Rajasthan High Court - Jaipur
Parmanand Sindhi S/O Shri Asandas vs State Of Rajasthan (2023/Rjjp/010210) on 10 May, 2023
Author: Ashok Kumar Jain
Bench: Ashok Kumar Jain
[2023/RJJP/010210]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Appeal No. 737/2023
Parmanand Sindhi S/o Shri Asandas, R/o Plot No. A-19, Shri Ji
Colony Aakeda Doonger V.k.i Area Jaipur Current R/o Udak
Papad, Malhotra Nagar, V.k.i Area Jaipur
----Appellant
Versus
1. State Of Rajasthan, Through P.p
2. Smt. Manbhar Devi W/o Shri Ramchandra Meena, R/o Plot
No. 95, Malhotra Nagar, Vishwakarma Jaipur
----Respondents
For Appellant(s) : Ms. Nazish Rashid and
Mr. Gajendra Kumar Saini for
Mr. Ramanuj Sharma
For Respondent(s) : Mr. B.L. Nasuna, Dy.GA
Mr. Dhruv Tailor
HON'BLE MR. JUSTICE ASHOK KUMAR JAIN
Order
Date of Reserve:- 08/05/2023
Date of Pronouncement:- 10/05/2023
The instant appeal under Section 14A of SC/ST POA Act is preferred aggrieved from order dated 19.09.2022 in Sessions Case No. 287/2022 whereby learned Additional District and Sessions Judge No. 2, Jaipur Metro-II framed charges against the appellant accused under Sections 420, 467, 468, 471 and 447 of IPC and Section 3(2)(va), 3(1)(f), 3(1)(g) and 3(1)(r) of SC/ST (POA) Act.
The fact of the matter is that on a complaint of Manbhar Devi an FIR No. 148/2019 for offences under Sections 420, 468, 471 and 120B IPC was lodged at P.S. Vishwakarma, Jaipur wherein it was alleged that the premises of ownership of complaint was given on rent to present accused and a rent note was also (Downloaded on 11/11/2023 at 05:20:07 PM) [2023/RJJP/010210] (2 of 9) [CRLAS-737/2023] executed by accused. All of sudden from FIR No. 429/2018 and to surprise of complainant claiming to be an agreement of sale of the property belongs to complainant was surfaced, which is a forged document created by appellant just to grab the property of complainant. The police after investigation, proposed a final closure report in FIR number 429/2018. The complainant had alleged that to grab the property of complainant, this forged document was prepared and on the basis of this document a commercial electricity connection was obtained by accused. Terming it as illegal and fabricated with criminal intent the appellant in a systematic manner tried to grab the property, a complaint is filed. After investigation, police had filed a charge- sheet against appellant under Sections 420, 467, 468, 471 and 447 of IPC and Sections 3(2)(va), 3(1)(g), 3(1)(r) of SC/ST (POA) Act. After hearing the parties learned trial court had directed to frame the charge as referred hereinabove.
Learned counsel for appellant submitted that here it is a case of property dispute and invoking provisions under SC/ ST (POA) Act is not warranted. She further submitted that pursuant to FIR (present one) was lodged by present accused, a counter FIR (present one) was lodged to implicate accused on false grounds. She further submitted that there was not a single iota of evidence to record the suggestion that accused has wilfully or deliberately committed the offence against the person belonging to SC/ST community. She further submitted that trial court was obliged to consider the entire material available on record so as to arrive at a conclusion but learned trial Court was obliged not considered the entire material on record and had proceeded to frame charges as (Downloaded on 11/11/2023 at 05:20:07 PM) [2023/RJJP/010210] (3 of 9) [CRLAS-737/2023] proposed by police. She further submitted that to invoke provision of Section 420 IPC it is necessary that there must be satisfaction of ingredients as defined under section 415 IPC wherein it is necessary to establish that appellant had dishonestly induced complainant to deliver the property to him and also caused a wrongful loss to complainant. She further submitted that nowhere it was proved that accused was involved in causing wrongful loss to the complainant and ultimately accused had gained dishonestly. She further submitted that for offences under Sections 467, 468 and 471 of IPC, it has to be proved that it was accused or someone on behalf of accused, who created the forged document but there was not a single evidence to arrive at a conclusion that so called agreement of sale was crafted by accused himself or in connivance with him. She further submitted that the ingredients of fabrication and creation of fabricated document were not established from available record but even then the trial court had proceeded to frame charge under Section 467 IPC. She further referred the record to buttress