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Pawan Tewari vs State Of U.P. on 30 October, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

A.F.R.

Court No. – 13

Case :- CRIMINAL REVISION No. – 123 of 2007

Revisionist :- Pawan Tewari

Opposite Party :- State of U.P.

Counsel for Revisionist :- Karuna Shanker Rastogi

Counsel for Opposite Party :- Govt.Advocate,V.K. Shahi

Hon’ble Dinesh Kumar Singh,J.

1. The present revision petition has been filed against the order dated 31.01.2007 passed in Sessions Trial No.1058 of 2006 by Additional District and Sessions Judge, Court No.23, Lucknow whereby an application of discharge filed by the revisionist under Section 227 Cr.P.C. has been dismissed.

2. Brief facts of the case are that, the complainant, respondent No.2 gave a written report at the police station on 07.04.2006 bringing it to the notice of the police that her husband, Mr. Sudhir Kumar Sharma went out from the residence on 04.04.2008 at around 4:45 P.M. and, he did not come back till giving the complaint at the police station.

3. On the basis of aforesaid complaint, Sub-Inspector, A.K. Sachan registered the information in G.D. and started investigation. From the investigation and examination of the call record of Mr. S.K. Sharma, the investigating officer was of the opinion that Mr. S.K. Sharma was kidnapped for ransom. In this kidnapping etc., prima facie involvement of Devvrat Mishra, Executive Engineer and his son residents of 21 Hydel Colony, Vivekanand Puri Road, Mahanagar, Lucknow, Baccha Pandey s/o Ramjage Pandey who was relative of Devvrat Mishra and, Pawan Tiwari, the revisionist herein who was friend of son of Devvrat Mishra was found.

4. After finding prima facie involvement of these persons, a complaint was given for registering the FIR under Section 364A IPC. The investigating officer, thereafter, recorded the statement of the wife of S.K. Sharma, Dr. Savita Sharma who initially gave the complaint at the police station regarding her husband going missing with effect from 04.04.2006.

5. Dr. Savita Sharma was residing at Banaras Hindu University and working as Assistant Curator in-charge of Coin Section, Bharat Kala Museum. She gave the statement that her husband, Mr. Sudhir Kumar Sharma was Chairman of the Electricity Board. He got retired from the service on 28.02.2004 and was residing at Vivekanandpuri, Hydel Colony. Along with him, servant Subhash was also living. On 04.04.2006 and 05.04.2006 she spoke to them. On 06.04.2006 she spoke to her husband from Banaras. She was asked by her husband to come to Lucknow. She reached Lucknow by Kashi Vishwanath Express. When she was in tempo from Charbagh Railway Station to reach Vivekanandpuri, Hydel Colony, a telephone call came at around 9-10 P.M. from Mr. S.K. Sharma asking her where was she. She told her location to him and, then he said that she was required to arrange Rs.15,00,000/-. He directed her to go to Citi Bank in the morning. When she asked that where was he, he said that he would talk to her later. He said that she should reach home. He also said that without taking money, they would not leave him alive. On 07.04.2004 again Mr. S.K. Sharma rang her at around 9-10 A.M. and said that she should go to Citi Bank and withdraw money from the Bank. On 07.04.2006 she went to the residence of Mr. Devvrat Mishra who had called her. Mr. Devvrat Mishra was subordinate to her husband and was also residing at Hydel Colony. She gave mobile numbers of her and Devvrat Mishra to investigating officer. Mr. Devvrat Mishra told her that Mr. S.K. Sharma called him and said that he was in some difficulty as he had been abducted. Mr. S.K. Sharma had asked him to make arrangement of money. Mr. Mishra further said that S.K. Sharma had asked him not to give information to the police otherwise, his life would be in jeopardy.

6. Devvrat Mishra further told Dr. Savita Sharma that S.K. Sharma had asked him to arrange Rs.15,00,000/-. In this respect, Devvrat Mishra had spoken to the Manager of Citi Bank and, he said that Police should not be informed. When the conversation between Devvrat Mishra and Dr. Savita Sharma was taking place, Rohit Mishra son of Devvrat Mishra was present there and, he heard everything.

