1. The Central Bureau of Investigation has assailed the order dated 24.03.2003 passed by Special Judge, CBI Cases, Jaipur in Criminal Case No.28/2002 whereby respondents Dinesh Kumar Bangard and Smt. Santosh Bangard were discharged from the offences punishable under Sections 13(2) read with Section 13(1) (e) of the Prevention of Corruption Act and Sections 168, 201 and 109/120B IPC.

2. Learned Special Public Prosecutor argued that on the basis of FIR the case was instituted against the respondents for amassing disproportionate assets worth Rs.18,88,039/-. He further argued that after thorough investigation agency concluded that during the check period from 29.05.1990 till 22.01.1999 respondent No.1 Dinesh Kumar Bangard worked as Assistant Commissioner, Foreign Post Office, G.P.O., Jaipur, Audit Air Cargo Customs, Sanganer, Jaipur, Inland Container Depot Customs, Sanganer, Jaipur and Customs Commissioner, Bombay and misused his post and amassed disproportionate assets worth Rs.18,88,039/-. The learned trial court vide impugned order dated 24.03.2003 admitted the statement given by accused-respondent No.1 on the basis of chart. He further argued that the chart considered by the court does not find any mentioning neither in the court's order- sheets nor in the charge-sheet submitted in the court, therefore, the learned trial court has committed grave error in discharging the respondent No.1 from the offences punishable under Sections 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act and Sections 168, 201 and 109/120B IPC. Similarly accused- respondent No.2 Smt. Santosh Bangard who is wife of accused- respondent No.1 Dinesh Kumar Bangard has also been discharged under Section 109 /120B IPC. He further argued that accused- respondent No.2 Smt. Santosh Bangard was prosecuted as an abattor and therefore, no sanction for prosecution was required.

Learned Special Public Prosecutor put his reliance upon the judgment passed in P. Nallammal Vs. State Rep. by Inspector of Police: 1999 CrLJ 3967, decided on 09.08.1999.

3. On the other hand, learned counsel appearing on behalf of the accused-respondents justified the discharge order passed by the learned trial court.

4. Heard and perused the impugned order as well as the entire material available on record.

5. In the matter of State of Gujarat Vs. Dilipsinh Kishorsinh Rao in Criminal Appeal No2504/2023, Hon'ble the Apex Court after referring various judgments held that at the stage of framing of charge mini trial cannot be held. In that matter at the stage of framing of charge accused submitted the explanation and learned trial court refused to take the explanation of the accused and directed to frame the charges against the accused. The matter was traveled upto High Court and respondent challenged the order of framing of charges. The High Court allowed the Revision Application by perusing the material on record placed by the respondent-accused and arrived at a conclusion that trial court had committed an error in dismissing the application and accepting the plea of the respondent which was virtually by way of defence and discharged the respondent.

In the matter of State of Tamil Nadu Vs. N. Suresh Rajan and Others (2014) 11 SCC 709, [LQ/SC/2014/18] Hon'ble the Apex Court held as under: -

"29. We have bestowed our consideration to the rival submissions and the submissions made by Mr. Ranjit Kumar commend us. True it is that at the time of consideration of the applications for discharge, the court cannot act as a mouthpiece of the prosecution or act as a post office and may sift evidence in order to find out whether or not the allegations made are groundless so as to pass an order of discharge. It is trite that at the stage of consideration of an application for discharge, the court has to proceed with an assumption that the materials brought on record by the prosecution are true and evaluate the said materials and documents with a view to find out whether the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage."

Hon'ble the Apex Court in the matter of State of Gujarat (supra) at Para 11 categorically held that the defence of the accused is not to be looked into at the stage when the accused seeks to be discharged. Hon'ble the Apex Court also opined that Section 227 Cr.P.C does not give any right to the accused to produce any document at the stage of framing of charge. The submission of the accused is to be confined to the material produced by the investigating agency.

