M R Pathak, J. - Heard Mr. Victor L. Ralte, learned counsel for the petitioner/accused Smt. Thanzami Tochhawng (Accused No. 4) in Crl. Ptn. No. 1/2018 and Mr. B. lalramenga, learned counsel for the petitioners/accused namely Sh. R. Vanlalhmuaka (Accused No. 1) and Smt. Lalhmingliani (Accused No. 5) in Crl. Ptn. No. 2/2018. Also heard Mr. A.K Rokhum, learned Public Prosecutor appearing for the State.

2. The petitioners of both the Criminal Petitions are charge sheeted accused along with other accused persons in SR (Prevention of Corruption Act) No. 9 of 2014 arising out of Anti-Corruption Bureau Police Station Case No. 6/2013 registered under Sections 120-B/109/420/468/477A/409 IPC read with Sections 13(1)(d)/13(2) of the Prevention of Corruption Act, 1988. The proceeding of said SR (PCA) No. 9/2014 is presently pending before the learned Special Judge, Prevention of Corruption Act at Aizawl.

3. It is submitted by the petitioners that one Sh. P.C Lalremsiama lodged a written FIR on 27.02.2013 before the Superintendent of Police, Anti-Corruption Bureau, Aizawl, Mizoram, expressing doubt and pointing out illegality in supplying Silpaulin on 23.06.2006 and 03.07.2006, on the basis of which the Anti-Corruption Bureau on 28.02.2013 registered ACB Enquiry No. 5/2013 and made an enquiry by one concerned Inspector of the Anti-Corruption Bureau of the State in that regard. In such enquiry, finding sufficient incriminating materials against the accused persons of the case with regard to their involvement in the alleged crime, the concerned officer submitted his report on 17.10.2013 requesting the Superintendent of ACB, Aizawl to register a criminal case against those accused persons including the petitioners herein. Accordingly, the above noted ACB Case No. 6/2013 was registered on 17.10.2013 against the accused persons of the case under the Panel Sections noted above. Thereafter, the Investigating Authority submitted a charge sheet in the matter on 19.09.2014. On making further investigation in said ACB Case No. 6/2013, a supplementary charge sheet was submitted in it on 31.05.2016. After receipt of the charge sheet dated 17.10.2013 in said ACB Case No. 6/2013, finding that the said case is exclusively triable by the Court of Special Judge (PC Act), the learned Chief Judicial Magistrate, Aizawl, by its order dated 09.10.2014 committed the said case along with the charge sheet and the documents appended thereto to the learned Special Judge, PC Act for further legal action and on receipt of records of ACB Case No. 6/2013, the same was registered and re-numbered as SR(PCA) 9/2014 (arising out of Criminal Trial 1872/2013) before the learned Special Judge, Prevention of Corruption Act, Aizawl, Mizoram and summons were issued to the accused persons of the case for their appearance before the said Court. Accordingly, the accused persons appeared before the learned Special Judge in said SR (PCA) No. 9/2014 and accordingly documents of the case were also supplied to them.

4. The learned Special Judge (PCA) in said SR (PCA) Case No. 9/2014 by its order dated 12.04.2017, fixed the matter on 08.05.2017 for opening of the case and thereafter, the matter was not fixed. However, the petitioners herein received summons from the learned Special Judge (PCA) issued on 08.12.2017 by which they were summoned to appear in person before the learned Special Judge on 29.01.2018 to answer the charge under Sections 120-B/109/420/468/477A/409 IPC read with Sections 13(1)(d)/13(2) of the Prevention of Corruption Act, 1988 and on receipt of the such summons, they were very much surprised that without any prior information to them, the learned Special Judge (PCA) went to the stage of framing of charge in the case directing them to appear on 29.01.2018.

Accordingly, they enquired into the matter, obtained the certified copy of the order sheets of the said SR (PCA) No. 9/2014 and from it, came to know that though by order dated 12.04.2017, the said case was fixed on 08.05.2017, it was not taken on that day and it is only on 28.11.2017, the learned Special Judge took up the case record for updating the Court dates and in the absence of the accused persons upon hearing the prosecution and the defense counsels and on perusing all the available documents, being satisfied decided to frame charge against the accused persons of the case and fixed the matter on 08.12.2017 and on 08.12.2017, the Court issued summons to all the accused persons fixing 29.01.2018 for framing charge.

