Patna High Court - Orders
Manoj Sharma @ Rakesh Kumar vs The State Of Bihar on 18 September, 2014
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.17850 of 2012
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MANOJ SHARMA @ RAKESH KUMAR, S/O BINOD SHARMA, R/O
VILLAGE- PURBI GHARARI, P.S.- KHARIK, DISTRICT-
BHAGALPUR.
.... .... PETITIONER/S
VERSUS
THE STATE OF BIHAR .... .... OPPOSITE PARTY/S
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Appearance:
For the Petitioner/s : Mr. Subodh Prasad, Adv.
For the Opposite Party/s : Mr. Madan Kumar, Addl. P.P. Incharge.
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
CAV ORDER
1. 11 18-09-2014 Petitioner has asked for quashing of order dated 27.03.2012 passed by Additional Sessions Judge, Ist, Naugachia in Sessions Trial No.1355 of 2010 arising out of Kharik P.S. Case No.124 of 2009 whereby and whereunder charge under Sections 302, 201, 34 of the IPC has been framed against the petitioner along with others.
2. In order to appreciate the point of dispute it looks better to have a glance of factual matrix.
3. Matuli Mandal gave his fardbeyan disclosing therein that his deceased brother Bucchi 2. Mandal along with other labourers, namely, Raj Kumar Paswan, Ganesh @ Gainu Das, Chote Lal @ Chatthu Das, Ashok Das, Manoj Das were engaged by Binod Sharma for cutting of Sisam tree. Accordingly, all of them used to be engaged right from 08:30 AM to 06:00 PM. On 29.07.2009 his brother did not come to his house and on account thereof, all the family members began to search and during said course they have gone to the house of Raj Kumar Paswan. On query made from Raj Kumar Paswan he disclosed that after keeping the firewood at his house, Bucho Mandal had gone to the place of Binod Sharma for taking money. He is unaware with the afterward event. On this very information they have gone to the place of Binod Sharma who disclosed that after taking Rs.30/- as wage, Bucho Mandal left the place. Again they gone in search of his brother but having no clue, they again came back to the place of Binod Sharma where Manoj Sharma (petitioner) had disclosed that his brother's dead body is lying in the same orchard where cutting of tree was going on. Then thereafter 3. they all rushed and found the dead body of Bucho Mandal. Bucho having sharp cut injury over neck, left side as well as over head, right side. Thereafter, informed the police. It has also been disclosed that Binod Sharma had borrowed Rs.25,000/- from deceased for which deceased was making persistent demand. Deceased had disclosed that Binod Sharma had undertook to make payment on 29.07.2009. On the preceding evening he gone to the place of Binod Sharma and since thereafter had not returned. When they have gone to the place of Binod Sharma, Manoj Sharma shown his anger and further disclosed regarding presence of dead body. On the basis of the aforesaid fardbeyan Kharik P.S. Case No.124 of 2009 was registered under Sections 302, 2011-/34 of the IPC and investigation proceeded by way of filing of charge sheet against others retaining continuance of investigation against Binod Sharma as well as Manoj Sharma who were not sent up for trial, however differing therefrom the learned Chief Judicial Magistrate summoned them including Raj Kumar 4. Paswan and accordingly they are on record.
4. It is also evident that Binod Sharma had challenged the order of cognizance under Cr. Misc. No.18070 of 2010 which was allowed vide order dated 06.04.2012. Having emboldened therewith, petitioner, son of Binod Sharma has challenged the order of framing of charge.
5. It has been submitted on behalf of petitioner that on account of non-availability of sufficient material during course of investigation petitioner along with his father Bindo Sharma were not sent up for trial which was not acceded by the Chief Judicial Magistrate and by having cognizance under Section 302, 201, 34 of the IPC summoned Raj Kumar Paswan (charge sheeted), Bindo Sharma and Manoj Sharma, the petitioner. During course of passing of order dated 06.04.2012 under Cr. Misc. No.18070 of 2010 filed on behalf of Binod Sharma against the order of cognizance, case diary was looked into and the materials having on the case diary did not found sufficient for summoning Binod Sharma as 5. a result of which the order to the extent of Binod Sharma was set aside. It has also been submitted that same piece of evidence also persist against the petitioner therefore petitioner is also entitled for getting himself exonerated from the trial in similar way. Hence, prayed for setting aside the order of framing of charge.
6. At the other end the learned Additional Public Prosecutor opposed the prayer and submitted that order dated 06.04.2012 (Annexure-3) has got no relevance at the present stage because of the fact that after framing of charge, stage has changed in likewise manner the mode of appreciation of the material. Hence, petitioner will not get any sort of advantage from Annexure-3. As such, petition is liable to be dismissed.