6. In the backdrop of the above, court is to see, whether vide impugned order dated 24.03.2003, the learned trial court has traveled beyond the material available on record and considered the defence of the respondent No.1 while passing the discharge order under Sections 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act. The learned trial court in the impugned order has relied upon the statement 'D' and after taking into consideration, has discharged the accused-respondent No.1. In the order itself it is stated that the statement produced by the accused is related to the charge-sheet submitted by the prosecution and prosecution also relied upon statement 'D'. At page 5 of the judgment, the court has concluded as under: -

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7. In the charge-sheet submitted before the concerned court following submissions were annexed: -

"Statement A	=	5,82,769.00
Statement B	=	41,80,642.50
Statement C	=	23,57,589.00
Statement D	=	6,47,755.00

Calculation of Disproportionate Assets of Sh. D.K. Bangard. Disproportionate Assets = (B-A)+D-C=D.A = Rs.(41,80,642.50-5,82,769.00)+6,47,755- 23,57,589.00 = Rs.18,88,039.50. Percentage DA = 80.08% rounded off to 80%"

After computing the relevant statement it was categorically submitted in the charge-sheet that accused-respondent No.1 amassed disproportionate income in the tune of Rs.18,88,039/-. The statement referred in the impugned judgment is not part of charge-sheet. The order-sheets written by the court also do not find the reference of the statement alleged to be produced by the prosecution rather from the perusal of the statement it seems that accused-respondent after filing of the charge-sheet has filed the statement indicating raising objection against the charge-sheet filed by the CBI. In the heading of the statement referred by the trial court it has been specifically mentioned "detailed operative part showing the objections against charge-sheet filed by the CBI in the case of Mr. Dinesh Kumar Bangard, Custom Appraiser, Jaipur".

8. Learned Special Public Prosecutor seriously questioned the document referred by the trial court while computing the income of the respondent No.1. After perusing the impugned order dated 24.03.2023, it is evident that the learned trial court has taken the defence version put forth by the accused while discharging the accused- respondent No.1 under Sections 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act. In view of the settled law, the defence version cannot be looked into, at the stage of framing of charge, therefore, the order of discharging accused-respondent No.1 is perse illegal.

As far as discharge order of respondent No.2 is concerned, it is admitted that prosecution sanction under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act was applied for prosecuting accused-respondent No.2 and the prosecution sanction was denied. The learned trial court while discharging the respondent No.2 relied the judgment of Hon'ble Apex Court rendered in the matter of N. Brahmeswarao Vs the Sub-Inspector of Police, Vinukonda and Others: 1978 CrLJ 1005. Admittedly the Central Bureau of Investigation has applied for prosecution sanction against respondent No.2 for prosecuting her under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act but the same was refused. In the matter of N. Brahmeswarao (supra) it was held as under: -

"The law is well settled that when the facts alleged in a complaint petition disclose primarily an offence to prosecute to which a sanction is necessary, it would not be open to the prosecutor to evade the requirement of sanction by any camouflage or device so as to prosecute the offender under some other section of law not requiring a sanction. It is also well settled that when a person commits several offences in the course of the same transaction and if the more serious offence requires a previous sanction or a special complaint it would not be open to the prosecution to ignore the serious charge and prosecute the offender for the less serious charge which do not require a special complaint or previous sanction."

In the present matter after refusal of the prosecution sanction under Sections 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, the prosecution has submitted the charge-sheet under Section 120B/109 IPC against respondent No.2. It is also relevant to state that respondent No.2 at the relevant time was also a public servant, therefore, after refusal of the prosecution sanction she cannot be prosecuted under Section 120B/109 IPC separately without obtaining the prosecution sanction under Section 197 Cr.P.C. The prosecution did not endeavour to obtain any prosecution sanction under Section 197 Cr.P.C for the offences under Section 120B/109 IPC alleged to be committed by respondent No.2.

9. In the matter of P. Nallammal (supra) the factual matrix was entirely different. In that case kith and kin of public servant were prosecuted under Section 109 IPC alongwith the then Chief Minister of Tamil Nadu Smt. Jayalalitha under Section 13(1)(e) of the Prevention of Corruption Act. In that case Hon'ble the Apex Court held that there is no need for obtaining the prosecution sanction under Section 109 IPC to prosecute the private person, therefore, the judgment cited by the learned Special Public Prosecutor is entirely different from the present matter. The learned trial court in view of specific refusal to prosecute respondent No.2 discharged the respondent No.2 under Section 120B/109 IPC.

10. I do not find any illegality in the aforesaid order by which accused-respondent No.2 Smt. Santosh Bangard was discharged.

11. Upshot to the above, the instant Revision Petition is partly allowed and discharge order passed against respondent No.1 Dinesh Kumar Bangard vide impugned order dated 24.03.2003 is set aside and matter is remanded to the concerned trial court with a direction to rehear the parties accordingly on charge.

12. The Revision Petition against respondent No.2 Smt. Santosh Bangard is dismissed.

13. The original file/record of the case be remitted back to the concerned court forthwith.