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Varun Bhardwaj vs State Of H.P on 25 April, 2017

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No. 268 of 2016
Reserved on 07.04.2017
Date of Decision: 25.04.2017

.

[

Varun Bhardwaj ………Petitioner.
Versus

State of H.P. …………Respondent.

Coram
Hon’ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1? Yes

For the petitioner: Mr. N.K. Thakur, Senior Advocate, with Mr. Divya
Raj Singh, Advocate.

For the respondent: Mr. P.M. Negi, Additional Advocate General, with
r Mr. Ramesh Thakur, Deputy Advocate General.

Sandeep Sharma, J.

The instant criminal revision petition filed under Section 397 read

with Section 401 of the Cr.PC, is directed against the order dated 24.6.2016,

(in short ‘the impugned order’) passed by the learned Additional Sessions

Judge-I, Una, District Una, HP, in Session Trial No.67/2015, whereby charge

under Section 307 of the IPC has been framed against the petitioner-

accused.

2. Briefly stated facts as emerge from the record are that police of

Police Station Haroli, District Una, HP, on the basis of statement having been

made by one Sh. Amanjot Singh, S/o Shri Ranjeet Singh (hereinafter referred to

as the complainant) under Section 154 of the Cr.PC, registered an FIR No. 110

of 2015 on 4.5.2015, against the petitioner-accused under Section 307 of the

Whether reporters of the Local papers are allowed to see the judgment? Yes

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IPC. Police on the basis of registration of aforesaid FIR conducted

investigation and submitted report under Section 173 of the Cr.PC, alleging

therein commission of offence punishable under Section 307 of the IPC by the

.

petitioner-accused. Learned Additional Sessions Judge vide order dated

24.6.2016, framed charge under Section 307 of the IPC against the petitioner-

accused. In the aforesaid background, present petitioner-accused has

approached this Court by way of instant proceedings praying therein

quashing of impugned order dated 24.6.2016, passed by the learned

Additional Sessions Judge, Una.

3. Mr. N.K. Thakur, learned Senior Advocate, duly assisted by Mr.

Divya Raj Singh, Advocate, representing the petitioner vehemently argued

that the impugned order (Annexure P-2) is not sustainable in the eye of law as

the same is not based upon the correct appreciation of material made

available on record by the police along with challan filed by it under Section

173 of the Cr.PC, and as such, same deserves to be quashed and set-aside.

Mr. Thakur, while specifically referring to the impugned order strenuously

argued that there is/was no application of mind by the court below while

framing charge under Section 307 of the IPC against the petitioner-accused

and as such, great prejudice has been caused to the petitioner-accused,

who by no stretch of imagination, could be charged with Section 307 of the

IPC, especially in view of the material placed on record by the Investigating

Agency, along with charge sheet. Mr. Thakur, while specifically inviting

attention of this Court to the impugned order dated 24.6.2016 contended that

there is no discussion, if any, with regard to the material, on the basis of which,

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learned Additional Sessions Judge, came to the conclusion that the

petitioner-accused is required to be charged under Section 307 of the IPC

and as such, impugned order being cryptic in nature deserves to be quashed

.

and set-aside. Mr. Thakur, specifically invited attention of this Court to the

MLC No. 466/15 and report of Regional Forensic Science Laboratory (RFSL),

Dharamshala, placed on record by the police along with charge-sheet to

demonstrate that no prima-facie case, if any, is made out against the

petitioner and as such, there was no occasion for the court below to charge

the present petitioner accused under Section 307 of the IPC. While specifically

inviting attention of this Court to the aforesaid MLC/opinion given by the

medical expert, Mr. Thakur stated that no injury, if any, has been found on the

neck of the victim/complainant namely Amanjot Singh. He further

contended that medical expert has specifically opined that injury is superficial

and simple in nature. Mr. Thakur, also invited attention of this Court to the

report submitted by the RFSL Dharamshala to demonstrate that even alleged

weapon i.e. (Sickle) “Darat” does not contain any human blood. Mr. Thakur

contended that there is/was no prima-facie case made out by the

prosecution to implicate the petitioner-accused under Section 307 of the IPC

and as such, impugned order cannot be allowed to sustain. He also stated

that aforesaid opinion was given on 6.5.2015, by the Surgeon of Regional

Hospital, Una, and thereafter, x-ray and C.T. Scan, were conducted and fresh

opinion was rendered on 29.6.2015, wherein injury allegedly sustained by the

complainant/victim was termed to be simple in nature. Mr. Thakur, forcefully

contended that the aforesaid material aspect has been totally ignored by the

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learned court below while framing the charge under Section 307 of the IPC

deliberately to make it a Session case. As per Mr. Thakur, had the court below

perused the report of the police juxtaposing the MLC, there would have been

.

no occasion for it to frame charge under Section 307 of the IPC against the

petitioner-accused. While concluding his arguments, Mr. Thakur, further

contended that bare perusal of evidence so collected by the prosecution

even without any rebuttal from the side of the petitioner suggests that no

conviction can ever be passed for an offence under Section 307 of the IPC

and as such, impugned order being contrary to the provisions of law as well

as facts deserves to be quashed and set-aside. Lastly, Mr. Thakur, contended

that no case much less under Section 307 of the IPC is even prima-facie made

out for framing the charge. In the aforesaid background, Mr. Thakur, prayed

that impugned order may be quashed and set-aside. In the regard aforesaid,

Mr. Thakur, also placed reliance on judgments titled as State of Karnataka v. L.

Muniswamy and Ors, AIR 1977 SC 1489, Niranjan Singh Karam Singh Punjabi,

Advocate, v. Jitendera Bhimraj Bijja and Ors. with State of Maharashtra v.

Jintendra Bhimraj Bijjaya and Ors., with Jitendra Bhimraj Bijje and Ors v. State

of Maharashtra, 1990 CRI.L. J. 1869, Nahar Singh v. The State, AIR (39) 1952

Allahabad 231, Abani Chowdhury v. The State, 1980 Cri.L. J. 614 and Sham

Sunder v. State of Himachal Pradesh 1993 (2) SLJ 2106.

4. Per contra, Mr. P.M. Negi, learned Additional Advocate General,

duly assisted by Mr. Ramesh Thakur, learned Deputy Advocate General,

representing the respondent-State supported the impugned order passed by

the court below. He vehemently argued that there is no illegality and infirmity

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in the impugned order and same is based upon the correct appreciation of

the material made available on record by the police along with charge sheet

filed under Section 173 and as such, same deserves to be upheld. Mr. Negi,

.

strenuously argued that there is no merit in the contention of Mr. Thakur,

learned senior counsel for the petitioner that there has been misappreciation

of material adduced on record by the police along with charge sheet

because it is well settled that at the time of framing of charge, learned court

below is not expected to sift the entire evidence, rather it is required to be

seen whether prima-facie case exists against the accused or not? As per Mr.

Negi, in the instant case, there is ample evidence adduced on record by the

Investigating Agency suggestive of the fact that the petitioner accused made

a serious attempt of causing injury on the neck of the complainant with

‘darat’ as a result of, which he suffered injury on his neck. Mr. Negi further

argued that had the complainant not taken side, he would have either died

or have received serious injury on his neck, hence, there is no illegality and

infirmity in the impugned order, whereby the petitioner accused has been

charged rightly under Section 307 of the IPC. Mr. Negi invited attention of this

Court to the provision contained in Section 307 IPC to demonstrate that any

injury caused with an intention or knowledge on person of other person is

punishable under Section 307 of the IPC. While refuting the contention of Mr.

Thakur, learned counsel representing the petitioner that there is nothing much

in the medical opinion renderd by the doctor, who examined the victim for

the first instance as well as report submitted by RFSL Dharamshala, Mr. Negi

forcefully contended that learned court below is/was not required to examine

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the same in detail while framing the charge, rather, the same were required

to be considered and analyzed at the stage of trial. While concluding his

arguments, Mr. Negi forcefully contended that court below at the stage of

.

framing charge is/was only required to see prima-facie evidence, if any

against the petitioner accused and as such, this Court has no occasion,

whatsoever, to interfere with the well reasoned order passed by the learned

court below, which otherwise appears to be based upon proper appreciation

of material made available on record by the Investigating Agency. Mr. Negi

placed reliance on judgment passed by the Hon’ble Apex Court titled Supdt.

Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja and Ors,

AIR 1980, SCC 52, 1979 CRI. L. J. 1390 as well as State of Kerala Vs. Puttumana

Illath Jathavedan Namboodiri (1999)2 Supreme Court Cases 452, to suggest

that court has limited jurisdiction under Section 397 of the Cr.PC.

5. I have heard learned counsel for the parties as well carefully

gone through the record

6. As far as scope of power of this Court while exercising

revisionary jurisdiction under Section 397 is concerned, the Hon’ble Apex

Court in Krishnan and another Versus Krishnaveni and another, (1997) 4

Supreme Court Case 241; has held that in case Court notices that there is a

failure of justice or misuse of judicial mechanism or procedure, sentence or

order is not correct, it is salutary duty of the High Court to prevent the abuse

of the process or miscarriage of justice or to correct

irregularities/incorrectness committed by inferior criminal court in its judicial

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process or illegality of sentence or order. The relevant para of the judgment is

reproduced as under:-

8. The object of Section 483 and the purpose behind conferring the

.

revisional power under Section 397 read with Section 401, upon the High

Court is to invest continuous supervisory jurisdiction so as to prevent
miscarriage of justice or to correct irregularity of the procedure or to
mete out justice. In addition, the inherent power of the High Court is
preserved by Section 482. The power of the High Court, therefore, is very
wide. However, the High Court must exercise such power sparingly and

cautiously when the Sessions Judge has simultaneously exercised
revisional power under Section 397(1). However, when the High Court
notices that there has been failure of justice or misuse of judicial
mechanism or procedure, sentence or order is not correct, it is but the
salutary duty of the High Court to prevent the abuse of the process or
miscarriage of justice or to correct irregularities/ incorrectness

committed by inferior criminal court in its judicial process or illegality of
sentence or order.”

7. Before adverting to ascertain the genuineness and correctness

of the submissions having been made by the learned counsel representing

the respective parties, this Court deems it fit to reproduce impugned order as

well as Charge sheet dated 24.6.2016, whereby present petitioner-accused

has been charged for the commission of offence under Section 307 of the

IPC.

