Allahabad High Court
Satya Prakash Pandey & Anr. vs State Of U.P. & Anr. on 3 January, 2017
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Reserved A.F.R. Case :- U/S 482/378/407 No. - 7637 of 2016 Applicant :- Satya Prakash Pandey & Anr. Opposite Party :- State Of U.P. & Anr. Counsel for Applicant :- Manoj Kumar Misra Counsel for Opposite Party :- Govt. Advocate Hon'ble Anil Kumar Srivastava-II,J.
Heard Shri Manoj Kumar Misra, learned counsel for the petitioners, learned AGA and perused the record.
By means of this petition under section 482 Cr.P.C., the petitioners have prayed for setting aside the impugned order dated 15.11.2016 passed by learned Additional Sessions Judge, Court No. 3, Gonda in Session Trial No. 210 of 2016, State Vs. Shiv Balak Pandey and others arising out of case crime no. 220 of 2015 under sections 147,323,325,504,506, 307 and 308 IPC, Police Station-Kotwali City, District Gonda, whereby the learned trial court has rejected the application for discharge moved by the accused and fixed the case for framing of charge under sections 147,307/149,323/149,325/149, 504 and 506 IPC.
Learned counsel for the petitioners has submitted that First Information Report was registered on 18.3.2015 against the petitioners at case crime no. 220/2015 under sections 323,504,506, 308 and 147 IPC with allegation that on 17.03.2015 when complainant Sushila Devi alongwith her husband Pawan Kumar Mishra, Hari Ram Yadav and Hamid was coming back from Gonda by Car No. PB10G 5535 and at about 9.00 p.m. they were waiting for opening of the railway crossing near Soni Gumati, Shiv Balak Pandey who is inimical with the complainant, alongwith his sons Upendra Nath and Jitendra Nath came and beaten her driver and Hamid and got them fled away. They also dragged her husband from the Car forcibly and beaten him by iron rod and hockey. They also put her husband on the railway track so that he may come under the train. Thereafter, First Information Report was lodged. After investigation the charge-sheet was submitted against the accused persons under sections 147,308,323,325,504, 506 and 307 IPC, which is pending trial. Thereafter the application for discharge was moved by the accused stating therein that there is no allegation that there was intention of the accused to commit murder of the complainant or her husband. Injuries were found simple. The Doctor has not stated the injuries to be dangerous which could have caused the death of injured, hence the accused cannot be charged under section 307 IPC.
Learned trial court has rejected the application for discharge holding that the evidence on record shows that the injuries of the injured were grievous in nature. According to the statement of Doctor, the injured got unconscious and death could have been caused due to this injury if it was serious in nature.
Learned trial court also held that at the stage of framing of the charge, the trial court is not required to scrutinize the evidence on record microscopically, rather it is to be seen whether there are sufficient ground to proceed against the accused and to frame the charge.
Learned counsel for the petitioners has submitted that as per the evidence on record, there was no intention of the accused to commit murder of the injured. It is also submitted that the accused were armed with other deadly weapons which were not being used. They were armed with country made pistol, but no fire arm injury was found on the body of the injured neither it was alleged that any firm arm injury was caused. It is further submitted that the statement of Gateman was recorded by two investigating officers on different dates. At one place, he has not stated the name of the accused, who have put the injured on the railway track, while after change of the investigating officer, supplementary statement was recorded wherein he has stated that the accused have put the injured on the railway track so that by moving train his body can be cut in two pieces and it is presumed that it is a case of accident. It is further submitted that initially medical report did not show any grievous injury on the body of the injured. After three months, the medical board was constituted and the medical report was given by the medical board. It is further submitted that according to the statement of the complainant prima facie case under section 307 IPC is not made out against the accused. It is also argued that near Soni Gumati some altercation took place with some other persons but the complainant has falsely implicated the accused due to enmity .
The application for discharge in sessions trial has been moved by the accused under section 227 Cr.P.C.
Section 227 of the Code of Criminal Procedure provides that if, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, 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.
For the purpose of determining whether there is a sufficient ground for proceeding against the accused, the Court possesses a comparatively wider discretion in exercise of which it can determine the question whether the material on record, if unrebutted, in such on the basis of which a conviction can be said reasonably to be possible. At this stage only prima facie case is to be seen, whether case is beyond reasonably doubt is not to be seen. At this stage of framing charge, probative value of materials on record cannot be gone into. At the time of framing of the charge, it is not necessary for the prosecution to establish beyond all reasonable doubts that the accusation which they are bringing against the accused person is bound to be brought home against him.
