Rajasthan High Court - Jodhpur
Mahendra Punia vs State Of Rajasthan on 3 October, 2019
Equivalent citations: AIRONLINE 2019 RAJ 838, (2020) 1 RAJ LW 628
Author: Vijay Bishnoi
Bench: Vijay Bishnoi
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Revision Petition No. 1242/2019
Mahendra Punia S/o Sh. Amar Singh, Aged About 46
Years, B/c Jat Punia, R/o Padampura, P.s. Gogamedi, At
Present Hanumangarh Road, Kishan Cotton Factory,
Rawatsar, P.s. Rawatsar, District Hanumangarh.
----Petitioner
Versus
1. State Of Rajasthan, Through Pp
2. Hanumat Singh S/o Sh. Harveer Singh Jat, B/c
Jat, R/o Ward No. 13, Rawatsar, District
Hanumangarh.
----Respondents
For Petitioner(s) : Mr Kuldeep Sharma
Mr Arun Kumar Tyagi
For Respondent(s) : Mr Laxman Solanki-PP
For : Mr Manjeet Godara
Complainant(s)
HON'BLE MR. JUSTICE VIJAY BISHNOI
Judgment 03/10/2019 This criminal revision petition under Section 397 read Section 401 of the Criminal Procedure Code (for short the 'Cr.P.C.' hereinafter) is filed by the petitioner being aggrieved with the order dated 05.08.2019 passed by the Additional Sessions Judge No.1, Nohar, District Hanumangarh (for short 'the trial court' hereinafter) in Sessions Case No.1/2019, whereby it has ordered for framing of charges against the petitioner for the offences punishable under Sections 302/120B and 302/109 IPC. (Downloaded on 03/10/2019 at 08:51:27 PM)
(2 of 18) [CRLR-1242/2019] Brief facts giving rise to this revision petition are that on 24.09.2018 at 05:06 P.M., respondent No.2 Hanumat Singh (for short the 'complainant' hereinafter) filed a typed report stating that on 24.09.2018 at 12:00 noon, he along with his father Harveer Singh Saharan, Raju Saini and Dharmpal Kadwasara went to SDM Court, Rawatsar for some work in a vehicle; he stayed near the vehicle, whereas his father Harveer Singh, Dharmpal Kadwasara and Raju Saini went into the SDM Court; when his father reached near to gate of SDM Court after meeting the SDM, Ramniwas Mahla son of Hakam Ram, resident of Chaeeya and three other persons reached there and Ramniwas Mahla threatened his father that as he opposes Mahendra Punia and wants to contest election for Member of Legislative Assembly from Nohar Constituency, he will teach him a lesson and started firing on his father with a pistol; his father ran towards the Chamber of an Advocate - Balram Kaswan and entered into it but the assailants continued with firing and when the complainant, Dharmpal and Raju Saini tried to rescue the deceased Harveer Singh, the assailants started firing on them. During that time, the father of the complainant got an opportunity and when he started running towards SDM Court, one companion of Ramniwas Mahla, by putting his lag into the way of his father, dropped him down on the ground and Ramniwas Mahla fired a gunshot on his head. The complainant and other persons raised alarm, then all the four assailants fled away in a vehicle bearing No.201.
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It is alleged by the complainant in the
complaint that his father was expecting to contest election for Member of Legislative Assembly from Nohar Constituency and for that purpose, he had planned to organize a rally on 30.09.2018 at Nohar Jat Dharmshala, however, to fail that rally and to restrain him from contesting the election, he was attacked at the behest of big leaders and on account of that he died in Hanumangarh Hospital during treatment. The complainant has asserted that he knows Ramniwas Mahla and can identify his three companions.
On receiving the aforesaid report, Police Station, Rawatsar registered FIR No.483 dated 24.09.2019 for the offences punishable under Sections 302, 307, 109, 120-B and 34 IPC read with Sections 27, 25 and 3 of the Arms Act, 1959 against Ramniwas Mahla and three unknown persons. After thorough investigation, the police filed charge-sheet against as many as 10 persons, however, the charge-sheet has been filed against the petitioner for the offence punishable under Sections 302/109 and 302/120-B IPC.
The trial court after hearing counsels for the parties framed charges against the petitioner for the offences punishable under Sections 302/120-B and 302/109 IPC and also framed charges against other accused-persons for various offences including Sections 302 and 307 IPC and for the offences punishable under the Arms Act vide order dated 05.08.2019. (Downloaded on 03/10/2019 at 08:51:27 PM)
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Being aggrieved with the framing of the
charges against the petitioner by the trial court, this revision petition is preferred on behalf of the petitioner.