upon argument that accused had not misused or used any forged document as a genuine document to gain something. While referring the allegation in charge of taking electricity connection she submitted that it was admitted by complainant that possession of disputed property was legally handed over to accused and he is still in possession. She further submitted that he was entitled to obtain electricity connection. She further submitted that learned trial court without considering the fact that it was an admitted case of complainant that disputed property was handed over on rent after execution of a rent note but ignoring the same charge under Section 447 of IPC was also (Downloaded on 11/11/2023 at 05:20:07 PM) [2023/RJJP/010210] (4 of 9) [CRLAS-737/2023] framed against accused. She further submitted that at the time of framing charge, learned trial court was duty bound to exercise its judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution or not. She further referred Sections 227 and 228 of Cr.P.C. to submit that before proceeding to frame charges, it is duty of learned trial court to consider material available on record and to satisfy itself that evidence before it is sufficient to give rise to some suspicion though may not a grave suspicion so as to frame a charge but learned trial court had failed to exercise the same. During the course of argument she relied upon judgment of Hon'ble Supreme Court in case of Union of India v/s Prafulla Kumar (1979) 3 SCC 4, P. Vijayan v/s State of Kerala (2010) 2 SCC 398, Hari Sao and Anr. V/s State of Bihar (1969) 3 SCC 107, Rekha Jain v/s State of Karnataka 2022 LiveLaw (SC) 468, Mrs. M.Dhanalakshmi @ Lakshmi Rajan & Anr. V/s State of Karnataka & Anr. (Criminal Petition No. 2386/2019), and Amit Luhach v/s State of NCT Delhi & Ors. (CRL.REV.P. 642/2016). She further submitted that Hon'ble Apex Court had further laid down that in certain category of cases including relating to commercial office, particularly to avoid false implication of an innocent, conducting of an enquiry is required. She further submitted that in the scheme of Constitution wherein a cohesive and casteless society is there, it is duty of learned trial court to look into the facts before arriving at conclusion whether offences under Sections 3(2)(va), 3(1)(g), 3(1)(r) of SC/ST (POA) Act were made out or not.
(Downloaded on 11/11/2023 at 05:20:07 PM) [2023/RJJP/010210] (5 of 9) [CRLAS-737/2023] Aforesaid contentions were opposed by learned Public Prosecutor and learned counsel for complainant on the ground that after investigation police had filed a charge-sheet on the basis of material available on record, charges have been framed against appellant. There are no grounds to escape from liability as the act committed by appellant is well established from material collected during investigation. Learned counsel for respondent-complainant submitted that the appellant in order to grab the property of poor, illiterate complainant had prepared a forged agreement of sale for consideration of Rs.60 lacs that too on a simple paper. He further submitted that the date of execution of agreement of sale was of 2015 whereas the property was actually taken in the year 2016 on rent by appellant, after execution of rent note on stamp paper of Rs.500. He further submitted that when the rent note was executed on stamp paper then how can agreement to sale be executed on plain paper. Thus, the mindset of the accused is well indicated from the circumstances of the case itself. He further submits that to grab the property of complainant, appellant had filed an FIR No. 429/2018 against complainant on the strength of forged agreement of sale in his favour but police after investigation concluded that the case was registered on false facts and proposed a closure report. He further submitted that after hatching a conspiracy to grab the property of complainant, forged documents were prepared and subsequently property was taken on rent so as to establish the possession of property in question. He further submitted that learned trial Court had framed charges on the basis of material available on record and there is no illegality as far as framing of charge is concerned. (Downloaded on 11/11/2023 at 05:20:07 PM) [2023/RJJP/010210] (6 of 9) [CRLAS-737/2023] Heard learned counsel for appellant, learned Public Prosecutor and learned counsel for complainant. Perused the material available on record and also perused the copy of documents of FIR No. 429/2018 and 148/2019 registered at P.S. Vishwakarma, District Jaipur.
