RAKESH DHAR TRIPATHI Vs. STATE OF U.P.

JUDGEMENT

(1.) Heard Sri Dileep Kumar, learned Senior Advocate assisted by Sri Manish Singh, learned counsel for the revisionist, Sri Attrey Dutt Mishra, learned A.G.A. and perused the record.

(2.) The instant revision has been preferred against the judgment and order dated 03.08.2019 passed by Special Court (MP/MLA), Allahabad of 2019 (State vs. Rakesh Dhar Tripathi), arising out of Case Crime No. 107 of 2013, under section 13 (1) (e) read with section 13 (2) of the Prevention of Corruption Act, Police Station Mutthiganj, District Allahabad whereby discharge application of the revisionist has been rejected.

(3.) Submission made by the learned counsel for the revisionist is that it is apparent that the evidence collected by the Investigating Officer has not been taken into consideration while rejecting the discharge application. No reason has been assigned to form an opinion that a case existed against the revisionist to frame charge. At the stage of considering the discharge application, sufficient material for framing charge has to be there on record and not simply a prima-facie case. The discharge application has been rejected illegally on the ground that the sanction for prosecution has been accorded and that the court has already taken cognizance on police report/charge sheet submitted under section 173 (2) Cr.P.C. The trial court has completely ignored the supplementary police report filed under section 173 (8) Cr.P.C. with the permission of the Court, which has been filed after approval of the State Government. The supplementary police report completely exonerated the revisionist from accusation that he possessed disproportionate assets while holding post of Cabinet Minister of Govt. of U.P. during the check period. The non-consideration of the police report is against the ratio of the judgment of Hon'ble Supreme Court in Vinay Tyagi vs. Irshad Ali. The evidence which has been collected by the prosecution does not show that any offence has been committed by the revisionist. It is settled position of law that at the stage of consideration of discharge application, the Court ought to proceed with an assumption that materials brought on record by the prosecution are true and therefore in the present case, it is observed that there is no evidence found against the accused-revisionist regarding commission of offence. It is further mentioned that reasons are bound to be recorded while passing the order unless it is specifically excluded by the Legislation and in the present case, the trial court is not found to record reason for rejecting the discharge application. The learned Special Judge has recorded in the impugned order that there is presumption of commission of offence against the accused-revisionist without looking to the fact that such presumption at the stage of consideration of discharge can only be made on the basis of evidence collected during the investigation.