Rajasthan High Court - Jaipur
Raja Mohd. vs State Of Rajasthan on 5 October, 2001
Equivalent citations: 2002(3)WLN273
Author: H.R. Panwar
Bench: H.R. Panwar
JUDGMENT Panwar, J.
1. This petition Under Section 482 Cr.P.C. is directed against the order dated 24.4.2001 passed by Sessions Judge, Jaisalmer in Criminal Revision No. 13/2000 whereby the revisional court dismissed the revision petition filed by the petitioner against the order dated 13.8.2000 passed by Additional Chief Judicial Magistrate, Pokaran in Criminal Case No. 72/96 whereby the trial Court framed charges for offences under Sections 420, 467, 471 and 120-B IPC against the petitioner.
2. Brief facts, which are relevant for the decision of this petition are that one Anwar Khan lodged a First Information Report (F.I.R.) with Police Station, Pokaran stating therein that he is adopted son of one Najaria. It was alleged that land bearing Khasra No. 609/37 measuring 60 bighas situated in village Khelana was recorded in the name of his father and after the death of his father, the said land is recorded in his name and he is owner and is in cultivatory possession of the said land. It was alleged that one Muke Khan showing himself to be adopted son of Najaria, transferred the land in favour of the petitioner by a forged document. The crime report was investigated by the police and after investigation, police filed challan against the petitioner and co-accused Abdul Aziz and Ghewar Khan in the Court of Additional Chief Judicial Magistrate, Pokaran. Vide order dt. 18.8.2000 the trial Court framed charges for offences noticed above against the petitioner and other co-accused. The petitioner filed a revision petition Under Section 397(1) Cr.P.C. before the Sessions Judge, Jaisalmer. The learned Sessions Judge dismissed the revision petition by the impugned order dated 24.4.2001.
3. I have heard the learned counsel for the parties. Perused the record.
4. It is contended by the learned counsel for the petitioner that prima facie no case is made out against the petitioner for any of the offences for which the charges have been framed against him by the trial Court. It was further contended that the petitioner purchased the land at the prevailing rate and, therefore, it cannot be said that the petitioner entered into conspiracy with Muke Khan, Abdul Aziz & Ghewar Khan.
5. The petitioner and the complainant are resident of the same area and Muke Khan impersonating himself to be the son of Najaria, knowing that he is not son of Najaria, transferred the land owned and recorded in the name of Najaria, father of the complainant. The attesting witnesses of the sale wee also of the same area. The sale deed executed by the accused Muke Khan impersonating himself to be Anwar Khan is also on record. The learned trial Court taking into account the entire material placed before it, prima facie came to the conclusion that there is sufficient material against the petitioner to proceed against him for the charges levelled against him and accordingly, framed the charges.
6. In my considered opinion, there is prima facie sufficient material showing the involvement of the petitioner in the commission of the crime.
7. It was contended by the learned Public Prosecutor (P.P.) that the petitioner has already availed one revision Under Section 397(1) Cr.P.C. before the learned Sessions Judge and this being the second revision, may be under the garb of petition Under Section 482 Cr.P.C., is barred by the provisions of Section 397(3) Cr.P.C. Section 397(3) Cr.P.C. provides that if an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.
8. Since the revision petition filed by the petitioner before the learned Sessions Judge, Jaisalmer, Under Section 397(1) Cr.P.C. has been rejected, the petitioner cannot be permitted to take second revision petition by invoking inherent powers of Section 482 Cr.P.C. Section 397(3) Cr.P.C. specifically bars second revision and it is settled law that inherent powers Under Section 482 Cr.P.C. cannot be utilised for exercising powers, which are expressly barred by Sub-section (3) of Section 397 Cr.P.C.
9. The scope of Sub-section (3) of Section 397 Cr.P.C. and inherent powers of High Court Under Section 482 Cr.P.C. came to be considered by Hon'ble Supreme court in Krishnan and Anr. v. Krishnaveni and Anr. (1). The Hon'bte Supreme Court held as under:-
"Ordinarily, when revision has been barred by Section 397(3) of the Code, a person - accused/complainant - cannot be allowed to take recourse to the revision to the High Court under Section 397(1) or under inherent powers of the High Court under Section 482 of the Code since it may amount to circumvention of the provisions of Section 397(3) or Section 397(2) of the Code. It is seen that the High Court has suo motu power under Section 401 and continuous supervisory jurisdiction under Section 483 of the Code. So, when the High Court on examination of the record finds that there is grave miscarriage of justice or abuse of process of the Courts or the required statutory procedure has not been complied with or there is failure of justice or order passed or sentence imposed by the Magistrate required correction, it is but the duty of the High Court to have it corrected at the inception lest grave miscarriage of justice would ensue. It is, therefore, to meet the ends of justice or not prevent abuse of the process that the High Court is preserved with inherent power and would be justified, under such circumstances, to exercise the inherent power and in an appropriate case even revisional power under Section 397(1) read with Section 401 of the Code. As stated earlier, it may be exercised sparingly so as to avoid needless multiplicity of procedure, unnecessary delay in trial and protraction of proceedings."
