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Avadh Naresh vs State Of U.P. Thru. Secretary Home … on 14 January, 2020

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

1.

Heard Mr. Dadu Ram Shukla, learned counsel for the revisionist, Mr. Gyanendra, learned counsel for the opposite party, Mr. Aniruddh Kumar Singh, learned A.G.A. and perused the record.

2. The present revision has been filed for quashing of the rejection of discharge application vide order dated 06.10.2017 as well as consequential order dated 16.11.2017 passed by the Additional Civil Judge (J.D.)-I/A.C.J.M., Bahraich in Case No. 980 of 2014 (State vs. Awadh Naresh) arising out of Case Crime No.690 of 2013, under Sections 419, 420, 467, 468, 471 I.P.C., P.S. Visheshwar Ganj, District Bahraich.

3. Learned counsel for the revisionist submitted that the F.I.R. as Case Crime No. 690 of 2013 was lodged by the opposite party No.3, under Sections 419, 420, 467, 468, 471 I.P.C., P.S. Visheshwar Ganj, District Bahraich on 17.12.2013 with the allegation that father of the revisionist claimed property on the basis of a forged will deed dated 30.06.1945 by which the property of the grandfather of the informant was transferred to the father of the applicant. The aforesaid will deed was with the aunt of the informant namely Ms. Brijrani and on 20.09.2012, the aforesaid will deed was handed over by Ms. Brijrani to the informant, as it is also alleged that Ms. Brijrani died on 09.08.2012, in such circumstances, it is highly improbable to get the aforesaid will deed from Ms. Brijrani on 20.09.2012 and he further submitted that the death certificate was issued by the Panchayat Secretary on 25.08.2012, in which date of death of Ms. Brijrani is mentioned on 09.08.2012 on the basis of aforesaid forged will deed, the petitioners filed testamentory petition No. 01 of 2013 (Awadh Naresh vs. State) before this Court.

4. Learned counsel for the revisionist further submitted that incorrect facts were mentioned in the aforesaid F.I.R. and without investigating the correct facts, the Investigating Officer submitted the charge sheet No. 41 of 2014 dated 08.04.2014 and he further submitted that the applicant filed discharge application before the court below, which was rejected by the learned court below in the most mechanical manner. He further submitted that impugned prosecution was initiated on the basis of entry made under the provisions of The Registration of Births and Deaths Act, 1969 (herein after referred as the “Act”) and he further submitted that no offence under Sections 467, 419, 420, 468, 471 I.P.C. is made out, as Section 25 of the Act provides that no prosecution for an offence punishable without obtaining sanction for prosecution from the Chief Magistrate, the proceeding is maintainable and he further submitted that in the present case, there is a dispute related to the entry of date of death of Ms. Brijrani, therefore, the proceeding ought to be initiated under the provisions of the Act, only i.e. the special act, not by criminal prosecution.

5. Learned counsel for the revisionist also relied on the decisions of Hon’ble Supreme Court in the cases of Rajasthan Vs. M/s. Binani Cements Ltd. reported in AIR 2014 SC (SUPP) 1926, T Barai vs. Henry Ah Hoe reported in the year 1982 LawSuit (SC) 211, Rajib Ranjan and Others vs. R. Vijaykumar reported in the year 2015 1 SCC 513, Jairam vs. State of Maharastra and Another reported in the year 2017 2 SCC 371, Vinay Tyagi vs. Irshad Ali @ Deepak and Ors. reported in the year 2013 CRL. L. J. 754, Parminder Kaur vs. State of U.P. and Another reported in the year of 2010 1 SCC (Cri) 782.

6. Learned A.G.A. as well as counsel for the opposite party No.3 submitted that there is no illegality in the order passed by the learned court below and on the written complaint of the opposite party No.3, the aforesaid F.I.R. was registered and thereafter a detailed investigation was conducted and the document in question was also sent to the Forensic Laboratory, Lucknow and considering the statements witnesses and report of F.S.L., the charge sheet was filed on 08.04.2014, thereafter, the cognizance was taken by the learned court below on 14.07.2014, then the applicant filed Criminal Misc. Case (u/s 482 Cr.P.C.) No. 3159 of 2014 challenging the charge sheet in Case Crime No. 690 of 2013, under Sections 419, 420, 467, 468, 471 I.P.C., P.S. Visheswarganj, District Bahraich and the cognizance order dated 14.07.2014 and he further submitted that in the aforesaid application, the prayer was amended that the applicant has moved the application for discharge on 24.11.2016 that should be decided, thereafter, the application was disposed of with the direction to court below to decide discharge application, as a result, the discharge application was decided in a reasoned and speaking order by the court below and there is no illegality in it and the applicant may appear before the court below and submit his submissions at appropriate stage along with defence arguments.