Order dated 24.6.2016.

“Heard and perused the Challan. From the careful perusal
of Challan and documents on record, I am satisfied that

there is enough material on record to charge accused
Varun Bhardwaj for the commission of offence punishable
under Section 307 IPC and if the evidence as brought is
accepted the same shall be sufficient to connect him with

the crime. The accused is charged accordingly for the
aforesaid offence to which he pleaded not guilty and
claimed trial. Now put up on 12.8.2016 for fixation of date
for prosecution evidence.”

“Charge Sheet dated 24.6.2016

I,…………..do hereby charge you accused Varun bhardwaj
as under:-

That you accused on 3.5.2015 at about 10.00 PM at place
Jatpur (Santoshgarh), PS Haroli, District Una, caused injuries
to complainant Amanjot Singh on his neck with sharp
edged weapon i.e. Darat with such intention and

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knowledge and under such circumstances, that if by that
act you have caused death of said Amanjot Singh, you
would have been guilty of murder and you thereby
committed an offence punishable under Section 307 IPC
and within the cognizance of this Court.

.

And I hereby direct that you accused be tried on the

aforesaid charge by this Court.”

Though, learned court below in its order supra, has stated that from the

careful perusal of challan and documents on record, he is satisfied that there

is enough material on record to charge the accused for the commission of

offence punishable under Section 307 of the IPC and if evidence is accepted,

the same shall be sufficient to connect him with the crime, but this Court really

finds it difficult to accept aforesaid satisfaction as recorded by the court,

especially after having glance of the record. This Court is fully conscious

about the fact that the present petition has been filed under Section 397 of

the Cr.PC, which empowers this court with power to call for and examine the

record of any proceeding before any inferior court for the purpose of

satisfying itself or himself as to the legality or regularity of any proceedings or

order made by it. This Court certainly cannot find any quarrel with the

arguments having been made by Sh. P.M. Negi, learned Additional Advocate

General representing the State that for the purpose of satisfying as to the

legality and regularity of any proceedings or order made by inferior court, this

Court needs to see whether there is well founded error and it may not be

proper for this Court to scrutinize the orders which on the face of it, appears

to be taken in accordance with law. Similarly, this Court cannot loose sight of

the fact that in various judgments of Hon’ble Apex Court as well as this Court,

it has been held that revisional jurisdiction can be invoked, where the

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decisions under challenge are grossly erroneous, and there is no compliance

of the provisions of law, the finding recorded is based on no evidence,

material evidence is ignored or judicial discretion is exercised arbitrarily or

.

perversely. This Court also agrees with the contention of Mr. Negi that

revisional jurisdiction of higher Court is very limited one and it cannot be

exercised in a routine manner because admittedly exercise of this jurisdiction

should not lead to injustice ex-facie. Exposition of law till date as laid down by

the Hon’ble Apex Court certainly suggests that where court is dealing with

question as to whether the charge has been framed properly and in

accordance with law in a given case, it may be reluctant to exercise its

revisional jurisdiction unless the case substantially falls within the category

mentioned herein above. It is well settled that while framing the charge, the

court is required to evaluate the material and documents on record with a

view to find out that if the facts emerging therefrom, taken on their face

value, discloses the existence of all the ingredients, constituting the alleged

offence or not and for the limited purpose, court may sift the evidence.

Hon’ble Apex Court in case titled Amit Kapoor v. Ramesh Chander and Anr,

(2012) 9 SCC 460 held that framing of a charge is an exercise of jurisdiction by

the trial Court in terms of Section 228 of the Cr.PC unless the accused is

discharged under Section 227 Cr.PC. The Hon’ble Apex Court has further held

that under the sections 227 and 228 Cr.PC, the Court is required to consider

the ‘record of the case’ and the documents submitted therewith and, after

hearing the parties, may either discharge the accused or where it appears to

the Court and in its opinion there is ground for presuming that the accused

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has committed an offence, it shall proceed to frame the charge. The Hon’ble

Apex Court has further held that once the facts and ingredients of the Section

concerned exists, then the Court would be right in presuming that there is

.

ground to proceed against the accused and frame the charge accordingly.

Most importantly, the Hon’ble Apex Court in the aforesaid judgment has

concluded that the satisfaction of the Court in relation to the existence of

constituents of an offence and the facts leading to that offence is a sine qua

non for exercise of such jurisdiction. At this stage, this court deems it fit to

reproduce the following paras of aforesaid judgment having been passed by

the Hon’ble Apex Court as follows:-

“17. Framing of a charge is an exercise of jurisdiction by the
trial court in terms of Section 228 of the Code, unless the
accused is discharged under Section 227 of the Code. Under
both these provisions, the court is required to consider the
‘record of the case’ and documents submitted therewith and,

after hearing the parties, may either discharge the accused or
where it appears to the court and in its opinion there is ground
for presuming that the accused has committed an offence, it
shall frame the charge. Once the facts and ingredients of the
Section exists, then the Court would be right in presuming that

there is ground to proceed against the accused and frame the
charge accordingly. This presumption is not a presumption of

law as such. The satisfaction of the court in relation to the
existence of constituents of an offence and the facts leading to
that offence is a sine qua non for exercise of such jurisdiction. It
may even be weaker than a prima facie case. There is a fine

distinction between the language of Sections 227 and 228 of
the Code. Section 227 is expression of a definite opinion and
judgment of the Court while Section 228 is tentative. Thus, to
say that at the stage of framing of charge, the Court should
form an opinion that the accused is certainly guilty of
committing an offence, is an approach which is impermissible
in terms of Section 228 of the Code.

18. It may also be noticed that the revisional jurisdiction
exercised by the High Court is in a way final and no inter court
remedy is available in such cases. Of course, it may be subject
to jurisdiction of this court under Article 136 of the Constitution
of India. Normally, a revisional jurisdiction should be exercised

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on a question of law. However, when factual appreciation is
involved, then it must find place in the class of cases resulting
in a perverse finding. Basically, the power is required to be
exercised so that justice is done and there is no abuse of
power by the court. Merely an apprehension or suspicion of

.

the same would not be a sufficient ground for interference in

such cases.

19. 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. We may refer to the well settled law
laid down by this Court in the case of State of Bihar v. Ramesh

Singh (1977) 4 SCC 39:

“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
r 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

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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
r 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.”

20. The jurisdiction of the Court under Section 397 can be
exercised so as to examine the correctness, legality or
proprietary 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,
proprietary 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-

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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 liquid alicuiconcedit, conceder
videtur id quo res ipsa esse non protest, 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.

21. It may be somewhat necessary to have a comparative
examination of the powers exercisable by the Court under
these two provisions. There may be some overlapping between
these two powers because both are aimed at securing the
ends of justice and both have an element of discretion. But, at
the same time, inherent power under Section 482 of the Code

being an extraordinary and residuary power, it is inapplicable
in regard to matters which are specifically provided for under
other provisions of the Code. To put it simply, normally the
court may not invoke its power under Section 482 of the Code
where a party could have availed of the remedy available

under Section 397 of the Code itself. The inherent powers under
Section 482 of the Code are of a wide magnitude and are not

as limited as the power under Section 397. Section 482 can be
invoked where the order in question is neither an interlocutory
order within the meaning of Section 397(2) nor a final order in
the strict sense. Reference in this regard can be made to Raj
Kapoor Ors. v. State of Punjab Ors. [AIR 1980 SC 258 : (1980)

1 SCC 43]}. In this very case, this Court has observed that
inherent power under Section 482 may not be exercised if the
bar under Sections 397(2) and 397(3) applies, except in
extraordinary situations, to prevent abuse of the process of the
Court. This itself shows the fine distinction between the powers

exercisable by the Court under these two provisions. In this
very case, the Court also considered as to whether the

inherent powers of the High Court under Section 482 stand
repelled when the revisional power under Section 397
overlaps. Rejecting the argument, the Court said that the
opening words of Section 482 contradict this contention

because nothing in the Code, not even Section 397, can affect
the amplitude of the inherent powers preserved in so many
terms by the language of Section 482. There is no total ban on
the exercise of inherent powers where abuse of the process of
the Court or any other extraordinary situation invites the court’s
jurisdiction. The limitation is self-restraint, nothing more. The
distinction between a final and interlocutory order is well
known in law. The orders which will be free from the bar of
Section 397(2) would be the orders which are not purely
interlocutory but, at the same time, are less than a final
disposal. They should be the orders which do determine some
right and still are not finally rendering the Court functus officio
of the lis. The provisions of Section 482 are pervasive. It should

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not subvert legal interdicts written into the same Code but,
however, inherent powers of the Court unquestionably have to
be read and construed as free of restriction.

22. In Dinesh Dutt Joshi v. State of Rajasthan Anr. [(2001) 8

.

SCC 570], the Court held that

“6. … [Section 482] does not confer any power but only
declares that the High Court possesses inherent powers for the
purposes specified in the Section. As lacunae are sometimes

found in procedural law, the Section has been embodied to
cover such lacunae wherever they are discovered. The use of
extraordinary powers conferred upon the High Court under this
section are, however, required to be reserved as far as
possible for extraordinary cases.”

23. In Janata Dal v. H.S. Chowdhary Ors. [(1992) 4 SCC 305],
the Court, while referring to the inherent powers to make orders
as may be necessary for the ends of justice, clarified that such
power has to be exercise in appropriate cases ex debito
justitiae, i.e. to do real and substantial justice for administration

of which alone, the courts exist. The powers possessed by the
High Court under Section 482 of the Code are very wide and

the very plenitude of the powers requires a great caution in its
exercise. The High Court, as the highest court exercising
criminal jurisdiction in a State, has inherent powers to make
any order for the purposes of securing the ends of justice.
Being an extra ordinary power, it will, however, not be pressed

in aid except for remedying a flagrant abuse by a subordinate
court of its powers.

