Himachal Pradesh High Court
Sangeet Sood & Others vs Kuldeep Chand & Others on 22 November, 2024
Neutral Citation No. ( 2024:HHC:12266 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MMO No 466 of 2017.
Reserved on: 03.10.2024.
Date of Decision: 22.11.2024.
Sangeet Sood & Others ...Petitioners
Versus
Kuldeep Chand & Others ...Respondents
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes
For the Petitioners : Mr. Arsh Chauhan, Advocate.
For the Respondents : Mr. G.D. Verma, Advocate assisted
with Mr. Sumit Sharma, Advocate.
Rakesh Kainthla, Judge
The petitioner has filed the present petition against the order dated 12.06.2017 passed by learned Additional Sessions Judge-I, Shimla (learned Revisional Court) affirming the order dated 19.01.2012 passed by learned Judicial Magistrate First Class, Court No.1, Rohru, Shimla (learned Trial Court). (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).
1Whether reporters of Local Papers may be allowed to see the judgment? Yes.
2Neutral Citation No. ( 2024:HHC:12266 )
2. Briefly stated, the facts giving rise to the present petition are that the complainant filed a complaint before the learned Trial Court for the commission of offences punishable under Sections 467, 471 and 420 read with Section 120B of the Indian Penal Code (IPC). It was asserted that the complainant and accused are residents of village Rohru and they are businessmen.
The complainant is a tenant of M/s Kishan Dass Mohal Lal since 1977. He is running a business of Manyari at Rohru near the shop of the accused. He was paying the rent @ ₹50 per month for the vacant land, where the complainant had constructed a shop to run a Karyana shop. A rent deed was executed between the parties on 01.04.1988. The complainant's shop was looted and destroyed in July 1990 during the apple agitation. The complainant started constructing a shop over the same land but he was obstructed by the accused. Accused No.1 filed an FIR No. 96/92 dated 05.04.1992 against the complainant in Police Station Rohru. The complainant and other persons were arrested by the police. The Court supplied copies of the challan containing one rent agreement consisting of three pages. The complainant found that the middle page of the agreement was substituted by a judicial paper bearing Sl. No. 0103590 of the year 1991. The Judicial paper of the year 1991 could 3 Neutral Citation No. ( 2024:HHC:12266 ) not have been sold in the year 1988 when the agreement was prepared. Hence, it was prayed that the action be taken against the accused as per the law.
3. The learned Trial Court sent the complaint to the police for investigation under Section 156(3) of Cr.P.C. The police registered the FIR and conducted the investigation. The police submitted a cancellation report. The report was rejected and the matter was sent for re-investigation. Again the cancellation report was submitted. The Court took cognizance and called upon the complainant to lead the evidence.
4. The complainant examined ten witnesses to prove his case. The learned Trial Court held that the original document was not produced before the Court. The photocopy of the rent deed (Ex.CW1/A) shows that its middle page bears the serial number of 1991 which is not possible because the deed was executed in the year 1988. However, the accused have taken a defence that two deeds were prepared and mistakenly the documents were interchanged. There was no malafide on their part. Hence, the evidence was not sufficient which if un-rebutted would lead to the conviction of the accused.
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5. Being aggrieved from the order passed by the learned Trial Court, the complainant filed a revision which was decided by learned Additional Sessions-I, Shimla (learned Revisional Court).
The learned Revisional Court concurred with the findings recorded by the learned Trial Court that there was no malafide in the substitution of the pages. The original document was not produced before the Court and learned Trial Court had rightly dismissed the complaint.
6. Being aggrieved from the orders passed by learned Courts below, the complainant has filed the present petition asserting that learned Courts below erred in treating the matter as if it had been decided on the merits. The Court was required to form a prima facie opinion. There was trustworthy evidence on record which was sufficient to frame the charge. Therefore, it was prayed that the present petition be allowed and the order passed by learned Courts below be set aside.
7. I have heard Mr Arsh Chauhan, learned Counsel for the legal representatives of the complainants/petitioners and Mr G.D. Verma, learned Senior Advocate assisted by Mr Sumit Sharma, learned counsel for the respondents/accused.
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8. Mr Arsh Chauhan, learned counsel for the petitioners submitted that the learned Courts below erred in dismissing the complaint. It was duly proved on record that the middle page of the document was substituted. Therefore, there was a forgery of the document. The Courts were required to see a prima facie case but they mis-directed themselves and adjudicated the case on merits which is impermissible. Hence, it was prayed that the present petition be allowed and the orders passed by learned Courts below be set aside.
