Allahabad High Court
Brijesh Kumar And 3 Ors vs State Of U.P. And Another on 7 August, 2020
Equivalent citations: AIRONLINE 2020 ALL 2165
Author: Rahul Chaturvedi
Bench: Rahul Chaturvedi
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 67 Case :- APPLICATION U/S 482 No. - 7478 of 2020 Applicant :- Brijesh Kumar And 3 Ors Opposite Party :- State of U.P. and Another Counsel for Applicant :- Nipun Singh,Upendra Kumar Counsel for Opposite Party :- G.A. Hon'ble Rahul Chaturvedi,J.
[1] Heard Sri Nipun Singh, learned counsel for the applicants, learned A.G.A. for the State and perused the record.
[2] The problematic and fluid question of law, involved in the present criminal application is, as to whether evidence/material of impeccable and sterling quality, if, left unattended during the investigation by the investigator or by the prosecutor, could they be produced by the accused while seeking 'DISCHARGE' and court can take judicial notice of those facts/documents material ?
[3] After appreciating the gravity of this legal question involved, this Court is of the view to decide this application at the threshold/admission stage with the aid and help of learned counsel for the rival parties and learned A.G.A and perused the records/materials of the case.
[4] The prayer sought in the instant 482 Cr.P.C application while invoking the extraordinary jurisdiction of this Court is, to quash the order dated 31.01.2020 passed by the learned Additional Sessions Judge, Court No.3, Mainpuri in S.T. No.216 of 2018(State Vs. Brijesh Kumar and others) relating to case crime no.107 of 2018 under section 304 IPC, Police Station-Bewar, District-Mainpuri whereby learned Additional Sessions Judge has rejected the "Application no.9-B" moved on behalf of applicants under section 227 Cr.P.C., seeking their discharge from the offence mentioned above.
[5] The distilled facts of the case in hand, the applicants, though they are charge-sheeted accused of abovementioned case crime for alleged act of manslayer of one Kiran Devi(55). The applicant nos. 1, 2 and 3 are real brothers whereas the applicant no.4 is the father of above mentioned three applicants. As gathered from the FIR, there was a long drawn serious animosity and bad breath between the applicants and opposite party no.2 on account of local body elections of the year 2017 which is point of genesis in present criminal case.
[6] Submission made by learned counsel for the applicants, that highly belated FIR was lodged by one Anuj Kumar-opposite party no.2(son of the deceased) against five named accused persons which includes the applicants for the incident said to have been taken place on 25.02.2018 and its report under section 154 Cr.P.C i.e. F.I.R. was registered on 01.03.2018. Thus, there is substantial and unexplained delay in lodging of the FIR about eight good days.
[7] Prosecution story as mentioned in the FIR, the informant Anuj Kumar though the resident of Village-Madhukarpur, Mainpuri but at present he is gainfully employed at Delhi in some private concern. On 25.02.2018 around three in the evening with regard to trivial and insignificant issue i.e. drainage from the bathroom, the named accused persons assaulted his mother by lathi and dandas causing severe and grievous injuries to her which resulted into her sad and untimely demise though during her treatment in private nursing home at Agra. The co-villagers extended help and taken her to Saifai Medical College, Saifai, Etawah for her treatment and lastly she was shifted to Maa Bhagwati Hospital, Agra but unfortunately on 01.03.2018 around one in the night, she took her last breath. It is borne out from the FIR itself that soon after her demise at nursing home, Agra, first of all her inquest was prepared in the nursing home itself and thereafter dead body was transmitted to the mortuary at Agra for her Autopsy report and lastly, the informant managed to lodge the FIR against named accused persons in consonance with the post mortem report of the deceased after coming back to Mainpuri at Police Station-Bewar Mainpuri.
[8] Learned counsel for the applicants has drawn the attention of the Court to the post mortem report dated 01.03.2018 (Annexure-5) conducted by Dr. Sudhir Kumar. A perusal of the post mortem report indicates that the deceased has sustained following two injuries over her person :-
(i) 5 X 4 c.m. Multiple contusion on left upper arm.
(ii) 6 X 6 c.m. Color on bluish color on Rt. Upper of thigh laterally.
Besides above, the doctor also observed clotted blood in both the chambers of her heart and as such on this account, he opined that deceased died on account of shock as a result of M.I(Mayocardial Infarction) commonly known as heart attack. It was argued by learned counsel for the applicants that even in the wildest dream, the injuries mentioned in the post mortem report be said to be a fatal or deadly one, either by their dimension wise or by its seat-wise.
