Rajasthan High Court - Jaipur
Nathu Lal And Ors vs State Of Rajasthan And Anr on 8 April, 2013
Author: R.S.Chauhan
Bench: R.S.Chauhan
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER Nathu Lal & Ors. Vs. State of Rajasthan & Anr. SB CRIMINAL MISC. PETITION NO.966/13 UNDER SECTION 482 CR.P.C. AGAINST THE ORDER DATED 30.1.2013 PASSED BY THE SESSIONS JUDGE, JAIPUR DISTRICT, JAIPUR IN CRIMINAL REVISION NO.154/09 WHEREBY THE REVISION PETITION HAS BEEN DISMISSED AND THE ORDER DATED 2.5.2009 PASSED BY THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE NO.2, JAIPUR DISTRICT, JAIPUR IN CRIMINAL CASE NO.398/08(162/11) FRAMING CHARGES AGAINST THE PETITIONERS, HAS BEEN UPHELD Date of Order :- April 8th, 2013 Reportable PRESENT HON'BLE MR. JUSTICE R.S.CHAUHAN Mr. S.C. Gupta, for the petitioners.
The petitioners are aggrieved by the order dated 2.5.2009 passed by the Additional Chief Judicial Magistrate No.2, Jaipur District, whereby the learned Magistrate has framed charges against the petitioners for offences under Sections 420, 467, 468, 471 and 120B IPC. The petitioners are also aggrieved by the order dated 30.1.2013 passed by the Sessions Judge, Jaipur District, whereby the learned Judge has dismissed the revision petition filed by the petitioners, and has upheld the order dated 2.5.2009.
The brief facts of the case are that the complainant, Ram Baksh, and the petitioner No.1, Nathu Lal, are related to each-other: Ram Baksh is Nathu Lal's uncle. Both of them own agricultural land situated in Village Ghegha, Tehsil Sanganer, District Jaipur. The complainant, Ram Baksh, lodged a criminal complaint before the Additional Chief Judicial Magistrate No.2, Jaipur District, Jaipur wherein he claimed that he was the owner of the agricultural land located in different khasra numbers situated in his village. He further claimed that he has never sold his land to Nathu Lal. However, Nathu Lal and the other petitioners, namely Ram Karan, Shiv Shankar and Ram Singh have formed a gang and have tried to deprive him of his land by creating a forged agreement to sell. According to him, he neither sold his land, nor received Rs.15 Lacs, nor handed-over the possession of his land to Nathu Lal. Moreover, in the forged agreement to sell, Ram Karan, Shiv Shankar and Ram Singh have signed as witness. According to him, Nathu Lal, his nephew, had asked him to put his thumb impression on blank stamp papers as the same were required for getting an electricity connection for his tube-well. However, subsequently, Nathu Lal and others have misused the stamp papers for forging the agreement to sell. The said complaint was sent to the Police Station Bagru where a formal FIR, namely FIR No.405/03 was registered for the offences aforementioned, and the investigation commenced.
But subsequently, Nathu Lal also filed a criminal complaint before the Additional Chief Judicial Magistrate No.2, Jaipur District wherein he claimed that Ram Baksh had sold his land to him for a consideration of Rs.14,50,000/-. For this purpose, both of them had entered into an agreement to sell on stamp paper of Rs.100/-. However, subsequently, he had sold his land to a large number of persons. The said complaint was sent to the Police Station Bagru where a formal FIR, namely FIR No.311/04 was chalked out for offences under Sections 420, 467, 468, 471 and 120B IPC.
Nathu Lal also filed a civil suit against Ram Baksh for specific performance of contract and for cancellation of the sale deed created by Ram Baksh in favour of other buyers of the land.
While the police has submitted a negative Final Report in the FIR lodged by Nathu Lal, eventually, the police submitted a charge-sheet against the petitioners in the FIR lodged by Ram Baksh. By order dated 2.5.2009, the learned Magistrate framed charged against the petitioners, as aforementioned. Since the petitioners were aggrieved by the order dated 2.5.2009, they filed a revision petition before the learned Judge. But by order dated 30.1.2013, the learned Judge dismissed the revision petition and upheld the charge order dated 2.5.2009. Hence, this petition before this court.
Mr. S.C. Gupta, the learned counsel for the petitioners, has raised the following contentions before this court:-
Firstly, according to Section 240 Cr.P.C., the Magistrate is permitted to frame a charge if he is of the opinion that there is ground for presuming that the accused has committed an offence and if he is of the opinion that the accused could adequately be punished by him. However, in the present case, there is insufficient ground to presume that the petitioners have committed the offences alleged against them. Moreover, the learned counsel has relied on the case of Yogesh @ Sachin Jagdish Joshi Vs. State of Maharashtra [(2008) 10 SCC 394] in order to plead that at the time of framing of charges, the learned Magistrate is required to see whether a conviction is reasonably possible or not. However, in the present case, the conviction is not reasonably possible. Hence, the learned Magistrate should have discharged the petitioners, rather than framing the charges against them.