9. Mr. G.D. Verma, learned Senior Counsel for the accused submitted that the present petition under Section 482 of Cr.P.C. is not maintainable. The complainant cannot file a second revision once his revision is dismissed by the learned Revisional Court. The learned Courts below had rightly held that in the absence of the original documents, the plea of the forgery was not established, therefore, he prayed that the present petition be dismissed.
10. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.
11. It was submitted by Mr. G.D. Verma, learned Senior Advocate for the respondents/accused that the present petition is not maintainable. The petitioners had filed a revision before the 6 Neutral Citation No. ( 2024:HHC:12266 ) learned Additional Sessions Judge, which was dismissed and a second revision cannot be filed. The provisions of Section 397(3) which was the second revision cannot be circumvented by filing a petition under Section 482 of Cr.P.C. This submission cannot be accepted. It was laid down by the Hon'ble Supreme Court in Krishnan Vs. Krishnaveni (1997) 4 SCC 241 that the bar under Section 397 (3) of CrPC cannot be circumvented by filing a petition under Section 482 of CrPC. However, the High Court can intervene under Section 482 of CrPC when there is a grave miscarriage of justice or abuse of the process of the Court. It was observed:
"10. Ordinarily, when revision has been barred by Section 397(3) of the Code, a person -- accused/complainant -- cannot be allowed to take recourse to the revision to the High Court under Section 397(1) or inherent powers of the High Court under Section 482 of the Code since it may amount to circumvention of the provisions of Section 397(3) or Section 397(2) of the Code. It is seen that the High Court has suo motu power under Section 401 and continuous supervisory jurisdiction under Section 483 of the Code. So, when the High Court on examination of the record finds that there is a grave miscarriage of justice or abuse of the process of the courts or the required statutory procedure has not been complied with or there is failure of justice or order passed or sentence imposed by the Magistrate requires correction, it is but the duty of the High Court to have it corrected at the inception lest grave miscarriage of justice would ensue. It is, therefore, to meet the ends of justice or to prevent abuse of the process that the High Court is preserved with inherent power and would be justified, under such circumstances, to exercise the inherent power and in an appropriate case even revisional 7 Neutral Citation No. ( 2024:HHC:12266 ) power under Section 397(1) read with Section 401 of the Code. As stated earlier, it may be exercised sparingly to avoid needless multiplicity of procedure, unnecessary delay in trial and protraction of proceedings. The object of a criminal trial is to render public justice, to punish the criminal and to see that the trial is concluded expeditiously before the memory of the witness fades out. The recent trend is to delay the trial and threaten the witness or to win over the witness by promise or inducement. These malpractices need to be curbed and public justice can be ensured only when trial is conducted expeditiously.
11. In Madhu Limaye v. State of Maharashtra [(1977) 4 SCC 551:
1978 SCC (Cri) 10] a three-judge Bench was to consider the scope of the power of the High Court under Section 482 and Section 397(2) of the Code. This Court held that the bar on the power of revision was put to facilitate expedient disposal of the cases but in Section 482 it is provided that nothing in the Code, which would include Section 397(2) also, shall be deemed to limit or affect the inherent powers of the High Court. On a harmonious construction of the said two provisions on this behalf, it was held that though the High Court has no power of revision in an interlocutory order, still the inherent power will come into play when there is no provision for redressal of the grievance of the aggrieved party. In that case, when allegations of defamatory statements were published in the newspapers against the Law Minister, the State Government decided to prosecute the appellant for an offence under Section 500 IPC. After obtaining the sanction, on a complaint made by the public prosecutor, cognizance of the commission of the offence by the appellant was taken to trial in the Sessions Court. Thereafter, the appellant filed an application to dismiss the complaint on the ground that the court had no jurisdiction to entertain the complaint. The Sessions Judge rejected all the contentions and framed the charges under Section 406. The Order of the Sessions Judge was challenged in revision in the High Court. On a preliminary objection raised on maintainability, this Court held that the power of the High 8 Neutral Citation No. ( 2024:HHC:12266 ) Court to entertain the revision was not taken away under Section 397 or inherent power under Section 482 of the Code.