24. If one looks at the development of law in relation to

exercise of inherent powers under the Code, it will be useful to
refer to the following details :

As far back as in 1926, a Division bench of this Court In Re:
Llewelyn Evans, took the view that the provisions of Section
561A (equivalent to present Section 482) extend to cases not
only of a person accused of an offence in a criminal court, but

to the cases of any person against whom proceedings are
instituted under the Code in any Court. Explaining the word
“process”, the Court said that it was a general word, meaning
in effect anything done by the Court. Explaining the limitations
and scope of Section 561A, the Court referred to “inherent
jurisdiction”, “to prevent abuse of process” and “to secure the
ends of justice” which are terms incapable of having a precise
definition or enumeration, and capable, at the most, of test,
according to well-established principles of criminal
jurisprudence. The ends of justice are to be understood by
ascertainment of the truth as to the facts on balance of
evidence on each side. With reference to the facts of the case,
the Court held that in the absence of any other method, it has

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no choice left in the application of the Section except, such
tests subject to the caution to be exercised in the use of
inherent jurisdiction and the avoidance of interference in
details and directed providing of a legal practitioner.

.

25. Having examined the inter-relationship of these two very

significant provisions of the Code, let us now examine the
scope of interference under any of these provisions in relation
to quashing the charge. We have already indicated above
that framing of charge is the first major step in a criminal trial

where the Court is expected to apply its mind to the entire
record and documents placed therewith before the Court.
Taking cognizance of an offence has been stated to
necessitate an application of mind by the Court but framing of
charge is a major event where the Court considers the
possibility of discharging the accused of the offence with

which he is charged or requiring the accused to face trial.
There are different categories of cases where the Court may
not proceed with the trial and may discharge the accused or
pass such other orders as may be necessary keeping in view
the facts of a given case. In a case where, upon considering

the record of the case and documents submitted before it, the
Court finds that no offence is made out or there is a legal bar to

such prosecution under the provisions of the Code or any other
law for the time being in force and there is a bar and there
exists no ground to proceed against the accused, the Court
may discharge the accused. There can be cases where such
record reveals the matter to be so predominantly of a civil

nature that it neither leaves any scope for an element of
criminality nor does it satisfy the ingredients of a criminal
offence with which the accused is charged. In such cases, the
Court may discharge him or quash the proceedings in exercise
of its powers under these two provisions.

26. This further raises a question as to the wrongs which

become actionable in accordance with law. It may be purely
a civil wrong or purely a criminal offence or a civil wrong as
also a criminal offence constituting both on the same set of
facts. But if the records disclose commission of a criminal

offence and the ingredients of the offence are satisfied, then
such criminal proceedings cannot be quashed merely
because a civil wrong has also been committed. The power
cannot be invoked to stifle or scuttle a legitimate prosecution.
The factual foundation and ingredients of an offence being
satisfied, the Court will not either dismiss a complaint or quash
such proceedings in exercise of its inherent or original
jurisdiction. In the case of Indian Oil Corporation v. NEPC India
Ltd. Ors. [(2006) 6 SCC 736], this Court took the similar view
and upheld the order of the High Court declining to quash the
criminal proceedings because a civil contract between the
parties was pending.

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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 :

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
r 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 loathe 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

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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 with by the prosecution.

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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 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 West Bengal Ors. v. Swapan Kumar
Guha Ors. [AIR 1982 SC 949]; Madhavrao Jiwaji
Rao Scindia Anr. v. Sambhajirao Chandrojirao
Angre Ors. [AIR 1988 SC 709]; Janata Dal v. H.S.
Chowdhary Ors. [AIR 1993 SC 892]; Mrs. Rupan

Deol Bajaj Anr. v. Kanwar Pal Singh Gill Ors. [AIR
1996 SC 309; G. Sagar Suri Anr. v. State of U.P.
Ors. [AIR 2000 SC 754]; Ajay Mitra v. State of M.P.
[AIR 2003 SC 1069]; M/s. Pepsi Foods Ltd. Anr. v.

Special Judicial Magistrate Ors. [AIR 1988 SC 128];
State of U.P. v. O.P. Sharma [(1996) 7 SCC 705];
Ganesh Narayan Hegde v. s. Bangarappa Ors.

[(1995) 4 SCC 41]; Zundu Pharmaceutical Works Ltd.
v. Mohd. Sharaful Haque Ors. [AIR 2005 SC 9]; M/s.
Medchl Chemicals Pharma (P) Ltd. v. M/s.
Biological E. Ltd. Ors. [AIR 2000 SC 1869]; Shakson

Belthissor v. State of Kerala Anr. [(2009) 14 SCC
466]; V.V.S. Rama Sharma Ors. v. State of U.P.
Ors. [(2009) 7 SCC 234]; Chunduru Siva Ram Krishna
Anr. v. Peddi Ravindra Babu Anr. [(2009) 11 SCC
203]; Sheo Nandan Paswan v. State of Bihar Ors.
[AIR 1987 SC 877]; State of Bihar Anr. v. P.P.
Sharma Anr. [AIR 1991 SC 1260]; Lalmuni Devi
(Smt.) v. State of Bihar Ors. [(2001) 2 SCC 17]; M.
Krishnan v. Vijay Singh Anr. [(2001) 8 SCC 645];
Savita v. State of Rajasthan [(2005) 12 SCC 338]; and
S.M. Datta v. State of Gujarat Anr. [(2001) 7 SCC
659]}.

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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 to the requirements of the

offence.

28. At this stage, we may also notice that the principle stated
by this Court in the case of Madhavrao Jiwaji Rao Scindia
(supra) was reconsidered and explained in two subsequent

judgments of this Court in the cases of State of Bihar Anr. v.
Shri P.P. Sharma Anr. [AIR 1991 SC 1260] and M.N. Damani v.
S.K. Sinha Ors. [AIR 2001 SC 2037]. In the subsequent
judgment, the Court held that, that judgment did not declare a
law of universal application and what was the principle relating

to disputes involving cases of a predominantly civil nature with
or without criminal intent.”

Close reading of the judgment supra suggests that normally court at the stage

of framing of charge, is not required to make formal opinion that the

accused is certainly guilty of having committed offence, rather, courts are

required to see whether prima facie case exists against the accused or not?

At this stage, this Court also takes assistance from the law laid down by the

Hon’ble Apex Court in case titled Chitresh Kumar Chopra v. State

(Government of NCT of Delhi), (2009) 16 SCC 605, wherein the Hon’ble Apex

Court has held that at the stage of framing of charge, 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. But at the same time,

Hon’ble Apex Court has cautioned the courts below to sift evidence for the

limited purpose as it is not expected even at the initial stage to accept the

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same as a gospel truth all that the prosecution states. In nutshell ratio of

aforesaid judgment is that at the time of stage of framing of charge,

probative value of material on record cannot be gone into rather material of

.

the prosecution has to be accepted as true at that stage.

8. The Hon’ble Apex Court in case titled Satish Mehra v. State (NCT

of Delhi) and Anr, (2012) 13 SCC 614, while deliberating on the issue of power

of higher Court to quash proceedings after framing of charge, has held that

power of High Court to interdict a proceeding either at the threshold or at an

intermediate stage of trial is inherent in a High Court on the broad principle

that in case allegations made in the FIR or the criminal complaint, as may be,

prima facie do not disclose a triable offence there can be reason as to why

the accused should be made to suffer the agony of legal proceedings that

more often than not gets protracted. The relevant paras of the judgment

referred supra are reproduced herein below:-

“14. The power to interdict a proceeding either at the threshold

or at an intermediate stage of the trial is inherent in a High Court
on the broad principle that in case the allegations made in the
FIR or the criminal complaint, as may be, prima facie do not

disclose a triable offence there can be reason as to why the
accused should be made to suffer the agony of a legal
proceeding that more often than not gets protracted. A

prosecution which is bound to become lame or a sham ought to
interdicted in the interest of justice as continuance thereof will
amount to an abuse of the process of the law. This is the core
basis on which the power to interfere with a pending criminal
proceeding has been recognized to be inherent in every High
Court. The power, though available, being extra ordinary in
nature has to be exercised sparingly and only if the attending
facts and circumstances satisfies the narrow test indicated
above, namely, that even accepting all the allegations levelled
by the prosecution, no offence is disclosed. However, if so
warranted, such power would be available for exercise not only
at the threshold of a criminal proceeding but also at a relatively
advanced stage thereof, namely, after framing of the charge

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against the accused. In fact the power to quash a proceeding
after framing of charge would appear to be somewhat wider as,
at that stage, the materials revealed by the investigation carried
out usually comes on record and such materials can be looked
into, not for the purpose of determining the guilt or innocence of

.

the accused but for the purpose of drawing satisfaction that such

materials, even if accepted in its entirety, do not, in any manner,
disclose the commission of the offence alleged against the
accused.

15. The above nature and extent of the power finds
an exhaustive enumeration in a judgment of this
court in State of Karnataka vs. L. Muniswamy and
others[2] which may be usefully extracted below :
(SCC pp. 702-03, para 7)

” 7. The second limb of Mr Mookerjee’s argument is
that in any event the High Court could not take
upon itself the task of assessing or appreciating the
weight of material on the record in order to find
whether any charges could be legitimately framed
r against the respondents. So long as there is some
material on the record to connect the accused with

the crime, says the learned counsel, the case must
go on and the High Court has no jurisdiction to put a
precipitate or premature end to the proceedings on
the belief that the prosecution is not likely to
succeed. This, in our opinion, is too broad a

proposition to accept. Section 227 of the Code of
Criminal Procedure, 2 of 1974, provides that:
…..

This section is contained in Chapter XVIII called
“Trial Before a Court of Session”. It is clear from the

provision that the Sessions Court has the power to
discharge an accused if after perusing the record

and hearing the parties he comes to the
conclusion, for reasons to be recorded, that there is
not sufficient ground for proceeding against the
accused. The object of the provision which requires

the Sessions Judge to record his reasons is to
enable the superior court to examine the
correctness of the reasons for which the Sessions
Judge has held that there is or is not sufficient
ground for proceeding against the accused. The
High Court therefore is entitled to go into the
reasons given by the Sessions Judge in support of
his order and to determine for itself whether the
order is justified by the facts and circumstances of
the case. Section 482 of the New Code, which
corresponds to Section 561-A of the Code of 1898,
provides that: . . . . .