7. On 07.04.2006, Dr. Savita Sharma went to the Citi Bank along with Devvrat Mishra. The Manager of the Bank told her that it would take sometime to encash the mutual funds. She further said that Subhash told her one of the two persons who came to pick up Mr. S.K. Sharma looked like Rohit Mishra. She also said that Rohit Mishra was watching her movements. After 07.04.2006 no telephone call was received by her from her husband or anybody and, Rohit Mishra went absconding. She apprehended that Devvrat Mishra and his son were involved in abduction/kidnapping of her husband and, the fact that they took her to the City Bank etc., was sufficient indication of their involvement.

8. The investigating officer thereafter, recorded the statement of Subhash Yadav who was the servant at the household of Mr. S.K. Sharma. He said that on 04.04.2006 at around 4:00 P.M., S.K. Sharma came from the office and, told him that two people would come in a black car to pick him up. As soon as they would come, he should inform him because he had to go with those people. Sometime thereafter, one car came. He described the two occupants of the car. One occupant was aged around 23-24 years, came to the residence asking whether S.K. Sharma resided here? By that time, S.K. Sharma was ready to go dressed in blue shirt and black pant. He instructed Subhash to prepare food for dinner and, thereafter, he had not come back. He further said that he spoke to S.K. Sharma twice or thrice on the said date then, S.K. Sharma said that he would come back in the night. On 05.04.2006 again he called on the mobile number of S.K. Sharma from a P.C.O. as land line of the house was out of order but S.K. Sharma did not pick up the phone, however, somebody else picked up the phone. Next day, at round 11-12 A.M., he called S.K. Sharma. Mr. S.K. Sharma told him that he was in Delhi, and he would come on 6th April. He gave the mobile numbers of S.K. Sharma and telephone number of the residence as well. On 06.04.2006 also he did not come, however, two persons came on a motorcycle, Bajaj CT-100 of black color. They had keys of room and almirah of S.K. Sharma. When they asked them not to open the room and almirah, then they made him to talk to S.K. Sharma. S.K. Sharma asked him to allow them to open almirah. Then almirah got opened but no money was found there. Out of these two persons who came on a motorcycle, one was the same who came in the car to take Mr. S.K. Sharma. He described the second person who came in the motorcycle having fair complexion who had covered his face and was wearing helmet, he was looking like the son of Devvrat Mishra. When he reached the house of Devvrat Mishra on asking of Dr. Savita Sharma, he did not find Rohit Mishra in the house. He spoke to Devvrat Mishra on his mobile. Mr. Devvrat Mishra told him that S.K. Sharma had taken money from several persons and he had been kidnapped.

9. Rohit Mishra gave statement to the investigation officer that he along with his friend, Pawan Tiwari, the revisionist herein and his father had a dream that he should pursue MBA from Spain. For the aforesaid purpose, money was required. To collect money they thought of kidnapping a wealthy person. He said that Mr. S.K. Sharma, Chairman of Electricity Board who was living nearby was set to retire on 28.02.2006. He had taken huge amount from several persons in the name of giving employment. He was also involved in a scam of Rs.3,00,00,000/- at Obra. He had deposited huge amount in mutual funds. He also said that he used to visit frequently the house of S.K. Sharma, therefore, he thought of kidnapping of S.K. Sharma.

10. After retirement, S.K.Sharma was to get around 25-30 Lakhs rupees in his P.F. Account. His wife was living in Banaras and, Mr. S.K. Sharma was living with his servant. He said that S.K. Sharma was to move out after retirement from the Hydel Colony and, therefore, he planned to kidnap S.K. Sharma with Bachha Pandey, his relative, who was living in Vishwas Khand, Gomti Nagar and was working in VLCC.

11. He said that he decided to invite Mr. S.K. Sharma for drinking and debauchery as Mr. Sharma was fond of women and wine. Bachha Pandey agreed to make arrangements. He also said that Guddu Pandey @ Ram Kishore and Pawan Pandey also agreed to help in execution of this plan.

12. For this purpose, he took a Mobile Phone connection No.9838476603 in the name of Alok by forging documents and he used this number in kidnapping of Mr. S.K. Sharma. He said that he made plan with Pawan Tiwari and lured Mr. Sharma for a girl and also to give him money for providing employment to some persons in the electricity Department. Mr. Sharma got ready. According to the plan, he borrowed a car from his friend, Siddhartah Singh and went to the house of Mr. S.K. Sharma along with Baccha Pandey. Baccha Pandey went to the residence and brought Mr. S.K. Sharma from the house and, thereafter, all three went to Vishwas Khand where Guddu Pandey, Lalji, Pawan Tiwari were present. S.K. Sharma was kept on the first floor and, he was provided drinks etc. Demand for Rs.1,00,00,000/- was made from him. However, Mr. S.K. Sharma refused and said that he did not have that much money. He said that he would give Rs.15,00,000/- which was deposited in his Syndicate Bank. In the night Mr. S.K. Sharma received a telephonic call from his servant and, he was asked to tell the servant that he would come in the morning on the next day. On 05.04.2006 again when his servant called, Mr. S.K. Sharma was asked to tell him that he was in Delhi and would come back on the next day.

