STATE OF RAJASTHAN versus ASHOK KUMAR KASHYAP

Citation: [2021] 4 S.C.R. 158 · Decided: 13-04-2021 · Supreme Court of India · Bench: D.Y. CHANDRACHUD · Disposal: Appeal(s) allowed
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Judgment (excerpt)

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SUPREME COURT REPORTS
[2021] 4 S.C.R.
STATE OF RAJASTHAN
v.
ASHOK KUMAR KASHYAP
(Criminal Appeal No. 407 of 2021)
APRIL 13, 2021
[DR. DHANANJAYA Y. CHANDRACHUD AND
M.R. SHAH, JJ.]
Prevention of Corruption Act, 1988: s. 7 – Offence relating
to public servant being bribed – On facts, filing of chargesheet
against the accused for the offence u/s. 7 – Special Judge on basis
of the transcript of conversation recorded between the complainant
and the accused, found that there is a prima facie case of the alleged
offence u/s. 7, and framed the charges against the accused for the
said offence – Revision Application thereagainst – High Court
discharged the accused of the alleged offence u/s. 7 – Sustainability
of – Held: Not sustainable – While discharging the accused, the
High Court exceeded in its revisional jurisdiction and acted beyond
the scope of s. 227/239 Cr.P.C. – High Court considered in detail
the transcript of the conversation between the complainant and the
accused which exercise at that stage was not permissible at all – At
the stage of framing of the charge and/or considering the discharge
application, the mini trial is not permissible – At this stage, even as
per s. 7, even an attempt constitutes an offence – Thus, the High
Court erred and/or exceeded in virtually holding a mini trial at the
stage of discharge application – Order passed by the High Court
quashed and set aside, and that of the Special Judge restored.
Allowing the appeal, the Court
HELD:1. While discharging the accused, the High Court
exceeded in its jurisdiction in exercise of the revisional jurisdiction
and acted beyond the scope of Section 227/239 Cr.P.C. The High
Court went into the merits of the case and considered whether
on the basis of the material on record, the accused is likely to be
convicted or not. For the aforesaid, the High Court considered
in detail the transcript of the conversation between the
   [2021] 4 S.C.R. 158
158
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complainant and the accused which exercise at this stage to
consider the discharge application and/or framing of the charge
is not permissible at all. The Special Judge rightly held that at
the stage of framing of the charge, it has to be seen whether or
not a prima facie case is made out and the defence of the accused
is not to be considered. After considering the material on record
including the transcript of the conversation between the
complainant and the accused, the Special Judge having found that
there is a prima facie case of the alleged offence under Section 7
of the Prevention of Corruption Act, framed the charge against
the accused for the said offence. The High Court was required to
consider whether a prima facie case has been made out or not
and whether the accused is required to be further tried or not. At
the stage of framing of the charge and/or considering the discharge
application, the mini trial is not permissible. At this stage, even
as per Section 7 of the PC Act, even an attempt constitutes an
offence. Therefore, the High Court erred and/or exceeded in
virtually holding a mini trial at the stage of discharge application.
Furthermore, this Court is not entering into the merits of the
case and/or merits of the transcript as the same is required to be
considered at the time of trial. Defence on merits is not to be
considered at the stage of framing of the charge and/or at the
stage of discharge application. [Para 11, 12][167-B-E; G-H]
2. The impugned judgment and order passed by the High
Court discharging the accused under Section 7 of the PC Act is
unsustainable in law and is quashed and set aside, and the order
passed by the Special Judge framing charge against the accused
under Section 7 of the PC Act is restored. [Para 13][168-A-B]
P. Vijayan v. State of Kerana (2010) 2 SCC 398:[2010]
2 SCR 78; State of Karnataka Lokayukta, Police
Station, Bengaluru v. M.R. Hiremath (2019) 7 SCC
515 : [2019] 8 SCR 713 – relied on.
Srilekha Sentil Kumar v. Deputy Superintendent of
Police, CBI, ACB, Chennai (2019) 7 SCC 82; Asim
Shariff v. National Investigation Agency (2019) 7 SCC
148 : [2019] 8 SCR 799 – referred to.
STATE OF RAJASTHAN v. ASHOK KUMAR KASHYAP
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SUPREME COURT REPORTS
[2021] 4 S.C.R.
Case Law Reference
(2019) 7 SCC 82
Referred to
Para 6.4
[2019] 8 SCR 799
Referred to
Para 6.4
[2010] 2 SCR 78
Relied on
Para 10
[2019] 8 SCR 713
Relied on
Para 10
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 407 of 2021.
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