- At the relevant stage, the Appellant applied for discharge under “section 239” of the Cr.P.C (which should have been under section 227) before the Court of Special Judge (vigilance), Patna.
[Editor’s note: Here in this paragraph 6. the Apex Court has made a foot note that though the Appellant stated that the application is under section 239 of the Cr.P.C as Special Judge appointed under the PC Act are deemed to be Court of Session, the discharge application should have been filed under section 227 of the Cr.P.C., and not under section 239 therein. The Ld counsel for the Appellant Shri Sunil Kumar, Senior Advocate clarified this position of law while making his submissions].
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- Issue: The short question arising for consideration is whether the Appellant is entitled to be discharged of the proceedings initiated against him under the PC Act. However, the Court summarily dismissed the application by its order dated 28.03.2016, without analysing or examining the documents produced and the arguments advanced.
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DISCHARGE – ROVING ENQUIRY – EXPLAINED: 18. The conclusions that we have drawn are based on materials placed before us, which are part of the case record. This is the same record that was available with the Special Judge (Vigilance) when the application under Section 227 of the Cr.P.C. was taken up. Despite that, the Special Judge (Vigilance) dismissed the discharge application on the simple ground that a roving inquiry is not permitted at the stage of discharge. What we have undertaken is not a roving inquiry, but a simple and necessary inquiry for a proper adjudication of an application for discharge. The Special Judge (Vigilance) was bound to conduct a similar inquiry for coming to a conclusion that a prima facie case is made out for the Appellant to stand trial. Unfortunately, the High Court committed the same mistake as that of the Special Judge (Vigilance).
PARTY: KANCHAN KUMAR vs. THE STATE OF BIHAR – CRIMINAL APPEAL NO. 1562 OF 2022 ARISING OUT OF SLP (CRL) NO. 9601 OF 2016 – September 14, 2022.
Source: https://main.sci.gov.in/supremecourt/2016/39660/39660_2016_2_1501_38228_Judgement_14-Sep-2022.pdf
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