13. When Mr. S.K. Sharma was asked that without cheque book how the money would be withdrawn, then Mr. Sharma asked him to bring cheque book from almirah and, then he along with Baccha Pandey, went to the house of Mr. S.K. Sharma. At that time he covered his face by a handkerchief and wore a helmet so that the servant did not recognise him. They thought that they would get good amount of money from almirah but no amount was received and cheque book was also not found there. Mr. Sharma used to take some medicines for which they asked for the prescription but the servant could not give the prescription. He further said that he made Ms. Sharma to talk to his father Mr. Devvrat Mishra. His father said that he would help Ms. Sharma to withdraw money from the Bank. However, the Bank informed them that the money could be withdrawn after 3-4 days. From the driver of Mr. Sharma, it was known that Ms. Sharma had informed the police and, then fearing their arrest, the accused gave injection of Sensoran and strangulated Mr. Sharma. Dead body of Mr. S.K. Sharma was brought in a Ford Car at Ramnagar, Barabanki crossing where he met Pawan Tiwari, Baccha Pandey, Rajan Pandey. These persons along with one Guddu Pandey threw the dead body in the river.

14. It appears that after recording the statement of as many as 34 witnesses and collecting the evidence including the call details of the cell phones used by the accused as well as deceased, charge sheet under Sections 364-A, 302, 201, 120-B IPC was filed against the accused including the revisionist herein. The revisionist thereafter filed an application under Section 227 Cr.P.C. for discharge from the case.

15. Learned Sessions judge has rejected the application of the accused revisionist vide impugned order dated 31.01.2007.

16. Heard learned counsel for the revisionist and learned A.G.A. for the State.

17. Learned counsel for the revisionist submits that except for the confessional statement of the co-accused, Rohit Mishra given to the police, there is no other evidence to connect the accused-revisionist with the commission of the offence. He further submits that the confessional statement of the accused given to the police cannot be relied on for framing the charge against the present accused-revisionist. He also submits that statements of co-accused, Baccha Pandey, Pawan Pandey, Rohit Mishra were recorded under Section 161 Cr.P.C. and, they have not made any statement before the learned Magistrate under section 164 Cr.P.C. Further, learned Sessions Court in the impugned order has held that for the first time the accused’s name came to the light in the statement of Sub-Inspector, A.K. Sachan on 14.04.2006. In his statement, he said that two mobile numbers i.e. 9838384515 and 9835616862 were used in the commission of the offence. It was further said that the accused was using Mob.No.9839616862 which was in the name of Rohit Mishra. Pawan Pandey and Rohit Mishra were best friends and Pawan Pandey was also absconding.

18. The Trial Court while rejecting the application has held that the deceased, S.K. Shamra was abducted for ransom. An amount of Rs.15,00,000/- was asked to be withdrawn from the Bank by her wife. After committing the murder of Mr. S. K. Sharma, dead body was thrown in the river and the evidence collected by the investigating officer during the investigation including the statement of the witnesses recorded under Section 161 Cr.P.C. established commission of the offence by the accused and, therefore, he rejected the application of discharge filed by the accused and other co-accused.

19. In support of his submissions that the statement of a co-accused cannot be relied on, learned counsel for the revisionist has cited judgment of the Supreme Court in the case of State of Tamilnadu versus Jayalalitha : (2000) 5 SCC 440.

Para 11 of aforesaid report on which reliance has been placed is extracted herein below:-

“11. We may, at the outset, point out that there is no use of the said statement attributed to the third accused Venkataraman on account of two reasons. First is that the said author of the statement has already been arraigned in the case and a charge has been framed against him. Second is that on a reading of the statement we have noticed that it is exculpatory in nature. Hence the said statement can only lie in store and no court can possibly treat it as evidence.”

20. However, learned counsel for the revisionist has missed para 34 of aforesaid judgment which throws enough light on what needs to be considered at the time of framing of the charge.