In Rajveer Singh vs. State of U.P. AIR 2006 SC 1963, it has been held that at the stage of framing charge the Court has to see if there is sufficient ground for presuming that the accused has committed an offence. If the answer is in affirmative, the order of discharge cannot be passed and the accused has to face the trial.
In Yogesh Josi vs. State of Maharashtra AIR 2008 SC 2991, Hon'ble the Apex Court, interpreting the words "not sufficient ground for proceeding against the accused" has held that it postulates exercise of judicial mind on the part of the Judge to the facts of the case in order to determine whether a case for trial has been made out by the prosecution.
Hon'ble Apex Court in Om Prakash Sharma vs. C.B.I. AIR 2000 SC 2335, has held that at the stage of 227 of the Code of Criminal Procedure, it is not open to the Sessions Judge to weigh the pros and cons whether improbability and than proceed to discharge the accused holding the said statements existing in the case diary as unreliable.
Hon'ble Apex Court in Niranjan Singh Karan Singh Panjabi vs. Jitendra Bhimraj Bizza AIR 1990 SC 1962 has held that the Court may for limited purpose sift the evidence as it cannot be expected even it that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.
In Kanti Bhadra Shah vs. State of Bengal AIR 2000 SC 522, Hon'ble Supreme Court has held that the discharge order must contain reasons but an order of framing charge cannot be quashed merely because it does not contain reasons.
In State of J & K vs. Sudarshan Chakkar AIR 1995 SC 1954 and in Rukmani Narvekar vs. Vijaya Satardekar, AIR 2009 SC 1013, it has been held that no weight is to be attached to the probable defence of the accused and at the time of framing of the charge, the Court has to confine its attention to documents referred to under Section 173 Cr.P.C. only.
At the stage of framing of charge, the court concerned is not required to go into the details of the prosecution evidence from the point of view whether conviction is sustainable on the basis of the available evidence or not. At this stage, court has to be satisfied only on the point whether there exist sufficient ground for proceedings against the accused or not. This legal aspect has been considered by the Hon'ble Apex Court in the case of State of M.P. Vs. Mohan Lal Soni reported in [(2000) 6 SCC 338] in which the Apex Court in paragraph no. 7 has held as under :-
"7. The crystallised 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."
In the case of Dilawar Balu Kurane Vs. State of Maharashtra reported in [(2002) 2 SCC 135] wherein Hon'ble Apex Court in paragraph 12 has held as under :-
"12. .......... In exercising powers under Section 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima-facie case against the accused has been made out; where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the court will be fully justified in framing a charge and proceedings with the trial; by an large if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused, and in exercising jurisdiction under Section 227 of the Code of Criminal Procedure, the Judge cannot act merely as a pot office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."
Hon'ble the Apex Court again in the case of Central Bureau of Investigation Vs. Mukesh Pravinchandra Shroff and others reported in [(2009) 16 SCC 429] considered the legal position on this point. In that case Special Court virtually passed an order of acquittal in the garb of an order of discharge. It was held by the Apex Court that it is well settled that the the stage of framing of the charge, what is required to be seen is as to whether there are sufficient grounds to proceed against the accused and the approach of the Special Court was held to be incorrect by the Apex Court.
Hon'ble the Apex Court in the case of Sajjan Kumar Vs. Central Bureau of Investigation reported in [(2010) 9 SCC 368] again considered this aspect and has held in paragraph no. 19 as under:-
"19. It is clear that 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 only for the purpose of deciding prima facie whether the court should proceed with the trial or not. If the evidence which the prosecution purposes to adduce proves the guilt of the accused even if fully accepted before it is challenged in cross examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial."
In a recent judgment, Hon'ble the Apex Court has again considered this aspect in the case of Amit Kapoor Vs. Ramesh Chander and another [(2012) 9 SCC 460] reported in and has discussed in paragraph no. 17, the legal position on this point, as under:-
"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 since 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 the 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."
Again in the case of Central Bureau of Investigation, CBI Vs. K. Narayana Rao reported in [(2012) 9 SCC 512] Hon'ble the Apex Court in paragraph no. 15 has held as under:-
"15. From the above decisions, it is clear that 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 as offence, in that event, it is not open to the court to say that there is no sufficient ground for proceeding against the accused. A Judicial Magistrate enquiring into a case under Section 209 of the Code is not to act as a mere post offence and has to arrive at a conclusion whether the case before him is fit for commitment of the accused to the Court of Session. He is entitled to sift and weigh the materials on record, but only for seeing whether there is sufficient evidence for commitment, and not whether there is sufficient evidence for conviction. On the other hand, if the Magistrate finds that there is no prima facie evidence or the evidence placed is totally unworthy of credit, it is his duty to discharge the accused at once. It is also settled law that while exercising jurisdiction under Section 227 of the Code, the Magistrate should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. This provision was introduced in the Code to avoid wastage of public time and to save the accused from unavoidable harassment and expenditure. While analysing the role of the respondent herein (A-6) from the charge-sheet and the materials supplied alongwith it, the above principles have to be kept in mind."