Learned counsel for the petitioner has argued that the trial court has grossly erred in framing charges against the petitioner for the offences punishable under Sections 302/120-B and 302/109 IPC. It is submitted that the police failed to collect any evidence of this effect that just before the incident, the petitioner had ever met with the main accused Ramniwas Mahla, against whom the allegation of firing gunshot on the head of the deceased is levelled. Learned counsel for the petitioner has argued that the police also failed to collect any evidence of this effect that the petitioner had hatched a conspiracy with the main accused Ramniwas Mahla or other accused- persons to kill the father of the complainant.
It is submitted that the complainant Hanumat Singh, Neelam Saharan - wife of the deceased, Dharmpal and Raju Saini in their police statements though claimed that they were informed by deceased Harveer Singh Saharan that around 5-6 days before the murder of the deceased, the petitioner had a meeting with Ramniwas Mahla and other accused-persons and asked Ramniwas Mahla either to kill the deceased or return Rs.5,00,000/- given to him for the said purpose and at that time, Ramniwas Mahla assured the petitioner that he would kill the deceased very soon.
It is argued by the learned counsel for the petitioner that on the basis of the said statements of the (Downloaded on 03/10/2019 at 08:51:27 PM) (5 of 18) [CRLR-1242/2019] above named witnesses, the police filed charge-sheet against the petitioner for the offences punishable under Sections 302/120-B and 302/109 IPC, however, at the same time, in the charge-sheet, the police failed to collect any evidence of this effect that around 5-6 days prior to the incident the petitioner had a meeting with Ramniwas Mahla and others, wherein they hatched a conspiracy to kill the deceased.
Learned counsel for the petitioner has submitted that as per Section 10 of the Indian Evidence Act, it is necessary that a prima facie case of conspiracy has to be established, whereas in the present case, the investigating agency has failed to collect any evidence of this effect that the petitioner had ever conspired with the main accused Ramniwas Mahla to murder the deceased. Learned counsel for the petitioner has also submitted that the investigating agency has also relied on the information given by the petitioner under Section 27 of the Evidence Act while in police custody, whereby he had identified a cotton mill, where as per the investigating agency, the petitioner, with the main accused - Ramniwas Mahla and other accused-persons, had hatched a conspiracy to kill the deceased. It is argued that the said information allegedly given by the petitioner is irrelevant because the said cotton mill was very much within the knowledge of the investigating officer prior to the information given by the petitioner.
Learned counsel for the petitioner has further submitted that the police seized six registers claiming (Downloaded on 03/10/2019 at 08:51:27 PM) (6 of 18) [CRLR-1242/2019] that those registers are of the cotton mill of the petitioner in which account of the mill was maintained and in those registers, there are entries of making payments of lacs of rupees to main accused Ramniwas Mahla. The police have claimed that from the said entries of the registers, it is proved that the petitioner had paid money to the main accused to commit the murder of the deceased. Learned counsel for the petitioner has argued that the police have failed to establish that the said entries are in the books of accounts or the said books of accounts are regularly being maintained in the course of business. It is also argued that in the absence of any such proof, the recovery and seizure of the said registers is of no use.
Learned counsel for the petitioner has lastly argued that in the absence of any evidence against the petitioner of hatching conspiracy or instigating the main accused - Ramniwas Mahla to murder the deceased, the trial court has grossly erred in framing the charges against the petitioner for the offences punishable under Sections 302/120-B and 302/109 IPC.
In support of the above contentions, learned counsel for the petitioner has placed reliance on the decisions of Hon'ble Supreme Court in Kehar Singh and Ors. vs. State, AIR 1988 SC 1883, Vijender and Ors. vs. State of Delhi, (1997) 6 SCC 171, Saju vs. State of Kerala AIR 2001 SC 175, Sajjan Kumar vs. Central Bureau of Investigation (2010) 9 SCC 368, S. Arul Raja vs. State of Tamil Nadu (2010) 8 SCC 233 and in Indra Dalal vs. State of Haryana, (2015) (Downloaded on 03/10/2019 at 08:51:27 PM) (7 of 18) [CRLR-1242/2019] 11 SCC 31. He has also placed reliance on decisions of this Court as well as of Delhi High Court in A.K Jain vs State of Rajasthan, 2015 (2) Cr.L.R (Raj) and in L.K. Advani Vs Central Bureau of Investigation, 1997 Cri LJ 2559 respectively.
Learned counsel for the petitioner has, therefore, prayed that the impugned order passed by the trial court framing charges against the petitioner for the offences punishable under Sections 302/120-B and 302/109 IPC be set aside.