12. In V.C. Shukla v. State through CBI [1980 Supp SCC 92: 1980 SCC (Cri) 695: (1980) 2 SCR 380] (SCR at p. 393) a four-judge Bench per majority had held that sub-section (3) of Section 397, however, does not limit at all the inherent powers of the High Court contained in Section 482. It merely curbs the revisional power given to the High Court or the Sessions Court under Section 397(1) of the Code. In Rajan Kumar Machananda case [1990 Supp SCC 132: 1990 SCC (Cri) 537] the case related to the release of a truck from attachment, obviously on the filing of an interlocutory application. It was contended that there was a prohibition on the revision by operation of Section 397(2) of the Code. In that context, it was held that it was not revisable under Section 482 in the exercise of inherent powers by operation of sub-section (3) of Section 397. On the facts in that case, it was held that by provisions contained in Section 397(3), the revision is not maintainable. In the Dharampal case [(1993) 1 SCC 435: 1993 SCC (Cri) 333] which related to the exercise of power to issue an order of attachment under Section 146 of the Code, it was held that the inherent power under Section 482 was prohibited. On the facts, in that case, it could be said that the learned Judges would be justified in holding that it was not revisable since it was a prohibitory interim order of attachment covered under Section 397(2) of the Code but the observations of the learned Judges that the High Court had no power under Section 482 of the Code were not correct in view of the ratio of this Court in Madhu Limaye case [(1977) 4 SCC 551: 1978 SCC (Cri) 10] as upheld in V.C. Shukla case [1980 Supp SCC 92: 1980 SCC (Cri) 695 : (1980) 2 SCR 380] and also in view of our observations stated earlier. The ratio in the Deepti case [(1995) 5 SCC 751: 1995 SCC (Cri) 1020] is also not apposite to the facts in the present case. To the contrary, in that case, an application for discharge of the accused was filed in the Court of the Magistrate for an offence under Section 498-A IPC. The learned Magistrate and the Sessions Judge dismissed the petition. In the revision at the instance 9 Neutral Citation No. ( 2024:HHC:12266 ) of the accused, on a wrong concession made by the counsel appearing for the State that the record did not contain allegations constituting the offence under Section 498-A, the High Court without applying its mind had discharged the accused. On appeal, this Court after going through the record noted that the concession made by the counsel was wrong.
The record did contain the allegations to prove the charge under Section 498-A IPC. The High Court, since it failed to apply its mind, had committed an error of law in discharging the accused leading to the miscarriage of justice. In that context, this Court held that the order of the Sessions Judge operated as a bar to entertain the application under Section 482 of the Code. In view of the fact that the order of the High Court had led to the miscarriage of justice, this Court had set aside the order of the High Court and confirmed that of the Magistrate.
13. The ratio of Simrikhia case [(1990) 2 SCC 437: 1990 SCC (Cri) 327] has no application to the facts in this case. Therein, on a private complaint filed under Sections 452 and 323 IPC the Judicial Magistrate, First Class had taken cognizance of the offence. He transferred the case for inquiry under Section 202 of the Code to the Second-Class Magistrate who after examining the witnesses issued a process to the accused. The High Court exercising the power under Section 482 dismissed the revision. But subsequently, on an application filed under Section 482 of the Code, the High Court corrected it. The question was whether the High Court was right in reviewing its order. In that factual backdrop, this Court held that the High Court could not exercise inherent power for the second time. The ratio therein, as stated above, has no application to the facts in this case.
14. In view of the above discussion, we hold that though the revision before the High Court under sub-section (1) of Section 397 is prohibited by sub-section (3) thereof, inherent power of the High Court is still available under Section 482 of the Code and as it is paramount power of continuous superintendence of the High Court under Section 483, the High Court is justified in interfering with the order 10 Neutral Citation No. ( 2024:HHC:12266 ) leading to miscarriage of justice and in setting aside the order of the courts below. It remitted the case to the Magistrate for a decision on merits after consideration of the evidence. We make it clear that we have not gone into the merits of the case. Since the High Court has left the matter to be considered by the Magistrate, it would be inappropriate at this stage to go into that question. We have only considered the issue of power and jurisdiction of the High Court in the context of the revisional power under Section 397(1) read with Section 397(3) and the inherent powers. We do not find any justification warranting interference in the appeal."
