Delhi District Court
Jagbir Singh vs . State on 13 January, 2012
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGE
II (NORTHWEST): ROHINI COURTS: DELHI
Crl. Revision No. 382/2011
Jagbir Singh Vs. State
13.1.2012
ORDER:
This revision petition has been filed against the order of charge passed by the Ld. Metropolitan Magistrate dated 14.1.2011 by way of which charges under Section 120B/420/467/468/471 IPC were framed against the accused Jagbir Singh (the revisionist before this Court) in case FIR No. 166/08, PS Swaroop Nagar. The revisionist has challenged the order of the Ld. MM on the ground that Smt. Vijay Sharma in collusion with Praveen Kumar Jain, Surneder Kumar Jain, Notary Public, Babu Khan, Surender Kaushik, Avdesh Singh, Gaurav, Vidhur Singh etc. along with the constant support of the police official of Police Station Swaroop Nagar, Delhi had designed a criminal conspiracy and sold the number of plots to the revisionist on the basis of agreement to sell. Thereafter in collusion with the then SHO, ACP and Investigating Officers of Police Station Swaroop Nagar along with Smt. Vijay Sharma and her associates falsely implicated the revisionist in false and frivolous cases and thereafter booked the revisionist in MACOCA. It is pleaded that Smt. Vijay Sharma has committed the offence of cheating nor only with the revisionist but also all those plot holders who have constructed their Jagbir Singh Vs. State, CR No. 382/11 Page No. 1 of 12 dwelling houses on those plots by their hard earn money. According to the revisionist, the officials of Police Station Swaroop Nagar are working on the direction of Smt. Vijay Sharma since 2007 i.e. after the development of land by the revisionist and raising of the prices of the land thereafter resulting in dishonest intention of Vijay Sharma who in collusion with her coassociates had planned to throw out the revisionist and resell the land at a higher price to individuals thereby creating problems to the local residents. It is further pleaded that when the local residents tried to complain against Vijay Sharma, the police officials of Police Station Swaroop Nagar deliberately did not record the complaints. The revisionist has further pleaded that the police officials as well as the higher authorities failed to take any action against Smt. Vijay Sharma and her associates despite the number of complaints sent by the revisionist and even ignored the complaints made by the local residents thereby shielding the offenders from any criminal cases. It is further submitted that Surender Kumar Jain was not authorized to sell, alienate or transfer the land of Gram Sabha to any third person which was done by them in favour of Smt. Vijay Sharma who knowingly and deliberately showed herself to be the owner of the said land and sold the same to the revisionist thereby deceived and cheated the revisionist. It is also alleged that Smt. Vijay Sharma along with her other associates and notary public with malafide intent had forged the Cancellation of Agreement and placed the said forged document with the intention to mislead the Court Jagbir Singh Vs. State, CR No. 382/11 Page No. 2 of 12 as well as the local residents. According to the Revisionist, at the time of framing of charge the trial Court did not apply its judicial mind and passed the order in a mechanical manner despite the disputes between the revisionist and the complainant being purely of civil nature. It is pleaded that the Ld. Trial Court has failed to appreciate the statements under Section 161 Cr.P.C. recorded by the Investigating Agency against the complainant Smt. Vijay Sharma and in the report under Section 173 Cr.P.C. the investigating agency has not said that the revisionist forged the document or had used the same as genuine at any point of time and the report is totally silent whether the revisionist induced any person at any point of time.
The revisionist has challenged the order of the Ld. MM on its legality and has pointed out that the criminal conspiracy cannot be invoked against a single person and for invoking Section 120B IPC there must be more than one persons(s) who entered into the criminal conspiracy to commit such offence. It is pleaded that Section 420 IPC cannot be involved against a person unless there are ingredients of dishonest inducement to any person to deliver any property or valuable security, and as per the charge sheet there is not even a single document to show that the revisionist had induced any person which resulted into wrongful loss to any person or the wrongful gain to the revisionist himself. It is further submitted that the prosecution has failed to file a single statement recorded under Section 161 Cr.P.C. which could suggest Jagbir Singh Vs. State, CR No. 382/11 Page No. 3 of 12 that the revisionist has committed any forgery with any person. It is pointed out that the Ld. Trial Court has committed a manifest error of law while deciding the factum to frame primafacie charges against the revisionist. It is further pleaded that as per the seizure memo dated 13.9.2008 the Investigating Officer has seized the original General Power of Attorney executed between Smt. Vijay Sharma and Surender Jain and original Agreement to Sell by Praveen Jain and Surender Jain in favour of Vijay Sharma whereas no originals have been placed on record and it is only the coloured photocopies of the said documents which have been placed on record.
