Madhya Pradesh High Court
Vinod vs The State Of Madhya Pradesh on 8 January, 2020
Author: Rajendra Kumar Srivastava
Bench: Rajendra Kumar Srivastava
THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Hon'ble Shri Justice Rajendra Kumar Srivastava
Cr.R. No. 780/2019
Vinod & others
Vs
State of Madhya Pradesh
------------------------------------------------------------------------------------
Shri P.K. Thakre, learned counsel for the petitioners.
Shri Pradeep Dwivedi, learned P.L. for the respondent/State.
------------------------------------------------------------------------------------
ORDER
(08/01/2020) This revision petition under Section 397/401 Cr.P.C. has been preferred by the petitioners being aggrieved by the order dated 21.01.2019 in S.C.P.P.M. No.97/2018 passed by learned Special Judge MP/MLA, Bhopal, whereby the learned Special Judge has framed the charges against the petitioners for offence punishable under Sections 363, 365, 342, 323 read with Section 149, 327, 394 and 506-II of IPC.
2. Case of prosecution in brief is that police has initially registered the FIR against the petitioners for the offences punishable under Sections 323, 344, 34-A, 506 and 147 of IPC. It is mentioned in the FIR that complainant-Devendra Singh Bhadoriya has informed the police that on 14.02.2015 at about 09:30 pm, when he was in his house, two four wheeler came in the door of his house in which Ram Lakhan, Sanju Singh (who is the son of Ram Lakhan Singh), Vinod Singh Kushwaha, Sitaram along with 3-4 other persons were come 2 Cr.R. No. 780/2019 and Sanju stated him that they are interested to elect him as Vice President of Janpad Panchayat but he has to arrange Rs. 10,00,000/- for the same, therefore, he arranged some Rupees and ornaments. After that, they took the complainant from Bhind to Gudgaon, during the said period, they switched off the mobile phone of the complainant, they armed with pistol and Katta and committed marpeet with him and also threatened him. Thereafter, they confined him in agricultural farm house was of one Captain, although he does not know his name. On 09.03.2015, they left him in Janpad office and after completion of concerned election, he reached in the house of accused persons and demanded the aforesaid money, then petitioners/accused again confined him in room and committed marpeet with him.
3. After registering the FIR, police has completed inquiry and filed the charge-sheet for the offences punishable under Sections 323, 344, 347 506 and 147 of the IPC, thereafter, learned trial Court has framed the charges against the petitioners/accused for the offences punishable under Sections 363, 365, 342, 323 read with Section 149, 327, 394 and 506-II of the IPC.
4. Learned counsel for the petitioners submits that the learned trial Court has committed grave error of law in framing of charges for the alleged offences against them as there is no material collected by the prosecution during investigation. He also submits that police has received an information from complainant-Devendra Singh and recorded the statement of complainant-Devendra Singh under Section 161 of Cr.P.C., but there is no memorandum of the 3 Cr.R. No. 780/2019 petitioners/accused has been recorded by the police under Section 27 of the Evidence Act and nothing has been seized from the petitioners/accused, therefore, in absence of memorandum and seizure, no office is made out against the petitioners for the alleged offences. There is no material available on record with regard to Sections 363 and 365 of IPC against them because according to the complaint, complainant himself accompanied with them, so it is made clear that petitioners/accused was not taken the complainant forcefully. He further submits that complainant went himself with his own will and he stayed with them, therefore, no case is made out against them for the offence punishable under Section 342 of the IPC. He also submits that in the statement of the complainant, recorded under Section 161 of Cr.P.C., he has not specified that who committed marpeet with him, hence, no case is made out under Section 323 of IPC against him. Further, no ingredients are available on record for voluntarily causing hurt in committing robbery, so no offence is also made out under Section 394 of IPC against him. Petitioner- Ramlakhan Singh is a political person and due to political rivalry, complainant has lodged a false case against him and all other petitioners because they connected with the petitioner-Ramlakhan Singh.