12. This position was reiterated in Rajinder Prasad v. Bashir, (2001) 8 SCC 522, wherein it was held:
"...though the power of the High Court under Section 482 of the Code is very wide, the same must be exercised sparingly and cautiously, particularly in a case where the petitioner is shown to have already invoked the revisional jurisdiction under Section 397 of the Code. Only in cases where the High Court finds that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order was not correct, the High Court may, in its discretion, prevent the abuse of the process or miscarriage of justice by exercise of jurisdiction under Section 482 of the Code. It was further held, "Ordinarily, when revision has been barred by Section 397(3) of the Code, a person - accused/complainant - cannot be allowed to take recourse to the revision to the High Court under Section 397(1) or inherent powers of the High Court under Section 482 of the Code since it may amount to circumvention of provisions of Section 397(3) or Section 397(2) of the Code."
13. A similar view was taken in Kailash Verma v. Punjab State Civil Supplies Corporation, (2005) 2 SCC 571, and it was held:--
11Neutral Citation No. ( 2024:HHC:12266 ) "5. It may also be noticed that this Court in Rajathi v. C. Ganesan [(1999) 6 SCC 326: 1999 SCC (Cri) 1118] said that the power under Section 482 of the Criminal Procedure Code has to be exercised sparingly and such power shall not be utilised as a substitute for second revision. Ordinarily, when a revision has been barred under Section 397(3) of the Code, the complainant or the accused cannot be allowed to take recourse to revision before the High Court under Section 397(1) of the Criminal Procedure Code as it is prohibited under Section 397(3) thereof. However, the High Court can entertain a petition under Section 482 of the Criminal Procedure Code when there is a serious miscarriage of justice and abuse of the process of the court or when mandatory provisions of the law are not complied with and when the High Court feels that the inherent jurisdiction is to be exercised to correct the mistake committed by the revisional court."
14. This position was reiterated in Shakuntala Devi v.
Chamru Mahto, (2009) 3 SCC 310: (2009) 2 SCC (Cri) 8: 2009 SCC OnLine SC 292, wherein it was observed: -
"24. It is well settled that the object of the introduction of sub-section (3) in Section 397 was to prevent a second revision to avoid frivolous litigation, but, at the same time, the doors to the High Court to a litigant who had lost before the Sessions Judge were not completely closed and in special cases, the bar under Section 397(3) could be lifted. In other words, the power of the High Court to entertain a petition under Section 482, was not subject to the prohibition under sub-section (3) of Section 397 of the Code and was capable of being invoked in appropriate cases. Mr Sanyal's contention that there was a complete bar under Section 397(3) of the Code debarring the High Court from entertaining an application under Section 482 thereof does not, therefore, commend itself to us.12
Neutral Citation No. ( 2024:HHC:12266 )
25. On the factual aspect, the Magistrate came to a finding that the appellants were entitled to possession of the disputed plot. It is true that while making such declaration under Section 145(4) of the Code, the Magistrate could have also directed that the appellants be put in possession of the same.
26. The question which is now required to be considered is whether the High Court was right in quashing the order passed by the Magistrate, which was confirmed by the Sessions Judge, on the ground that the application made by the appellants under Section 145(6) of the Code was barred firstly by limitation under Article 137 of the Limitation Act and also by virtue of Section 6 of the Specific Relief Act, 1963.
15. Delhi High Court also took a similar view in Surender Kumar Jain v. State, ILR (2012) 3 Del 99 and held: --
"5. The issue regarding the filing of a petition before the High Court after having availed the first revision petition before the Court of Sessions has come up before the Supreme Court and this Court repeatedly. While laying that section 397(3) Cr. P.C. laid the statutory bar of the second revision petition, the courts have held that the High Court did enjoy inherent power under section 82 (sic) Cr. P.C. as well to entertain petitions even in those cases. But, that power was to be exercised sparingly and with great caution, particularly, when the person approaching the High Court has already availed remedy of first revision in the Sessions Court. This was not that in every case the person aggrieved of the order of the first revision court would have the right to be heard by the High Court to assail the same order which was the subject matter of the revision before Sessions Court. It all depends not only on the facts and circumstances of each case but as on whether the impugned order brought about a situation that is an abuse of the process of the court, there was a serious miscarriage of justice or the mandatory provisions of law were not complied with. The power could 13 Neutral Citation No. ( 2024:HHC:12266 ) also be exercised by this Court if there was an apparent mistake committed by the revisional court. Reference in this regard can be made to the judgments of the Supreme Court in Madhu Limave v. State of Maharashtra (1977) 4 SCC 551, State of Orissa v. Ram Chander Aggarwal, (1979) 2 SCC 305: AIR 1979 SC 87, Rai Kapoor v. State (Delhi Administration) 1980 Cri LJ 202, Krishnan v. Krishnaveni and Kailash Verma v. Punjab State Civil Supplies Corporation (2005) 2 SCC 571."