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In the exercise of this wholesome power, the High
Court is entitled to quash a proceeding if it comes
to the conclusion that allowing the proceeding to
continue would be an abuse of the process of the
Court or that the ends of justice require that the

.

proceeding ought to be quashed. The saving of the

High Court’s inherent powers, both in civil and
criminal matters, is designed to achieve a salutary
public purpose which is that a court proceeding
ought not to be permitted to degenerate into a
weapon of harassment or persecution. In a criminal

case, the veiled object behind a lame prosecution,
the very nature of the material on which the
structure of the prosecution rests and the like would
justify the High Court in quashing the proceeding in
the interest of justice. The ends of justice are higher

than the ends of mere law though justice has got to
be administered according to laws made by the
legislature. The compelling necessity for making
these observations is that without a proper
realisation of the object and purpose of the
provision which seeks to save the inherent powers
r of the High Court to do justice, between the State

and its subjects, it would be impossible to
appreciate the width and contours of that salient
jurisdiction.”

16. It would also be worthwhile to recapitulate an earlier decision

of this court in Century Spinning Manufacturing Co. vs. State of
Maharashtra noticed in L. Muniswamy’s case holding that: (SCC
p. 704, para 10)

“10……..the order framing a charge affects a

person’s liberty substantially and therefore it is the
duty of the court to consider judicially whether the

materials warrant the framing of the charge.”

It was also held that the court ought not to blindly accept the
decision of the prosecution that the accused be asked to face a

trial.

17. While dealing with contours of the inherent power under
Section 482 Cr.P.C. to quash a criminal proceeding, another
decision of this court in Padal Venkata Rama Reddy alias Ramu
vs. Kovvuri Satyanaryana Reddy and others reported in (2011) 12
SCC 437 to which one of us (Justice P.Sathasivam) was a party
may be usefully noticed. In the said decision after an exhaustive
consideration of the principles governing the exercise of the said
power as laid down in several earlier decisions this court held
that:

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31. . . . . When exercising jurisdiction under Section
482 of the Code, the High Court would not ordinarily
embark upon an enquiry whether the evidence in
question is reliable or not or whether on reasonable
appreciation of it accusation would not be

.

sustained. That is the function of the trial Judge. The

scope of exercise of power under Section 482 and
the categories of cases where the High Court may
exercise its power under it relating to cognizable
offences to prevent abuse of process of any court
or otherwise to secure the ends of justice were set

out in detail in Bhajan Lal[4]. The powers possessed
by the High Court under Section 482 are very wide
and at the same time the power requires great
caution in its exercise. The Court must be careful to
see that its decision in exercise of this power is

based on sound principles. The inherent power
should not be exercised to stifle a legitimate
prosecution.”

18. In an earlier part of this order the allegations made in the FIR

and the facts disclosed upon investigation of the same have
already been noticed. The conclusions of the High Court in the

petitions filed by the accused for quashing of the charges
framed against them have also been taken note of along with
the fact that in the present appeals only a part of said
conclusions of the High Court is under challenge and therefore,
would be required to be gone into.

19. The view expressed by this Court in Century Spinning’s case
(supra) and in L. Muniswamy’s case (supra) to the effect that the
framing of a charge against an accused substantially affects the
person’s liberty would require a reiteration at this stage. The

apparent and close proximity between the framing of a charge
in a criminal proceeding and the paramount rights of a person

arrayed as an accused under Article 21 of the Constitution can
be ignored only with peril. Any examination of the validity of a
criminal charge framed against an accused cannot overlook the
fundamental requirement laid down in the decisions rendered in

Century Spinning and Muniswamy (supra). It is from the aforesaid
perspective that we must proceed in the matter bearing in mind
the cardinal principles of law that have developed over the
years as fundamental to any examination of the issue as to
whether the charges framed are justified or not.”

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The Hon’ble Apex Court in Sheoraj Singh Ahlawat and Ors v. State of

Uttar Pradesh and Anr.,(2013) 11 SCC 476, also reiterated that while

.

framing charges, court is required to evaluate the material and

documents on the record with a view to find out if the facts emerging

thereform, taken at their face value, discloses the existence of all the

ingredients constituting the alleged offence. Though Court in the

aforesaid judgment has held that court is not required to go deep into

the probative value of material on record but held that what needs to

be evaluated is whether there is a ground for presuming that the

offence has been committed or not. The relevant paras are

reproduced herein below:-

“15. This Court partly allowed the appeal qua the parents-in-law

while dismissing the same qua the husband. This Court explained
the legal position and the approach to be adopted by the Court
at the stage of framing of charges or directing discharge in the
following words:

“11. It is trite that at the stage of framing of charge
the court is required to evaluate the material and

documents on record with a view to finding out if
the facts emerging therefrom, taken at their face
value, disclosed the existence of all the ingredients
constituting the alleged offence. At that stage, the

court is not expected to go deep into the probative
value of the material on record. What needs to be
considered is whether there is a ground for
presuming that the offence has been committed
and not a ground for convicting the accused has
been made out. At that stage, even strong
suspicion founded on material which leads the
court to form a presumptive opinion as to the
existence of the factual ingredients constituting the
offence alleged would justify the framing of charge
against the accused in respect of the commission
of that offence.” (emphasis supplied)

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16. Support for the above view was drawn by this Court from
earlier decisions rendered in State of Karnataka v. L. Muniswamy
1977 Cri.LJ 1125, State of Maharashtra Ors. v. Som Nath Thapa
and Ors. 1996 Cri.LJ 2448 and State of M.P. v. Mohanlal Soni 2000
Cri.LJ 3504. In Som Nath’s case (supra) the legal position was

.

summed up as under: (scc P.671, para 32)

“32. … if on the basis of materials on record, a court
could come to the conclusion that commission of
the offence is a probable consequence, a case for

framing of charge exists. To put it differently, if the
court were to think that the accused might have
committed the offence it can frame the charge,
though for conviction the conclusion is required to
be that the accused has committed the offence. It
is apparent that at the stage of framing of a charge,

probative value of the materials on record cannot
be gone into; the materials brought on record by
the prosecution has to be accepted as true at that
r stage.” (emphasis supplied)

17. So also in Mohanlal’s case (supra) this Court referred to
several previous decisions and held that the judicial opinion

regarding the approach to be adopted for framing of charge is
that such charges should be framed if the Court prima facie finds
that there is sufficient ground for proceeding against the
accused. The Court is not required to appreciate evidence as if
to determine whether the material produced was sufficient to

convict the accused. The following passage from the decision in
Mohanlal’s case (supra) is in this regard apposite: (SCC p. 342,
para7)

“7. The crystallized judicial view is that at the stage
of framing charge, the court has to prima facie
consider whether there is sufficient ground for

proceeding against the accused. The court is not
required to appreciate evidence to conclude
whether the materials produced are sufficient or not
for convicting the accused.”

18. In State of Orissa v. Debendra Nath Pandhi (2005) 1 SCC 568,
this Court was considering whether the trial Court can at the time
of framing of charges consider material filed by the accused.
The question was answered in the negative by this Court in the
following words: (SCC pp. 577 579, paras 18 23)

“18. We are unable to accept the aforesaid
contention. The reliance on Articles 14 and 21 is
misplaced…Further, at the stage of framing of
charge roving and fishing inquiry is impermissible. If
the contention of the accused is accepted, there
would be a mini trial at the stage of framing of

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charge. That would defeat the object of the Code. It
is well-settled that at the stage of framing of charge
the defence of the accused cannot be put forth.
The acceptance of the contention of the learned
counsel for the accused would mean permitting the

.

accused to adduce his defence at the stage of

framing of charge and for examination thereof at
that stage which is against the criminal
jurisprudence. By way of illustration, it may be
noted that the plea of alibi taken by the accused
may have to be examined at the stage of framing

of charge if the contention of the accused is
accepted despite the well settled proposition that it
is for the accused to lead evidence at the trial to
sustain such a plea. The accused would be entitled
to produce materials and documents in proof of

such a plea at the stage of framing of the charge, in
case we accept the contention put forth on behalf
of the accused. That has never been the intention of
the law well settled for over one hundred years
now. It is in this light that the provision about hearing
the submissions of the accused as postulated by
r Section 227 is to be understood. It only means

hearing the submissions of the accused on the
record of the case as filed by the prosecution and
documents submitted therewith and nothing more.
The expression ‘hearing the submissions of the
accused’ cannot mean opportunity to file material
to be granted to the accused and thereby

changing the settled law. At the state of framing of
charge hearing the submissions of the accused has
to be confined to the material produced by the
police…

xx xx xx xx

23. As a result of aforesaid discussion, in our view,
clearly the law is that at the time of framing charge

or taking cognizance the accused has no right to
produce any material…” (emphasis supplied)

19. Even in Smt. Rumi Dhar v. State of West Bengal Anr. (2009) 6
SCC 364, reliance whereupon was placed by counsel for the
appellants the tests to be applied at the stage of discharge of
the accused person under Section 239 of the Cr.P.C., were found
to be no different. Far from readily encouraging discharge, the
Court held that even a strong suspicion in regard to the
commission of the offence would be sufficient to justify framing of
charges. The Court observed: (SCC p. 369, para 17)

“17….While considering an application for
discharge filed in terms of Section 239 of the Code,
it was for the learned Judge to go into the details of
the allegations made against each of the accused

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persons so as to form an opinion as to whether any
case at all has been made out or not as a strong
suspicion in regard thereto shall subserve the
requirements of law…

.

20. To the same effect is the decision of this Court in Union of

India v. Prafulla Kumar Samal and Anr. v. (1979) 3 SCC 4, where
this Court was examining a similar question in the context of
Section 227 of the Code of Criminal Procedure. The legal position
was summed up as under: (SCC p. 9, para 10)

“10. Thus, on a consideration of the authorities
mentioned above, the following principles emerge:

(1) That the Judge while considering the
question of framing the charges under
Section 227 of the Code 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:

(2) Where the materials placed before the
r 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.

(3) The test to determine a prima facie case
would naturally depend upon the facts of

each case and it is difficult to lay down a
rule of universal application. By and large
however 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 right to discharge the accused.

(4) That in exercising his jurisdiction under
Section 227 of the Code the Judge which
under the present Code is a senior and

experienced Judge cannot act merely as a
Post Office or a mouth- piece 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
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
evidence as if he was conducting a trial.”

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9. The Hon’ble Apex Court in case titled Vinay Tyagi. v. Irshad

Ali alias Deepak and Ors., (2013) 5 SCC 762, has held that opinion for

.

presuming that the accused has committed an offence, is to be

formed by the Court on basis of the record of the case, documents

submitted therewith and to a limited extent, plea of defence, in order

to be satisfied that ingredients of offence substantially exist. However,

the Hon’ble Apex Court while making aforesaid observation has also

observed that prosecution case at this stage requires to be examined

on the plea of demur i.e. presumption is of very weak and mild nature.