5. On the other hand, learned P.L. opposes the prayer and submits that there is sufficient material is available on the record for framing the charges for the aforesaid offences. Petitioners have confined the complainant and also committed marpeet with him and they robbed money from the complainant. So, at this stage, this 4 Cr.R. No. 780/2019 revision petition may not be allowed, petitioners may raise all the ground before the trial Court at appropriate stage of trial.
6. Heard all the parties and perused the case. Before embarking on the facts of the case, it would be necessary to consider the legal aspects first. Since, by filing this revision petition, the petitioners have challenged the charges framed by the learned trial Court, therefore, I deal with the relevant provision of Cr.P.C under Section 227 and 228, same reads as under:
"227. Discharge. If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing."
7. If Court finds that there is sufficient material is showing to connect the accused with the aforesaid offences then Section 228 of Code of Criminal Procedure, 1973 comes into role, provision is also quoted as under:
"228. Framing of charge.(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which-
(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, and thereupon the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of warrant- cases instituted on a police report;
(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused. (2) Where the Judge frames any charge under clause
(b) of sub- section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried."5 Cr.R. No. 780/2019
8. The Hon'ble Supreme Court in the case of Niranjan Singh Karam Singh Punjabi, Advocate Vs. Jitendra Bhimraj Bijja and others reported in AIR 1990 SC 1962 has held as under:-
"7. Again in Supdt. & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja, (1979) 4 SCC 274: (AIR 1980 SC 52) this Court observed in paragraph 18 of the Judgment as under:
"The standard of test, proof and judgment which is to be applied finally before finding, the accused guilty or otherwise, is not exactly to be applied at the stage of Section 227 or 228 of the Code of Criminal Procedure, 1973. At this stage, even a very strong suspicion founded upon materials before the Magistrate which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged may justify the framing of charge against the accused in respect of the commission of that offence".
From the above discussion it seems well-settled that at the Sections 227-228 stage the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face-value disclose the existence of all the ingredients constituting the alleged offence. The Court may 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."
9. Further, in the case of Union of India Vs. Prafulla Kumar Samal and another reported in AIR 1979 SC 366, the Hon'ble Supreme Court again has held as under:-
"Thus, on a consideration of the authorities mentioned above, the following principles emerge:(1) That the Judge while considering the question of framing the charges under section 227 of the Code 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:
(2) 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.6 Cr.R. No. 780/2019
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (4) That in exercising his jurisdiction under section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a Post office or a mouth-piece 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 basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."
10. Further, the Hon'ble Apex Court in the case of State of Orissa Vs. Debendra Nath Padhi reported in (2005) 1 SCC 568 has held as under:-
"23. As a result of the aforesaid discussion, in our view, clearly the law is that at the time of framing charge or taking cognizance the accused has no right to produce any material, Satish Mehra case, holding that the trial court has powers to consider even materials which the accused may produce at the stage of Section 227 of the Code has not been correctly decided."
11. The Hon'ble Apex Court in the case of State of M.P. Vs. S.B. Johari and others reported in 2000(2) M.P.L.J (SC) 322, has also held as under:-
"4...........It is settled law that at the stage of framing the charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross examination 7 Cr.R. No. 780/2019 or rebutted by defence evidence, if any, cannot show that accused committed the particular offence. In such case, there would be no sufficient ground for proceeding with the trial. In Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjayya and Others etc. reported in (1990) 4 SCC 76, after considering the provisions of Sections 227 and 228, Cr.P.C., the Court posed a question, whether at the stage of framing the charge, the trial court should marshal the materials on the record of the case as he would do on the conclusion of the trial. The Court held that at the stage of framing the charge inquiry must necessarily be limited to deciding if the facts emerging from such materials constitute the offence with which the accused could be charged. The Court may peruse the records for that limited purpose, but it is not required to marshal it with a view to decide the reliability thereof. The Court referred to earlier decisions in State of Bihar v. Ramesh Singh (1977) 4 SCC 39, Union of India v. Prafulla Kumar Samal (1979) 3 SCC 4 and Supdt. & Remembrancer of Legal Affair, West Bengal vs. Anil Kumar Bhunja (1979) 4 SCC 274 and held thus:
"From the above discussion it seems well settled that at the Sections 227-228 stage the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The court may for this limited purpose shift the evidence as it cannot be expected even at the 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. (emphasis supplied)
12. In another judgment, the Hon'ble Apex Court in the case of Sanghi Brothers (Indore) Pvt. Ltd. Vs. Sanjay Choudhary & others reported in 2010(1) M.P.J.R. (SC) 36 has held as under:-
"10. After analyzing the terminology used in the three pairs of sections it was held that despite the differences there is no scope for doubt that at the stage at which the court is required to consider the question of framing of charge, the test of a prima facie case to be applied.