16. Therefore, the Court cannot exercise a revisional power, however, if a serious miscarriage of justice had taken place or a mandatory provision of law was not complied with, the Court can rectify the same while exercising the jurisdiction under Section 482 of Cr.P.C.
17. Both the learned Courts below held that the original rent deed was not produced and it was not possible to rely upon the photocopy. This finding is not correct. It was laid down by the Hon'ble Supreme Court in Rama Shankar Lal v. State of U.P., (1971) 3 SCC 905: 1972 SCC (Cri) 153 that forgery of a copy of an original document falls within the definition of Sections 463 and 465 of Cr.
P.C. It was observed at page 907:
11. The certified copy in the case in hand seems clearly to be a false document. The forgery of a copy, in our view, falls within the terms of Section 463 IPC. Section 463 of Act 25 of 1861 which is identical with Section 463 IPC came up for consideration before a Bench of three Judges of the Calcutta High Court in 1863 in Essan Chunder Dutt v. Baboo Prannauth Chowdry [1 Marshall's Reports 270]. Sir Barnes Peacock, C.J., 14 Neutral Citation No. ( 2024:HHC:12266 ) speaking for the Court, after reproducing Section 463 of Act 25 of 1861 said:
"We regard the forgery of a copy clearly to come within the purview of the section just cited. Forgery of a copy which was no true copy would be the offence there rendered penal, and the criminal intention to make a false document serve the purpose of a true one would be clear by such act of forgery."
12. The certified copy in the case before us being a forged document it must be held that it was used by Rama Shankar Lal and Sukh Bhanjan Lal, appellants, as genuine which they knew to be forged and this was done both fraudulently and dishonestly. On behalf of the appellants, the challenge to their conviction in this Court was confined to the attempt to show that the certified copy is a true copy of the original sale deed. In other words, it was sought to be established that the original sale deed conveyed four plots of land measuring 22 biswas and not two plots measuring only 10 biswas as alleged by the prosecution. On this point, the High Court disagreed with the trial court and, in our opinion, rightly. No legal infirmity had been pointed out in the reasoning and the conclusion of the High Court on this point. In any event, whether the original sale deed was first forged and then a copy made of the forged document or the copy was a false document, makes little difference. The appellants in this case knew that the document they used did not represent the original sale deed. In other words, it was either forged or a forged copy was prepared. In either event, they were using as genuine a forged document knowing it to be forged. The conviction of Rama Shankar Lal and Sukhbhanjan Lal under Section 471 IPC must, therefore, be upheld.
18. Hence, both the learned Courts below proceeded on the wrong premise that the production of the original document is necessary to prove the forgery.
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19. Both the learned Courts below found that the middle page of the rent deed was substituted with a judicial paper issued in the year 1991. It was also held that the rent deed was executed in the year 1988. This shows that the middle page of the document was altered by substituting the original page with a page printed in the year 1991. Clause second of Section 464 of IPC provides that if a person without lawful authority dishonestly or fraudulently by cancellation or otherwise alters a document, after it has been made executed or affixed with signatures is said to have made a false document. Therefore, the substitution of a page of the document after it was executed will fall within the definition of Section 464 secondly. Since a person can forge a document by preparing a forged copy of the same; therefore, prima facie the accused had forged the document.
20. The learned Trial Court relied upon the defence of the accused. This was a matter to be adjudicated after a trial. There is force in the submission of Mr. Arsh Chauhan, learned counsel for the petitioners that the Court was required to see a prima facie case while deciding whether to frame a charge against the accused or not. It was laid down by the Hon'ble Supreme Court in Sunita Devi v.
16Neutral Citation No. ( 2024:HHC:12266 ) State of Bihar, 2024 SCC OnLine SC 984 that the Court has to see a prima facie case while framing the charge. It was observed:
"8. Before the stage of framing of charges, the Judge is expected to discharge an accused, if he is of the considered view that there is no sufficient ground to proceed against the accused. This being a judicial exercise, his discretion must be supported by adequate reasons. In the discharge of his powers, he has to consider the records and documents submitted by the prosecution vis-à-vis the arguments adduced by both sides. The words "after hearing the submissions of the accused" would imply an effective and meaningful hearing. It is not a mere procedural compliance. A Judge has to satisfy himself that the accused had reasonable time to ponder over and prepare his arguments before seeking a discharge. At this stage, an accused gets a substantive right as there is a window of opportunity for him to get discharged, instead of facing a prolonged trial. Such an opportunity can only be exercised by not only supplying the documents needed but also giving adequate and sufficient time to the defence to place its case. Granting time for the aforesaid purpose is the sole discretion of the Court.