5. The petitioners submitted that said SR (PCA) Case No. 9/2014 was adjourned on 29.01.2018 and it has been fixed on 09.02.2018 for framing of charge under Section 228 Cr.P.C. It has been placed by the learned counsels for the petitioners that though in the order dated 28.11.2017, learned Special Judge (PCA) recorded that he had heard the defense counsels but it has been brought to the notice of the Court that earlier by Order 12.04.2017, the said case was fixed on 08.05.2017 and the order sheets of the case, certified copies of which they obtained (Annexed to this petition) shows that there is no order of the Court on and from 08.05.2017 after 12.04.2017 and it is only on 28.11.2017, the learned Special Judge recorded the order and since no date was fixed earlier, fixing 28.11.2017 as the date of the case, neither the accused persons of the case nor the defense counsels could remain present on that day before the learned Special Judge and in their absence, the prosecution opened the case in violation of the provisions of Sections 226 and 227 of Cr.P.C, where the learned Special Judge of his own came to his own satisfaction so as to proceed to the stage of framing charge against the accused persons.

6. Hence these criminal petitions under 482 of Cr.P.C for quashing of the said criminal proceeding being SR (PCA) No. 9/2014 presently pending for disposal before the learned Special Judge, PC Act, Aizawl.

7. As the issues involved in both the criminal petitions are same and as agreed by the petitioners and the Public Prosecutor, both the petitions have been taken up together for necessary consideration and disposal at the motion stage itself.

8. Chapter XVIII, consisting of Sections 225 to 237 of the Cr.P.C. provides the relevant provisions regarding Trial before a Court of Sessions. Section 225 of Cr.P.C. provides for Trial to be conducted by Public Prosecutor. Section 226 of Cr.P.C. provides for Opening of case for prosecution. Section 227 Cr.P.C. relates to Discharge and Section 228 relates to Framing of charge of the accused persons of the case.

9. Section 226 Cr.P.C. Opening case for prosecution reads as When the accused appears or is brought before the Court in pursuance of a commitment of the case under section 209, the prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused.

10. The Honble Supreme Court in the case Banti -Vs- State of Madhya Pradesh, (2004) 1 SCC 414with regard to Section 226 Cr. PC have held that

In trials before a Court of Session, the prosecution "shall be conducted by a Public Prosecutor". Section 226 of the Code of Criminal Procedure, 1973 (for short "the Code") enjoins on him to open up his case by describing the charge brought against the accused. He has to state what evidence he proposes to adduce for proving the guilt of the accused. If he knew at that stage itself that certain persons cited by the investigating agency as witnesses might not support the prosecution case he is at liberty to state before the court that fact. Alternatively, he can wait further and obtain direct information about the version which any particular witness might speak in court. If that version is not in support of the prosecution case it would be unreasonable to insist on the Public Prosecutor to examine those persons as witnesses for prosecution.

11. Further, in the case Devilal -Vs- State of Rajasthan, (1971) 3 SCC 471 , the Honble Apex Court have held that

In criminal trials it is of prime importance for the accused to know as to what the exact prosecution case is. If the pivot of the prosecution case is not accepted a new prosecution case cannot be made to imperil defence.

12. It is settled that at the stage of the opening of the case under Section 226 of CrPC the Public Prosecutor/prosecution is required to describe the charge against the accused and he is required to state in brief in a fair manner about the summary of the evidence, by which the prosecution proposes to prove the case of the prosecution. It is settled that the principle in criminal law is that an accused is to be presumed innocent so long he/she is not proved to be guilty by the prosecution.

13. Section 227 of the Cr.P.C. which relates to Discharge and it reads as If, upon consideration of the record of the case and the documents submitted herewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.

14. It is settled that the charge sheet constitutes primary evidence constituting the offense for proceeding further in the criminal case and that the Court has to look into the relevant law and the allegations made in the charge sheet and then to consider whether any offense has been committed so as to frame charge(s) for trial before discharging the accused (AIR 1977 SC 2401 ).

15. In the case of State of Karnataka -Vs- L. Muniswamy, (1977) 2 SCC 699 , the Honble has observed that

"for the purpose of determining whether there is sufficient ground for proceeding against an accused, the Court possesses a comparatively wider decision in the exercise of which it can determine the question whether the material on record, if unrebutted, is such on the basis of which a conviction can be saved reasonably to be possible".