Relevant paras of the judgment are being reproduced herein below:-

“16. Once the Court examines the records, applies its mind, duly
complies with the requisite formalities of summoning the
accused and, if present in court, upon ensuring that the copies of

the requisite documents, as contemplated under Section 173(7),
have been furnished to the accused, it would proceed to hear
the case.

17. After taking cognizance, the next step of definite significance

is the duty of the Court to frame charge in terms of Section 228 of
the Code unless the Court finds, upon consideration of the record

of the case and the documents submitted therewith, that there
exists no sufficient ground to proceed against the accused, in
which case it shall discharge him for reasons to be recorded in
terms of Section 227 of the Code.

17.1. It may be noticed that the language of Section 228 opens
with the words, ‘if after such consideration and hearing as
aforesaid, the Judge is of the opinion that there is ground for
presuming that the accused has committed an offence’, he may
frame a charge and try him in terms of Section 228(1)(a) and if
exclusively triable by the Court of Sessions, commit the same to
the Court of Sessions in terms of Section 228(1)(b). Why the
legislature has used the word ‘presuming’ is a matter which
requires serious deliberation. It is a settled rule of interpretation
that the legislature does not use any expression purposelessly
and without any object. Furthermore, in terms of doctrine of plain
interpretation, every word should be given its ordinary meaning

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unless context to the contrary is specifically stipulated in the
relevant provision.

17.2. Framing of charge is certainly a matter of earnestness. It is
not merely a formal step in the process of criminal inquiry and

.

trial. On the contrary, it is a serious step as it is determinative to

some extent, in the sense that either the accused is acquitted
giving right to challenge to the complainant party, or the State
itself, and if the charge is framed, the accused is called upon to
face the complete trial which may prove prejudicial to him, if

finally acquitted. These are the courses open to the Court at that
stage.

17.3. Thus, the word ‘presuming’ must be read ejusdem generis
to the opinion that there is a ground. The ground must exist for
forming the opinion that the accused had committed an

offence. Such opinion has to be formed on the basis of the
record of the case and the documents submitted therewith. To a
limited extent, the plea of defence also has to be considered by
the Court at this stage. For instance, if a plea of proceedings
being barred under any other law is raised, upon such

consideration, the Court has to form its opinion which in a way is
tentative. The expression ‘presuming’ cannot be said to be

superfluous in the language and ambit of Section 228 of the
Code. This is to emphasize that the Court may believe that the
accused had committed an offence, if its ingredients are
satisfied with reference to the record before the Court.

18. At this stage, we may refer to the judgment of this Court in the
case of Amit Kapur v. Ramesh Chander Anr. [JT 2012 (9) SC
329] wherein, the Court held as under : (SCC pp. 476-77,paras
16-18)

“16. The above-stated principles clearly show that
inherent as well as revisional jurisdiction should be

exercised cautiously. If the jurisdiction under
Section 482 of the Code in relation to quashing of
an FIR is circumscribed by the factum and caution
afore-noticed, in that event, the revisional

jurisdiction, particularly while dealing with framing
of a charge, has to be even more limited.

17. Framing of a charge is an exercise of jurisdiction
by the trial court in terms of Section 228 of the
Code, unless the accused is discharged under
Section 227 of the Code. Under both these
provisions, the court is required to consider the
‘record of the case’ and documents submitted
therewith and, after hearing the parties, may either
discharge the accused or where it appears to the
court and in its opinion there is ground for
presuming that the accused has committed an
offence, it shall frame the charge. Once the facts

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and ingredients of the Section exists, then the Court
would be right in presuming that there is ground to
proceed against the accused and frame the
charge accordingly. This presumption is not a
presumption of law as such. The satisfaction of the

.

court in relation to the existence of constituents of

an offence and the facts leading to that offence is a
sine qua non for exercise of such jurisdiction. It may
even be weaker than a prima facie case. There is a
fine distinction between the language of Sections
227 and 228 of the Code. Section 227 is expression

of a definite opinion and judgment of the Court
while Section 228 is tentative. Thus, to say that at the
stage of framing of charge, the Court should form
an opinion that the accused is certainly guilty of
committing an offence, is an approach which is

impermissible in terms of Section 228 of the Code.

18. It may also be noticed that the revisional
jurisdiction exercised by the High Court is in a way
final and no inter court remedy is available in such
cases. Of course, it may be subject to jurisdiction of
this court under Article 136 of the Constitution of
r India. Normally, a revisional jurisdiction should be

exercised on a question of law. However, when
factual appreciation is involved, then it must find
place in the class of cases resulting in a perverse
finding. Basically, the power is required to be
exercised so that justice is done and there is no
abuse of power by the court. Merely an

apprehension or suspicion of the same would not
be a sufficient ground for interference in such
cases.” (emphasis in original)

19. On analysis of the above discussion, it can safely be
concluded that ‘presuming’ is an expression of relevancy and

places some weightage on the consideration of the record
before the Court. The prosecution’s record, at this stage, has to
be examined on the plea of demur. Presumption is of a very
weak and mild nature. It would cover the cases where some

lacuna has been left out and is capable of being supplied and
proved during the course of the trial. For instance, it is not
necessary that at that stage each ingredient of an offence
should be linguistically reproduced in the report and backed
with meticulous facts. Suffice would be substantial compliance to
the requirements of the provisions.

10. The Hon’ble Apex Court in judgment titled L. Krishna Reddy

v. State by Station House Officer and Ors, (2014) 14 SCC 401, has held

that Court is neither substitute nor an adjunct of the prosecution, rather

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once a case is presented to it by the prosecution its bounden duty is to

sift through the material to ascertain whether prima-facie case has

.

been established, which would justify and merit the prosecution of a

person. The relevant paras are as follows:-

“10. Our attention has been drawn to Stree Atyachar Virodhi

Parishad v. Dilip Nathumal Chordia as well as K. Narayana Rao
but we are unable to appreciate any manner in which they
would persuade a court to continue the prosecution of the
parents of the deceased. After considering Union of India v.
Prafulla Kumar Samal, this Court has expounded the law in these
words: (Stree Atyachar Virodhi Parishad case, SCC p. 721, para

14)
“14. … In fact, Section 227 itself contains enough
guidelines as to the scope of enquiry for the
purpose of discharging an accused. It provides that
“the Judge shall discharge when he considers that
r there is no sufficient ground for proceeding against
the accused”. The ‘ground’ in the context is not a

ground for conviction, but a ground for putting the
accused on trial. It is in the trial, the guilt or the
innocence of the accused will be determined and
not at the time of framing of charge. The Court,
therefore, need not undertake an elaborate enquiry

in sifting and weighing the material. Nor it is
necessary to delve deep into various aspects. All
that the Court has to consider is whether the
evidenciary material on record if generally

accepted, would reasonably connect the accused
with the crime. No more need be enquired into”

11. The court is neither a substitute nor an adjunct of the

prosecution. On the contrary, once a case is presented to it by the
prosecution, its bounden duty is to sift through the material to
ascertain whether a prima facie case has been established which
would justify and merit the prosecution of a person. The interest of

a person arraigned as an accused must also be kept in
perspective lest, on the basis of flippant or vague or vindictive
accusations, bereft of probative evidence, the ordeals of a trial
have to be needlessly suffered and endured. We hasten to clarify
that we think the statements of the complainant are those of an
anguished father who has lost his daughter due to the greed and
cruelty of his son-in-law. As we have already noted, the husband
has taken his own life possibly in remorse and repentance. The
death of a child even to avaricious parents is the worst
conceivable punishment.”

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11. In the recent judgment, Hon’ble Apex Court in case

bearing Criminal Appeal No.577 of 2017 (arising out of SLP (CrL.) No. 287

.

of 2017) titled Vineet Kumar and Ors. v. State of U.P. and Anr., while

considering the scope of interference under Section 397 Cr.PC and 482

Cr.PC, by the High Courts, has held that High Court is entitled to quash

a proceeding if it comes to the conclusion that allowing the

proceeding to continue would be an abuse of the process of the Court

or that the ends of justice require that the proceedings ought to

quashed. The Hon’ble Apex Court has further held that the saving of

the High Court’s inherent powers, both in civil and criminal matters, is

designed to achieve a salutary public purpose i.e. a court proceeding

ought not to be permitted to degenerate into a weapon of harassment

or persecution. In the aforesaid case, the Hon’ble Apex Court taking

note of seven categories, where power can be exercised under

Section 482 of the Cr.PC, as enumerated in the judgment titled as State

of Haryana and others vs. Bhajan Lal and others, 1992 Supp (1) SCC 335,

i.e. where a criminal proceeding is manifestly attended with mala fide

and/or where the proceeding is maliciously instituted with an ulterior

motive for wreaking vengeance on the accused and with a view to

spite him due to private and personal grudge, quashed the

proceedings:-

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“19. We have considered the submissions made by the parties
and perused the records.

20. Before we enter into the facts of the present case it is
necessary to consider the ambit and scope of jurisdiction under

.

Section 482 Cr.P.C. vested in the High Court. Section 482 Cr.P.C.

saves the inherent power of the High Court to make such orders
as may be necessary to give effect to any order under this Code,
or to prevent abuse of the process of any Court or otherwise to
secure the ends of justice.

21. This Court time and again has examined scope of jurisdiction
of High Court under Section 482 Cr.P.C. and laid down several
principles which govern the exercise of jurisdiction of High Court
under Section 482 Cr.P.C. A three-Judge Bench of this Court in
State of Karnataka vs. L. Muniswamy and others, 1977 (2) SCC

699,held that the High Court is entitled to quash a proceeding if it
comes to the conclusion that allowing the proceeding to
continue would be an abuse of the process of the Court or that
the ends of justice require that the proceeding ought to be
quashed. In paragraph 7 of the judgment following has been

stated:

“7….In the exercise of this wholesome power, the
High Court is entitled to quash a proceeding if it
comes to the conclusion that allowing the
proceeding to continue would be an abuse of the
process of the Court or that the ends of justice

require that the proceeding ought to be quashed.
The saving of the High Court’s inherent powers, both
in civil and criminal matters, is designed to achieve
a salutary public purpose which is that a court

proceeding ought not to be permitted to
degenerate into a weapon of harassment or
persecution. In a criminal case, the veiled object

behind a lame prosecution, the very nature of the
material on which the structure of the prosecution
rests and the like would justify the High Court in
quashing the proceeding in the interest of justice.