19. The duty of the Court is to see as to whether the materials produced by the prosecution are reasonably related to the offence attributed against the accused. What is to be seen is the existence of a prima facie case. The case is at a pre-framing stage and therefore, it cannot be a full-fledged pre-trial. Adequacy and sufficiency are the relevant factors to be seen. The test is one of the degrees of probability.
20. Section 227 of the CrPC, 1973, in fact, is a provision which gives effect to Article 22 of the Constitution of India. The right of an accused to be heard is inalienable. For exercising this right, there has to be due consultation. Such a right can never be termed as a procedural one. It would be a ground to challenge the proceeding at that stage, but the same would not vitiate the trial. Suffice it is to reiterate that it is the duty of the court to ensure that the accused is given sufficient opportunities to consult his lawyer.
Precedents 17 Neutral Citation No. ( 2024:HHC:12266 ) Anokhilal v. State of M.P., (2019) 20 SCC 196 "22. The provisions concerned viz. Sections 227 and 228 of the Code contemplate framing of charge 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 that behalf". If the hearing for the purposes of these provisions is to be meaningful, and not just a routine affair, the right under the said provisions stood denied to the appellant.
23. In our considered view, the trial court on its own, ought to have adjourned the matter for some time so that the Amicus Curiae could have had the advantage of sufficient time to prepare the matter. The approach adopted by the trial court, in our view, may have expedited the conduct of the trial but did not further the cause of justice. Not only were the charges framed the same day as stated above, but the trial itself was concluded within a fortnight thereafter. In the process, the assistance that the appellant was entitled to in the form of legal aid, could not be real and meaningful.
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26. Expeditious disposal is undoubtedly required in criminal matters and that would naturally be part of the guarantee of a fair trial. However, the attempts to expedite the process should not be at the expense of the basic elements of fairness and the opportunity to the accused, on which postulates, the entire criminal administration of justice is founded. In the pursuit for expeditious disposal, the cause of justice must never be allowed to suffer or be sacrificed. What is paramount is the cause of justice and keeping the basic ingredients which secure that as a core idea and ideal, the process may be expedited, but fast-tracking of the process must never ever result in burying the cause of justice.
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31. Before we part, we must lay down certain norms so that the infirmities that we have noticed in the present matter are not repeated:
xxxxxxxxx 18 Neutral Citation No. ( 2024:HHC:12266 ) 31.3. Whenever any learned counsel is appointed as Amicus Curiae, some reasonable time may be provided to enable the counsel to prepare the matter. There cannot be any hard-and-
fast rule in that behalf. However, a minimum of seven days' time may normally be considered to be appropriate and adequate.
31.4. Any learned counsel, who is appointed as Amicus Curiae on behalf of the accused must normally be granted to have meetings and discussions with the accused concerned. Such interactions may prove to be helpful as was noticed in Imtiyaz Ramzan Khan [Imtiyaz Ramzan Khan v. State of Maharashtra, (2018) 9 SCC 160 : (2018) 3 SCC (Cri) 721]."
