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Bhagwat Kunwar vs State Of Rajasthan on 18 November, 2019

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 4318/2019

Bhagwat Kunwar W/o Bhagwat Singh, Aged About 32 Years, By
Caste Rajput, Resident Of Jamotara, Barloot Police Station,
District Sirohi.

—-Petitioner
Versus

1. State Of Rajasthan, Through Pp

2. Narpat Singh S/o Shri Bhikh Singh, By Caste Rajput,
Resident Of Bhutgaon, Teh. And Dist. Sirohi.

—-Respondents

For Petitioner(s) : Mr. BS Rathore
For Respondent(s) : Ms. Rajlaxmi Singh Choudhary PP

HON’BLE MR. JUSTICE MANOJ KUMAR GARG

Order

18/11/2019

Instant misc. petition has been filed by the petitioner under

Section 482 Cr.P.C. against the order dated 10.06.2019 passed by

the learned Sessions Judge, Sirohi, in criminal revision petition No.

23/2018 whereby the Revisional Court dismissed the revision petition

filed by the petitioner and affirmed the order dated 27.04.2018

passed by learned Judicial Magistrate, Sirohi, whereby the learned

trial Court framed the charged against the petitioner for offence

under Sections 420, 199, 200 471 of IPC under Section 125-A of

Public Representative Act.

Counsel for the petitioner submits that while convicting the

petitioner for the aforesaid offences, the learned courts below have

not properly considered the material aspect of the case as no offence

under Sections 420, 199, 200 471 of IPC under Section 125-A of

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Public Representative Act is made out against the petitioner. Hence

the orders impugned deserve to be quashed and set aside.

Per contra, learned Public Prosecutor supported the order

passed by the learned Courts below and submits that the order of

framing charge passed by the learned Court below does not suffer

from any infirmity and all other questions raised in regard to the

present case are to be considered by the learned Trial Court at the

appropriate stage.

Heard the learned counsel for the parties and perused the

orders impugned of the courts below.

It is settled law that at the time of framing the charges,

the truth, veracity and the effect of the evidence, which the

prosecution proposes to produce are not to be meticulously

examined. At this stage, the Court has only to see whether the

unrebutted evidence, which the prosecution is to adduce, make

way for conviction and if it is so then the charge can be framed.

But if the evidence itself does not disclose that the accused has

committed the offence, then the charge should not be framed. The

Court, while framing the charges, is required to evaluate the

materials and documents on record with a view to find out if the

facts emerging therefrom disclose the presence of all the

ingredients constituting the alleged offence.

In the case of Sajjan Kumar v. Central Bureau of

Investigation reported in (2010) 9 SCC 368, Hon’ble Supreme

Court in para 21 of the judgment has laid down the principles

which are to be kept in mind by the Court while exercising

jurisdiction under Sections 227 228 Cr.P.C., which are as below :

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“(i) The Judge while considering the question of framing the
charges under Section 227 Cr.P.C. 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 state of Sections 227 228, 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 al that the prosecution states as

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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 at
this stage, he is not to see whether the trial will end in
conviction or acquittal.”

In the case of Amit Kapoor v. Ramesh Chander Anr.

reported in (2012) 9 SCC 460, Hon’ble Supreme Court has held

that at the initial stage of framing of a charge, the Court is

concerned not with proof but with a strong suspicion that the

accused has committed an offence, which, if put to trial, could

prove him guilty. All that the Court has to see is that the material

on record and the facts would be compatible with the innocence of

the accused or not. The final test of guilt is not to be applied at

that stage.

In the case of Sheoraj Singh Ahlawat Ors. v. State of Uttar

Pradesh Anr. reported in (2013) 11 SCC 476, the Hon’ble Apex

Court has held as below :

“While framing charges, court is required to evaluate
materials and documents on record to decide whether facts
emerging therefrom taken at their face value would disclose
existence of ingredients constituting the alleged offence. At
this stage, the court is not required to go deep into the
probative value of materials on record. It needs to evaluate
whether there is a ground for presuming that accused had
committed offence. But it should not evaluate sufficiency of
evidence to convict accused. Even if there is a grave
suspicion against the accused and it is not properly explained
or court feels that accused might have committed offence,
then framing of charges against the accused is justified. It is

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only for conviction of accused that materials must indicate
that accused had committed offence but for framing of
charges if materials indicate that accused might have
committed offence, then framing of charge is proper.
Materials brought on by prosecution must be believed to be
true and their probative value cannot be decided at this
stage. The accused entitled to urge his contentions only on
materials submitted by prosecution. He is not entitled to
produce any material at this stage and the court is not
required to consider any such material, if submitted.
Whether the prima facie case made out depends upon facts
and circumstances of each case. If two views are possible
and materials indicate mere suspicion, not being grave
suspicion, against accused then he may be discharged. The
court has to consider broad probabilities of case, total effect
of evidence and documents produced before it. The court
should not act as mouthpiece of prosecution and it is
impermissible to have roving enquiry at the stage of framing
of charge.”