[9] It is further contended by learned counsel for the applicants, that true and correct facts lies somewhere else, but on account of handy work of informant, it has been given colour of 'homicide not amounting to murder' after cooking up an imaginary story. Learned counsel for the applicants has drawn the attention of the Court to the various submissions made in the petition itself and its supporting documents as well as apparent contradictory statements of witnesses which touches the core issue annexed with discharge application or with this petition. From the averments in the petition or in the discharge application, it is not clear that these documents(medical prescriptions of the deceased) are part and parcel of case diary or not? Assuming for the sake of arguments, that these supporting documents/medical prescriptions of the deceased are not the part of the case diary then, it is incumbent upon the learned Trial Judge to direct further investigation into the matter especially to ensure the authenticity of those medical prescriptions of the deceased. This fact and documents(medical prescriptions) assumes greater importance and significance if she died on account of cardiac arrest, as opined by the doctor in his post mortem report.
[10] Learned counsel for the applicants has emphatically relied upon those medical prescriptions in the shape of supporting documents of the deceased in support of their discharge application.
[11] Sri Nipun Singh, learned counsel for the applicants has strenuously argued that, the prosecution case is an eye wash and a cock and bull story whereby, the informant of the case has tried to raise the castle after exploiting deceased's untimely death of his mother Ms. Kiran Devi. According to learned counsel for the applicants, in fact, deceased-Kiran Devi died on account of heart attack as a result of Hyper Tension. It is contended that the deceased was an old patient of hyper tension for the last several years, which has led to her unfortunate demise on 01.03.2018. But on the contrary, as mentioned in the FIR, that on account of certain drainage issue, the applicants assaulted upon the deceased by lathi danda and make her injured. She sustained several injuries/bruises over her person and soon after the incident, she was brought to some private clinic at Mainpuri itself. The attending doctor administered certain medicines to her but despite of the fact that, her condition got deteriorated and on the very next day i.e. 26.02.2018, she was admitted in local medical college at Saifai, Etawah. The out patient slip (annexure-1) shows that at the time of her admission at medical college, her blood pressure was 160/100 mmhg and she was unconscious when brought to the hospital. Immediately, attending Dr. R.K. Yadav administered injunction of LAXIS and he was at the advice of E.C.G. The other documents annexed in support thereof clearly shows that she was observing major fluctuation in her blood pressure and has shown the poor progress despite of medication. At last, Kiran Devi (the deceased) was forceably got discharge from the local medical college, Saifai Etawah by her attendants and they got her admitted in a local nursing home for a short span at Mainpuri in a precarious stage. The doctors at local nursing home too explained the condition of the patient to her attendants and advised them to take her to the higher, specialized centre for better treatment at Agra. The attendants of the patient-Kiran Devi decided to carry her to Agra and got her admitted in a private nursing home, namely, Maa Bhagwati Hospital, Agra on 27.02.2018 at 6:15 p.m. But the doctors could not save her despite of their efforts, and treatment. On 01.03.2018, patient-Kiran devi died in nursing home during her treatment. At the cost of repetition, it was argued by learned counsel for the applicants, that medical prescriptions of deceased shows that during all these period, she was either unconscious or semi-conscious on account of her fluctuating and unstable blood pressure which has given rise to number of other internal complications.
[12] Learned counsel for the applicants has emphatically shown that there was not even a reference in the various medical prescriptions, that she has received any visible bodily injuries over her person, as alleged in the FIR. If there is an assault by lathi and danda by the applicants, she must have sustained certain visible injuries over her person.
[13] From the aforesaid, learned counsel for the applicants has tried to impress upon the Court, that since she was chronic patient of hyper tension and was undergoing treatment for the same at different centres/nursing homes and at last she could not be saved from the cruel hands of providence. Though, she died untimely but in a natural circumstances during her treatment. The opposite party no.2, who is her son, has exploited of this unfortunate incident to level the score by giving a colour to the entire incident as culpable homicide not amounting to murder for the reasons best known to him. In addition to above, learned counsel for the applicants has shown the self-contradictory 161 Cr.P.C. statements of various witnesses of facts and the attending doctors.