7. Considering the arguments of the learned counsel for the revisionist as well as learned A.G.A. and learned counsel for the complainant and going through the records, it is evident that the will deed dated 30.06.1945 was placed by the revisionist after 20.09.2012 and it is alleged that the will deed was lying with the aunt of the revisionist and it was handed over to the revisionist on 20.09.2012 and it is also mentioned by the revisionist that the date of death of Ms. Brijrani is 25.09.2012, which was entered into the records of Village Panchayat Raniyapur, Gobarahi, thereafter, the F.I.R. was registered on the written complaint of the opposite party No.2 on 17.12.2013 under the order of the Magistrate on application of the opposite party No.2, under Section 156(3) Cr.P.C., as the documents in question were send to the F.S.L. for examination and on the basis of report of F.S.L. and the statement recorded during the course of investigation of the informant and other witnesses, the charge sheet was filed and thereafter, the charge sheet was challenged by the applicant in Criminal Case (u/s 482 Cr.P.C.) No. 3159 of 2014, which was disposed of without interfering into the charge sheet with a direction that discharge application of the applicant dated 24.11.2016 be decided by a reasoned and speaking order and thereafter proceed with the case.

8. It is also evident from the record that the charge sheet was filed in the year 2014 and the cognizance was taken by the Judicial Magistrate on 14.07.2014, as the trial of the aforesaid case is pending only, due to filing of the petition by the petitioner before this Court, as it is also evident from the record that the allegation that disputed death certificate of Ms. Brijrani was prepared by the applicant only to get unjust enrichment, therefore, the charge sheet was filed and it is also evident that no proceeding under the provision of the Act has been initiated, therefore, the argument of applicant is baseless, the impugned proceeding is not maintainable and the proceeding ought to be initiated under the Registration of Births and Deaths Act, 1969. It is also evident that the court below has found its satisfaction and rejected the discharge application.

9. The decisions of the Hon’ble Supreme Court relied by the Revsionist in the cases of Rajasthan Vs. M/s. Binani Cements Ltd. reported in AIR 2014 SC (SUPP) 1926, T Barai vs. Henry Ah Hoe reported in the year 1982 LawSuit (SC) 211, Rajib Ranjan and Others vs. R. Vijaykumar reported in the year 2015 1 SCC 513, Jairam vs. State of Maharastra and Another reported in the year 2017 2 SCC 371, Vinay Tyagi vs. Irshad Ali @ Deepak and Ors. reported in the year 2013 CRL. L. J. 754, Parminder Kaur vs. State of U.P. and Another reported in the year of 2010 1 SCC (Cri) 782 are not applicable in the present case, as after investigation, the charge sheet was filed and the same was challenged before this Court, but the revisionist only prayed for disposal of his discharge application, as a result, the Criminal Misc. Case (u/s 482 Cr.P.C.) No.3159 of 2014 (supra) was disposed of vide order dated 22.03.2017 with the direction to the trial court to decided the discharge application of applicant.

10. As the principles for framing of charge and discharge under Sections 227, 228, 238 and 239 Cr.P.C. have been summarized by the Supreme Court in its judgment, State v. S. Selvi, (2018) 13 SCC 455. It has been held that if on the basis of material on record, the Court prima facie forms an opinion that the accused may have committed the offence, it can frame charges. At the time of framing of charge, the Court is required to proceed on presumption that the material produced by the prosecution is true. At that stage, the Court is not expected to go deep into the matter and hold that the material produced does not warrant conviction.

