Allahabad High Court
Manoj Kumar Jauhari vs State Of U.P. And Another on 30 January, 2019
Author: Sanjay Kumar Singh
Bench: Sanjay Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R Judgment Reserved on 02.01.2019
Judgment Delivered on 30.01.2019
Court No. - 70
Case :- CRIMINAL REVISION No. - 3319 of 2016
Revisionist :- Manoj Kumar Jauhari
Opposite Party :- State Of U.P. & Another
Counsel for Revisionist :- Rahul Chaturvedi
Counsel for Opposite Party :- G.A.
Hon'ble Sanjay Kumar Singh,J.
1. Heard learned counsel for the revisionist and learned Additional Government Advocate for the State.
2. Vide order dated 25.10.2016 notice was issued to the opposite party no.2. As per office report dated 7.12.2018, pursuant to order dated 25.10.2016 of this Court, notice issued to opposite party no.2 has been received back after service personally upon the opposite party no.2, but no one is present on behalf of opposite party no.2 even in the revised list.
Relief claimed
3. The present revision has been filed against the order dated 29.8.2016 passed by 4th Additional Chief Judicial Magistrate, Mathura in Case No. 2618/IX/12 (State Vs. Manoj Jauhar), under Sections 279, 337, 338, 427, 304A IPC, P.S. Narhauli, District Mathura whereby the discharge application no. 18A of the revisionist has been dismissed.
Basic facts
4. Brief facts of the case is that on 26.1.2001 opposite party no.2 lodged FIR as Case Crime No. 11 of 2001, under Sections 279, 337, 338, 427, 304A IPC at P.S. Narhauli, District Mathura alleging that on 26.1.2001 in an accident on account of collision between the Maruti Car No. DH 1L 6427 with Honda City Car No. UP 16 A 2530, three persons who were sitting in Maruti Car No. DH 1L 6427 have received injury. They were taken to the hospital but on reaching the hospital two persons, namely, Sachin Kumar and Sunil Kumar died. Opposite party no.2 lodged FIR of the said incident on 26.1.2001 registered as Case Crime No. 11 of 2001, under Sections 279, 337, 338, 427 and 304A IPC at P.S. Narhauli, District Mathura against unknown driver of Car No. UP 16 A 2530.
5. As per prosecution case, the Investigating Officer on receiving information by the Mukhhbir on 27.1.2001 intercepted the revisionist, who in his confessional statement disclosed that on 26.1.2001, at the time of accident, the Honda City Car No. UP 16 A2530 was being driven by him. Revisionist was, accordingly, arrested on 27.1.2001 at 1.05 AM. Thereafter, the Investigating Officer has recorded the statements of injured persons, namely, Teetu, Saleem, Nemi Chand and Pramendra Kumar Khandelwal, who have also reiterated the version of the FIR. The Investigating Officer on the basis of confessional statement of the revisionist before him submitted charge-sheet dated 6.2.2001 under Sections 279, 337, 338, 304 A IPC against the revisionist, copy of charge-sheet appended as Annexure No.5 to the affidavit filed alongwith the revision. The revisionist had moved discharge application dated 20.3.2010 before the court of Additional Chief Judicial Magistrate, Mathura, which was dismissed by the learned Magistrate by the impugned order dated 29.8.2016.
Submissions on behalf of revisionist
6. It is submitted by learned counsel for the revisionist that:-
(i) Except the alleged confessional statement made by the revisionist before the police, there is no other corroborative evidence against the revisionist to involve him in the alleged offence.
(ii) The alleged confessional statement is not an admissible in evidence as he has not given any such statement to the police as stated by the Investigating Officer in the case diary.
(iii) The revisionist has been falsely implicated merely on the presumption that the car in question would have been driven by the revisionist because Honda City Car No. UP 16 A 2530 is registered in the name of Dr. Neeraj Jauhari (wife of the revisionist).
(iv) There is no evidence on record that at the time of accident the said vehicle was being driving by the revisionist.
(v) The injured witnesses have not named the revisionist.
(vi) It is also submitted that the Investigating Officer has not conducted the fair investigation.
(vii) No effort has been made by the Investigating Officer to make any query from the registered owner of the vehicle in question that who was driving the vehicle on that date and time of alleged accident.
(viii) The Investigating Officer has wrongly shown the arrest of the revisionist from the shop situated near RTO office after making false entry of confessional statement of the revisionist in the case diary and illegally submitted charge-sheet against the revisionist without iota of any evidence.
(ix) It is submitted by the learned counsel for the revisionist that the extra-judicial confession without any corroborative evidence is a very weak piece of evidence and only on the such evidence as brought on record against the revisionist, his conviction is not possible.