Secondly, the entire case is basically of civil nature. For, the dispute relates to the sale or the non-sale of a land between the complainant and the petitioners. Moreover, the petitioner No.1, Nathu Lal, has already filed a civil suit for specific performance against the complainant, Ram Baksh, and others. Furthermore, in the FIR lodged by Nathu Lal, the police had concluded that the case is of civil nature. Therefore, it had filed a negative Final Report in that case. Hence, the same principle should govern the present FIR lodged by Ram Baksh. Thus, clearly Ram Baksh has tried to give a criminal colour to a case which is basically of civil nature.
Thirdly, initially even the police had concluded that the complaint filed by Ram Baksh, basically, related to a case of civil nature and had recommended the filing of a negative Final Report. However, with the change of Investigating Officer subsequently, the police has decided to file the charge-sheet against the petitioners.
Fourthly, in the written statement filed by Ram Baksh in the civil suit, he had merely denied that he did not sign the agreement to sell in favour of Nathu Lal. But, his stand is belied by the report of the Forensic Science Laboratory (FSL)wherein the FSL has concluded that the thumb impression on the agreement to sell is that of Ram Baksh.
Fifthly, in his written statement filed in the civil suit, Ram Baksh has not claimed that Nathu Lal had taken blank stamp papers from him and had forged the agreement to sell.
Sixthly, the FIR was lodged by Ram Baksh only after receiving the notice in the civil suit. Thus, the FIR is an afterthought and is a ploy to create a legal and valid defence for the civil suit.
Seventhly, the learned Magistrate has relied on the statement of those witnesses, such as, Laxmi Narain, who claimed that they have heard that Nathu Lal and others had forged the agreement to sell. Therefore, the learned Magistrate has relied on hearsay evidence. Since the hearsay evidence is not an admissible evidence, his reliance on such a statement is misplaced.
Eightly, the learned Magistrate has overlooked the relevant evidence, such as, that of Mr. Bhanwarlal Bansal, the Notary Public. Thus, the learned Magistrate has not objectively applied his mind and has erred in framing the charges against the petitioners.
Lastly, the learned Judge has mechanically dismissed the revision petition and has ignored the contentions raised by the petitioners. Hence, both the impugned orders deserve to be interfered with.
Heard the learned counsel for the petitioners, perused the impugned orders and considered the case law cited at the Bar.
In the case of Sajjan Kumar Vs. Central Bureau of Investigation [(2010) 9 SCC 368], the Apex Court was dealing with the power of framing of charge and discharge of the accused under Sections 227 and 228 Cr.P.C. However, Sections 239 and 240 Cr.P.C. are similar in nature. The only difference is that while Sections 227 and 228 Cr.P.C. relate to a trial before a Sessions court, Sections 239 and 240 Cr.P.C. relate to a trial of a warrant case by a Magistrate. But nonetheless, the provisions are mutatis mutandis. Therefore, the guidelines laid down by the Apex Court in the case of Sajjan Kumar (supra) would equally be applicable to the exercise of power under Sections 239 and 240 Cr.P.C. It would, indeed, be beneficial to reproduce the guidelines laid down by the Apex Court, which are as under:-
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 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 basis infirmities, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
(iv) If on the basis of the material on record, the court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.
(v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.
(vi) At the stage of Sections 227 and 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.
(vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal.
A bare perusal of the guidelines, mentioned above, clearly reveal that although the Magistrate is permitted to sift through the evidence, but he cannot enter into a roving inquiry into the pros and cons of the matter and weigh the evidence as if he is conducting a trial. In case the court is of the opinion that the accused might have committed offence, then it would be justified in framing the charge. Moreover, the probative value of the material on record cannot be assessed at the time of framing of the charge. At the stage of framing of the charge, the court is supposed to take the material at its face value, and to assess whether the material discloses all the ingredients constituting the alleged offence or not? Hence, the power to assess and evaluate the evidence available on record is a limited one. Obviously, the power is to be exercised at micro-level and not at a macro-level, as is required to be done by the trial court at the conclusion of the trial.
The allegations against the petitioners are that in order to illegally deprive Ram Baksh of his land, Nathu Lal had asked him to put his thumb impression on blank stamp papers which he claimed were to be used for getting an electricity connection for Ram Baksh's agricultural land. However, subsequently, in connivance with other three co-accused persons, he forged an agreement to sell on the stamp paper. Moreover, according to the complainant, he never sold his land through agreement to sell to Nathu Lal. Further, he never received Rs.14,50,000/- from Nathu Lal. Furthermore, he never parted with the possession in favour of Nathu Lal. Thus, according to the complainant, Nathu Lal and others have not only forged the document, but have also cheated him and deprived him of his land.
