Madhya Pradesh High Court
Hari Shankar Shivhare vs The State Of Madhya Pradesh on 14 May, 2019
1
THE HIGH COURT OF MADHYA PRADESH
Criminal Revision No.48/2019
(Hari Shankar Shivhare Vs. State of M.P. & Anr.)
Gwalior, Dated:-14.05.2019
Shri D.P. Singh, learned counsel for the petitioner.
Shri Ajeet Kumar Sudele, learned counsel for the respondent
No.1.
Challenge is to an order dated 19.09.2018 passed by Special Judge, Gwalior (M.P.); whereby, charges under Sections 420, 467 and 406 of IPC are levelled against the petitioner on the allegation that while not holding the post as the President of the Society, the petitioner posing himself to be a President inducted 19 members in the society and executed sale-deeds between the period from 24.01.2003 to 17.11.2004 in favour of these 19 persons and embezzled Rs.2,88,500/-.
It is contended that the petitioner is falsely implicated. To substantiate the contention, the petitioner led us through the documents filed along with the charge-sheet. It is urged that the dispute in question is of the civil nature and there is no element of mens rea. On these contentions, petitioner seeks quashment of FIR.
The respondents, on their turn, have repelled the contentions. Trite it is that the accused can be discharged only when there is no sufficient ground for proceeding.
Section 228 of the Code of Criminal Procedure, 1973, requires 2 THE HIGH COURT OF MADHYA PRADESH Criminal Revision No.48/2019 (Hari Shankar Shivhare Vs. State of M.P. & Anr.) the Judge to frame charge if he considers that there is ground for presuming that accused has committed an offence. In "State of Bihar Vs. Ramesh Singh [(1977) 4 SCC 39]", it is observed:
"4. .......Reading the two provisions together in juxta position, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under section 227 or section 228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused........."
In "Stree Atyachar Virodhi Parishad Vs. Dilip Nathumal Chordia and another [1989 MPLJ 366 (SC)]", it is held:
"14. These two decisions do not lay down different 3 THE HIGH COURT OF MADHYA PRADESH Criminal Revision No.48/2019 (Hari Shankar Shivhare Vs. State of M.P. & Anr.) principles. Prafulla Kumar case has only reiterated what has been stated in Ramesh Singh case. 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 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."
In "State of Haryana & Ors. Vs. Bhajan Lal & Ors [1992 Supp. (1) SCC 335]", following parameters were laid down by the Hon'ble Supreme Court in case where the challenge is put to the charge-sheet and criminal proceedings thereon:
"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 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 4 THE HIGH COURT OF MADHYA PRADESH Criminal Revision No.48/2019 (Hari Shankar Shivhare Vs. State of M.P. & Anr.) 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 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 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."5
THE HIGH COURT OF MADHYA PRADESH Criminal Revision No.48/2019 (Hari Shankar Shivhare Vs. State of M.P. & Anr.) Similarly, in "State of Maharashtra Vs. Salman Salim Khan and another [(2004) 1 SCC 525]", it is held:
"12. We are of the opinion that though it is open to a High Court entertaining a petition under section 482 of the Code to quash charges framed by the trial court, same cannot be done by weighing the correctness or sufficiency of evidence. In a case praying for quashing of the charge, the principle to be adopted by the High Court should be that if the entire evidence produced by the prosecution is to be believed, would it constitute an offence or not. The truthfulness, the sufficiency and acceptability of the material produced at the time of framing of charge can be done only at the stage of trial. By relying upon the decisions of the Apex Court most of which were with reference to appeals arising out of convictions, we think the High Court was not justified in this case in giving a finding as to the non-existence of material to frame a charge for an offence punishable under section 304 Part II, IPC, therefore, so far as the finding given by the High Court is concerned, we are satisfied that it is too premature a finding and ought not to have been given at this stage. At the same time we are also in agreement with the arguments of learned counsel for the respondents that even the Sessions Court ought not to have expressed its views in such certain terms which indicates that the Sessions Court had taken a final decision in regard to the material to establish a charge punishable under Section 304 Part II, IPC.
Recently, in "Munshiram Vs. State of Rajasthan and another [(2018) 5 SCC 678]", it is observed by their Lordships:
"10. ..........it is no more res integra that Section 482 of CrPC has to be utilized cautiously while quashing the FIR. This court in a catena of cases has quashed FIR only after it comes to a conclusion that continuing 6 THE HIGH COURT OF MADHYA PRADESH Criminal Revision No.48/2019 (Hari Shankar Shivhare Vs. State of M.P. & Anr.) investigation in such cases would only amount to abuse of the process......"
When the challenge to the charge-sheet and the charges framed is tested on the anvil of the facts on record and the principle of law laid down in Ramesh Singh, Dilip Nathumal Chordia, Ch. Bhajan Lal, Salman Salim Khan Munshiram (supra), we decline to cause any interference.
Consequently, revision fails and is dismissed.
(Sanjay Yadav) (Vivek Agarwal)
Judge Judge
pd
PAWAN
DHARKAR
2019.05.26
11:55:56
-07'00'