Himachal Pradesh High Court
Varun Bhardwaj vs State Of H.P on 25 April, 2017
Author: Sandeep Sharma
Bench: Sandeep Sharma
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 ::: Downloaded on - 27/04/2017 00:01:17 :::HCHP -2- 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, ::: Downloaded on - 27/04/2017 00:01:17 :::HCHP -3- 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 ::: Downloaded on - 27/04/2017 00:01:17 :::HCHP -4- 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 ::: Downloaded on - 27/04/2017 00:01:17 :::HCHP -5- 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 ::: Downloaded on - 27/04/2017 00:01:17 :::HCHP -6- 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 ::: Downloaded on - 27/04/2017 00:01:17 :::HCHP -7- 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 ::: Downloaded on - 27/04/2017 00:01:17 :::HCHP -8- 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 ::: Downloaded on - 27/04/2017 00:01:17 :::HCHP -9- 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 ::: Downloaded on - 27/04/2017 00:01:17 :::HCHP
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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 ::: Downloaded on - 27/04/2017 00:01:17 :::HCHP
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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 ::: Downloaded on - 27/04/2017 00:01:17 :::HCHP
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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 ::: Downloaded on - 27/04/2017 00:01:17 :::HCHP
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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 ::: Downloaded on - 27/04/2017 00:01:17 :::HCHP
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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 ::: Downloaded on - 27/04/2017 00:01:17 :::HCHP
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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 ::: Downloaded on - 27/04/2017 00:01:17 :::HCHP
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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 ::: Downloaded on - 27/04/2017 00:01:17 :::HCHP
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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: . . . . .::: Downloaded on - 27/04/2017 00:01:17 :::HCHP
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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) ::: Downloaded on - 27/04/2017 00:01:17 :::HCHP
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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 ::: Downloaded on - 27/04/2017 00:01:17 :::HCHP
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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 ::: Downloaded on - 27/04/2017 00:01:17 :::HCHP
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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."::: Downloaded on - 27/04/2017 00:01:17 :::HCHP
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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 ::: Downloaded on - 27/04/2017 00:01:17 :::HCHP
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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 ::: Downloaded on - 27/04/2017 00:01:17 :::HCHP
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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 ::: Downloaded on - 27/04/2017 00:01:18 :::HCHP
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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 ::: Downloaded on - 27/04/2017 00:01:18 :::HCHP
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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 ::: Downloaded on - 27/04/2017 00:01:18 :::HCHP
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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 ::: Downloaded on - 27/04/2017 00:01:18 :::HCHP
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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."::: Downloaded on - 27/04/2017 00:01:18 :::HCHP
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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 ::: Downloaded on - 27/04/2017 00:01:18 :::HCHP
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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 ::: Downloaded on - 27/04/2017 00:01:18 :::HCHP
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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 ::: Downloaded on - 27/04/2017 00:01:18 :::HCHP
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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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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 ::: Downloaded on - 27/04/2017 00:01:18 :::HCHP
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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 ::: Downloaded on - 27/04/2017 00:01:18 :::HCHP
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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 ::: Downloaded on - 27/04/2017 00:01:18 :::HCHP
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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.::: Downloaded on - 27/04/2017 00:01:18 :::HCHP
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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 ::: Downloaded on - 27/04/2017 00:01:18 :::HCHP
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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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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 ::: Downloaded on - 27/04/2017 00:01:18 :::HCHP
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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 ::: Downloaded on - 27/04/2017 00:01:18 :::HCHP
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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 ::: Downloaded on - 27/04/2017 00:01:18 :::HCHP
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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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