9. In view of the above factual and legal position, it can not be said that this petition is not maintainable. Thus the contention raised by learned counsel for the C.B.I. about the maintainability of this petition, has no force.
10. So far as this question is concerned that the case of petitioner is at the better footing for discharge then the case against co-accused Dr. K.K.Singh (accused No. 6), Dr. Shyam Singh(accused No 16) and Dr. Sunil Kumar (accused No11), it is not necessary to delve on this point particularly when the said persons are not party to this petition and pleadings in relation to them are not complete. Be that as it may, but it is not in dispute that the common impugned order dated 27-03-2008passed by learned Magistrate was set-aside by Session Court in revision in relation to all these three accused person , out of which Dr. K.K.Singh (accused No. 6) and Dr. Shyam Singh(accused No 16) have been discharged by the learned trial court on re consideration. of discharge application. Keeping in mind the above factual position, the merit of this petition shall be considered.
11. Now I proceed to consider the merit of the case in hand. It reveals from the perusal of the record that in the charge sheet petitioner Dr. Raj Kumar Chaudhary has been shown as an accused at serial No. -7 whereas one Dr. Raj Kumar has been shown as an accused at serial no. 15 (wrongly typed no.17 in the impugned order passed by learned Magistrate.) Thus there is similarity of name of two accused with the difference of surname .
12. So far as the statements of Dr Manoj Kumar P.W.-49 and Dr. Rajendra Kumar P.W.50 are concerned, it reveals from the perusal of the record that they do not relate to petitioner Dr. Raj Kumar Chaudhary (accused no.7) but relates to other accused Dr. Raj Kumar (accused no.15) having similar name but no surname, as has also been held by learned Magistrate in the impugned order at internal page no.12 by which application for discharge of all accused persons was rejected. Thus, the statements of Dr. Manoj Kumar Singh (P.W.49) and Dr. Rajendra Prasad (P.W.50) do not involve the petitioner in the present case. It appears that the prosecution gets confused regarding the material available against the petitioner due to the above stated similarity in name and as such the submission made by learned counsel for CBI in this regard is against the factual position of the record and is of no help to the prosecution..
13. There can not be two opinions on this point that the truthfulness or falsity of the allegations made by the witnesses in their statements under section 161 or 164 of the code can not be determined or looked into at the stage of framing or not framing the charge against an accused, but consideration of the sufficiency of the material available is necessary. The words "considering" and "consideration" occurring in section 239 and section 240 of the code. respectively are of vital importance. To find out the scope and ambit of the word ''consideration' used in section 240 of the Code, it is necessary to go through the relevant provisions in this regard. The provision concerning the framing of charge is given in Section 240 of the code. This Section is however, connected with the previous section, i.e. Section 239 which is in regard to ''When accused shall be discharged'. These two sections read as under:-
"239. When accused shall be discharged.
If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.
240. Framing of charge.
(1) If, upon such consideration, examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused.
(2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claims to be tried."
14. As seen from Section 239 above, while discharging an accused, the Magistrate concerned has to consider the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, but he has to record his reasons for doing the same. Section 240 which deals with framing of the charge, begins with the words "If upon such consideration". Thus, these words in Section 240 refer to the ''consideration' made under Section 239 of the code.. These words provide an interconnection between Sections 239 and 240. That being so, it can certainly be said that when the charge under a particular section is to be framed or not, some minimum reasons in nutshell are expected to be recorded disclosing the consideration of the material on record. This is because the charge is to be framed ''upon consideration' as stated above and therefore, that consideration must be reflected in the order. It is also necessary that the order should inform the parties as to why the order went against him and if the matter is carried to the higher Court, it will be able to know as to why a charge was framed or accused was discharged.
15. While dealing with the provisions of section 227 and 228 which are analogous to section 239 & 240 of the code, Hon'ble Supreme Court in case of Dilawar Balu Kurane V. State of Maharashtra reported in (2002)2 SCC 135 has observed in paras 12 as under :-
12. Now the next question is whether a prima facie case has been made out against the appellant. In exercising powers under Sec. 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial; by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused, and in exercising jurisdiction under Sec. 227 of the Code of Criminal Procedure, the Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. [See Union of India vs. Prafulla Kumar Samal & Anr., (1979 3 SCC 5)]."
16. From the above, it seems well settled that while considering the question ,of framing the charges or discharge at the stage of section 239&240 of the code, the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging there from taken at their face value are sufficient and disclose the existence of the ingredients, prima facie constituting the alleged offence. The Court may for this limited purpose sift the evidence as it cannot be expected at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to law, common sense or the broad probabilities of the case. At this stage the sifting of the evidence can be for the said limited purpose only and not to marshal the evidence with a view to evaluate the truthfulness or falsity of the allegations and to separate the grain from the chaff.
17. It reveals from the examination of the record that the prosecution case against the petitioner rests on the confessional statement made by Dr Ajit Singh ( accused no. 17), who has also been shown as witness no.27 in the list of the witnesses. The confessional statement of Dr. Ajit Singh was recorded by learned Metropolitan Magistrate, Delhi wherein in regard to present petitioner Dr. Raj Kumar Chaudhary, he had only stated as has been abstracted above verbatim in Hindi in Para- 4. There is nothing in the statement of Dr.Ajit Singh how he came to know that Sri B.D. Mishra had sent a fax to Dr. Raj Kumar Chaudhary. There is nothing on the record that from which number the FAX was sent and at which number and by whom the FAX was received. Dr. Ajit Singh in his confessional statement has merely stated that the FAX was sent secretly which is indicative to the fact that he had not seen the said B.D.Misra transmitting the FAX as it was done clandestinely. Thus what has been stated by Dr Ajit Singh ( accused no. 17) is not based on his direct knowledge but is imagination only.