16. In catena of decisions, the Honble Supreme Court have held that at the time discharge/framing of charge under Sections 227 and 228 of the CrPC., the Court would not indulged in the meticulous examination of evidence or to appreciate the evidence and at such stage, the Court is only required to evaluate the material and documents on record with a view to find out if the facts emerging there from taken at their face value disclose the existence of all the ingredients constituting the alleged offense. It is also settled that the purpose of Sections 227 and 228 of the Cr.P.C. is to ensure that the Court should be satisfied that the accusation made against the accused is not frivolous and that there is some material for proceeding against the alleged accused and the evidence as yet to be taken and the aspects which the accused termed vulnerable can very well be clarified by evidence when the prosecution has its opportunity of placing the case through witness in Court.

17. The Honble Supreme Court have also held that in exercising jurisdiction under Section 227 Cr.P.C., the Court is required to consider the broad probability of the case, the total effect on the evidence and the documents produced, any basic infirmities and find out whether a prima facie case against the accused has been made out and the Court should not make a roving enquiry into pros and cons of the matter and weigh the evidence as if the Court is conducting a trial. At the said stage of Section 227/228 CrPC even a strong founded upon materials leading the Court to form a presumptive opinion as to the existence of the factual ingredients constituting the offense alleged justifies the framing of charge.

18. In the case of Debabrata Saikia -Vs- Union of India, (2006) 2 GauLT 247, this High Court have held that where the material in the case showed prima facie involvement of the petitioner in the conspiracy in pursuant of which huge amount was drawn from the Treasury, the Special Judge was found justified in framing charge under Sections 420 and 120B IPC against the petitioner.

19. From the above, it is seen that there was no such order by the learned Special Judge fixing SR (PCA) No. 9/2014 on 28.11.2017 and therefore, the accused persons were not informed about fixing the said case on 28.11.2017 for opening the case by the prosecution under Section 226 CrPC. The order sheets of said SR (PCA) No. 9/2014 placed before the Court reflects that after 12.04.2017, that the said case was taken up by the learned Special Judge only on 28.11.2017 after more than 7 months and from the reading of the said order dated 28.11.2017 it is clear that the said case was taken up on that day when the said case record was put up on call for updating Court dates only and not for opening of the case as provided under Section 226 CrPC. However, on the said date i.e. on 28.11.2017, the Public Prosecutor opened the case and prayed before the Court to frame charge against the accused persons, where the learned Special Judge went ahead and decided to frame charge under Section 228 CrPC without following the provisions of Sections 226 and 227 CrPC as provided by it, depriving the accused persons from their valuable rights under the said Code.

20. It is found from the above that the learned Special Judge, PC Act, Aizawl committed illegality while considering and issuing the impugned order dated 28.11.2017 in the SR (PCA) No. 9/2014. Therefore, in exercise of the power under Section 482 of Cr.P.C., to prevent the abuse of the process of the Court and to give effect the Order under the Code, the impugned Order dated 28.11.2017, passed by learned Special Judge, PC Act, Aizawl in the SR (PCA) No. 9/2014 arising out of Criminal Trial No. 1872/2013 in the ACB PS Case No. 6/2013 is hereby set aside and quashed so as to secure the ends of justice. Consequently, the subsequent Orders dated 08.12.2018 and thereafter passed in said SR (PCA) No. 9/2014 passed by learned Special Judge, PC Act are also set aside and quashed with the observation and direction that the learned Special Judge, PC Act, Aizawl shall now initiate the said proceeding of SR (PCA) No. 9/2014 pending before him, in accordance with law, from the stage of Section 226 CrPC, i.e. opening case for prosecution by the Public Prosecutor.

21. However, after going through the materials placed before the Court by the parties, on hearing them and finding that charge sheets in the case have already filed, the petitioners failed to place any materials on record before the Court so as to quash the FIR pertaining to said SR (PCA) No. 9/2014 and the consequential enquiry report, charge sheet including the proceeding of said SR (PCA) No. 9/2014 pending before the learned Special Judge, Aizawl and the prayers of the petitioners to that extent are rejected.

22. With the aforesaid observation and direction, these criminal petitions are allowed to the extent above.