The ends of justice are higher than the ends of mere
law though justice has got to be administered
according to laws made by the legislature. The
compelling necessity for making these observations
is that without a proper realisation of the object and
purpose of the provision which seeks to save the
inherent powers of the High Court to do justice,
between the State and its subjects, it would be
impossible to appreciate the width and contours of
that salient jurisdiction.”

22. The judgment of this Court in State of Haryana and others vs.
Bhajan Lal and others, 1992 Supp (1) SCC 335, has elaborately

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considered the scope and ambit of Section 482 Cr.P.C. Although
in the above case this Court was considering the power of the
High Court to quash the entire criminal proceeding including the
FIR, the case arose out of an FIR registered under Section 161,
165 IPC and Section 5(2) of the Prevention of Corruption Act,

.

1947. This Court elaborately considered the scope of Section 482

CR.P.C./ Article 226 in the context of quashing the proceedings
in criminal investigation. After noticing various earlier
pronouncements of this Court, this Court enumerated certain
Categories of cases by way of illustration where power under 482
Cr.P.C. can be exercised to prevent abuse of the process of the

Court or secure ends of justice. Paragraph 102 which enumerates
7 categories of cases where power can be exercised under
Section 482 Cr.P.C. are extracted as follows:

“102. In the backdrop of the interpretation of the

various relevant provisions of the Code under
Chapter XIV and of the principles of law enunciated
by this Court in a series of decisions relating to the
exercise of the extraordinary power under Article
226 or the inherent powers under Section 482 of the
r Code which we have extracted and reproduced
above, we give the following categories of cases

by way of illustration wherein such power could be
exercised either to prevent abuse of the process of
any court or otherwise to secure the ends of justice,
though it may not be possible to lay down any
precise, clearly defined and sufficiently

channelised and inflexible guidelines or rigid
formulae and to give an exhaustive list of myriad
kinds of cases wherein such power should be
exercised.

(1) Where the allegations made in the first
information report or the complaint, even if

they are taken at their face value and
accepted in their entirety do not prima
facie constitute any offence or make out a
case against the accused.

(2) Where the allegations in the first
information report and other materials, if
any, accompanying the FIR do not
disclose a cognizable offence, justifying
an investigation by police officers under
Section 156(1) of the Code except under
an order of a Magistrate within the purview
of Section 155(2) of the Code.

(3) Where the uncontroverted allegations
made in the FIR or complaint and the
evidence collected in support of the same

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do not disclose the commission of any
offence and make out a case against the
accused.

(4) Where, the allegations in the FIR do not

.

constitute a cognizable offence but

constitute only a non-cognizable offence,
no investigation is permitted by a police
officer without an order of a Magistrate as
contemplated under Section 155(2) of the

Code.

(5) Where the allegations made in the FIR
or complaint are so absurd and inherently
improbable on the basis of which no
prudent person can ever reach a just

conclusion that there is sufficient ground
for proceeding against the accused.

(6) Where there is an express legal bar
engrafted in any of the provisions of the
r Code or the concerned Act (under which
a criminal proceeding is instituted) to the

institution and continuance of the
proceedings and/or where there is a
specific provision in the Code or the
concerned Act, providing efficacious
redress for the grievance of the aggrieved

party.

(7) Where a criminal proceeding is
manifestly attended with mala fide and/or

where the proceeding is maliciously
instituted with an ulterior motive for
wreaking vengeance on the accused and

with a view to spite him due to private and
personal grudge.”

23. A three-Judge Bench in State of Karnataka vs. M.

Devenderappa and another, 2002 (3) SCC 89, had occasion to
consider the ambit of Section 482 Cr.P.C. By analysing the scope
of Section 482 Cr.P.C., this Court laid down that authority of the
Court exists for advancement of justice and if any attempt is
made to abuse that authority so as to produce injustice the Court
has power to prevent abuse. It further held that Court would be
justified to quash any proceeding if it finds that
initiation/continuance of it amounts to abuse of the process of
Court or quashing of these proceedings would otherwise serve
the ends of justice. Following was laid down in paragraph 6:

“6……All courts, whether civil or criminal possess, in
the absence of any express provision, as inherent in

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their constitution, all such powers as are necessary
to do the right and to undo a wrong in course of
administration of justice on the principle quando lex
aliquid alicui concedit, concedere videtur et id sine
quo res ipsae esse non potest (when the law gives a

.

person anything it gives him that without which it

cannot exist). While exercising powers under the
section, the court does not function as a court of
appeal or revision. Inherent jurisdiction under the
section though wide has to be exercised sparingly,
carefully and with caution and only when such

exercise is justified by the tests specifically laid
down in the section itself. It is to be exercised ex
debito justitiae to do real and substantial justice for
the administration of which alone courts exist.
Authority of the court exists for advancement of

justice and if any attempt is made to abuse that
authority so as to produce injustice, the court has
power to prevent abuse. It would be an abuse of
process of the court to allow any action which
would result in injustice and prevent promotion of
justice. In exercise of the powers court would be

justified to quash any proceeding if it finds that

initiation/continuance of it amounts to abuse of the
process of court or quashing of these proceedings
would otherwise serve the ends of justice. When no
offence is disclosed by the complaint, the court
may examine the question of fact. When a
complaint is sought to be quashed, it is permissible

to look into the materials to assess what the
complainant has alleged and whether any offence
is made out even if the allegations are accepted in
toto.” Further in paragraph 8 following was stated:

“8…..Judicial process should not be an instrument of

oppression, or, needless harassment. Court should
be circumspect and judicious in exercising
discretion and should take all relevant facts and
circumstances into consideration before issuing

process, lest it would be an instrument in the hands
of a private complainant to unleash vendetta to
harass any person needlessly. At the same time the
section is not an instrument handed over to an
accused to short-circuit a prosecution and bring
about its sudden death. The scope of exercise of
power under Section 482 of the Code and the
categories of cases where the High Court may
exercise its power under it relating to cognizable
offences to prevent abuse of process of any court
or otherwise to secure the ends of justice were set
out in some detail by this Court in State of Haryana
v. Bhajan Lal.”

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24. In Sunder Babu and others vs. State of Tamil Nadu, 2009 (14)
SCC 244, this Court was considering the challenge to the order of
the Madras High Court where Application was under Section 482
Cr.P.C. to quash criminal proceedings under Section 498A IPC
and Section 4 of Dowry Prohibition Act, 1961. It was contended

.

before this Court that the complaint filed was nothing but an

abuse of the process of law and allegations were unfounded.
The prosecuting agency contested the petition filed under
Section 482 Cr.P.C. taking the stand that a bare perusal of the
complaint discloses commission of alleged offences and,
therefore, it is not a case which needed to be allowed. The High

Court accepted the case of the prosecution and dismissed the
application. This Court referred to the judgment in Bhajan Lal
case (supra) and held that the case fell within Category 7. Apex
Court relying on Category 7 has held that Application under
Section 482 deserved to be allowed and it quashed the

proceedings.”

12. The Hon’ble Apex Court in its judgment L. Krishna Reddy

referred supra has categorically held that Court is neither substitute nor

an adjunct of the prosecution, rather once a case is presented to it by

the prosecution, its bounden duty is to sift through the material to

ascertain whether prima-facie case has been established which would

justify and merit the prosecution of a person. The Hon’ble Apex Court,

while making aforesaid observation has also held that while carrying

out aforesaid exercise, interest of a person arraigned as an accused,

must be taken into consideration lest he/she may have to suffer the

ordeals of a trial based on flippant or vague or vindictive accusations,

bereft of probative evidence. In recent judgment titled Prashant Bharti

v. State (NCT of Delhi), (2013) 9 SCC 309, the Hon’ble Apex Court has

held as under:-

“22. The proposition of law, pertaining to quashing of criminal
proceedings, initiated against an accused by a High Court

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under Section 482 of the Code of Criminal Procedure
(hereinafter referred to as “the Cr.P.C.”) has been dealt with by
this Court in Rajiv Thapar Ors. vs. Madan Lal Kapoor wherein
this Court inter alia held as under: (SCC pp.347-49, paras 29-30)

.

29. The issue being examined in the instant case is

the jurisdiction of the High Court under Section 482
of the Cr.P.C., if it chooses to quash the initiation of
the prosecution against an accused, at the stage of
issuing process, or at the stage of committal, or

even at the stage of framing of charges. These are
all stages before the commencement of the actual
trial. The same parameters would naturally be
available for later stages as well. The power vested
in the High Court under Section 482 of the Cr.P.C., at
the stages referred to hereinabove, would have far

reaching consequences, inasmuch as, it would
negate the prosecution’s/complainant’s case
without allowing the prosecution/complainant to
lead evidence. Such a determination must always
be rendered with caution, care and
r circumspection. To invoke its inherent jurisdiction
under Section – 482 of the Cr.P.C. the High Court has

to be fully satisfied, that the material produced by
the accused is such, that would lead to the
conclusion, that his/their defence is based on
sound, reasonable, and indubitable facts; the
material produced is such, as would rule out and

displace the assertions contained in the charges
levelled against the accused; and the material
produced is such, as would clearly reject and
overrule the veracity of the allegations contained in
the accusations levelled by the

prosecution/complainant. It should be sufficient to
rule out, reject and discard the accusations levelled

by the prosecution/complainant, without the
necessity of recording any evidence. For this the
material relied upon by the defence should not
have been refuted, or alternatively, cannot be

justifiably refuted, being material of sterling and
impeccable quality. The material relied upon by the
accused should be such, as would persuade a
reasonable person to dismiss and condemn the
actual basis of the accusations as false. In such a
situation, the judicial conscience of the High Court
would persuade it to exercise its power under
Section 482 of the Cr.P.C. to quash such criminal
proceedings, for that would prevent abuse of
process of the court, and secure the ends of justice.

30. Based on the factors canvassed in the foregoing
paragraphs, we would delineate the following steps

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to determine the veracity of a prayer for quashing,
raised by an accused by invoking the power vested
in the High Court under Section 482 of the Cr.P.C.:-

30.1 Step one, whether the material

.

relied upon by the accused is sound,

reasonable, and indubitable, i.e., the
material is of sterling and impeccable
quality?