7. In spite of appearance of Opposite Party No.2, none turned up on their behalf to plead.
8. Admittedly the charge had already been framed that means to say the stage of the case is found away from the stage of taking cognizance as 6. well as summoning of accused.
9. In State of Maharashtra v. Salman Salim Khan, [JT 2004 (10) SC 257] the Hon'ble Apex Court has put guideline while entertaining petition under Section 482 Cr. P.C. challenging framing of charge.
" .....The arguments regarding the framing of a proper charge are best left to be decided by the trial court at an appropriate stage of the trial. Otherwise, as has happened in this case, proceedings get protracted by the intervention of the superior courts... The High Court by the impugned order has allowed the said application and quashed the order made by the learned Sessions Judge framing a charge under Section 304 Part II IPC against the respondent herein while it maintained the other charges and directed the appropriate Magistrate‟s Court to frame de novo charges..... We are of the opinion that though it is open to a High Court entertaining a petition under Section 482 of the Code to quash charges framed by the trial court, same cannot be done by weighing the correctness or sufficiency of evidence. In a case praying for quashing of the charge, the principle to be adopted by the High Court should be that if the entire evidence produced by the prosecution is to be believed, would it constitute an offence or not. The truthfulness, the sufficiency and acceptability of the material produced at the time of framing of charge can be done only at the stage of trial. .... we think the High Court was not justified in this case in giving a finding as to the non-existence of material to frame a charge for an offence punishable under Section 304 Part II IPC, therefore, so far as the finding given by the High Court is concerned, we are satisfied that it is too premature a finding and ought not to have been given at this stage. ..." (Emphasis added)
10. Meaning of cognizance has been elaborated explained in Mrs. Sarah Mathew v. Institute of Cardio Vascular Diseases& Ors. reported in AIR 2014 SC 448:
"22. It is now necessary to see what the words „taking cognizance‟ mean. Cognizance is an act of the 7. court. The term „cognizance‟ has not been defined in the Cr.P.C. To understand what this term means we will have to have a look at certain provisions of the Cr.P.C. Chapter XIV of the Code deals with „Conditions requisite for initiation of proceedings‟. Section 190 thereof empowers a Magistrate to take cognizance upon (a) receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. Chapter XV relates to „Complaints to Magistrates‟. Section 200 thereof provides for examination of the complainant and the witnesses on oath. Section 201 provides for the procedure which a Magistrate who is not competent to take cognizance has to follow. Section 202 provides for postponement of issue of process. He may, if he thinks fit, and shall in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction, postpone the issue of process against the accused and either inquire into the case himself or direct an investigation to be made by a police officer for the purpose of deciding whether there is sufficient ground for proceeding. Chapter XVI relates to commencement of proceedings before the Magistrate. Section 204 provides for issue of process. Under this section if the Magistrate is of the opinion that there is sufficient ground for proceeding and the case appears to be a summons case, he shall issue summons for the attendance of the accused. In a warrant case, he may issue a warrant. Thus, after initiation of proceedings detailed in Chapter XIV, comes the stage of commencement of proceedings covered by Chapter XVI.
23. In Jamuna Singh & Ors. v. Bhadai Shah AIR 1964 SC 1541, relying on R.R. Chari and Gopal Das Sindhi & Ors. v. State of Assam & Anr. AIR 1961 SC 986, this Court held that it is well settled that when on a petition or complaint being filed before him, a Magistrate applies his mind for proceeding under the various provisions of Chapter XVI of the Cr.P.C., he must be held to have taken cognizance of the offences mentioned in the complaint.
24. After referring to the provisions of the Cr.P.C. quoted by us hereinabove, in S.K. Sinha, Chief Enforcement Officer, this Court explained what is meant by the term „taking cognizance‟. The relevant observations of this Court could be quoted:
"19. The expression "cognizance" has not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means "become aware of" and when used with reference to a court or a Judge, it connotes "to take notice of judicially". It indicates the point when a 8. court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone.
20. "Taking cognizance" does not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance is taken prior to commencement of criminal proceedings. Taking of cognizance is thus a sine qua non or condition precedent for holding a valid trial. Cognizance is taken of an offence and not of an offender. Whether or not a Magistrate has taken cognizance of an offence depends on the facts and circumstances of each case and no rule of universal application can be laid down as to when a Magistrate can be said to have taken cognizance."
In several judgments, this view has been reiterated. It is not necessary to refer to all of them.