10. It was further held as under:-
"The object of Section 483 and the purpose behind conferring the revisional power Under Section 397 read with Section 401, upon he High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to meet out justice. In addition, the inherent power of the High Court is preserved by Section 482 Cr.P.C. The power of the High Court, therefore, is very wide. However, the High Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power Under Section 397(1). However, when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process of miscarriage of justice or to correct irregularities/incorrectness committed by inferior Criminal Court in its juridical process or illegality of sentence or order."
11. It was further held by the Hon'ble Supreme Court that though the revision before the High Court under Sub-section (1) of Section 397 is prohibited by Sub-section (3) thereof, inherent power of the High Court is still available u/Sec.482 of the Code and as it is paramount power of continuous Superintendence of the High Court Under Section 483, the High Court is justified in interfering with the order leading to miscarriage of justice and in setting aside the order of the Courts below. Thus, the ratio of the aforesaid judgments is that though second revision is barred by Sub-section (3) of Section 397 Cr.P.C. before the High Court, however, inherent powers of the High Court are preserved by Section 482 Cr.P.C. though such powers should be exercised sparingly or in rarest of the rare case but when the case is of the nature where it appears to the High Court that non-interference would result in failure of justice or where it is considered to be necessary to interfere in order to prevent abuse of process of the Court or to meet the ends of justice or where it is a case of gross injustice to a party and the conscious of the Court is shaken, then in that case, High Court may exercise powers Under Section 482 Cr.P.C. It is settled law that at the stage of framing of charge, the trial Court is not required to marshal materials on record but only has to prima facie consider whether there is sufficient material against accused. The settled position of law is that charge can be framed even on the basis of strong suspicion.
12. In Kanti Bhadra Shah and Anr. v. State of W.B. (2), the Hon'ble Supreme Court held that if the trial Court decides to frame a charge, there is no legal requirement that he should pass an order specifying the reasons as to why he opts to do so. Framing of charge itself is prima facie order that the trial Judge has formed the opinion, upon considering the police report and other documents and after hearing both sides, that there is ground for presuming that the accused has committed the offence concerned. It was further held that there is no legal requirement that the trial Court should write an order showing the reasons for framing a charge, why should the already burdened trial Courts be further burdened with such an extra work. The (sic) has reached to adopt all possible measures to expedite the Court procedures and to chalk out measures to avert all roadblocks causing avoidable delays.
13. In Umar Abdul Sakoor Sorathia v. Intelligence Officer, Narcotic Control Bureau (3), the Hon'ble Supreme Court held that at the stage of framing charge, the Court is not expected to go deep into the probative value of the materials on record. If on the basis of materials on record the Court could come to the conclusion that the accused would have committed the offence, the Court is obliged to frame the charge and proceed to the trial.
14. At the stage of passing the order in terms of Section 227 of the Code, the Court has merely to peruse the evidence in order to find out whether or not there is a sufficient ground for proceeding against the accused. If upon consideration, the Court is satisfied that a prima facie case is made out against the accused, the Judge must proceed to frame charge in terms of Section 228 of the Code. Only in a case where it is shown that the evidence which the prosecution proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross-examination or rebutted by defence evidence cannot show that the accused committed the crime, then and then alone the Court can discharge the accused. The Court is not required to enter into meticulous consideration of evidence and material placed before it at this stage.
15. In State of Bihar v. Ramesh Singh (4), the Hon'ble Supreme Court observed as under:-
"Reading the two provisions trial the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weight 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 this staged of deciding the matter Under Section 227 of 228 of the Code. At that stage the court is not to see whether there is sufficient ground for conviction of the 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, if any, cannot show that the accused committed the offence, 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 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".
16. In Supdt. & Rememberancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja and Ors. (5), the Hon'ble Supreme Court observed as under: -
"At the initial stage of framing of charges, the prosecution evidence does not commence. The Court has, therefore, to consider the question of framing the charges on general considerations of the material placed before it by the investigating agency. At this stage, the truth, veracity and effect of the Judgment which the prosecution proposes to adduce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied finally before finding an accused guilty or otherwise is not exactly to be applied at the stage of framing the charge. Even on the basis of a strong suspicion founded on materials before it, the Court can form a presumptive opinion regarding the existence of factual ingredients constituting the offence alleged and in that event be justified in framing the charges against the accused in respect of the commission of the offence alleged to have been committed by them."
17. Apart from the bar of Section 397(3) Cr.P.C., even on merits, it cannot be said that the order framing charge would result in failure of justice. It is settled law that jurisdiction Under Section 482 Cr.P.C. has to be exercised sparingly and cautiously and with circumspection.
18. In State of Bihar v. Rajendra Agarwal (6), the Hon'ble Supreme Court held that the inherent power of the Court Under Section 482 Cr.P.C. should be very sparingly and cautiously used only when the Court comes to the conclusion that there would be manifest injustice or there would be abuse of process of Court, if such power is not exercised. The case in hand is not of that nature where it would result in failure of justice or abuse of process of the Court in the event of non-interference. No case for interference is made out.
19. In view of the aforesaid discussion, I find no merit in this petition. Accordingly, it is hereby dismissed.