11. The present case is not one where the High Court ought to have interfered with the order of framing the charge. As rightly submitted by learned counsel for the appellant, even if there is a strong suspicion about the commission of offence and the involvement of the 8 Cr.R. No. 780/2019 accused, it is sufficient for the court to frame a charge. At that stage, there is no necessity of formulating the opinion about the prospect of conviction. That being so, the impugned order of the High Court cannot be sustained and is set aside. The appeal is allowed."
13. Hence, after careful reading of the above cited pronouncement, it is manifest that it is well-settled principle of law that at the stage of Section 227-228 of Cr.P.C., 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. At this stage accused has no right to produce any material. The scope of revisional jurisdiction is very limited and same can be invoked where the decision under challenged as grossly erroneous.
14. Now, in view of the above principle, I revert back to the facts of the case by examining the documents annexed with the case to evaluate whether the material, annexed with the charge sheet is sufficient to frame the charges of aforesaid offences.
15. Regarding Section 323,327 and 394 of IPC Before evaluating the facts, it would be necessary to read the relevant provisions of IPC, same are mentioned as under:-
"323. Punishment for voluntarily causing hurt.-- Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both."
16. Section 323 IPC provides the punishment for causing voluntarily hurt, which is defined in Section 321 of IPC, same is also mentioned herein under :
321. Voluntarily causing hurt.--Whoever does any act with the intention of thereby causing hurt to any 9 Cr.R. No. 780/2019 person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said "voluntarily to cause hurt".
17. Now, read the Sections 327 and 394 IPC, same are read as under :
327. Voluntarily causing hurt to extort property, or to constrain to an illegal act.--Whoever voluntarily causes hurt, for the purpose of extorting from the sufferer, or from any person interested in the sufferer, any property or valuable security, or of constraining the sufferer or any person interested in such sufferer to do anything which is illegal or which may facilitate the commission of an offence, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
394. Voluntarily causing hurt in committing robbery.
--If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with imprisonment for life or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
18. At this juncture, it is also necessary to read the definition of robbery which is defined in Section 390 IPC, it is also reproduced herein under :
"390. Robbery.--In all robbery there is either theft or extortion.
When theft is robbery.--Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
When extortion is robbery.--Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted. Explanation.--The offender is said to be present if he is sufficiently near to put the other person in fear of 10 Cr.R. No. 780/2019 instant death, of instant hurt, or of instant wrongful restraint."
19. On careful reading of the provision of Section 323, 327 and 394 of IPC, one thing which found common is "voluntary causing hurt". According to Section 321, whoever does any act with the intention to causing hurt to any person or with the knowledge that he is likely to cause hurt to any person, and does thereby cause hurt to any person, is said "voluntarily causing hurt". The offence of robbery is defined under Section 390 of IPC and according to it in all robbery there is either theft or extortion. The essential ingredients of robbery are that:-
"1. There must have been commission of theft as defined in Section 378;
2. The act of theft must have been committed by the offender causing or attempting to cause fear of death, hurt or wrongful restraint or fear of instant death or instant hurt or instant wrongful restraint; and
3. There must have been commission of extortion as defined in Section 383 and while doing so the offender must have been in presence of the person and subsequently has put the person in fear of instant hurt or instant wrongful restraint or instant death and by causing so has induces the person to deliver some property in possession of the person so put in fear."
20. In the present case there is no allegation of theft. As far as allegation of extortion is concerned, according to complainant, the petitioners have threatened him and took his money, thus, the robbery by extortion comes into effect as the provision says an extortion becomes robbery when the offender, at the time of committing the offence of extortion, put the person in fear of instant death, instant wrongful restraint or instant hurt to deliver the thing in possession of person.