25. Thus, a Magistrate takes cognizance when he applies his mind or takes judicial notice of an offence with a view to initiating proceedings in respect of offence which is said to have been committed. This is the special connotation acquired by the term „cognizance‟ and it has to be given the same meaning wherever it appears in Chapter XXXVI. It bears repetition to state that taking cognizance is entirely an act of the Magistrate. Taking cognizance may be delayed because of several reasons. It may be delayed because of systemic reasons. It may be delayed because of the Magistrate‟s personal reasons."
11. The incidence of framing of charge is clearly distinguishable from the stage of taking of cognizance as well as both have been found having separate, independent identity while sailing with a proceeding. Cognizance is the matter of inception of a proceeding while framing of charge sprout the germane of trial. Both are, accordingly been perceived two separate stage of a proceeding having no inter dependency as well as framing of charge is not guided 9. by the order of cognizance and that has been perceived by the Hon'ble Apex Court in Girraj Prasad Meena Vs. State of Rajasthan reported in 2014(1) PLJR SC 36:
"6. Filing of charge sheet and taking cognizance has nothing to do with the finality of charges, as charges framed after the cognizance is taken by the court, can be altered/amended/changed and any charge can be added at any stage upto the stage of conviction in view of the provisions of Section 216 Cr.P.C. The only legal requirement is that, in case the trial court exercises its power under Sections 228/251 Cr.P.C., the accused is entitled to an opportunity of show-cause/hearing as required under the provisions of Section 217 Cr.P.C. [Vide:
Umesh Kumar vs. State of A.P., JT 2013 (12) SC 213]."
12. The ambit and scope of mode of charge has been taken into consideration in Dinesh Tiwari Vs. State of Uttar Pradesh & Anr. reported in 2014(3) PLJR (SC) 490; and is worth to note:-
"17. Framing of a charge is an exercise of jurisdiction by the trial court in terms of Section 228 of the Code, unless the accused is discharged under Section 227 of the Code. Under both these provisions, the court is required to consider the "record of the case" and documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. Once the facts and ingredients of the section exists, then the court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. This presumption is not a presumption of law as such. The satisfaction of the court in relation to the existence of constituents of an offence and the facts leading to that offence is a sine qua non for exercise of such jurisdiction. It may even be weaker than a prima facie case. There is a fine distinction between the language of Sections 227 and 228 of the Code. Section 227 is the expression of a definite opinion and judgment of the Court while Section 10. 228 is tentative. Thus, to say that at the stage of framing of charge, the Court should form an opinion that the accused is certainly guilty of committing an offence, is an approach which is impermissible in terms of Section 228 of the Code.
19. At the initial stage of framing of a charge, the court is concerned not with proof but with a strong suspicion that the accused has committed an offence, which, if put to trial, could prove him guilty. All that the court has to see is that the material on record and the facts would be compatible with the innocence of the accused or not. The final test of guilt is not to be applied at that stage. We may refer to the well-settled law laid down by this Court in State of Bihar v. Ramesh Singh (SCC pp. 41-42, para 4) "4. Under Section 226 of the Code while opening the case for the prosecution the Prosecutor has got to describe the charge against the accused and state by what evidence he proposes to prove the guilt of the accused. Thereafter comes at the initial stage the duty of the court to consider the record of the case and the documents submitted therewith and to hear the submissions of the accused and the prosecution in that behalf. The Judge has to pass thereafter an order either under Section 227 or Section 228 of the Code. If „the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing‟, as enjoined by Section 227. If, on the other hand, „the Judge is of opinion that there is ground for presuming that the accused has committed an offence which-- ... (b) is exclusively triable by the court, he shall frame in writing a charge against the accused‟, as provided in Section 228. Reading the two provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage the court is not to see whether there is sufficient ground for conviction of the 11. accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the court to think that there is ground for presuming that the accused has committed an offence then it is not open to the court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the court should proceed with the trial or not. If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section
227."
13. Under shadow of aforesaid legal principle enunciated by the Hon'ble Apex Court, now from the cursory perusal of the materials available on the record it is apparent that while the prosecution party had gone to the house of Vinod Sharma at second 12. time it happens to be the petitioner who had disclosed regarding presence of dead body in the orchard where Sisam trees were being cut by the deceased along with others and on that very score there happens to be consistent version of the prosecution witnesses. This fact not only exposes grave suspicion rather more than that regarding complicity of petitioner with the incidence leading to murder of deceased on account of ante-mortem injuries. Witnesses, though details is forbidden appears to be consistent on that score. Earlier order passed under Annexure-3 relating to Binod Sharma is not going to support plea of petitioner as case of petitioner is found distinguishable from Binod Sharma on that very score. Hence, petition is found devoid of merit and is accordingly rejected.
(Aditya Kumar Trivedi, J.) PN/-
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