No reply has been filed to the present revision and the complainant has only filed the written synopsis of arguments which I have perused. Before proceeding to decide the revision petition on merits, I may observe that the Hon'ble Supreme Court of India while analysing the law relating to provisions of Sections Sections 227, 239 and 245 of the Code in the case of R.S. Malik Vs. A.R. Antulay AIR 1986 has held that in case trial court was satisfied that primafacie case was made out, charge has to be framed and it was observed that:
"The truth, veracity and effect of the evidence which the prosecution proposed to adduce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied finally, is not exactly to be applied. At this stage, even a very strong suspicion founded upon the materials before the Magistrate which leads him to form a presumptive opinion as to existence Jagbir Singh Vs. State, CR No. 382/11 Page No. 4 of 12 of factual ingredients constituting the offence alleged may justify the framing of charge against the accused in respect of the commission of that offence"
In the case of B.N. Rao Vs. State reported in 1997 JCC 359 it has been specifically held that at the stage of framing of charge the evidence has not been examined minutely and the charge can be framed even if there is suspicion. Further in the case of Mathura Dass & Ors. Vs. State reported in DCLR 2003 (1) Delhi 694 it has been been held that:
".........the existence of primafacie case may be found even on the basis of strong suspicion against an accused....... The assessment, evaluation and weighing of the prosecution evidence is a criminal case at the final stage is on entirely different footing than it is at the stage of framing of charge........ At the final stage, if two views are possible, one which favours accused has to be accepted unlike at the stage of framing of charges, where the view favourable to prosecution has to be accepted......."
The Hon'ble Supreme Court in the case of Union of India Vs. Prafulla reported as 1979 SC 366 AIR held that :
"............ At the time of framing of charges, the court has power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against accused has been made out........."
Jagbir Singh Vs. State, CR No. 382/11 Page No. 5 of 12 Further in the same judgment the hon'ble High Court has observed that:
".........When the material placed before the Court discloses great suspicion against the accused, the Court will be justified in framing charge. If two views are equally possible and the evidence produced gives rise to some suspicion but not grave suspicion against the accused, the judge will be fully within his right to discharge the accused.........."
It was also observed that :
".........At the time of framing of charge, the Court cannot act merely as a post office or a mouthpiece of the prosecution but is to consider the broad probabilities of the case, the total aspect of the evidence and the documents produced before the Court and any basic infirmities in the case and so on........"
However, a word of caution was added in this judgment that the judge should not make a roving inquiry into the pros and cons of the matter and weigh the evidence is if he was conducting a trial.
Later in the case of State Vs. S. Bangarappa reported in 2001 (1) CC Cases SC 1 the Hon'ble Supreme Court reiterated that :
"........ Time and again this Court has pointed out that at the stage of framing of charge, the Court should not enter upon a process of evaluating the evidence by deciding its worthy or credibility. The limited exercise during that stage is to find out whether the materials offered by the prosecution to be adduced as evidence are sufficient for the Court to proceed further ........."
Jagbir Singh Vs. State, CR No. 382/11 Page No. 6 of 12 Again in the year 2001 the hon'ble Supreme Court in the case of Kanti Bhadra Shah Vs. State of West Bengal had observed that:
"......... If trial Court decides to frame charge there is no legal requirement that the trial Court should pass an order specifying the reasons as to why it opts to do so. Framing of charge itself is prima facie order that the trial judge has formed the opinion after considering the report and the documents and after hearing both decides that there is ground for presuming that the accused has committed the offence. It was held that a magistrate is required to record his reasons for discharging the accused but there is no such requirement if he forms the opinion that there is ground for presuming that accused had committed offence. In such a situation the magistrate is only required to frame a charge in writing against the accused."
Also in Para 12 the Hon'ble Court had observed that :
"........ If there is no legal requirement that the trial Court should write an order showing the reasons for framing of charge, why should the already burdened trial Courts be further burdened with such an extra work. Time has reached to adopt all possible measures to expedite the Court procedures and to chalk out measures to avert all roadblocks causing avoidable delays. If a magistrate is to write detailed orders at different stage merely because the counsel would address arguments at all stage, the snail pace progress of proceedings in trial Court would further be slowed down."
Jagbir Singh Vs. State, CR No. 382/11 Page No. 7 of 12 The Hon'ble Supreme Court again in the case of State of Orissa Vs. Debendra Nath Padhi reported as 2003 II AD (Crl) S.C. 69 observed that :
".......... If after doing so the Court comes to the conclusion that there is ground for presuming that the accused has committed an offence, then the Court shall frame charge under Section 228 of the Code, otherwise it shall discharge accused under Section 227 of the Code."
