove, would also be unjust.