(emphasis supplied) Kewal Krishan v. Suraj Bhan, 1980 Supp SCC 499 "11. The proposition that in cases instituted on complaint in regard to an offence exclusively triable by the Court of Session, the standard for ascertaining whether or not the evidence collected in the preliminary inquiry discloses sufficient grounds for proceeding against the accused is lower than the one to be adopted at the stage of framing charges in a warrant case triable by the Magistrate, is now evident from the scheme of the new Code of 1973. Section 209 of the Code of 1973 dispenses with the inquiry preliminary to commitment in cases triable exclusively by a Court of Session, irrespective of whether such a case is instituted on a criminal complaint or a police report. Section 209 says: "When in a case instituted on a police report or otherwise the accused appears or is brought before the magistrate and it appears to the magistrate that the offence is triable exclusively by the Court of Session, he shall commit the case to the Court of Session." If the Committing Magistrate thinks that it is not necessary to commit the accused who may be on bail to custody, he may not cancel the bail. This has been made clear by the words "subject to the provisions of this Code relating to bail" occurring in clause (b) of Section 209. Therefore, if the accused is already on bail, his bail should not be arbitrarily cancelled. Section 227 of the Code of 1973 has made another beneficent provision to save the accused from prolonged harassment which is a 19 Neutral Citation No. ( 2024:HHC:12266 ) necessary concomitant of a protracted trial. This section provides that if upon considering the record of the case, the documents submitted with it and the submissions of the accused and the prosecution, the judge is not convinced that there is sufficient ground for proceeding against the accused, he has to discharge the accused under this section and record his reasons for so doing." (emphasis supplied) Hardeep Singh v. State Of Punjab, (2014) 3 SCC 92 "100. However, there is a series of cases wherein this Court while dealing with the provisions of Sections 227, 228, 239, 240, 241, 242 and 245 CrPC, has consistently held that the court at the stage of framing of the charge has to apply its mind to the question whether or not there is any ground for presuming the commission of an offence by the accused. The court has to see as to whether the material brought on record reasonably connect the accused with the offence. Nothing more is required to be enquired into. While dealing with the aforesaid provisions, the test of prima facie case is to be applied. The court has to find out whether the materials offered by the prosecution to be adduced as evidence are sufficient for the court to proceed against the accused further. (Vide State of Karnataka v. L. Muniswamy [(1977) 2 SCC 699: 1977 SCC (Cri) 404: AIR 1977 SC 1489], All India Bank Officers' Confederation v. Union of India [(1989) 4 SCC 90: 1989 SCC (L&S) 627: AIR 1989 SC 2045], Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia [(1989) 1 SCC 715: 1989 SCC (Cri) 285], State of M.P. v. Krishna Chandra Saksena [(1996) 11 SCC 439: 1997 SCC (Cri) 35] and State of M.P. v. Mohanlal Soni [(2000) 6 SCC 338: 2000 SCC (Cri) 1110: AIR 2000 SC 2583].)
101. In Dilawar Balu Kurane v. State of Maharashtra [(2002) 2 SCC 135: 2002 SCC (Cri) 310], this Court while dealing with the provisions of Sections 227 and 228 CrPC, placed very heavy reliance on the earlier judgment of this Court in Union of India v. Prafulla Kumar Samal [(1979) 3 SCC 4: 1979 SCC (Cri) 609: AIR 1979 SC 366] and held that while considering the question of framing the charges, the court may weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made 20 Neutral Citation No. ( 2024:HHC:12266 ) out and whether the materials placed before the court disclose grave suspicion against the accused which has not been properly explained. In such an eventuality, the court is justified in framing the charges and proceeding with the trial. The court has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court but the court should not make a roving enquiry into the pros and cons of the matter and weigh evidence as if it is conducting a trial." (emphasis supplied) Sajjan Kumar v. CBI, (2010) 9 SCC 368 "Exercise of jurisdiction under Sections 227 and 228 CrPC
21. On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge:
(i) The Judge while considering the question of framing the charges under Section 227 CrPC 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 a 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 21 Neutral Citation No. ( 2024:HHC:12266 ) committed the 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 the 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.
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24. At the stage of framing of charge under Section 228 CrPC or while considering the discharge petition filed under Section 227, it is not for the Magistrate or the Judge concerned to analyse all the materials including pros and cons, reliability or acceptability, etc. It is at the trial, the Judge concerned has to appreciate their evidentiary value, credibility or otherwise of the statement, the veracity of various documents and is free to take a decision one way or the other."
Mohd. Ajmal Amir Kasab v. State of Maharashtra (2012) 9 SCC 1 22 Neutral Citation No. ( 2024:HHC:12266 ) "465. All this development clearly indicates the direction in which the law relating to access to lawyers/legal aid has developed and continues to develop. It is now rather late in the day to contend that Article 22(1) is merely an enabling provision and that the right to be defended by a legal practitioner comes into force only on the commencement of trial as provided under Section 304 CrPC.
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471. The resounding words of the Court in Khatri (2) [(1981) 1 SCC 627: 1981 SCC (Cri) 228] are equally, if not more, relevant today than when they were first pronounced. In Khatri (2) [(1981) 1 SCC 627: 1981 SCC (Cri) 228] the Court also alluded to the reasons for the urgent need of the accused to access a lawyer, these being the indigence and illiteracy of the vast majority of Indians accused of crimes.