Recently, the Hon’ble Apex Court in the case of ‘State of

Rajasthan Vs. Fatehkaran Mehdu’ reported in AIR 2017 SC 796,

while dealing with the scope of interference under Section 397

Cr.P.C when the charge had been framed, has held as under :-

“26. The scope of interference and exercise of jurisdiction
Under Section 397 of Code of Criminal Procedure has been
time and again explained by this Court. Further, the scope of
interference Under Section 397 Code of Criminal Procedure
at a stage, when charge had been framed, is also well
settled. At the stage of framing of a charge, the court is
concerned not with the proof of the allegation rather it has to
focus on the material and form an opinion whether there is
strong suspicion that the Accused has committed an offence,
which if put to trial, could prove his guilt. The framing of
charge is not a stage, at which stage final test of guilt is to
be applied. Thus, to hold that at the stage of framing the

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charge, the court should form an opinion that the Accused is
certainly guilty of committing an offence, is to hold
something which is neither permissible nor is in consonance
with scheme of Code of Criminal Procedure.

27. Now, reverting to the limit of the scope of jurisdiction
Under Section 397 Code of Criminal Procedure, which vests
the court with the power to call for and examine the records
of an inferior court for the purposes of satisfying itself as to
the legality and regularity of any proceedings or order made
in a case. The object of this provision is to set right a patent
defect or an error of jurisdiction or law or the perversity
which has crept in the proceeding.

……..

29. The Court in para 27 has recorded its conclusion and laid
down principles to be considered for exercise of jurisdiction
Under Section 397 particularly in context of quashing of
charge framed Under Section 228 Code of Criminal
Procedure Para 27, 27(1), (2), (3), (9), (13) are extracted as
follows:

“27. Having discussed the scope of jurisdiction
under these two provisions, i.e., Section 397 and
Section 482 of the Code and the fine line of
jurisdictional distinction, now it will be appropriate
for us to enlist the principles with reference to
which the courts should exercise such jurisdiction.
However, it is not only difficult but is inherently
impossible to state with precision such principles.
At best and upon objective analysis of various
judgments of this Court, we are able to cull out
some of the principles to be considered for proper
exercise of jurisdiction, particularly, with regard to
quashing of charge either in exercise of
jurisdiction Under Section 397 or Section 482 of
the Code or together, as the case may be:

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27.1) Though there are no limits of the powers of
the Court Under Section 482 of the Code but the
more the power, the more due care and caution is
to be exercised in invoking these powers. The
power of quashing criminal proceedings,
particularly, the charge framed in terms of Section
228 of the Code should be exercised very
sparingly and with circumspection and that too in
the rarest of rare cases.

27.2) The Court should apply the test as to
whether the uncontroverted allegations as made
from the record of the case and the documents
submitted therewith prima facie establish the
offence or not. If the allegations are so patently
absurd and inherently improbable that no prudent
person can ever reach such a conclusion and
where the basic ingredients of a criminal offence
are not satisfied then the Court may interfere.

27.3) The High Court should not unduly interfere.
No meticulous examination of the evidence is
needed for considering whether the case would
end in conviction or not at the stage of framing of
charge or quashing of charge.

27.9) Another very significant caution that the
courts have to observe is that it cannot examine
the facts, evidence and materials on record to
determine whether there is sufficient material on
the basis of which the case would end in a
conviction; the Court is concerned primarily with
the allegations taken as a whole whether they will
constitute an offence and, if so, is it an abuse of
the process of court leading to injustice.

27.13) Quashing of a charge is an exception to
the Rule of continuous prosecution. Where the
offence is even broadly satisfied, the Court should

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be more inclined to permit continuation of
prosecution rather than its quashing at that initial
stage. The Court is not expected to marshal the
records with a view to decide admissibility and
reliability of the documents or records but is an
opinion formed prima facie.

30. Applying the above tests, we are of the considered
opinion that High Court erred in quashing the charges
framed by the order dated 05.05.2009. In result, both the
appeals are allowed. The order of the High Court is set aside
and the order dated 05.05.2009 is restored. The learned
Special Judge may proceed with the trial in accordance with
the law expeditiously.”

Thus, it is the well settled legal position that at the stage of

framing charge for an offence against an accused only prima facie

has to be seen whether sufficient grounds are available on record

to proceed against him and even strong suspicion is enough to

frame charge and at this stage of the proceedings evidence is not

required to be analyzed as it is required to be done at the final

stage after trial. It is also well settled that at this stage of the

proceedings only the charge-sheet and evidence collected during

investigation which has been produced alongwith the charge-sheet

is required to be considered.

From perusal of the orders impugned, it is apparent that the

while passing the orders impugned, the learned courts below have

considered each and every aspect of the matter and rightly framed

the charges for the aforesaid offences. There concurrent finding of

courts below. In these circumstances, I find no perversity or manifest

error in the orders impugned. The orders impugned are just and

proper and do not warrant any interference from this Court.

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Consequently, the misc. petition hereby is dismissed. Stay

petition is also decided.

(MANOJ KUMAR GARG),J
194-Anshul/-

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