11Cr.R. No. 780/2019
21. In the present case, the complainant stated that the petitioners have committed marpeet with him two times with the intention to extort his money. According to complainant, the petitioners have threatened him on the point of pistol, they have not returned his money. Therefore, the ingredients for the offences of Section 323, 327 and 394 of IPC for framing the charges are prima facie satisfied in the case.
Regarding Sections 342, 363, 365 of IPC
22. Before adverting the fact of the case, I find necessary to reproduce the above said provision, same are mentioned hereinunder:-
"342. Punishment for wrongful confinement.-- Whoever wrongfully confines any person shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both."
23. As above noted, Section 342 of IPC provides the punishment for wrongful confinement which is defined in Section 340 of IPC, same is also mentioned as under:-
"340-Wrongful confinement- Whoever wrongfully restrains any person in such a manner as to prevent that person from proceeding beyond certain circumscribing limits, is said "wrongfully to confine"
that person."
24. Now, I read the provision of Section 363 and 365 of IPC same are also mentioned as under:-
"363. Punishment for kidnapping. --Whoever kidnaps any person from [India] or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
365. Kidnapping or abducting with intent secretly and wrongfully to confine person.--Whoever kidnaps or abducts any person with intent to cause that person 12 Cr.R. No. 780/2019 to be secretly and wrongfully confined, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
25. The definition of kidnapping is provided under Section 359 of Cr.P.C. and according to it there are two kinds of kidnapping (I) Kidnapping from India (ii) kidnapping from lawful guardianship. In the present case, neither the complainant conveyed beyond the limits of India nor he is minor or unsound mind who had been taken out of the lawful guardianship. Therefore, the charges of Section 363 of IPC is not found proper. Looking to the allegation made by the complainant as he has been forcefully taken out from his house and illegally confined at Gurgaon, therefore, the offence of Section 362 would prima facie made out in the case.
26. The other offences of Section 323 read with Section 149 and Section 506 of IPC has also been framed by the learned trial Court. Since, the accused person are more than 5 members and they have designated an unlawful assembly with the common object to hurt the complainant, thus, the provision of Section 149 is attracting in the case. The allegation for threatening is also made by the complainant, therefore, offence of Section 506 of IPC is also prima facie found in the case.
27. The learned counsel for the petitioners argued that the police has not recorded the memorandum of accused person and also not prepared the seizure which makes fatal the case of prosecution and in the absence of same, the charges can not be framed on the accused person.
13Cr.R. No. 780/2019
28. In this regard, in the case of State of Bihar Vs. Ramesh Singh reported in AIR 1977 SC 2018, the Hon'ble Apex Court has held as under:-
"4.............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 trial. But at the initial stage, if there is a strong suspicion which leads the court to think that there is a 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 evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial."
29. In other case P. Vijayan Vs. State of Kerala and another reported in 2010 Cr.L.J. 1427, the Hon'ble Apex court has held as under:-
"10............Further, the words "not sufficient ground for proceeding against the accused" clearly show that the Judge is not a mere Post Office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the Court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the Court, after the trial starts. At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In other words, the sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the Court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him."14 Cr.R. No. 780/2019
30. It is well settled principle of law that while considering the question of framing the charges, the Court has undoubted power to shift and weigh the evidence of limited purpose of finding out whether or not a prima facie case against the accused has been made out. Where the materials placed before the Court disclosed grave suspicious against the accused, the Court will be fully justified in framing a charge and proceeding with the trial.
31. It is true in the case diary the memorandum of accused person as well as seizure are not found annexed but on the fault or irregularity of police officials, complainant can not be deprived to get the justice.
32. Therefore, in view of the above said discussion, I of the view the learned trial Court has framed the correct charges except Section 363 of IPC. Hence, this revision petition is disposed of and the learned trial Court is directed to proceed with the trial after framing the charges of Section 362, 365, 342, 323 read with Section 149, 327, 394 and 506-II of IPC.
33. C.C. as per rules.
(Rajendra Kumar Srivastava) Judge L.R. Digitally signed by LALIT SINGH RANA Date: 2020.01.10 10:17:23 +05'30'