Para 34 of the aforesaid judgment reads as under:-

“34. We would choose to refrain from dealing with the above contention, lest any comment made by us turn out to be detrimental to one or the other side of the case. Nevertheless, it is for the prosecution to explain how certain relevant sheets were found missing and whether the respondent had any knowledge of and also why the respondent should have caused them to be removed. This is not the stage for weighing the pros and cons of all the implications of the materials nor for sifting the materials presented by the prosecution. The exercise at this stage should be confined to considering the police report and the documents to decide whether the allegations against the accused are “groundless” or whether “there is ground for presuming that the accused has committed the offences”. Presumption therein is always rebuttable by the accused for which there must be opportunity of participation in the trial.”

21. Thus, at the time of framing of charge, it is not required to weigh all the evidence and implication of the material before the court nor it is required to sift the material presented by the prosecution. The court is required to consider the police report and documents to decide whether the allegations against the accused are made out or not. If the Court forms an opinion prima facie that the accused has committed the offence, he cannot be discharged.

22. The second judgment on which learned counsel for the revisionist has placed reliance is Param Hans Yadav and Sadanand Tripathi versus State of Bihar and others: (1987) 2 SCC 197 to submit that the confessional statement of a co-accused is not a substantive evidence against the other co-accused in the trial.

In support of his contention he has cited paras 9 and 10 which are extracted herein below:-

“9. It is well settled that the confession of a co-accused is not substantive evidence against other co-accused persons in the same trial. As this Court pointed out in Kashmira Singh v. State of M.P. [AIR 1952 SC 159 : 1952 SCR 526 : 1952 Cri LJ 839] the confession of a co-accused is not substantive evidence against the other accused persons at the trial but could only be used for lending reassurance if there be any other substantive evidence to be utilised or acted upon.

10. In Hari Charan Kurmi v. State of Bihar [AIR 1964 SC 1184 : (1964) 6 SCR 623 : 1964 (2) Cri LJ 344] this Court observed:

“Thus, though confession may be regarded as evidence in that generic sense because of the provisions of Section 30, the fact remains that it is not evidence as defined by Section 3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the court cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence.

…that the confession of a co-accused person cannot be treated as substantive evidence and can be pressed into service only when the court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible from the said evidence.””

23. The investigating officer had not only relied on the confessional statement of the co-accused but also had collected other evidence. This is evident from the fact that the mobile number which was in the possession of the revisionist was used in the commission of the offence and that mobile number was in the name of co-accused, Rohit Mishra. It would be seen at the time of trial whether there is substantive evidence to support the case of the prosecution besides confessional statement of the co-accused. At the stage of framing of the charge, the Court is not required to consider all the evidence but it has to find out whether prima facie offence has been committed by the accused or not. Therefore, this judgment is also of no help to the petitioner to say that since there is no other evidence except for the confessional statement, the petitioner should have been discharged.

24. Learned counsel for the revisionist has also placed reliance on one more judgment of the Supreme Court in the case of Satish Mehra vs Delhi Administration Anr: (1996) 9 SCC 766 which delineates on the scope of Sections 227, 228, 239 Cr.P.C. etc., Learned counsel for the petitioner submits that considering the ratio of aforesaid judgment since there is no other evidence except for confessional evidence against the revisionist herein, the valuable time of court should not be wasted for holding a trial for formality as the trial should not be an exercise in-futility, therefore, the application ought not to have been rejected inasmuch as there is no scope for the revisionist to be convicted.

Paras 12, 13, 14 and 15 of the aforesaid report are extracted hereinbelow:-

12. An incidental question which emerges in this context is whether the Sessions Judge can look into any material other than those produced by the prosecution. Section 226 of the Code obliges the prosecution to describe the charge brought against the accused and to state by what evidence the guilt of the accused would be proved. The next provision enjoins on the Sessions Judge to decide whether there is sufficient ground to proceed against the accused. In so deciding the Judge has to consider (1) the record of the case and (2) the documents produced therewith. He has then to hear the submissions of the accused as well as the prosecution on the limited question whether there is sufficient ground to proceed. What is the scope of hearing the submissions? Should it be confined to hearing oral arguments alone?