Per contra, learned Public Prosecutor as well as learned counsel for the complainant have vehemently opposed the prayer of the petitioner and argued that during the course of investigation, the police had collected enough material, on the basis of which, charges for the offences punishable under Sections 302/120-B and 302/109 IPC have rightly been framed against the petitioner.
Heard learned counsel for the rival parties and perused the material available on record.
Before examining the merits of the present case, it would be useful to take into consideration the principle laid down by the Hon'ble Supreme Court as well as by this Court regarding the scope of the power vests in the High Court while exercising its jurisdiction under Section 397 of the Cr.P.C.
The Hon'ble Supreme Court in Amit Kapoor vs. Ramesh Chander & Ors., reported in (2012) 9 (Downloaded on 03/10/2019 at 08:51:27 PM) (8 of 18) [CRLR-1242/2019] SCC 460, while taking into consideration its earlier decisions, has held as under:
"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 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.(Downloaded on 03/10/2019 at 08:51:27 PM)
(9 of 18) [CRLR-1242/2019] 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 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 (Downloaded on 03/10/2019 at 08:51:27 PM) (10 of 18) [CRLR-1242/2019] 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.
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.
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."(Downloaded on 03/10/2019 at 08:51:27 PM)
(11 of 18) [CRLR-1242/2019] Later on, the Hon'ble Supreme Court in its recent decisions viz. State of Rajasthan vs. Fatehkaran Mehdu, reported in (2017) 3 SCC 198 and The State of Madhya Pradesh vs. Deepak reported in 2019(5)SCALE 545 has followed the law laid down in Amit Kapoor's case (supra).
From perusal of the above referred judgments, it is clear that while exercising powers under Section 397 Cr.P.C., the High Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted along with it, prima facie, make out a case against the accused or not. At the same time, it is not for the High Court to meticulously examine the evidence available on record to find out whether the case against the accused would end in conviction or not. The only requirement is that a Court should take into consideration whether the allegations levelled against the accused taken as a whole will constitute an offence or not and a roving and fishing enquiry is not permissible at the time of framing of charge.
So far as judgments relied upon by the learned counsel for the petitioner are concerned, in Sajjan Kumar's case (supra), the Hon'ble Supreme Court laid down the guidelines for the trial court in respect of exercising of jurisdiction under Sections 227 and 228 Cr.P.C. In para 17 of the said judgment, the Hon'ble Supreme Court has held as under:
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(12 of 18) [CRLR-1242/2019] "17. Exercise of jurisdiction under Sections 227 & 228 of Cr.P.C.
On consideration of the authorities about the scope of Section 227 and 228 of the Code, the following principles emerge:
(i) The Judge while considering the question of framing the charges under Section 227 of the Cr.P.C. 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 (Downloaded on 03/10/2019 at 08:51:27 PM) (13 of 18) [CRLR-1242/2019] 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 discloses 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."
This Court in Arvind Kumar Jain's case (supra) has held as under:
"11. Hence in the light of the above, law could be summarized that while framing charges, the Court can weigh the evidence for the limited purpose of finding out whether or not a prima facie case has been made out and after scanning the material on record with the limited purpose as stated above if a grave suspicion against the accused has been shown which has not been explained properly then the court is justified in framing charges while passing the order under Section 227 Cr.P.C. and 228 Cr.P.C., the Court would consider the broad probabilities of the case. The total effect of the evidence, the documents produced before the Court and any basic infirmities appearing in the case and so on, the Court can also look into the record submitted by defence which is beyond suspicion or doubt and the accused cannot be deprived of taking advantage of (Downloaded on 03/10/2019 at 08:51:27 PM) (14 of 18) [CRLR-1242/2019] the material which the prosecution itself has placed on record.
It is well settled principle of criminal jurisprudence that at the time of framing of the charge, the trial court should not act either as a mute witness or as a post office for the prosecution or as the mouth-piece of the prosecution. At the time of framing of the charge, the trial court has to be aware of the fact that the accused is entitled to a fair trial under the Constitution of India. Thus, in order to ensure fairness, the trial court has to sift the evidence to the limited extent of discovering whether strong suspicion exists against the alleged accused or not? It is further required to examine the record to see if the ingredients of the alleged offence exist or not? Lastly, it has to correlate the alleged conduct of the accused to the ingredients of the offence."
The principle of law laid down in the above referred judgments is in conformity with the view taken by the Hon'ble Supreme Court in Amit Kapoor vs. Ramesh Chander & Ors., State of Rajasthan vs. Fatehkaran Mehdu and in The State of Madhya Pradesh vs. Deepak (supra).