[14] First and foremost statement of Anuj Kumar-informant and his father Surendra Babu who have broadly supported the prosecution case as mentioned in the FIR, it is stated that the applicants have assaulted the injured-Kiran Devi by lathi and danda but Smt. Raj Kumari, jethani of the deceased who accompanied her all the hospitals and nursing home in her 161 Cr.P.C statement states that though there was a scuffle but there was no assault by lathi and danda upon her as alleged in the FIR. In her 161 Cr.P.C. statement, Smt. Raj Kumari states that on account of "rough push" made by applicant no.4, deceased has fallen down and probably could it be the reason behind shooting up of her blood pressure which has eventually taken her life ?
[15] The Court has an occasion to peruse the 161 Cr.P.C. statement of Dr. Santosh Kumar Yadav(Annexure-10), who is the attending doctor and the doctor in his statement on 04.04.2018 states that he has treated the deceased on 25.02.2018 but he has not observed any visible injury over her person. She was conscious, speaking and has not sustained any injury over her body which could be termed as serious or grievous injury. Dr. Rama Kant Yadav, Neurologist, P.G.I. Saifai in 161 Cr.P.C. statement on 28.05.2018, states that though he admitted her and he has treated the deceased but has not divulge anything in his 161 Cr.P.C. statement. Similarly, Dr. R.S. Yadav, M.B.B.S. Mainpuri Nursing Home in 161 Cr.P.C. statement(annexure-12) dated 18.04.2018 states that when the deceased was brought to his nursing home on 27.02.2018, she was unconscious having pressure of 150/90 mmhg. She was patient of hyper tension but there was no visible injury over her person and lastly 161 Cr.P.C. statement of Dr. Sudhir Kumar, District Hospital Agra who prepared the autopsy report of the deceased(Annexure-16) shows that he has prepared post mortem report at district mortuary Agra on 01.03.2018 at 1:20 p.m. and the cause of death mentioned is M.I. which stands for Mayocardial Infarction commonly known as cardiac arrest. Besides this, clotted blood was observed by the doctor in both the chambers of her heart. This is the reason by which she died untimely. In no uncertain terms, Dr. Sudhir Kumar states that those two injuries mentioned by him in her post mortem report is having no direct bearing or nexus with her death as they are simple in nature on the non-vital part of her body.
[16] Learned counsel for the applicants submits that after holding lopsided investigation, recording the statements of the witnesses, investigation as per prevailing circumstances in most casual and cursory manner, submitted the report under section 173(2) Cr.P.C. i.e. charge sheet allegedly arriving to a conclusion that the applicants are prima facie involved in the offence under section 304 IPC and submitted its report on 20.07.2018 and learned Magistrate has taken cognizance of these offences in a mechanical and routine way.
[17] Left with no option, applicants have to surrender before the court and got themselves bailed out. After being bailed out, the applicants moved an "application no.9-B" before learned trial Judge on 13.12.2018 raising certain vital issues, especially the medical prescriptions of the deceased.
[18] After hearing the counsels, learned Sessions Judge has laid over emphasis that since the police has submitted the charge sheet under section 304 IPC and the learned C.J.M. has taken cognizance on 13.08.2018 of the offence and there is nothing on record to uproot or dislodge the cognizance order. It has been mentioned in the impugned order that there is nothing on record to establish that no prima facie case is made out against the applicants. Learned trial Judge has relied upon the two judgments of Hon'ble the Apex Court while deciding the application under section 227 Cr.P.C. and ultimately rejected the same by passing the impugned order dated 31.01.2020(Annexure-15). It has been mentioned in the impugned order that the points raised in the discharge application and the supporting documents are related to and matter of evidence and cannot be adjudicated at this stage and thus, the said discharge application stands rejected.
[19] I have keenly perused the order impugned and has given my thoughtful consideration to the entire canvas of factual narration of the case. Present application was moved by the applicants under section 482 of Cr.P.C seeking the judicial scrutiny of the order impugned dated 31.01.2020(Annexure-15). Before scrutinizing the legal aspect of the issue, it would be relevant to spell out the bare provisions of Section 227 of Cr.P.C. which reads thus :-
227. Discharge. If : upon consideration of the 'record of the case' and the 'documents submitted therewith', and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.