13. Similar situation arises under Section 239 of the Code (which deals with trial of warrant cases on police report). In that situation the Magistrate has to afford the prosecution and the accused an opportunity of being heard besides considering the police report and the documents sent therewith. At these two stages the Code enjoins on the court to give audience to the accused for deciding whether it is necessary to proceed to the next stage. It is a matter of exercise of judicial mind. There is nothing in the Code which shrinks the scope of such audience to oral arguments. If the accused succeeds in producing any reliable material at that stage which might fatally affect even the very sustainability of the case, it is unjust to suggest that no such material shall be looked into by the court at that stage. Here the ”ground’ may be any valid ground including insufficiency of evidence to prove the charge.

14. The object of providing such an opportunity as is envisaged in Section 227 of the Code is to enable the court to decide whether it is necessary to proceed to conduct the trial. If the case ends there it gains a lot of time of the court and saves much human efforts and cost. If the materials produced by the accused even at that early stage would clinch the issue, why should the court shut it out saying that such documents need be produced only after wasting a lot more time in the name of trial proceedings. Hence, we are of the view that Sessions Judge would be within his powers to consider even materials which the accused may produce at the stage contemplated in Section 227 of the Code.

15. But when the Judge is fairly certain that there is no prospect of the case ending in conviction the valuable time of the court should not be wasted for holding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on a future date. We are mindful that most of the Sessions Courts in India are under heavy pressure of workload. If the Sessions Judge is almost certain that the trial would only be an exercise in futility or a sheer waste of time it is advisable to truncate or snip the proceedings at the stage of Section 227 of the Code itself.

25. However, from perusal of the order impugned, it is not only confessional statement which is against the accused, there are 34 persons whose statements have been recorded besides other evidence which has been collected. Therefore, the judgment cited by the learned counsel for the revisionist is of not much relevance to say that the revisionist would get acquittal and in no circumstance would be convicted.

26. While considering an application for discharge under Section 227 of the Code, the Court is required to consider the “record of the case” to form an opinion whether there is a ground for presumption and strong suspicion that the accused has committed an offence. After considering the material if the trial Court is of the opinion that there is strong/grave suspicion of involvement of the accused in commission of the offence, the accused cannot be discharged. At the stage of Sections 227/228 (or 239 in warrant case) the Court is only required to see that the material on record and the facts of the case are enough to raise grave suspicion that the accused has committed the offence. If there is no material to arrive at such a satisfaction of suspicion, the accused should be discharged.

27. The scope of Sections 227 and 228 Cr.P.C. has been explained in the judgment of Supreme Court in the case of State of Bihar v. Ramesh Singh, (1977) 4 SCC 39 in para 4 has held as under:-

“4. Under Section 226 of the Code while opening the case for the prosecution the Prosecutor has got to describe the charge against the accused and state by what evidence he proposes to prove the guilt of the accused. Thereafter comes at the initial stage the duty of the Court to consider the record of the case and the documents submitted therewith and to hear the submissions of the accused and the prosecution in that behalf. The Judge has to pass thereafter an order either under Section 227 or Section 228 of the Code. If “the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing”, as enjoined by Section 227. If, on the other hand, “the Judge is of opinion that there is ground for presuming that the accused has committed an offence which– … (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused”, as provided in Section 228. Reading the two provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. It the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even, at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section 227.”

28. Once the trial Court forms an opinion on the basis of material available on record about the prima facie case of grave suspicion against the accused, the revisional Court ordinarily should not interfere with such an order inasmuch as the jurisdiction of the Court under Section 397 Cr.P.C. is to be exercised so as to examine the correctness, legality or propriety of order passed by the lower Court.

29. The Supreme Court in its judgment in the case of Amit Kapoor v. Ramesh Chander : (2012) 9 SCC 460 in para 20 has explained the scope of the power under Section 397 Cr.P.C. as under:-

“20. The jurisdiction of the court under Section 397 can be exercised so as to examine the correctness, legality or propriety of an order passed by the trial court or the inferior court, as the case may be. Though the section does not specifically use the expression “prevent abuse of process of any court or otherwise to secure the ends of justice”, the jurisdiction under Section 397 is a very limited one. The legality, propriety or correctness of an order passed by a court is the very foundation of exercise of jurisdiction under Section 397 but ultimately it also requires justice to be done. The jurisdiction could be exercised where there is palpable error, non-compliance with the provisions of law, the decision is completely erroneous or where the judicial discretion is exercised arbitrarily. On the other hand, Section 482 is based upon the maxim quando lex aliquid alicui concedit, concedere videtur id sine quo res ipsa esse non potest i.e. when the law gives anything to anyone, it also gives all those things without which the thing itself would be unavoidable. The section confers very wide power on the Court to do justice and to ensure that the process of the court is not permitted to be abused.”