30.2 Step two, whether the material
relied upon by the accused, would rule

out the assertions contained in the
charges levelled against the accused,
i.e., the material is sufficient to reject
and overrule the factual assertions
contained in the complaint, i.e., the

material is such, as would persuade a
reasonable person to dismiss and
condemn the factual basis of the
accusations as false.

30.3 Step three, whether the material
relied upon by the accused, has not
r been refuted by the

prosecution/complainant; and/or the
material is such, that it cannot be
justifiably refuted by the
prosecution/complainant?

30.4 Step four, whether proceeding with
the trial would result in an abuse of

process of the court, and would not
serve the ends of justice?

30.5 If the answer to all the steps is in the
affirmative, judicial conscience of the

High Court should persuade it to quash
such criminal – proceedings, in exercise
of power vested in it under Section 482

of the Cr.P.C. Such exercise of power,
besides doing justice to the accused,
would save precious court time, which

would otherwise be wasted in holding
such a trial (as well as, proceedings
arising therefrom) specially when, it is
clear that the same would not conclude
in the conviction of the accused.”

23. The details in respect of each aspect of the matter, arising
out of the complaints made by Priya on 16.2.2007 and
21.2.2007 have been examined in extensive detail in the
foregoing paragraphs. We shall now determine whether the
steps noticed by this Court in the judgment extracted
hereinabove can be stated to have been satisfied. In so far as
the instant aspect of the matter is concerned, the factual

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details referred to in the foregoing paragraphs are being
summarized hereafter.

23.1. Firstly, the appellant-accused was in Sector 37,
Noida in the State of Uttar Pradesh on 15.2.2007. He

.

was at Noida before 7.55 pm. He, thereafter,

remained at different places within Noida and then
at Shakarpur, Ghaziabad, Patparganj, Jorbagh etc.
From 9.15 pm to 11.30 pm on 15.2.2007, he
remained present at a marriage anniversary

function celebrated at Rangoli Lawns at Ghaziabad,
Uttar Pradesh. An affidavit to the aforesaid effect
filed by the appellant- accused was found to be
correct by the investigating officer on the basis of
his mobile phone call details. The accused was
therefore not at the place of occurrence, as

alleged in the complaint dated 16.2.2007.

23.2. Secondly, verification of the mobile phone call
details of the complainant/prosecuterix Priya
revealed, that on 15.2.2007, no calls were made by
r the appellant-accused to
complainant/prosecuterix, and that, it was the
the

complainant/prosecuterix who had made calls to
him.

23.3. Thirdly, the complainant/prosecuterix, on and
around the time referred to in the – complaint dated

16.2.2007, was at different places of New Delhi i.e.,
in Defence Colony, Greater Kailash, Andrews Ganj
and finally at Tughlakabad Extension, as per the
verification of the investigating officer on the basis

of her mobile phone call details. The complainant
was also not at the place of occurrence, as she
herself alleged in the complaint dated 16.2.2007.

23.4. Fourthly, at the time when the
complainant/prosecuterix alleged, that the

appellant-accused had misbehaved with her and

had outraged her modesty on 15.2.2007 (as per her
complaint dated 16.2.2007), she was actually in
conversation with her friends (as per the verification
made by the investigating officer on the basis of her
mobile phone call details).

23.5. Fifthly, even though the
complainant/prosecuterix had merely alleged in
her complaint dated 16.2.2007, that the accused
had outraged her modesty by touching her breasts,
she had subsequently through a supplementary
statement (on 21.2.2007), levelled allegations
against the accused for offence of rape.

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23.6. Sixthly, even though the
complainant/prosecuterix was married to one
Manoj Kumar Soni, s/o Seeta Ram Soni (as
indicated in an affidavit appended to the Delhi
police format for information of tenants and duly

.

verified by the investigating officer, wherein she

had described herself as married), in the complaint
made to the police (on 16.2.2007 and 21.2.2007),
she had suggested that she was unmarried.

23.7. Seventhly, as per the judgment and decree of
the Civil Judge (Senior Division), Kanpur (Rural)
dated 23.9.2008, the complainant was married to
Lalji Porva on 14.6.2003. The aforesaid marriage
subsisted till 23.9.2008. The allegations made by the
complainant dated 16.2.2007 and 21.2.2007 pertain

to occurrences of 23.12.2006, 25.12.2006, 1.1.2007
and – 15.2.2007, i.e., positively during the
subsistence of her marriage with Lalji Porwal.
Thereafter, the complainant Priya married another
man Manoj on 30.9.2008. This is evidenced by a

“certificate of marriage” dated 30.9.2008. In view of
the aforesaid, it is apparent that the complainant

could not have been induced into a physical
relationship, based on an assurance of marriage.

23.8. Eighthly, the physical relationship between the
complainant and the accused was admittedly

consensual. In her complaints Priya had however
asserted, that her consent was based on a false
assurance of marriage by the accused. Since the
aspect of assurance stands falsified, the
acknowledged consensual physical relationship

between the parties would not constitute an offence
under Section 376 IPC. Especially because the

complainant was a major on the date of
occurrences, which fact emerges from the
“certificate of marriage” dated 30.9.2008, indicating
her date of birth as 17.7.1986.

23.9. Ninthly, as per the medical report recorded by
the AIIMS dated 16.2.2007, the examination of the
complainant did not evidence her having been
poisoned. The instant allegation made by the
complainant cannot now be established because
even in the medical report dated 16.2.2007 it was
observed that blood samples could not be sent for
examination because of the intervening delay. For
the same reason even the allegations levelled by
the accused of having been administered some
intoxicant in a cold drink (Pepsi) cannot now be
established by cogent evidence.

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23.10. Tenthly, The factual position indicated in the
charge-sheet dated 28.6.2007, that despite best
efforts made by the investigating officer, the police
could not recover the container of the cold drink
(Pepsi) or the glass from which the – complainant

.

had consumed the same. The allegations made by

the complainant could not be verified even by the
police from any direct or scientific evidence, is
apparent from a perusal of the charge-sheet dated
28.6.2007.

23.11. Eleventhly, as per the medical report
recorded by the AIIMS dated 21.2.2007 the
assertions made by the complainant that the
accused had physical relations with her on
23.12.2006, 25.12.2006 and 1.1.2007, cannot likewise

be verified as opined in the medical report, on
account of delay between the dates of
occurrences and her eventual medical
examination on 21.2.2007. It was for this reason, that
neither the vaginal smear was taken, nor her
r clothes were sent for forensic examination.”

13. From the careful perusal of the aforesaid judgments, it

clearly emerge that Courts below, at the stage of framing charge in

exercise of jurisdiction under Sections 227 and 228 of the Cr.PC, are

required to consider the record of the case and the documents

submitted therewith and thereafter, may either discharge the accused

or where it appears to the court that there is a ground for presuming

that the accused has committed offence, it shall frame the charge. It

clearly emerges from the reading of the aforesaid judgments that the

satisfaction of the Court in relation to the existence of constituents of an

offence and the facts leading to that offence is a sine qua non for

exercise of such jurisdiction.

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– 43 –

14. True it is, at the initial stage of framing of charge, the court

is concerned not with proof but with the strong suspicion whether the

.

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

him guilty. In all the judgments, referred supra, the Hon’ble Apex Court

has held that at the time of framing of charge, Court should come to

conclusion that prima-facie case, if any, exists to the satisfaction of the

Court against the accused. The Hon’ble Apex Court in L. Krishna

Reddy’s case supra, taking note of judgments passed by the Hon’ble

Apex Court in cases titled “Stree Atyachar Virodhi Parishad v. Dilip

Nathumal Chordia” as well as “K. Narayana Rao”, wherein the Hon’ble

Supreme Court held that though Courts need not undertake an

elaborate enquiry while sifting and weighing the material but court

needs to consider whether evidenciary material on record, if generally

accepted would reasonably connect the accused with the crime or

not, it has held that once a case is presented to the Court by the

prosecution, it is the duty of the Court to sift through the material to

ascertain whether prima-facie case has been established against the

accused or not?

15. Now on the basis of aforesaid principles as have been laid

down in the judgments supra, this Court would proceed to examine

whether, learned trial court while exercising power under Section 228 of

the Cr.PC, actually perused material made available on record by the

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– 44 –

prosecution, to ascertain whether prima-facie case exists against the

accused or not?

.

16. At the very outset, it may be stated that at the time of issuance

of notice, this Court had called for the records of the court below, which was

duly received by this Court, careful perusal whereof suggests that

victim/complainant got his statement recorded under Section154 of the Cr.PC

on 4.5.2015 stating therein that he has given examination of 10th Class and is

the only brother and his house is situated in Jatpura on the bank of the road.

He further stated that at about 7:00 pm, when there was some noise on the

main road, he came out to see what is happening and found that many

people had gathered there. He also stated that some of the people

gathered were Jasveer, Avinash, Rakesh, Harjab Singh and his uncle Amarjeet

Singh. He further reported that after the dispute was over and when they

were coming back to the houses, a motorcyclist i.e. the petitioner accused

namely Varun came from his back side and gave a blow of a sickle (darat)

on his neck with an intention to kill him. He further stated that he took side, as

result of which, blow of darat landed on his left shoulder. He also reported

that had he not taken the side, the blow would have landed on his neck and

he would have died. The complainant victim also stated in his statement that

after giving the blow of darat, motorcyclist fled towards Una throwing the

weapon of offence on the spot. On the basis of aforesaid statement under

Section 154 of the Cr.PC, having been got recorded by the

complainant/victim, on 4.5.2015, police registered formal FIR No. 110 of 295

against the petitioner accused under Section 307 of the IPC. Perusal of

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– 45 –

document available on record further suggests that police got

complainant/victim examined from medical officer, Regional Hospital Una on

4.5.2015. Perusal of medical opinion rendered by the Medical Officer,

.

