Punjab-Haryana High Court
Date Of Decision : 1.2.2013 vs State Of Haryana on 1 February, 2013
Author: K.C. Puri
Bench: K.C. Puri
Crl. R.No. 3838 of 2012 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
1) Crl. R.No. 3838 of 2012 (O&M)
Date of decision : 1.2.2013
...
Aman Gaur and others
................Petitioners
vs.
State of Haryana
.................Respondent
2) Crl. M.No.M-31348 of 2012 (O&M)
...
Aman Gaur and others
................Petitioners
vs.
State of Haryana
.................Respondent
Coram: Hon'ble Mr. Justice K.C. Puri
Present: Sh. R.S. Rai, Senior Advocate with
Sh. Gautam Dutt, Advocate for the petitioners.
...
K.C. Puri, J.
Vide this order, I intend to dispose of Crl.R.No.3838 of 2012 titled as Aman Gaur and others vs. State of Haryana and Crl.M.No.M- 21348 of 2012 titled as Aman Gaur and others vs. State of Haryana, as both these petitions have arisen out of the framing of charge Crl. R.No. 3838 of 2012 -2- against the petitioners.
Challenge in Crl.R. No. 3838 of 2012 is in respect of framing of charge under Sections 148, 342, 365, 380, 448 and 506 IPC read with Sections 149, 395 and 397 IPC, in FIR No. 2 dated 1.1.2010 registered at Police Station Manesar, Gurgaon.
Challenge in Crl.M.No.M-31348 of 2012 is the order dated 28.8.2012 passed by Smt. Alka Malik, Additional Sessions Judge, Gurgaon, vide which the revision petition against the order dated 18.7.2012 passed by Sh. Ashok Mann, Judicial Magistrate Ist Class, Gurgaon, in criminal case No. 246 of 2011 titled as State vs. Ram Mehar etc, in the above said FIR was dismissed.
The law was set in motion on the basis of complaint of one Sameer Gaur who has stated as under :-
"To The SHO PS Manesar, Haryana. Sir, in the morning I got information that some people have forcibly taken in to possession of my factory and some material have been stolen. When I reached at the factory then I found that the material at the factory has been scattered. The allegation with regard to illegal custody was found to be incorrect. People have come with intention of theft only and a lot of material has been stolen from my factory. The list of stolen articles is like that, all the documents including my Engineering Degree, Bill books, A/C papers, ESI, PF, Excise Papers, Two laptops, Two Crl. R.No. 3838 of 2012 -3- Desktop computers and some machine (Hard drill, Grinder), Dies, tools aluminum etc. apart from this a lot of other material has been stolen. I will prepare a list and handover it to you. Please proper action may kindly be taken and my stolen articles be recovered. Sd/- Sameer Gaur Proprietor."
After the investigation, challan was presented against the accused on 29.3.2011 under Sections 148, 149, 448, 342, 506, 380 and 511 IPC.
Sh. Ashok Mann, Judicial Magistrate Ist Class, vide order dated 18.7.2012 committed the case to the Court of Sessions Judge under Sections 148, 149, 342, 365, 380, 395, 397, 448, 506 and 511 IPC. The grievance of the petitioners is that the committing order dated 18.7.2012 is illegal as offence under Sections 395 and 397 IPC are not made out against the petitioners. The petitioners have also challenged the order dated 28.8.2012 passed by Ms. Alka Malik, Additional Sessions Judge, Gurgaon, vide which the revision against the order dated 18.7.2012 was dismissed, in Crl.M.No.M-31348 of 2012.
After passing of the said commitment order, learned Additional Sessions Judge, has framed charge under Sections 395 and 397 IPC also, vide order dated 6.10.2012. The said order has also been challenged in the Crl.R.No. 3838 of 2012.
Learned counsel for the petitioners has submitted that from the bare reading of FIR, the ingredients of offence under Sections 395 Crl. R.No. 3838 of 2012 -4- and 397 IPC are not made out and as such the Judicial Magistrate Ist Class, should not have committed the case to the Court of Sessions. It is further submitted that even Sessions Judge has not properly appreciated the facts regarding framing of charge under Sections 395 and 397 IPC. Learned counsel for the petitioners has relied upon the authority reported as Sajjan Kumar vs. Central Bureau of Investigation (2010) 9 Supreme Court Cases 368.
I have considered the said submission made by counsel for the petitioners and have carefully gone through the authority in Sajjan Kumar's case (Supra). In the said authority in paragraph No. 20 of the judgment, the Hon'ble Apex Court has observed as under:-
"29. A Magistrate enquiring into a case under Section 209 Cr.P.C. is not to act as a mere post office and has to come to a conclusion whether the case before him is fit for commitment of the accused to the Court of Session. He is entitled to sift and weigh the material on record, but only for seeing whether there is sufficient evidence for commitment, and not whether there is sufficient evidence for conviction. It there is no prima facie evidence or the evidence is totally unworthy of credit, it is the duty of the Magistrate to discharge the accused, on the other hand, if there is some evidence on which the conviction may reasonably be based, he must commit the case. It is also clear that in exercising Crl. R.No. 3838 of 2012 -5- jurisdiction under Section 227 Cr.P.C. the Magistrate should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as it he was conducing a trial."
So, from the bare reading of the abovesaid observation, it is clear that Judicial Magistrate Ist Class has not to act mere as a post office and committing the case, but has to see whether the offences triable by the Court of Sessions are made out or not. After the commitment order dated 18.7.2012, mere fact that the police has not mentioned the offences under Sections 395 and 397 IPC at the time of submitting the challan, is not a ground for interference.
After the commitment order the Sessions Judge also applied his mind and reached to the conclusion that offences under Sections 395 and 397 IPC are also made out against the petitioners alongwith other offences. So, in these circumstances, both the Courts below have concurred that offences under Section 395 and 397 IPC are also made out. The FIR is only meant to set the law in motion. However, during investigation the statements of the persons present in the factory clearly shows that offences under Sections 395 and 397 IPC are also made out. At the time of framing the charge, the Court is not required to go into the meticulous details. Even on the basis of strong suspicion, charge under Sections 395 and 397 IPC can be framed against the accused.
So, in view of the above discussion, no ground for interference in both the petitions is made out. Consequently, both the Crl. R.No. 3838 of 2012 -6- petitions stand dismissed.
However, it is made clear that anything observed above should not be construed as an expression of opinion on the merits of the case. The trial Court shall decide the case uninfluenced by the observations made above.
Learned Additional Sessions Judge has to ultimately give the finding after appraisal of the evidence whether any offence including offence under Sections 395 and 397 IPC is made out against the accused or any of the accused.
( K.C. Puri ) 1.2.2013 Judge chugh