The order under challenge is order of charge. The Hon'ble Supreme Court in case of State of Bihar Vs. Ramesh Singh (1977) 4 SCC 39 and Union of India v/s Prafulla Kumar (1979) 3 SCC 4 had clearly laid down as to what is required to be seen at the time of framing of charge. Learned counsel for appellant had referred the case of P.Vijayan (supra) wherein also the judgment of Hon'ble Supreme Court in case of Ramesh Singh (supra) and Prafulla Kumar (supra) were referred though specifically referred the principles of law laid down in the case of Prafulla Kumar (supra). Having considered the principles governing the framing of charge and the provisions contained in Sections 227 and 228 of Cr.P.C., one thing is quite sure that before arriving at a conclusion to frame charge, it is duty of learned Sessions Judge to exercise his judicial mind to the facts of the case in light of material available on record and then to conclude what charges were made out but it is not necessary that learned trial Court had to consider the aspect whether the trial would result in conviction of accused. It is established principle of law at the time of framing of charge that there has to be some considerable material on record which can be legally tendered as evidence so as to framing of charge. Recently, in case of State of Rajasthan Vs. Ashok Kumar Kashyap 2021 SCC Online SC 314, Hon'ble Supreme Court while reversing the order of (Downloaded on 11/11/2023 at 05:20:07 PM) [2023/RJJP/010210] (7 of 9) [CRLAS-737/2023] discharge passed by this Court while relying upon the judgment in case of State of Karnataka Vs. M.R. Hiremath (2019) 7 SCC 515, opined that at the stage of considering the charge, Court must proceed on the assumption that the material which has been brought on record by the prosecution is true and value the material in order to determine whether the facts emerging from the material, taken on its face value, disclosed the existence of the ingredients necessary to constitute the offence. It is further opined by Hon'ble Supreme Court that at the stage of charge, probative value of the material has to be gone into and the court is not expected to go deep into the material and hold that material would not warrant conviction. Therefore, where there is a ground for presuming that the offence has been committed or not, having the ground for convicting any accused has been made out or not is not consideration at the stage of charge. Thus, learned trial Court if thinks that accused might have committed offence on the basis of material available on record on the basis of probative value of such evidence, it can frame charge though may result in conviction or not, the Court has to come to the conclusion that accused had committed the offence. The sum and substance of aforesaid principle is that conducting a mini trial at the stage of charge is thoroughly impermissible.
Learned counsel for appellant had specifically referred the judgment of Hon'ble Supreme Court in case of Subhash Kashinath Mahajan (supra) which was being referred to three Judge Bench of Hon'ble Supreme Court on appeal preferred by Union of India and the case is decided as Union of India Vs. State of Maharashtra 2019 SCC Online (SC) 1279 wherein a (Downloaded on 11/11/2023 at 05:20:07 PM) [2023/RJJP/010210] (8 of 9) [CRLAS-737/2023] larger Bench of Hon'ble Supreme Court held that some portion of said verdict was against the concept of protective discrimination in favor of downtrodden classes under Article 15(4) of the Constitution of India and also impermissible within the parameters laid down by the Hon'ble Supreme Court for exercise of powers under Article 142 of Constitution of India. Hon'ble Supreme Court in said judgment had recalled the directions (3) and (4) and also direction No.5.It is further opined that there may be certain cases which may be false that can be the ground for interference by the Court, but law cannot be changed due to such exercise. In such a situation, it can be taken care of under Section 482 Cr.P.C. Therefore, the referred judgment can be looked into with modifications.
The question is whether learned trial Court had considered the record. Herein the charge under Section 420 IPC was made on the ground that after taking a room on rent a forged agreement of sale was crafted in back date with dishonest intention to cause wrongful loss to the complainant. Herein, the statement of witness along with supporting evidence is available, similarly charge Nos. 2 and 3 are specific. As regard to charge Nos. 2 and 3, the fact is that this agreement of sale was used to obtain commercial electricity connection. Allegation was also that a consent letter was also fabricated and for the offence under Sections 467, 468 and 471 of IPC, enough material was available and learned trial court had incorporated the essential ingredients in the charge itself. As regard to use of SC/ST (POA) Act is concerned, if there are certain provisions contained in a substantial Act to prevent atrocities on a particular group of community and it is in (Downloaded on 11/11/2023 at 05:20:07 PM) [2023/RJJP/010210] (9 of 9) [CRLAS-737/2023] furtherance of objectives as laid down in Union of India Vs. State of Maharashtra (supra), as certain acts with SC/ST community were declared as an offence then such charge can be framed.
Now, the question is if appellant was having legal possession from the date of rent i.e. 15.10.2016, how can it be treated as criminal trespass. For this argument, a specific ground was raised by learned counsel for appellant but herein the documents relating to FIR No. 429/2018 registered at P.S. Vishwakarma, Jaipur clearly indicated that in criminal complaint filed before learned ACMM No.7, Jaipur Metro, present appellant had specifically mentioned that in pursuance to crime dated 16.04.2015, possession of disputed land was handed over to present appellant. Herein, the agreement of sale belongs to land measuring 534 sq. yard whereas the rent note clearly indicate that it is of room therefore, the size of the property and the description is different though in 534 sq. yard of land, the room taken on rent is situated. Therefore no case of discharge is made out under Section 447 IPC.
In view of the aforesaid discussion, judgments as cited by learned counsel for appellant are not helpful to buttress the argument on behalf of appellant, therefore disagreeing with the arguments of learned counsel for appellant, the present appeal is liable to be dismissed.
Hence, the appeal stands dismissed.
Misc. Application, if any, stands disposed of.
(ASHOK KUMAR JAIN),J PREETI VALECHA /51 (Downloaded on 11/11/2023 at 05:20:07 PM) Powered by TCPDF (www.tcpdf.org)