Case Note & Summary
The petitioner, Abhimanyu Rasure, the original complainant, challenged the order of the Chief Judicial Magistrate, Latur, dated 06.05.2010 discharging the respondents/accused in Regular Criminal Case No.439 of 2006, and the judgment of the Additional Sessions Judge, Latur, dated 28.09.2015 dismissing Criminal Revision No.91 of 2010. The respondents were office bearers and trustees of Mahatma Bashweshwar Education Society. The complaint alleged that between 1983 and 1992, they conspired to accept donations from students for admissions to colleges run by the society, shared the amounts, failed to enter them in accounts, and manipulated records for audit, thereby committing forgery. A charge sheet was filed under Sections 420, 468, 471 read with 34 of the Indian Penal Code and Sections 3, 4, 5 of the Maharashtra Educational Institutions (Prohibition of Capitation Fee) Act, 1987. The respondents filed an application for discharge under Section 239 CrPC. The Chief Judicial Magistrate discharged them, and the Additional Sessions Judge confirmed the order. The petitioner argued that both courts erred by considering documents filed by the accused which were not part of the Section 173 CrPC report, and that there was sufficient material, including statements of students and parents and recovered documents, to frame charges. The respondents contended that during the alleged period they held no position to extract money, allegations were general, and no offence was made out. The High Court held that under Section 239 CrPC, the Magistrate must consider only the police report and documents sent under Section 173 CrPC, and cannot rely on defence documents. The court is not to test evidentiary value at the discharge stage. Since the trial court exceeded its jurisdiction by considering documents filed by the accused and evaluating evidence prematurely, the impugned orders were set aside. The matter was remanded to the Chief Judicial Magistrate to decide the application for discharge afresh in accordance with law, considering only the police report and documents under Section 173 CrPC.
Headnote
A) Criminal Procedure - Discharge under Section 239 CrPC - Scope of Consideration - Code of Criminal Procedure, 1973, Section 239 - The Magistrate, while deciding an application for discharge, must consider only the police report and documents sent under Section 173 CrPC. Reliance on documents filed by the accused is impermissible at this stage. The court is not to test evidentiary value or weigh evidence as in a trial. (Paras 11-16) B) Criminal Procedure - Framing of Charge - Standard of Proof - Code of Criminal Procedure, 1973, Section 240 - At the stage of framing charge, the court must assess whether there is prima facie material to presume that the accused committed the offence. Probative value of material cannot be gone into, and the court is not required to hold that the material would warrant a conviction. (Paras 14-16) C) Criminal Law - Offence of Cheating and Forgery - Prima Facie Case - Indian Penal Code, 1860, Sections 420, 468, 471 read with 34 - Where there are statements of students and parents alleging payment of donations to accused office bearers of an educational society, and documents recovered from accused's house, a prima facie case is made out for framing charge. The trial court's discharge based on defence documents and premature evaluation of evidence is erroneous. (Paras 6-7, 17-18) D) Educational Law - Capitation Fee - Prohibition - Maharashtra Educational Institutions (Prohibition of Capitation Fee) Act, 1987, Sections 3, 4, 5 - Allegations of collecting donations for admissions without accounting for them attract the provisions of the Act. The Charity Commissioner's order regarding removal of trustees does not bar criminal prosecution for the same acts. (Paras 6, 10, 17)
Issue of Consideration
Whether the trial court and revisional court erred in discharging the accused by considering documents filed by the defence which were not part of the Section 173 CrPC report, and whether the material on record was sufficient to frame charges under Sections 420, 468, 471 read with 34 IPC and Sections 3, 4, 5 of the Maharashtra Educational Institutions (Prohibition of Capitation Fee) Act, 1987.
Final Decision
The High Court allowed the petition. The impugned order of the Chief Judicial Magistrate, Latur, dated 06.05.2010 and the judgment of the Additional Sessions Judge, Latur, dated 28.09.2015 were set aside. The matter was remanded to the Chief Judicial Magistrate, Latur, to decide the application for discharge afresh in accordance with law, considering only the police report and documents sent under Section 173 CrPC, and without being influenced by the earlier orders.
Law Points
- Discharge under Section 239 CrPC must be based only on police report and documents under Section 173 CrPC
- not defence documents
- Probative value of material cannot be gone into at charge framing stage
- Prima facie case sufficient for charge if material raises suspicion of offence