Regional Hospital Una suggests that victim complainant was brought for

medical examination at around 12.45 am on 4.5.2015, whereas perusal of

initial communication sent by the Incharge, police station Haroli, suggests that

request was made for medical examination on 3.5.2015. Even MLC placed on

record suggests that the police made request vide police docket SPL-3 dated

3.5.2015. It is not understood that when incident took place on 4.5.2015, that

too at 12.05 a.m., how police could make communication to Medical Officer,

Regional

Hospital, Una on 3.5.2015, requesting therein for medical

examination of the complainant/victim. Similarly, perusal of statement of the

complainant recorded under Section 154 of the Cr.PC suggests that initially

matter was reported by the complainant/victim to the police on 4.5.2015 at

12.05am, pursuant to which FIR bearing No. 110 of 2015 came to be

registered. Perusal of FIR made available on record suggests that FIR was

registered on 4.5.2015 at 1:30 hours, whereas copy of rapat No.25

(Rojnamcha) suggests that it was entered on 3.5.2015 at 11:30pm and when,

FIR was registered on 4.5.015 that too at 1:30 pm, it is not understood how

police could make request vide communication dated 3.5.2015, to the

Medical Officer, Regional Hospital requesting therein for medical examination

of the complainant victim. Perusal of Medical opinion/MLC suggests that

victim complainant was brought for medical examination at 12:45 am on

4.5.2015 on the basis of police SPL-3 dated 3.5.20115, whereas as per the own

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– 46 –

version of the Investigating Agency, initial statement of the complainant

victim was recorded under Section 154 of the Cr.PC at 12:05 am. If the

aforesaid version of the Investigating Agency is accepted to be true, this

.

court has reason to infer that they must have consumed some time to lodge

formal FIR against the petitioner accused.

17. Leaving everything aside, perusal of medical opinion rendered

by the medical officer nowhere suggests that at the time of examination,

injury, if any, much less grievous was witnessed/seen on the body of the

complainant/victim with the alleged blow of sickle (darat). Medical Officer

has reported no injury on the neck of the victim. The Medical Officer

concerned has also reported that there is no bleeding and movement of left

shoulder was normal. Further doctor i.e. surgical specialist vide its opinion on

6.5.2015, termed the injury to be simple in nature. The Surgical Specialist has

further concluded that there is no mark on the scalper region and neck and

injury on the person concerned is superficial injury. There is a specific finding

of doctor that there is no injury on the neck and the injury explained at Sr. No.

2 is simple in nature. Apart from above, this court had an occasion to peruse

report submitted by the RFSL, Dharamshala, H.P, which is reproduced herein

below:-

“Three sealed parcels were received for examination in Biology
and Serology Division on 14.05.15. The seals on the parcels were
seen intact and tallied with the specimen seals sent with the
docket. The parcels were signed, cut and opened. The
description of the exhibits in the parcels was as under:

Parcel-I:- Sealed with eight seals of ‘V’. It contained
exhibit-1.

Exhibit-1:- One metallic rusty darat/dagger measured
about 55 cm.

Parcel-II:- Sealed with eight seals of ‘S’. It contained
exhibit-2.

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– 47 –

Exhibit-2:-One white colour “JOCKEY’ make,
sleeveless vest having some brown stains on the
back of left shoulder region. The exhibit was
mentioned as vest of Amanjot Singh.

.

Parcel-III:- Sealed with one seal of ‘MORTUARY UNA’.

It contained exhibit-3.

Exhibit-3:- One glass vial having about 4.5 ml of red
colour liquid. The exhibit was mentioned as blood
sample of Amanjot Singh.

Results
The exhibits/cuttings were subjected to biological and serological
analyses in the laboratory. Benzidine test was performed to
detect the presence of blood. The species of origin was
determined by using gel-diffusion technique. On the basis of

aforesaid examinations, results were as under:-

1. Blood was not detected in exhibit-1
(darat/dagger).

2. Human blood was detected in exhibit-2 (vest,
Amanjot Singh), but was insufficient for blood
grouping.

r 3. Human Blood was detected in exhibit-3 (blood
sample, Amanjot Singh).”

Aforesaid RFSL report further suggests that blood was not detected on Ext.1

i.e. darat/dagger, allegedly used by the petitioner accused while causing

injury on the body of the victim/complainant. Similarly report suggests that

human blood was found on Ext.2, i.e. vest of complainant but the same was

insufficient for blood grouping.

18. This Court also carefully perused the statements recorded by the

Investigating Agency under Section 161 Cr.PC of the complainant/victim as

well as other persons, who were allegedly with the complainant at the time of

alleged occurrence, perusal whereof suggests that around 10:00pm on

4.5.2015, victim had gone out of his house along with his uncle Amarjit Singh

on the main road, where there was noise with regard to traffic jam. All the

witnesses have stated that at that time, the petitioner accused Varun, who is

indulged in smuggling of sand was also there. Apart from above, all the

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– 48 –

witnesses have stated that since petitioner accused had suspicion that the

victim complainant is an informer of police, he attempted to cause injury on

the neck of the complainant with sickle.

.

19. Careful perusal of statements made by the aforesaid witnesses

suggests that on 6.5.2015, when their statements under Sections 161 Cr.PC,

were recorded, they introduced altogether different story with regard to

involvement of the petitioner accused in smuggling of sand. It emerges from

the statements as referred above that petitioner accused had been

stealing/smuggling sand from the land of Sh. Amarjeet Singh, who happened

to be uncle of Amanjot Singh/complainant and in this regard, Sh. Amarjit

Singh had repeatedly warned him not to indulge himself in illegal smuggling of

sand. Though, there is mention qua the lodging of report by the aforesaid

witnesses against the petitioner but there is nothing on record suggestive of

the fact that there was some dispute inter-se them over illegal smuggling of

sand by the petitioner accused that too with the persons, who got their

statements recorded under Section 161 Cr.PC. Similarly, this Court was unable

to find any evidence on record that pursuant to the aforesaid statements

having been made by the witnesses under Section 161 Cr.PC, police made

an attempt to bring on record evidence suggestive of the fact that petitioner

was actually indulged/involved in illegal smuggling of sand. Similarly, there is

no evidence led on record by the Investigating Agency to substantiate the

claim of the claimant-victim that attempt to kill him was made by the

petitioner accused on having doubt that he is a police informer.

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– 49 –

20. This Court after carefully examining the document made

available on record by the Investigating Agency sees substantial force in

.

the argument having been made by the learned counsel for the

petitioner that there is/was no material much less substantial available

on record to frame charge under Section 307 of the IPC. Similarly,

perusal of impugned order passed by the Court below reproduced

herein above, nowhere suggests that court below before proceeding

to frame charge under Section 228 of the Cr.PC against the accused

carefully sifted/perused the material made available on record to

ensure/ascertain whether prima-facie case exists against the accused

or not? The Hon’ble Apex Court in L. Krishna Reddy’s case supra, has

specifically held that while framing charge under Section 228 Cr.PC,

court must keep in mind the interest of the person arraigned as an

accused, who may be put to the ordeals of trial on the basis of flippant

and vague evidence. In the instant case, perusal of impugned order

nowhere suggests that learned trial Court while proceeding to frame

charge made an endeavor to sift/peruse the material adduced on

record by the Investigating Agency. There appears to be no application

of mind by the learned court below while charging under Section 307

Cr.PC. The Hon’ble Apex Court further held that once a case is

presented to it by the prosecution, it is bounden duty of Court to sift

through the material to ascertain whether a prima-facie case has

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– 50 –

been established or not. But even if otherwise, ratio as laid down by the

Hon’ble Apex Court in other cases cited above are also taken into

.

consideration, it clearly emerge from the same that in all probabilities,

learned court below while framing charge is required to ascertain

whether prima-facie case exists or not. Needles to say exercise, if any,

carried out by the Court while ascertaining whether prima-facie case, if

any, exists against the accused or not, must reflect in order, whereby

charge is proposed to be framed. But in the instant case, as has been

discussed in detail, there appears to be no attempt, if any, made by

the learned trial Court to ascertain whether prima-facie case exists

against the accused at the time of framing of charge or not and as

such, impugned order is not sustainable being totally contrary to the

law laid down by the Hon’ble Apex Court in the judgment referred

herein above.

21. True, it is jurisdiction of this Court under Section 397 of the

Cr.PC is very limited but same can be exercised so as to examine the

correctness, illegality or proprietary of order passed by the trial Court or

inferior court as the case may be. The legality, proprietary or

correctness of an order passed by an inferior court is the very

foundation of exercise of jurisdiction under Section 397 but ultimately it

also requires justice to be done. In the judgments referred herein

above, the Hon’ble Apex Court has held that jurisdiction vested in this

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– 51 –

Court in terms of Section 397 Cr.PC can be exercised to the fact that

there is a palpable error, non-compliance with the provision of law or

.

where decision is completely erroneous or where the judicial discretion

is exercised arbitrarily.

22. Hence, in the instant case, for the reasons stated above,

this Court sees substantial reason to exercise its revisionary power to

correct impugned order, which on the face of it is not based upon the

principles as have been laid down in the judgments recorded by the

Apex Court while discussing scope of power of Court to frame charge

under Section 228 of the Cr.PC. In the Vineet Kumar’s case supra, the

Hon’ble Supreme Court has held that Court cannot permit prosecution

to go on if the case falls in one of the categories as enumerated in the

case titled State of Haryana and others vs. Bhajan Lal and others,

because judicial process is a solemn proceeding and same should not

be an instrument of oppression or, needless harassment. This court has

no hesitation to conclude after carefully examining the impugned

order vis-à-vis , material available on record that learned court below

merely acted as a post office, who accepted the charge sheet under

Section 173 of the Cr.PC as verbatim without making on effort to

ascertain whether prima-facie case exists against the accused or not?

Impugned order nowhere reveals that learned court below while

passing impugned order made an effort to sift through the material

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– 52 –

produced before it to conclude whether prima-facie case is made out

against the petitioner. Hence, this Court has reason to conclude that

.

great prejudice has been caused to the petitioner.

23. Consequently, in view of the detailed discussion made

herein above as well as law laid down by the Hon’ble Apex Court, the

present revision petition is allowed and impugned order dated 24.6.2016

passed by the court below is quashed and set-aside. However, the matter is

remanded back to the learned court below to consider the matter afresh in

light of the findings/observations returned/made in the instant judgment

passed by this Court. Parties are directed to remain present before the

learned Court below on 22.5.2017, to enable it to consider the matter as

directed above. Records of the case along with copy of judgment be also

sent forthwith. Pending applications, if any, are disposed of.

25th April, 2017 (Sandeep Sharma),

manjit Judge

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