[20] The object of Sections 227 and 228 of Cr.P.C. is to ensure that, the Court is satisfied that the accusation made against the accused are not frivolous and that there are some material for proceeding against them. This consistent stand of the Apex Court and various decisions of this Court, that the Judge exercising its powers under section 227 and 228 of the Code, while framing the charge, is required to evaluate the material and documents made available on record/case diary of the police with the object of find out, if the facts emerging therefrom, taking at their face value, discloses the existence of all the ingredients constituting the alleged offence. The Judge may sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution material as gospel truth even if it is opposed to common sense or the broad probabilities of the case. The probe of the entire case record and the material relied as on by the prosecution case is to find out the existence of any material available against the accused towards the projection of alleged offences were or not in existence. If the judge considers that there is no sufficient ground or proceeding against accused, he shall discharge the accused and shall record his decision for doing so but "what is not sufficient ground is a matter of consideration by the Judge who is exercising its powers under section 227 of Cr.P.C. with the guidance laid down by the Apex Court in the various case laws. At the stage of framing of the charge, the Court is to consider the material with a view to find out if there is a ground of proceedings against the accused. In the case of Union of India Vs. Prafulla Kumar Samal & Another, (1979) 3 SCC 4, Hon'ble the Apex Court had occasion to consider the scope and ambit of Section 227 Cr.P.C., which is Special Judge's power to pass order of discharge. After noticing Section 227 Cr.P.C. in paragraph no.7, the Court opined that :-
"7. XXXXXXXXXX The words "not sufficient ground for proceeding against the accused" clearly show that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really his function after the trial starts. At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. The sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him."
[21] The Hon'ble Apex Court in the case of C.B.I, Hyderabad Vs. K. Narayan Rao 2012 9 SCC 512 has got an occasion to formulate the points which are guiding factor for deciding the application under section 227 and 228 of Cr.P.C. which are as follows :-
"(i) The Judge while considering the question of framing the charges under Section 227CrPC 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. The test to determine prima facie case would depend upon the facts of each case.
(ii) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing a charge and proceeding with the trial.
(iii) The court cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
(iv) If on the basis of the material on record, the court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.
(v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.
(vi) At the stage of Sections 227 and 228, 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. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.
(vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal".
[22] Thus, on a consideration of the authorities mentioned above, the following principles emerge that (i) the Judge while considering the question of framing the charges under Section 228 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, (ii) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial, (iii) 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, (iv) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a Post Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court. 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 is conducting a trial. This broad principles were adhered by Hon'ble the Apex Court consistently, till date. In the latest reported judgment of Hon'ble Supreme Court in the case of M.E. Shivaling Murthy Vs. C.B.I. Bengluru (2020) 1 SCC (Crl) 811, Apex Court opined that :-
"While deciding a discharge application/petition, only material brought on record by the prosecution (both in form of oral or documentary) have to be considered. Accused is entitled to discharge if evidence recorded by the police, which the prosecution proposes to adduce the guilt of accused, even if fully accepted before it is challenged in cross-examination or rebutted by defence evidence, cannot show that the accused committed the offence. Further where two views are possible and one of them give rise to suspicion only as distinguished from grave suspicion, the trial Judge would be empowered to discharge the accused.
Though, it is open to the accused to explain away the materials giving rise to grave suspicion, but his submission must be confined only to materials produced by the prosecution. Defence of accused cannot be looked at the stage of discharge. Accused has no right to produce any document at that stage."
[23] Indeed, these are the established and golden principles for deciding the application under section 227 and 228 of Cr.P.C. but there are occasions where parties or the investigator got dishonest or the accused or the private prosecutor prevail upon the investigation to hold lopsided investigation of the case or even otherwise, certain vital areas are missed by the investigators to be probed which touches the core issue and if these material are brought on record, the entire texture and tenor of the case might have changed. Taking the eventuality into account, if the investigator is not fair and the material of "sterling quality" are left out from the records of the case, the law courts are not powerless to summon those material/documents which touches the core issue in exercise of power under section 91 of Cr.P.C. The Court is under the obligation to impart justice and to uphold the rule of law. They are not debarred from exercising its power. To exercise power under section 91 of Cr.P.C., the Court is to be satisfied that the material available were either accidentally or mischievously are not made part of the case diary or charge sheet by the Investigator but have a crucial bearing on the issue while framing the 'charge'. In the case of State of Orissa versus Debendra Nath Padhi (2005) 1 SCC 568 the Hon'ble Apex Court observed that :-
"25. Any document or other thing envisaged under the aforesaid provision can be ordered to be produced on finding that the same is "necessary or desirable for the purpose of investigation, inquiry, trial or other proceedings under the Code". The first and foremost requirement of the section is about the document being necessary or desirable. The necessity or desirability would have to be seen with reference to the stage when a prayer is made for the production. If any document is necessary or desirable for the defence of the accused, the question of invoking Section 91 at the initial stage of framing of a charge would not arise since defence of the accused is not relevant at that stage. When the section refers to investigation, inquiry, trial or other proceedings, it is to be borne in mind that under the section a police officer may move the court for summoning and production of a document as may be necessary at any of the stages mentioned in the section. Insofar as the accused is concerned, his entitlement to seek order under Section 91 would ordinarily not come till the stage of defence. When the section talks of the document being necessary and desirable, it is implicit that necessity and desirability is to be examined considering the stage when such a prayer for summoning and production is made and the party who makes it, whether police or accused. If under Section 227, what is necessary and relevant is only the record produced in terms of Section 173 of the Code, the accused cannot at that stage invoke Section 91 to seek production of any document to show his innocence. Under Section 91 summons for production of document can be issued by court and under a written order an officer in charge of a police station can also direct production thereof. Section 91 does not confer any right on the accused to produce document in his possession to prove his defence. Section 91 presupposes that when the document is not produced process may be initiated to compel production thereof."