472. As noted in Khatri (2) [(1981) 1 SCC 627: 1981 SCC (Cri) 228] as far back as in 1981, a person arrested needs a lawyer at the stage of his first production before the Magistrate, to resist remand to police or jail custody and to apply for bail. He would need a lawyer when the charge sheet is submitted and the Magistrate applies his mind to the charge sheet with a view to determining the future course of proceedings. He would need a lawyer at the stage of framing of charges against him and he would, of course, need a lawyer to defend him in trial.
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474. We, therefore, have no hesitation in holding that the right to access to legal aid, to consult and to be defended by a legal practitioner, arises when a person arrested in connection with a cognizable offence is first produced before a Magistrate. We, accordingly, hold that it is the duty and obligation of the Magistrate before whom a person accused of committing a cognizable offence is first produced to make him fully aware that it is his right to consult and be defended by a legal practitioner and, in case he has no means to engage a lawyer of his choice, that one would be provided to him from legal aid at the expense of the State. The right flows from Articles 21 and 22(1) of the Constitution and needs to be strictly 23 Neutral Citation No. ( 2024:HHC:12266 ) enforced. We, accordingly, direct all the Magistrates in the country to faithfully discharge the aforesaid duty and obligation and further make it clear that any failure to fully discharge the duty would amount to dereliction of duty and would make the Magistrate concerned liable to departmental proceedings.
475. It needs to be clarified here that the right to consult and be defended by a legal practitioner is not to be construed as sanctioning or permitting the presence of a lawyer during police interrogation. According to our system of law, the role of a lawyer is mainly focused on court proceedings. The accused would need a lawyer to resist remand to the police or judicial custody and for granting of bail; to clearly explain to him the legal consequences in case he intended to make a confessional statement in terms of Section 164 CrPC; to represent him when the court examines the charge-sheet submitted by the police and decides upon the future course of proceedings and at the stage of the framing of charges; and beyond that, of course, for the trial. It is thus to be seen that the right to access to a lawyer in this country is not based on the Miranda [16 L.Ed.2d 694: 384 US 436 (1966)] principles, as protection against self- incrimination, for which there are more than adequate safeguards in Indian laws. The right to access to a lawyer is for very Indian reasons; it flows from the provisions of the Constitution and the statutes and is only intended to ensure that those provisions are faithfully adhered to in practice.
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477. Every accused unrepresented by a lawyer has to be provided a lawyer at the commencement of the trial, engaged to represent him during the entire course of the trial. Even if the accused does not ask for a lawyer or he remains silent, it is the constitutional duty of the court to provide him with a lawyer before commencing the trial. Unless the accused voluntarily makes an informed decision and tells the court, in clear and unambiguous words, that he does not want the assistance of any lawyer and would rather defend himself personally, the obligation to provide him with a lawyer at the commencement of the trial is absolute, and failure to do so would vitiate the trial and the resultant conviction and sentence, if any, given to the accused (see Suk Das v. UT of Arunachal Pradesh [(1986) 2 SCC 401: 1986 SCC (Cri) 166]).
24Neutral Citation No. ( 2024:HHC:12266 )
478. But the failure to provide a lawyer to the accused at the pre-trial stage may not have the same consequence of vitiating the trial. It may have other consequences like making the delinquent Magistrate liable to disciplinary proceedings or giving the accused a right to claim compensation against the State for failing to provide him legal aid. But it would not vitiate the trial unless it is shown that failure to provide legal assistance at the pre-trial stage had resulted in some material prejudice to the accused in the course of the trial. That would have to be judged on the facts of each case."(emphasis supplied)
21. Prima-facie alteration of a document and submitting the altered document to the police will attract the provisions of Section 464 punishable under Section 467 of IPC.
22. Therefore, the learned Courts below had misdirected themselves while deciding the question of framing the charge.
Hence, the orders passed by learned Courts below cannot be sustained.
23. In view of the above, the present petition is allowed and the order dated 19.01.2012 passed by learned Judicial Magistrate First Class, Court No.1, Rohru as affirmed by learned Additional Sessions Judge-I, Shimla, Camp at Rohru vide order dated 12.06.2017 are ordered to be set aside. The matter is remitted to the learned Trial Court to proceed further as per the law.
25Neutral Citation No. ( 2024:HHC:12266 )
24. The observations made hereinbefore shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.
25. The parties through their respective counsel are directed to appear before the learned Trial Court on 30th November, 2024.
(Rakesh Kainthla) Judge 22nd November,2024 (Nikita)