In a very recent judgment in the case of Sherish Hardenia audors Vs. State of M.P. and another reported in JT 2014 (1) SC 286, Hon'ble Apex Court has held in para 3 as under:
"Whether it is quashing of an FIR or a charge-sheet, or summoning of a party under Section 319 Cr.P.C., this Court has repeatedly opined that approach of the Judge must be to consider whether the collected material and evidence is indicative of existence of merely a prima facie case."
Aforesaid pronouncements makes it abundantly clear that at the stage of framing charge court is supposed to apply its mind, on the basis of material available on record, whether there exist sufficient ground for proceeding the accused or not. If the Court finds sufficient grounds for proceeding that it would be justified to proceed to frame charge. Such a decision has to be arrived at on the basis of material available on record. At this stage the defence of the accused has not to be considered. The ground that accused has been falsely implicated due to enmity or malafide are alien to be considered at this stage. Such ground can be considered only at the relevant stage of the trial.
It is also settled position of law that at the time of framing charge the accused has no right to produce any material because the expression "record of the case" in Section 227 Cr.P.C. refers to the material produced by the prosecution and not by the accused.
The Sessions Judge has the power to discharge the accused in the following circumstances;
A. where the evidence produced is not sufficient, B. where there is no legal ground for proceeding against the accused, C. where the prosecution is clearly barred by limitation, or D. where he is precluded from proceeding because of a prior judgment High Court.
In Sonu Gupta versus Deepak Gupta (2015) Vol.3 SCC 424, it was held by the Hon'ble Apex Court that :-
"At the stage of framing of charge an individual accused may seek discharge if he or she can show that the materials are absolutely insufficient for framing of the charge against that particular accused. But such exercise is required only at a later stage and not at the stage of taking cognizance and summoning the accused on the basis of prima facie case. Even at the stage of framing of charge, the sufficiency of materials for the purpose of conviction is not the requirement and a prayer for discharge can be allowed only if the court finds that the materials are wholly insufficient for the purpose of trial. Even when there are materials raising strong suspicion against an accused, the court will be justified in rejecting a prayer for discharge and in granting an opportunity to the prosecution to bring on record the entire evidence in accordance with law so that case of both the sides may be considered appropriately on conclusion of trial. (Para 9)."
Keeping in view the aforesaid pronouncement of Hon'ble Apex Court it is clear that for framing the charge it is not desirable for the Court whether the conviction by the Court is permissible on the basis of evidence available against it. Even if at this stage Court is satisfied that there exist suspicion against the accused that he is involved in the commission of offence, then the trial court would be justified in framing the charge against the accused. At the stage of framing of charge, the court is not expected to scrutinize the entire prosecution evidence from the point of view whether conviction of the accused is possible on the basis of material available against him.
It is clear that at the time of faming of the charge, the court is required to satisfy itself that there exists prima facie case to the effect that there is sufficient ground to proceed against the accused. At this stage, it is not at all necessary for the court to decide as to whether conviction can be made on the basis of available evidence or not?
In the present case, statement of complainant Sushila Devi and victim Pawan Kumar Mishra shows that there was evidence of intention to kill. Further the statement of Algoo Prasad, Gateman was recorded twice wherein he has stated that the accused have put the injured on the railway track. According to the statement of the Doctor, there was an injury on the back side of the head, due to which the injured got unconscious. Statements of Hari Ram Yadav and Hamid were also recorded by the Investigating Officer. Supplementary statement of Algoo, Gateman also prima facie reveals the intention of the accused to kill the injured. There was sufficient material on record to hold that charge under section 307 IPC should be framed against the accused.
In view of above, I do not find any illegality or irregularity in the impugned order dated 15.11.2016 passed by learned Additional Sessions Judge, Court No. 3, Gonda in Session Trial No. 210 of 2016, State Vs. Shiv Balak Pandey and others arising out of case crime no. 220 of 2015 under sections 147,323,325,504,506, 307 and 308 IPC, Police Station-Kotwali City, District Gonda, which requires interference of this Court in petition under section 482 Cr.P.C.
The petition is devoid of merit and is liable to be dismissed.
Accordingly, the petition is dismissed.
Order Date :- 3.1.2017 GSY