(x) It is submitted that the presumption, observation and finding recorded by the learned Magistrate for rejecting the discharge application of the revisionist are not sustainable in the eye of law.
(xi) No prima facie offence against the revisionist is made in absence of any reliable and admissible evidence against the revisionist.
Judgments relied upon
7. Learned counsel for the revisionist has placed reliance on the following judgment of Apex Court.
(i) The judgement of Apex Court in case of Dilawar Babu Kurane Vs. State of Maharashtra 2002 (2) SCC 135 in which the Hon'ble Supreme Court has observed that in exercise of jurisdiction under Section of Code of Criminal Procedure, the Judge 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 but could not make a roving enquiry into the pros and cons of the matter and weigh the evidence, as if he was conducting a trial.
(ii) The judgement of Apex Court in case of Gopal Sah Vs. State of Bihar 2008 (17) SCC 128, wherein it has been observed by the Supreme Court that Extra-judicial confession is, on the face of it, a weak piece of evidence and the courts are reluctant in the absence of a chain of cogent circumstances to rely on this evidence for the purpose of recording a conviction.
(iii) The judgement of Apex Court in case of Ajoy Kumar Ghose Vs. State of Jharkhand and others in Criminal Appeal No. 485 of 2009 (arising out of SLP (Crl.) No. 5196 of 2006), wherein it has been held if there is no discernible incriminating material in the evidence, then the Magistrate proceeds to discharge the accused even when the accused appears in pursuance of the summons or a warrant and even before the evidence is led under Section 244 Cr.P.C., makes an application for discharge.
(iv) The judgement of Apex Court in case of Central Bureau of Investigation, Hyderabad Vs. K. Narayana Rao in Criminal Appeal No. 1460 of 2012 (arising out of SLP (Crl.) No. 6975 of 2011) wherein the Supreme Court has held that if the Magistrate finds that there is no prima facie evidence or the evidence placed is totally unworthy of credit, it is his duty to discharge the accused at once.
Submissions on behalf of the State
8. Per contra, learned AGA has opposed the prayer of the revisionist by contending that since accident was done on account of collision of Honda City Car of wife of the revisionist with the Maruti Car, in which, injured were sitting, therefore, it shall be presumed that the revisionist being husband of the owner of Honda City Car in question was driving the car and thus, the revisionist is liable to be prosecuted.
Discussion
9. Here it would be useful to quote some other judgments and observations of the Apex Court therein on the scope of interference by the High Court at the stage of discharge.
(a) The law laid down by the Apex Court in the case of Rukmini Narvekar Vs. Vijaya Satardekar and others (2008) 14 SCC 1 are reproduced herein-below:-
"22. Thus in our opinion, while it is true that ordinarily defence material cannot be looked into by the Court while framing of the charge in view of D.N. Padhi's case (supra), there may be some very rare and exceptional cases where some defence material when shown to the trial court would convincingly demonstrate that the prosecution version is totally absurd or preposterous, and in such very rare cases the defence material can be looked into by the Court at the time of framing of the charges or taking cognizance. In our opinion, therefore, it cannot be said as an absolute proposition that under no circumstances can the Court look into the material produced by the defence at the time of framing of the charges, though this should be done in very rare cases, i.e. where the defence produces some material which convincingly demonstrates that the whole prosecution case is totally absurd or totally concocted.
23.We agree with Shri Lalit that in some very rare cases the Court is justified in looking into the material produced by the defence at the time of framing of the charges, if such material convincingly establishes that the whole prosecution version is totally absurd, preposterous or concocted. However, in this case it cannot be said that the evidence in the Civil Suit which was produced by the defence before the trial court established convincingly that the prosecution case is totally absurd or preposterous. In our opinion this is a matter which has to be looked into by the trial Court."
(b) The law laid down by the Apex Court in the case of Rajiv Thapar and others Vs. Madan Lal Kapoor (2013) 3 SCC 330 are reproduced herein-below:-
"27. Recently, this Court again had an occasion to examine the ambit and scope of Section 482 Cr.P.C. in Rukmini Narvekar Vs. Vijaya Satardekar & ors., (2008) 14 SCC 1, wherein in the main order it was observed, that the width of the powers of the High Court under Section 482 Cr.P.C. and under Article 226 of the Constitution of India, was unlimited. In the instant judgment, this Court held that the High Court could make such orders as may be necessary to prevent abuse of the process of any court, or otherwise to secure the ends of justice. In a concurring separate order passed in the same case, it was additionally observed that under Section 482 Cr.P.C., the High Court was free to consider even material that may be produced on behalf of the accused, to arrive at a decision whether the charge as framed could be maintained. The aforesaid parameters shall be kept in mind while we examine whether the High Court ought to have exercised its inherent jurisdiction under Section 482 Cr.P.C. in the facts and circumstances of this case.
29. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 Cr.P.C., if it chooses to quash the initiation of the prosecution against an accused, at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 Cr.P.C., at the stages referred to hereinabove, would have far reaching consequences, inasmuch as it would negate the prosecution's/complainant's case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 Cr.P.C. the High Court has to be fully satisfied that the material produced by the accused is such that would lead to the conclusion that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 Cr.P.C. to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice.
30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashment raised by an accused by invoking the power vested in the High Court under Section 482 Cr.P.C.:
30.1. Step one: whether the material relied upon by the accused is sound, reasonable, and indubitable i.e. the material is of sterling and impeccable quality?
30.2. Step two: whether the material relied upon by the accused would rule out the assertions contained in the charges levelled against the accused i.e. the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e. the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false?
30.3. Step three: whether the material relied upon by the accused has not been refuted by the prosecution/complainant; and/or the material is such that it cannot be justifiably refuted by the prosecution/complainant?
30.4. Step four: whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?
30.5. If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal proceedings in exercise of power vested in it under Section 482 of the Cr.P.C. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as proceedings arising therefrom) specially when it is clear that the same would not conclude in the conviction of the accused."
10. The Apex Court further in case of Prashant Bharti Vs. State (NCT of Delhi) (2013) 9 SCC 293 also, following the earlier judgment of Apex Court in the case of Rajiv Thapar (supra), quashed the criminal proceedings initiated against the accused. The relevant extract of the said judgment is reproduced herein-below:-
"25. Based on the holistic consideration of the facts and circumstances summarized in the foregoing two paragraphs; we are satisfied, that all the steps delineated by this Court in Rajiv Thapar case stand satisfied. All the steps can only be answered in the affirmative. We therefore have no hesitation whatsoever in concluding, that judicial conscience of the High Court ought to have persuaded it, on the basis of the material available before it, while passing the impugned order, to quash the criminal proceedings initiated against the accused-appellant, in exercise of the inherent powers vested with it under Section 482 Cr.P.C. Accordingly, based on the conclusions drawn hereinabove, we are satisfied that the first information report registered under Sections 328, 354 and 376 of the Indian Penal Code against the appellant-accused, and the consequential chargesheet dated 28.6.2007, as also the framing of charges by the Additional Sessions Judge, New Delhi on 1.12.2008, deserves to be quashed. The same are accordingly quashed."
11. On perusing the the impugned order dated 29.8.2016, I find that the learned Magistrate has rejected the discharge application of the revisionist on the ground that:-
(i) Accused/revisionist has accepted his guilt before the Investigating Officer.
(ii) On making the revisionist as accused by the Investigating Officer.
(iii) The revisionist appeared before the court and obtained bail.
(iv) The driving license of the accused is also on record, therefore, it cannot be said that the accused was not driving the vehicle at the time of alleged accident.
(v) Wife of the revisionist is the owner of the vehicle and got the vehicle released in her favour, therefore, it cannot be accepted that the time of accident, the vehicle was not being driven by the accused/revisionist.
12. Considering the facts, circumstances and material evidence on record, this Court is of the opinion that presumption drawn and finding recorded by the learned Magistrate for rejecting the discharge application of the revisionist cannot be said to be a sound and healthy reasoning. If any vehicle is registered in the name of wife of any person, no presumption can be drawn that the said vehicle was always being driven by the husband. In this case, it is admitted fact on record that except the extra-judicial confessional statement made by the accused before the police, there is no other corroborative evidence is on record. On making specific query by this Court, learned Additional Government Advocate appearing for the State has fairly conceded by submitting that there is no other corroborative evidence on record against the revisionist except the extra-judicial confessional statement of the revisionist before the Investigating Officer and except to draw a presumption against the revisionist, there is no evidence on record that vehicle in question was being driven on the date and time of the alleged accident by the revisionist. It is also well settled that a process of Court cannot be used as a weapon of harassment.
Conclusion
13. Considering the material evidence on record and totality of the case, presumption drawn by the learned Magistrate in the light of well settled principle of law laid down by the Hon'ble Supreme Court as discussed above, the impugned order dated 29.8.2016 is not sustainable and is liable to be set aside. Consequently, the impugned order dated 29.8.2016 is hereby set-aside. The criminal proceeding of Case No. 2618/IX/12 (State Vs. Manoj Jauhar), under Sections 279, 337, 338, 427, 304A IPC, P.S. Narhauli, District Mathura pending in the Court of 4th Additional Chief Judicial Magistrate, Mathura is hereby quashed. The revision is, accordingly, allowed.
Order Date :- 30.1.2019 AK Pandey