[24] However, in the case of Hardeep Singh Etc. versus State of Punjab and ors. Etc. (2014) 3 SCC 92, a Bench of Hon'ble the Apex Court observed :-
"19. The court is the sole repository of justice and a duty is cast upon it to uphold the rule of law and, therefore, it will be inappropriate to deny the existence of such powers with the courts in our criminal justice system where it is not uncommon that the real accused, at times, get away by manipulating the investigating and/or the prosecuting agency. The desire to avoid trial is so strong that an accused makes efforts at times to get himself absolved even at the stage of investigation or inquiry even though he may be connected with the commission of the offence."
[25] Thus, Hon'ble the Apex Court in the case of Nitya Dharmananda alias K. Lenin and another vs. Gopal Sheelum Reddy also known as Nithya Bhaktananda and another (2018) 1 SCC(Cri) 458 summarise by mentioning that while the Court has to proceed on the basis of material produced with the charge sheet for dealing with the issue of charge but if the court is satisfied that there is material of "sterling quality" which has been withheld by the investigator/prosecutor, the court is not debarred from summoning or relying upon the same even if such document is not a part of the charge sheet.
[26] In the instant case, the applicants have invoked the extraordinary powers of this Court under section 482 Cr.P.C. by canvassing the fact that the investigator/police after holding lopsided/coloured investigation either deliberately or unintentionally have skipped over to examine/investigate another facet of the coin i.e. the deceased was suffering from hyper tension and which resulted heavy upon her life but opposite party no.2 exploited this situation to secure his ultimate object to level his score with the applicants. It is contended by the counsel that this Court, in extraordinary power vested in it by way of 482 Cr.P.C. application, should take a judicial note of the fact and direct the court below to either direct for further investigation so that these medical prescriptions may be taken on record and in the light of the same, the discharge application may be decided. Since, the Court is deciding the matter at the admission stage itself, the Court is at loss, as to whether the document relied by or canvassed by the applicants is a part of case diary or not. But none the less, the Court is of the considered opinion that if these documents are taken on record, the entire texture of the case would have changed and the accused applicants may be saved from undue harassment to face the trial. In this connection, learned counsel for the applicants thrive upon two judgments of Hon'ble the Supreme Cout viz :-
[27] This Court has occasion to visit the case of Rajiv Thapar and others Vs. Madan Lal Kapoor (2013) 3 SCC(Crl) 158 in this prospective :-
"The High Court in exercise of its jurisdiction under section 482 Cr.P.C. must make just and rightful choice. This is not the stage of evaluating truthfulness or otherwise of the allegations levelled by the prosecution/complainant against the accused. Likewise, it is not the stage for determining how weighty the defence raised on behalf of the accused. Even if the accused is successful in showing some suspicion or doubt or creating some seepage in prosecution story in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so because it would result in giving the finality in the accusation levelled by the prosecution without allowing the prosecution/complainant to adduce the evidence to substantiate the same. The jurisdiction of the High Court under section 482 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 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.
23. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps 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.:-
(i) 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?
(ii) 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.
(iii) Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant?
(iv) 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?
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.