A similar view was taken by the Hon'ble High Court in the case of Subhadra Vs. State reported as 1996 JCC 665 that :
".......... At the stage of framing of charge, the Court has not to apply the same standard of test, which is applied at the time of judgment and recording finding of guilt or otherwise. At the stage, the Court has to see whether there is ground for presuming that the accused has committed the offence."
Also in the case of Ms. Soma Chakravarty Vs. State (Through CBI) reported in 2006 (1) JCC 152 (DHC) it has been held that :
"It is settled law that at the time of framing of charge, the Court is not required to make a roving enquiry into the pros and cons of the matter and weigh evidence as if it is conducting a trial. Court is not required to make appraisal of evidence meticulously at this stage and there the material placed before the Court discloses grave suspicion against the accused which has not been Jagbir Singh Vs. State, CR No. 382/11 Page No. 8 of 12 property explained and indicate the involvement of the accused then it is sufficient to frame the charge."
Also in the case of Dilawar Balu Kurane Vs. State of Maharastra reported in JT 2002 (1) SC 6 it has been held that ".........It is a settled preposition of law that the judge while considering the question of framing of charge in the said Section has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a primaface case against the accused has been made out, where the material placed before the court disclose grave suspension of the accused which has not been properly explained, the court will be fully justified in framing a charge and proceeding with the trial by and large............." While during the trial if two views are equally possible and the judge is satisfied that the evidence produced before him wile giving rise to such suspicion but not grave suspicion against the accused he will be fully justified to discharge the accused ........."
The Hon'ble Supreme Court had also in the case of State of Karnatka Vs. L. Muniswamy reported in AIR 1977 SC 1489 held that:
"........At the stage of framing of charge the court has to apply its mind to the question where or not there is any ground for presuming the commission of of the offence by the accused...."
It was held that since the framing of charge affected a person's liberty substantially, hence need for proper consideration of material warranting such order was emphasized.
Jagbir Singh Vs. State, CR No. 382/11 Page No. 9 of 12 Further in the case of L.K. Advani Vs. CBI reported in 1997 Crl. L. J. 2559 it has been held that:
"..............Charge can be framed by the court against the accused if the material placed before it raises a strong suspicion that the accused has committed an offence. In other words, the court would be justified in framing the charges against the accused if the prosecution has sown the seed in the form of the incriminating material which has got the potential to develop itself into a fullfledged tree of conviction later on.........".
The law as emerges is from the above is that at the stage of framing of charge the Court is not required to assess, evaluate and weight the prosecution evidence in a criminal case as it is done at the final stage. In case if two views are possible one which favours the prosecution has to be accepted at this stage. It is not open for this court to sift and weigh the evidence as if it is conducting a mini trial and charge can be framed on the basis of grave suspicion and the evidential value of the statement recorded during the course of investigations is required to be seen at the time of appropriate trial. It is a settled law that at this stage of framing of charge the court is only required to consider whether primafacie there exists sufficient ground to proceed against the accused. A roving and fishing inquiry is impermissible. It is sufficient if the prosecution is able to show primafacie the commission of offence and the involvement of the charged person.
Jagbir Singh Vs. State, CR No. 382/11 Page No. 10 of 12 Applying the settled principles of law to the facts of the present case it is evident that the grounds so raised by the revisionist in the present revision petition are in the nature of defence and it is open for the accused to raise these grounds during the trial. It is further evident that the land in question in respect of which there are many purchasers including Surender Jain, Praveen Kumar Jain, Smt. Vijay Sharma and also the Revisionist Jagbir Singh, primafacie belongs to Gram Sabha.
Further, the provisions of Section 120B Indian Penal Code cannot be invoked against a single accused and there has to be a primafacie conspiracy between more than one person which would include the sellers of the land who have no right, title of interest over the same and would equally be liable as the accused. Merely because the others have not been made an accused is no reason to discharge the accused of all the charges and it is always open to the Ld. Trial Court to summon any other person so connected with the conspiracy or the commission of the offence (as the case may be) at any stage of trial (provisions of Section 319 Cr.P.C.). Therefore, under these circumstances, I set aside the order of the Ld. MM dated 14.1.2011 and the charge dated 29.1.2011 only in so far as the provisions of Section 120 B Indian Penal Code are concerned. However, in so far as the charges framed by the Ld. Metropolitan Magistrate under Sections 420/467/468/471 IPC are concerned, I find no illegality in the same as the documents placed on record coupled with the statement of the Jagbir Singh Vs. State, CR No. 382/11 Page No. 11 of 12 complainant and other witnesses primafacie disclose the commission of the said offences. The revision petition is disposed off in aforesaid terms. Trial Court record be sent back along with the copy of this order.
Revision file be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU) Dated:13.1.2012 ASJII(NW)/ ROHINI Jagbir Singh Vs. State, CR No. 382/11 Page No. 12 of 12