So far as other judgments referred to by the learned counsel for the petitioner are concerned, the same were passed in appeals filed by the accused therein after their conviction, therefore, these judgments are not relevant in the present controversy as this Court is examining whether the trial court has rightly framed charges against the petitioner or not. The judgment of Delhi High Court in L.K.Advani's case (supra) is regarding some entries in the account books, however, in (Downloaded on 03/10/2019 at 08:51:27 PM) (15 of 18) [CRLR-1242/2019] my opinion, the same is also not relevant for the purpose of deciding the present controversy.
In the light of the above principles laid down by the Hon'ble Supreme Court and this Court, now we shall examine whether the material collected by the police during the course of investigation against the petitioner is sufficient to frame charges for the offences punishable under Sections 302/120-B and 302/109 IPC or not.
It is not in dispute that the petitioner and the deceased were having a political rivalry, both of them were aspirants of contesting election for the post of Member of Legislative Assembly from Nohar Constituency. At the relevant time, the petitioner was a Chairman of Central Cooperative Bank Ltd., Hanumangarh, whereas wife of the deceased was the Chairperson of Municipal Board, Rawatsar. The petitioner along with his supporters was opposing the drive of removing encroachments by the Municipal Board, Rawatsar and he was regularly protesting the removal of the encroachments by leading the agitation. In the charge-sheet, the police has also concluded that the petitioner filed complaints against wife of the deceased alleging that she is misusing her powers. In one of the incidents, when the petitioner was leading a protest against the drive of the Municipal Board, Rawatsar and was forcibly attempting to close the shops and the market, the deceased reached the market and opposed the petitioner, then a quarrel took place, in which the deceased slapped the petitioner and was arrested by the (Downloaded on 03/10/2019 at 08:51:27 PM) (16 of 18) [CRLR-1242/2019] police and thereafter he was charge-sheeted in an FIR filed by the petitioner for the offences punishable under Sections 323, 341 IPC.
During the course of investigation, the police had seized six registers submitted by the Accountant of Kisan Cotton Mill owned by the petitioner in which several entries are there suggesting that around eight lac rupees were paid to Ramniwas Mahla from the cotton mill owned by the petitioner in between 11.12.2015 to 02.09.2018. The police have also recorded the statements of two witnesses viz. Arun Kumar and Amit Kumar, who were working as employee in the cotton mill owned by the petitioner. Arun Kumar, in his statement, has stated that main accused Ramniwas Mahla and other accused- persons named in the charge-sheet often used to meet the petitioner in the cotton mill of the petitioner. He has further stated that he is working as an Accountant in the cotton factory of the petitioner from quite some time and on asking of the petitioner he gave around Rs.8,40,000/- to the main accused Ramniwas Mahla from 11.12.2015 to September, 2018 and also made entries of the said payment in the account books of the cotton mill, soft copy of which was presented by him in a Pendrive to the police. Arun Kumar has also confirmed that a day after the murder of the deceased i.e. on 25.09.2018, the petitioner instructed him on telephone to replace the entries in the name of Ramniwas Mahla to one Amit Punia and as per the instructions, he changed the entries (Downloaded on 03/10/2019 at 08:51:27 PM) (17 of 18) [CRLR-1242/2019] related to Ramniwas Mahla in the account books. Amit Kumar, who was working as an employee in the cotton factory of the petitioner, has also stated that the petitioner often used to meet the main accused- Ramniwas Mahla and other accused-persons, charge- sheeted along with the petitioner in his factory. He has also confirmed that a day after the incident, the petitioner made a call on a land line phone of the factory and when he received the call, he asked for Arun Kumar and when Arun Kumar took the call, the petitioner asked him to change some entries in the account books.
It is important to note that the petitioner has failed to explain that for what reason, an amount of Rs.8,40,000/- was paid from time to time to the main accused - Ramniwas Mahla.
Taking into consideration the above material collected by the police, I am of the opinion that the said material is sufficient to frame the charges against the petitioner for the offences punishable under Sections 302/120-B and 302/109 IPC.
So far as authenticity of the account books seized by the police is concerned, it can only be determined after consideration of the evidence adduced by the parties during the course of trial.
In view of the above discussion, I do not find any illegality in the impugned order passed by the trial court, whereby the charges have been framed against the petitioner for the offences punishable under Sections (Downloaded on 03/10/2019 at 08:51:27 PM) (18 of 18) [CRLR-1242/2019] 302/120-B and 302/109 IPC. Hence, no case for interference is made out.
The revision petition is accordingly dismissed. The stay petition also stands dismissed.
(VIJAY BISHNOI),J masif/-PS (Downloaded on 03/10/2019 at 08:51:27 PM) Powered by TCPDF (www.tcpdf.org)