M.E. SHIVALINGAMURTHY versus CENTRAL BUREAU OF INVESTIGATION, BENGALURU

Citation: [2020] 1 S.C.R. 794 · Decided: 07-01-2020 · Supreme Court of India · Bench: SANJAY KISHAN KAUL · Disposal: Dismissed

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2020] 1 S.C.R.
M.E. SHIVALINGAMURTHY
v.
CENTRAL BUREAU OF INVESTIGATION, BENGALURU
(Criminal Appeal No. 957 of 2017)
JANUARY 07, 2020
[SANJAY KISHAN KAUL AND K. M. JOSEPH, JJ.]
Code of Criminal Procedure, 1973 – s. 227 – Discharge –
There was a Partnership firm “AMC”, first accused and second
accused became partners of the firm in 2009 – The appellant was
arrayed as the third accused – There was a reference in the charge-
sheet to a conspiracy between the first accused and the second
accused – The appellant was director of Mines and Geology in the
State at the relevant time – It was alleged that appellant had acted
in pursuance to the criminal conspiracy and abused his official
position with a dishonest and fraudulent intention to cheat the
Government and knowingly made a false note in the file that he
had discussed the matter, relating to issuance of the Mineral Dispatch
Permit (MDP) to the new partners of the firm, viz., the first accused
and the second accused, with the Deputy Director (legal) and
directed Deputy Director to issue MDP – It was alleged in the
charge-sheet that the acts of the accused including the third accused
(appellant) constituted criminal offences u/ss. 120B, 420, 379, 409,
447, 468, 471, 477A of IPC and ss. 13 (2), 13 (1) (c) and 13 (1) (d)
of the Prevention of Corruption Act, 1988 – Applications were filed
u/s. 227 of the Cr.P.C. seeking discharge – The Trial Court discharged
the second accused and the appellant – This order was set aside by
the High Court – On appeal, held: The prosecution case largely
depended upon the statement of the Deputy Director legal who took
a definite stand that no opinion was sought from him by the appellant
– A matter, u/r. 37 of the Rules, therefore, according to the prosecution
case, which ought to have gone to the State Government for prior
sanction, came to be dealt with by the appellant as Director of Mines
– This led to the issue of MDP – If the defence of the appellant is
not to be looked into, which included the practice of obtaining in
the past whenever the firm was reconstituted and also the version
of the appellant that he did in fact speak with the Deputy Director
(legal) and acted on his advice and further that this fact would be
   [2020] 1 S.C.R. 794
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established if the Deputy Director legal was questioned in his
presence, they would appear to be matter which may not be available
to the appellant to press before the Court considering the application
u/s. 227 of the Cr.P.C. – Consequently, the appeal is dismissed –
Mines and Minerals (Development and Regulation) Act, 1957 –
Mineral Concession Rules, 1960 – r. 37.
Code of Criminal Procedure, 1973 – s. 227 – Contours of
jurisdiction under – Held: The principle established is to take the
materials produced by the prosecution, both in the form of oral
statements and also documentary material, and act upon it without
it been subjected to questioning through cross-examination and
everything assumed in favour of the prosecution, if a scenario
emerges where no offence, as alleged, is made out against the
accused, it, undoubtedly, would enure to the benefit of the accused
warranting the Trial Court to discharge the accused – It is not open
to the accused to rely on material by way of defence and persuade
the court to discharge him.
Code of Criminal Procedure, 1973 – s. 227 – Discharge –
Defence of accused seeking discharge – Held: The defence of the
accused is not to be looked into at the stage when the accused
seeks to be discharged u/s. 227 of the Cr.PC (State of J & K v.
Sudershan Chakkar and another) – The expression, “the record of
the case”, used in Section 227 of the Cr.PC, is to be understood as
the documents and the 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 – At the stage of
framing of the charge, the submission of the accused is to be
confined to the material produced by the Police (State of Orissa v.
Debendra Nath Padhi).
Dismissing the appeal, the Court
HELD: 1. The defence of the accused is not to be looked
into at the stage when the accused seeks to be discharged under
Section 227 of the Cr.PC (State of J & K v. Sudershan Chakkar
and another). The expression, “the record of the case”, used in
Section 227 of the Cr.PC, is to be understood as the documents
and the articles, if any, produced by the prosecution. The Co

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