30. In para 27 of the same judgment principle regarding quashing of the charge either in exercise of jurisdiction under Section 397 Cr.P.C. or under Section 482 Cr.P.C. has been explained as under:-

“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.

27.4. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers.

27.5. Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused.

27.6. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender.

27.7. The process of the court cannot be permitted to be used for an oblique or ultimate/ulterior purpose.

27.8. Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a “civil wrong” with no “element of criminality” and does not satisfy the basic ingredients of a criminal offence, the court may be justified in quashing the charge. Even in such cases, the court would not embark upon the critical analysis of the evidence.

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.

27.10. It is neither necessary nor is the court called upon to hold a full-fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction.

27.11. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained.

27.12. In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed therewith by the prosecution.

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 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.

27.14. Where the charge-sheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge.

27.15. Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that the interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae i.e. to do real and substantial justice for administration of which alone, the courts exist.

[Ref. State of W.B. v. Swapan Kumar Guha [(1982) 1 SCC 561 : 1982 SCC (Cri) 283 : AIR 1982 SC 949] ; Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre [(1988) 1 SCC 692 : 1988 SCC (Cri) 234] ; Janata Dal v. H.S. Chowdhary [(1992) 4 SCC 305 : 1993 SCC (Cri) 36 : AIR 1993 SC 892] ; Rupan Deol Bajaj v. Kanwar Pal Singh Gill [(1995) 6 SCC 194 : 1995 SCC (Cri) 1059] ; G. Sagar Suri v. State of U.P. [(2000) 2 SCC 636 : 2000 SCC (Cri) 513] ; Ajay Mitra v. State of M.P. [(2003) 3 SCC 11 : 2003 SCC (Cri) 703] ; Pepsi Foods Ltd. v. Special Judicial Magistrate [(1998) 5 SCC 749 : 1998 SCC (Cri) 1400 : AIR 1998 SC 128] ; State of U.P. v. O.P. Sharma [(1996) 7 SCC 705 : 1996 SCC (Cri) 497] ; Ganesh Narayan Hegde v. S. Bangarappa [(1995) 4 SCC 41 : 1995 SCC (Cri) 634] ; Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque [(2005) 1 SCC 122 : 2005 SCC (Cri) 283] ; Medchl Chemicals Pharma (P) Ltd. v. Biological E. Ltd. [(2000) 3 SCC 269 : 2000 SCC (Cri) 615 : AIR 2000 SC 1869] ; Shakson Belthissor v. State of Kerala [(2009) 14 SCC 466 : (2010) 1 SCC (Cri) 1412] ; V.V.S. Rama Sharma v. State of U.P. [(2009) 7 SCC 234 : (2009) 3 SCC (Cri) 356] ; Chunduru Siva Ram Krishna v. Peddi Ravindra Babu [(2009) 11 SCC 203 : (2009) 3 SCC (Cri) 1297] ; Sheonandan Paswan v. State of Bihar [(1987) 1 SCC 288 : 1987 SCC (Cri) 82] ; State of Bihar v. P.P. Sharma [1992 Supp (1) SCC 222 : 1992 SCC (Cri) 192 : AIR 1991 SC 1260] ; Lalmuni Devi v. State of Bihar [(2001) 2 SCC 17 : 2001 SCC (Cri) 275] ; M. Krishnan v. Vijay Singh [(2001) 8 SCC 645 : 2002 SCC (Cri) 19] ; Savita v. State of Rajasthan [(2005) 12 SCC 338 : (2006) 1 SCC (Cri) 571] and S.M. Datta v. State of Gujarat [(2001) 7 SCC 659 : 2001 SCC (Cri) 1361 : 2001 SCC (LS) 1201] .]

27.16. These are the principles which individually and preferably cumulatively (one or more) be taken into consideration as precepts to exercise of extraordinary and wide plenitude and jurisdiction under Section 482 of the Code by the High Court. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence.”

31. 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 report 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.””

32. 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.”

33. 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.”

34. Thus, in view of the law as has been explained in several decisions including which have been relied on above and, the fact that the trial Court having considered the record of the case and evidence brought by the prosecution has formed an opinion prima facie of involvement of the revisionist in commission of offence, this revision is dismissed. The Trial Court is directed to frame charge and proceed with the trial and conclude the same expeditiously preferably within a period of one year.

Order Date :- 30.10.2019

prateek

 

 

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