[28] In the year 2008, Hon'ble the Apex Court had occasioned to examine the ambit and scope of Section 482 Cr.P.C. in Rukmini Navekar Vs. Vijaya Satardekar and others (2008) 14 SCC 1 wherein the main order, it was observed, that the width of the powers width of the powers of the High Court under Section 482of Cr.P.C andArticle 226 of the Constitution is unlimited whereunder in the interests of justice the High Court can make such orders as may be necessary to prevent abuse of the process of the court or otherwise to secure the ends of justice. In concurring but separate order passed in the Rukmini's case (supra), it was additionally observed that under section 482 Cr.P.C. the Court is free to consider material that may be produced on behalf of the accused to arrive at a decision whether the charge as framed could be maintained? The aforesaid parameters shall be kept in mind while we examine whether the High Court ought to have exercise its inherent jurisdiction under section 482 Cr.P.C. in the facts and circumstances of this case.
Now reverting back to the fact and controversy involved in the present case, where the FIR itself was lodged by deceased's own son after inordinate and unexplained delay of almost eight days that too after having assess over her inquest and postmortem report, the informant tailored a story of scuffle over minor issue of drainage, implicating the applicants for assault by lathi and danda in consonance with post mortem report of the deceased. After the incident, the deceased was taken to various private nursing home and medical college, Saifai and took her last breath on 01.03.2018. None of the attending doctors have observed any injuries over her person during her treatment or even witnesses of fact has attributed that these so called injuries are responsible for her untimely demise. She died during her treatment at Agra and the attending doctor in her post mortem report clearly and unambiguously mentioned the cause of her death is on account of M.I.(Mayocardial Infarction i.e. heart attack) as he observed clotted blood in both the chambers of her heart. All the doctors have reiterated the same line. Not only this, her own family member Ms. Raj Kumari too have given severe dent to the prosecution story denying the aspect of assault by lathi and danda. In the totality of circumstances, the Court wonders, how the Investigating Officer of the case has submitted its report under section 173(2) Cr.P.C. under section 304 IPC. On a plain reading and perusing the post mortem report which is self-explicit. Thus, if we evaluate the entire picture of the prosecution story from FIR, till charge sheet, the Court finds that at every stage, there are different colour and shades in the prosecution case itself.
Thus, after distilling above facts and circumstances of the case, one thing established beyond iota of doubt that neither the dimension nor the seat of injuries are such, which could take away anybody's life. The post mortem report of the deceased too, do not support the prosecution case. In the post mortem report, clotted blood was detected by the doctor, suggestive of the fact that heart attack is more probable cause of her untimely demise. On the other hand, the applicants have filed number of medical prescriptions of the deceased, buttressing the fact that she was old patient of hypertension. Thus, taking the help of these documents, various medical prescriptions of Ms. Kiran Devi, deceased and the guidelines rendered by Hon'ble the Apex Court in the case of Rajiv Thapar and others(supra) whereby it has been mentioned that material produced by the accused/applicants are such that it would rule out and displace the accusations levelled against them. These material if place on record and taken into consideration, clearly reject and over rule the veracity of the allegations contained in the accusation levelled by the prosecution/complainant. It must be taken into account at this stage. The reason is quite simple that if these materials are taken on record they would change the entire tone, texture and tenor of the accusation made in the FIR and completely blast the prosecution story and save the accused/applicants from the wrath, undue and unwarranted criminal case against them.
[29] Under the circumstances, the Court is quite satisfied that the material produced by the defence in their discharge application should be taken into account while deciding the discharge application. Thus, where two divergent views are in existence, which are equally probable, in that event, applying the principles of CBI, Hyderabad vs. K. Narayan Rao(supra) which speaks :-
"If two views are possible and one of them give rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal."
This Court is persuaded by the guidelines. Learned Trial Judge shall decide the discharge application afresh in the light of the observation made in the case of CBI, Hyderabad case(supra).
[30] As mentioned above, the Court is at loss at this juncture to give any view point about the veracity of these documents i.e. medical prescriptions of the deceased annexed as annexures to the petition thus, it is hereby directed that the applicants would submit all these documents/prescriptions before the court concern and any other document relating to her ailments i.e. deceased was suffering from hyper tension and the court concern shall direct the investigator to conduct further investigation about the authenticity of those medical prescriptions as well as record 161 statement of the concern doctor who conduct the post mortem within a period of six weeks from the date of filing of this order before the Trial Court. Thereafter, the court again would decide the discharge application taking into account the holistic and peneromic view of all the material on record and decide the same with good reasons by 31.12.2020 positively. There shall not be any laxity on the part of the trial court in deciding the discharge application by that date.
[31] With the aforesaid observations, the present 482 Cr.P.C application stands allowed and the order impugned dated 31.01.2020 is hereby quashed.
Order Date :- 7.8.2020 Sumit S