18. So far as the extent of consideration and the evidentiary value of confessional statement made by an accused against a co-accused are concerned, the court may take it into consideration under the provision of section 30 of the Indian Evidence Act. The crucial expression used in Section 30 is "the Court may take into consideration such confession". These words imply that the confession of a co-accused cannot be elevated to the status of substantive evidence which can form the basis of conviction of the co-accused. A Constitution Bench of the Hon'ble Apex Court in Haricharan Kurmi v. State of Bihar [1964 (6) SCR 623] clarified the legal position as under :-
"In dealing with a case against an accused person, the Court cannot start with the confession of co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the confession of guilt which the judicial mind is about to reach on the said other evidence."
19. The learned counsel for the petitioner in support of his submission that charge can not be framed merely upon confessional statement of co- accused relied on the case of Baldev Kumar Vs. State reported in 1987 (3) Crimes 645, wherein Hon'ble High Court Delhi while dealing with a case of framing of charges against petitioner therein on the basis of the statement of the co-accused had allowed the petition for quashing the proceeding by observing as under :-
"From the perusal of the report, I find that the court below went wrong in relying on the confessional statement of the co-accused Hari Dayal, to frame a charge against the petitioner. Prima facie, the court cannot act upon the confessional statement of the co-accused unless and until the said statement finds corroboration in material particulars by independent evidence. There is no independent evidence what to talk of any evidence against the petitioner"
20. Thus the legal position is clear that confessional statement of co- accused can not be the basis of framing charge against an accused but can only be used to lend assurance to other evidence against a co-accused and cannot be elevated to the status of substantive evidence. In the present case the factual position is that except the aforesaid statement of Dr. Ajit Singh (accused No.17) which is imaginary and is in the nature of hearsay, there is nothing on record which may implicate the petitioner in the offence in question and can be the basis of framing the charges.
21. It appears from the record that the learned courts below did not consider the material on record against the petitioner while disposing of application for discharge and also while disposing the revision filed by the petitioner. The courts below were swayed with the observations of this Court made on 27.10.2005 in Misc. Case No.2498 of 2005 that prima facie offence under Section 420 and 411 I.P.C. is made out and there are sufficient material to proceed further. It appears that the said observation was read in isolation by the courts below ignoring the other observations. It is against the rule of interpretation. The said judgment no where states that there is sufficient material to frame a charge. Existence of sufficient material to proceed further and existence of sufficient material to frame a charge are different from each other. The said judgment was passed when the petitioner had not appeared before the trial court and the question of quashing the charge sheet alone was before this court. At that stage the question of framing of the charge was not before the court. These are two different stages of a case No where it was observed by this court that even in further proceedings, the court below will not consider the material against the petitioner while deciding the factum of framing or not framing the charge. More so, it reveals from the perusal of the said judgment that in the contention of learned counsel for the petitioner that the evidence collected by the investigating officer is not sufficient to frame the charge, substance was found and consequently protection was granted to the petitioner to the effect that if non bailable warrant is issued against him, the same shall be kept in abeyance till the framing of charge. It is established law that no decision of any court can be read in a manner as to nullify the express provisions of an Act or the Code. The observations of this Court made on 27.10.2005 in Misc. Case No.2498 of 2005 never intended that trial court even at subsequent stage of the case will refrain from considering the materials on record while deciding to frame or not to frame charge under the provisions of Section 239 and 240 of the Code. The courts below went wrong to assume that order of this Court made on 27.10.2005 in Misc. Case No.2498 of 2005 was a fetter against the proper exercise of power by them under the said provisions of the code. Further more similar order was also there against Dr. Sunil Kumar (accused no. 11) in Cr. Misc. No. 2444 of 2005 but that did not refrain the court of revision from setting aside the impugned order passed by learned Magistrate against him and remanding the matter for reconsideration. In the said premise the learned lower courts below went wrong in not considering the sufficiency and the nature of the material available on record against the petitioner while deciding the discharge application and also the revision pretending that order in Misc. Case No.2498 of 2005 was a fetter. Thus the impugned orders were passed by taking a shortcut, with out consideration of material against the petitioner and without application of mind
22. In view of above, legal and factual position, when there is no material against petitioner to frame the alleged charges, the impugned order dated 27.3.2008 passed by Special Judicial Magistrate ( C.B.I.) Lucknow rejecting the application to discharge the petitioner and the order dated 25.2.2009 passed by Additional Sessions Judge Lucknow dismissing the revision preferred against the said order can not be sustained and are liable to be set aside and consequently it is a fit case, where in order to meet the ends of justice and to prevent the miscarriage of criminal justice, the inherent powers of this Court to quash the criminal proceeding should be exercised. Accordingly the impugned orders are hereby set aside and the proceeding pending against the petitioner is hereby quashed. The petition is therefore allowed.