Madhya Pradesh High Court
Haider Ali Mumtajali And Ors. vs State Of M.P. on 9 September, 1996
Equivalent citations: 1997(1)MPLJ500
Author: J.G. Chitre
Bench: J.G. Chitre
ORDER J.G. Chitre, J.
1. Heard Shri Umesh Maheshwari, for the petitioners.
Shri A. D. Upadhyay, Panel Lawyer, for prosecution.
The material which has been collected by the investigating agency against the applicant has been considered.
2. It is the case of the prosecution that on 20-6-1995 at about mid night, all the applicants entered into the shop belonging to complainant Didar Ahmed and committed the theft of some of the furniture which was stored in the said shop as well as the cash which was kept in cash box. Prosecution also alleged that all the applicants committed house breaking by night, in order to commit an offence punishable with imprisonment. Prosecution also alleged that they committed the offence punishable under section 427 of Indian Penal Code by committing mischief, causing damage to the complainant above Rs. 50/-. The FIR of complainant Didar Ahmed is dated 21-6-1995. In that FIR Didar Ahmed has alleged that Wasik Ali s/o Issac Ali and Thawar Ali s/o Haidar Ali along with four others had committed the house breaking by night for committing the theft of some of the furniture and cash which was stored in cash box. He has also alleged in the said FIR that those persons had committed the mischief and caused the damage to him which was more than Rs. 50/-. The investigating officer carried the investigation and, thereafter charge sheet was filed against the applicants in the court of Judicial Magistrate, First Class, Badwah.
3. Shri Umesh Maheshwari, counsel for the applicants argued that no case has been made out against the applicants punishable under provisions of section 380 of Indian Penal Code and, therefore, the learned Magistrate has committed the error of framing the charge against the applicants for that offence. He submitted that the charge on that count needs to be set aside. He made reference to the statements of other witnesses recorded by the investigating agency in view of provisions of section 161 of Criminal Procedure Code, 1973 (hereinafter referred to as Code).
4. Shri A. D. Upadhyay, panel lawyer appearing for the prosecution placed reliance on the judgments of Supreme Court in the matters of following :
(i) State of Maharashtra etc. etc. v. Som Nath Thapa etc. etc. reported in JT 1996(4) SC 615, (ii) Shri Satish Mehra v. Delhi Administration reported in JT 1996 (7) SC 6, and submitted that in view of the observations of Supreme Court in those judgments and the FIR of complainant Didar Ahmed, the learned Magistrate has rightly framed the charge against the applicants even for an offence punishable under section 380 of Indian Penal Code.
5. In the matter of State of Maharashtra etc. etc. v. Shri Som Nath Thapa, the Supreme Court has held that -
"If on the basis of material on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of charge, probative value of the materials on record cannot be gone into the materials brought on record by the prosecution has to be accepted as true at that stage".
6. In the matter of Shri Satish Mehra v. Delhi Administration (supra), the Supreme Court held that -
"After proceeding in view of provisions of section 226 of the Code, the next provisions (section 227 of the Code) enjoins on the Sessions Judge to decide whether there is sufficient ground to proceed against the accused. In so deciding the Judge has to consider (1) the record of the case and (2) the documents produced therewith. He has then to hear the submissions of the accused as well as the prosecution on the limited question whether there is sufficient ground to proceed. What is the scope of hearing the submissions? Should it be confined to hearing oral arguments alone?
Similar situation arises under section 239 of the Code (which deals with trial of warrant cases on police report). In that situation the Magistrate has to afford the prosecution and the accused an opportunity of being heard besides considering the police report and the documents sent therewith. At these two stages the code enjoins on the Court to give audience to the accused for deciding whether it is necessary to proceed to the next stage. It is a matter of exercise of judicial mind. The object of providing such an opportunity as is envisaged in section 227 of the Code is to enable the Court to decide whether it is necessary to proceed to conduct the trial. When the Judge is fairly certain that there is no prospect of the case ending in conviction the valuable time of the Court should not be wasted for holding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on a future date. If the Sessions Judge is almost certain that the trial would only be an exercise in futility or a sheer waste of time it is advisable to truncate or nip the proceeding at the stage of section 227 of the Code itself."
7. Thus, keeping in view these observations of the Supreme Court, the material which has been collected by the investigating agency against the applicants will have to be considered for the purpose of coming to the conclusion whether the learned Magistrate was right in framing the charge against the applicants even for an offence punishable under section 380 of Indian Penal Code.
8. Words "there is no sufficient ground for proceeding against the accused" have been used in section 227 of the Code. Section 239 provides that - "If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused". Section 240(1) of the Code provides - "If, upon such consideration, examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused." The words "there is ground for presuming that the accused has committed an offence" in section 240 of the Criminal Procedure Code are important. So far as present case is concerned, it is a case which Magistrate has to try in view of provisions of Chapter XIX of the Code, meant for trial of warrant cases by Magistrate. The magistrate has to consider the material which has been collected by the investigating agency against the applicants and has to come to the conclusion whether there is ground for presuming the commission of an offence triable under Chapter XIX of the Code.
9. In the matter of Slate of Maharashtra etc. etc. v. Som Nath Thapa (supra) the Supreme Court has pointed that;-
"To put it differently, if the court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of charge, probative value of the materials on record cannot be gone into the materials brought on record by the prosecution has to be accepted as true at that stage."
10. Therefore, so far as present case is concerned, it will have to be presumed that complainant Didar Ahmed would be giving the evidence in terms of the FIR which has been lodged by him. If that is so, he would be naming the applicants Wasik Ali and Thawar Ali as the persons who were committing the said acts. Shri Maheshwari argued that other prosecution witnesses have not attributed the act of stealing the cash from the cash box so far as other applicants are concerned. He has also submitted that they have also not alleged that other applicants were committing the acts which would be amounting to committing the theft of other articles of furniture. Basing his argument on this point, Shri Maheshwari submitted that the learned Magistrate should not have framed the charge against these applicants. The statements of the other witnesses prima facie make out a case of presence of other applicants at the spot of said shop and a prima facie case has been made out so far as their entry in the said shop is concerned. The court will have to presume that this material which has been collected by the investigating agency against the applicants is true at the stage of framing the charge. The court would not be competent to assess the probative value of this material; the court would not be competent to appreciate the credibility of that evidence at the time of framing the charge. The court will have to apply the test whether this material if accepted as it is, would warrant the conviction. The court will have to form a question for determining whether this material if unrebutted, would warrant conviction?
11. Leaving aside the point of framing the charge against the applicants for an offence punishable under section 380 of Indian Penal Code, all the applicants would be facing a trial for committing the offences which are punishable under sections 427 and 457 of Indian Penal Code. They will have to face the trial for those charges. Therefore, unnecessarily undergoing the ordeal of trial by them would not be a point available for consideration at this stage.
12. I do not find any necessity for invoking the powers of the High Court for setting aside the charge which has been framed by the learned Magistrate against the applicants for an offence punishable under section 380 of Indian Penal Code. Thus, this petition stands dismissed.
13. The observations made by this Court while deciding this petition, would not weigh at the time of decision of the trial.