Paras 6 and 7 of the aforesaid judgment read as under:-

“6. It is well settled by this Court in a catena of judgments including Union of India v. Prafulla Kumar Samal [Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4 : 1979 SCC (Cri) 609] , Dilawar Balu Kurane v. State of Maharashtra [Dilawar Balu Kurane v. State of Maharashtra, (2002) 2 SCC 135 : 2002 SCC (Cri) 310] , Sajjan Kumar v. CBI [Sajjan Kumar v. CBI, (2010) 9 SCC 368 : (2010) 3 SCC (Cri) 1371] , State v. A. Arun Kumar [State v. A. Arun Kumar, (2015) 2 SCC 417 : (2015) 2 SCC (Cri) 96 : (2015) 1 SCC (LS) 505] , Sonu Gupta v. Deepak Gupta [Sonu Gupta v. Deepak Gupta, (2015) 3 SCC 424 : (2015) 2 SCC (Cri) 265] , State of Orissa v. Debendra Nath Padhi [State of Orissa v. Debendra Nath Padhi, (2003) 2 SCC 711 : 2003 SCC (Cri) 688] , Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya [Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya, (1990) 4 SCC 76 : 1991 SCC (Cri) 47] and Supt. Remembrancer of Legal Affairs v. Anil Kumar Bhunja [Supt. Remembrancer of Legal Affairs v. Anil Kumar Bhunja, (1979) 4 SCC 274 : 1979 SCC (Cri) 1038] that the Judge while considering the question of framing charge under Section 227 of the Code in sessions cases (which is akin to Section 239 CrPC pertaining to warrant cases) 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 material placed before the court discloses grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing the charge; 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 within his rights to discharge the accused. 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 statements and the documents produced before the court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the materials as if he was conducting a trial.

7. In Sajjan Kumar v. CBI [Sajjan Kumar v. CBI, (2010) 9 SCC 368 : (2010) 3 SCC (Cri) 1371] , this Court on consideration of the various decisions about the scope of Sections 227 and 228 of the Code, laid down the following principles: (SCC pp. 376-77, para 21)

“(i) The Judge while considering the question of framing the charges under Section 227 CrPC 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. The test to determine prima facie case would depend upon the facts of each case.

(ii) 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.

(iii) The court 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, any basic infirmities, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

(iv) If on the basis of the material on record, the court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.

(v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.

(vi) At the stage of Sections 227 and 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.

(vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal.””

11. The Supreme Court further in the case of Asim Shariff v. NIA, (2019) 7 SCC 148 has dealt with the scope of Section 227 of the Cr.P.C. for discharge of an accused. In the aforesaid judgment, it has been held that in exercise of the power under Section 227, 228 Cr.P.C. in the Sessions Court (Section 239 Cr.P.C. pertaining to warned cases), the Trial Court has 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. If the material placed before the Court discloses grave suspicion against the accused which has not been properly explained, the Court is justified in framing the charge. It has also been held that if two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspension, the trial Judge would be empowered to discharge the accused. The trial judge is expected to exercise his judicial mind to determine as to whether the case of trial is made out or not.

Para 18 of the said report is extracted hereinbelow:-

“18. Taking note of the exposition of law on the subject laid down by this Court, it is settled that the Judge while considering the question of framing charge under Section 227 CrPC in sessions cases (which is akin to Section 239 CrPC pertaining to warrant cases) 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 material placed before the court discloses grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing the charge; by and large if two views are possible and one of them giving rise to suspicion only, as distinguished from grave suspicion against the accused, the trial Judge will be justified in discharging him. It is thus clear that while examining the discharge application filed under Section 227 CrPC, it is expected from the trial Judge to exercise its judicial mind to determine as to whether a case for trial has been made out or not. It is true that in such proceedings, the court is not supposed to hold a mini trial by marshalling the evidence on record.”

12. The Supreme Court again in the case of Tarun Jit Tejpal versus State of Goa and other: 2019 SCC OnLine SC 1053 has taken note of case law in detail while explaining the powers under Sections 227/228 Cr.P.C. and reiterated the principle as enumerated in State v. S. Selvi (supra) and Sajjan Kumar versus C.B.I.: (2010) 9 SCC 368. In para 32 it has been held as under:-

“32. Applying the law laid down by this Court in the aforesaid decisions and considering the scope of enquiry at the stage of framing of the charge under Section 227/228 if the CrPC, we are of the opinion that the submissions made by the learned Counsel appearing on behalf of the appellant on merits, at this stage, are not required to be considered. Whatever submissions are made by the learned Counsel appearing on behalf of the appellant are on merits are required to be dealt with and considered at an appropriate stage during the course of the trial. Some of the submissions may be considered to be the defence of the accused. Some of the submissions made by the learned Counsel appearing on behalf of the appellant on the conduct of the victim/prosecutrix are required to be dealt with and considered at an appropriate stage during the trial. The same are not required to be considered at this stage of framing of the charge. On considering the material on record, we are of the opinion that there is more than a prima facie case against the accused for which he is required to be tried. There is sufficient ample material against the accused and therefore the learned Trial Court has rightly framed the charge against the accused and the same is rightly confirmed by the High Court. No interference of this Court is called for.”

13. Considering the facts, the charges sheet, report of the FSL and the aforesaid decisions of the Hon’ble Supreme Court, the present revision has no merit.

14. Accordingly, the revision is hereby dismissed.

 

 

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