A bare perusal of the order dated 2.5.2009 clearly reveals that the learned Magistrate has relied upon the statement of the complainant, Ram Baksh, and on the statements of Mahaveer Prasad, the Stamp Vendor, Sanjeev, Manoj, Laxmi Narain and Bajrang Lal in order to conclude that sufficient evidence does exist for framing of the charges for the aforementioned offences. Sanjeev, in his statement recorded under Section 161 Cr.P.C., clearly states that Ram Baksh had bought two stamp papers, one for Rs.10/- and other for Rs.100/- from him. The stamp papers were bought for taking electricity connection. Even Mahaveer Prasad makes a similar statement. Ram Baksh, in his statement, further claims that Nathu Lal had asked him to get the stamp papers for getting an electricity connection. However, subsequently, these stamps papers have been misused by Nathu Lal and others. Thus, obviously, there is sufficient evidence to prima facie prove the existence of offence under Sections 467, 468, 471/120B IPC.
Even if there are certain statements which may lend some credence to the defence, at the stage of framing of the charge, they cannot be looked into as the Magistrate is not permitted to examine the pros and cons of the prosecution case. At the time of framing of charge, the Magistrate is not concerned with the conviction of the accused, but is merely considering the probability whether the accused may have committed the offence or not? Since there is a set of evidence which points to the strong possibility that the petitioners may have committed the alleged offence, the learned Magistrate was certainly justified in framing the charges.
Merely because the complainant, Ram Baksh, had lodged his complaint after the civil suit was filed by Nathu Lal, would not cast a doubt on the veracity of his complaint/FIR. The issue with regard to delay in lodging of FIR, the issue with regard to the impact of lodging of FIR after filing of the civil suit, are issues which need to be appreciated and assessed by the trial court. Therefore, the said contention cannot be entertained at present.
The issue with regard to Ram Baksh's taking two different stands one the stand of total denial of having signed the agreement a stand taken in the civil court, and the other that he was duped and his thumb impression were taken on a false pretext by the petitioners, is again an issue which can be appreciated only by the trial court after a complete trial. It is, too, early to assess the issue at the initial stage of framing of charge.
A document may relate to the sale of land, a document may be an agreement to sell, or a contract, a document may relate to civil liability. But once it is alleged that the document is a forged one, then such an allegation takes the case out of the civil jurisdiction and places it in the criminal arena. After all, the allegation is of forgery a criminal act. Therefore, the issue is no longer about the validity of the contract, or about its breach, or about its specific performance. But the issue is about the genuineness of the document, about its being forged, about who has forged the document. Therefore, neither the police, nor the court would be justified in passing the buck by claiming that the case is basically of civil nature. Such an interpretation is, clearly, a misnomer.
Moreover, even if initially the police had concluded that a negative Final Report should be filed in the complaint/FIR lodged by Ram Baksh, it does not estop the police from subsequently concluding that the case is of criminal nature. Therefore, filing of the charge-sheet by the police cannot be questioned by the petitioners. Moreover, since the arena of investigation, ordinarily, belongs to the police, the court would be weary of interfering with the investigation unless glaring defects are pointed out in the investigational procedure and methods. Hence, the contention that once the police had concluded that the case is of civil nature, it cannot be permitted to change its stand, such a contention is unacceptable. After all, it is not a case of estopple.
Even if the police had filed a negative Final Report in the FIR filed by Nathu Lal, even if in the said FIR the police had concluded that it is a case of civil nature, it is not essential to apply the same standered in the present case. For, firstly, there is no estopple against a statute; secondly, the concept of equity does not exist in a negative sense; thirdly, each case has to be decided on its own factual matrix; fourthly, even if the police has submitted a negative Final Report in the FIR filed by the petitioner No.1, Nathu Lal, he is free to take recourse to the legal remedies available to him. Thus, the contention raised by the learned counsel for the petitioners is unacceptable.
Whether an evidence is a hearsay evidence, or a direct evidence, or is a circumstantial evidence, and what should be the probative value of these evidence cannot be weighed by the trial court at the stage of framing of the charge. Therefore, even if Laxmi Narain in his statement claims that he had heard in the village that the petitioners had forged the document, the said statement cannot be thrown out as being part of the hearsay evidence.
Moreover, even if no other witness except the complainant claims that he had seen the forgery being done, it would not dilute the case of the prosecution for framing the charge. After all, the allegations leveled by the complainant would have to be accepted as unrebutted facts. Hence, even if no other witness claims that he had seen the forgery being done again, it would not dilute the case of the prosecution.
A bare perusal of the order dated 30.1.2013 clearly reveals that the learned Judge had considered the record of the case and had examined the impugned order. Hence, it cannot be said that the learned Judge had passed a mechanical order. Therefore, the contention that a mechanical order has been passed is unsustainable.
The case of Yogesh Kumar @ Sachin Jagdish Joshi (supra) does not support the case of the petitioners. For, in the said case, the Apex Court had clearly observed that at this stage, he is not to see whether the trial will end in conviction or not. The broad test to be applied is whether the materials on record, if unrebutted, make a conviction reasonably possible. As discussed, above, there is grave possibility of conviction in the present matter. Hence, both the learned Magistrate and the learned Judge have followed the guidelines issued by the Apex Court in the case of Sajjan Kumar (supra).
For the reasons stated above, this court does not find any merit in this petition. It is, hereby, dismissed. The stay application is also dismissed.
(R.S.CHAUHAN), J.
GS All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Govind Sharma, PA