Madhya Pradesh High Court
Nadeem Husain @ Sonu vs The State Of Madhya Pradesh on 18 September, 2019
Equivalent citations: AIRONLINE 2019 MP 1912
Author: Rajendra Kumar Srivastava
Bench: Rajendra Kumar Srivastava
Criminal Revision No. 433/2019
(Nadeem Husain Vs. State of M.P.
(1)
HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT
JABALPUR
(SB: Hon'ble Shri Justice Rajendra Kumar Srivastava)
Criminal Revision No. 433/2019.
Nadeem Husain.
Versus
State of M.P.
Shri Ahadulla Usmani, Advocate for the petitioner.
Shri S.B. Agnihotri, Government Advocate for the State.
Whether approved for reporting:
Law laid down:
Significant paragraphs:
-O R D E R-
(18 /09/2019)
Petitioner-accused has filed this criminal revision under Section
397(1) read with Section 401 (1) of Criminal Procedure Code to set-
aside the impugned order dated 26/12/2018 passed by Tenth
Additional Sessions Judge Jabalpur in Sessions Trial No. 583/2018
whereby learned Tenth Additional Sessions Judge, Jabalpur framed
charges against the petitioner-accused for the offence punishable
under Sections 342, 366, 386 and 506 Part-II of IPC.
2. The facts of the prosecution case are that one Jitendra Pyasi
informed to the police Station Madan Mahal, Jabalpur on 10/03/2015
that her daughter aged 22 years did not return home from 06/03/2015.
He and his family members searched her but she did not find. On the
basis of this information missing person report no. 7/2015 was
registered at Police Station-Madan Mahal, Jabalpur. During inquiry
Criminal Revision No. 433/2019
(Nadeem Husain Vs. State of M.P.
(2)
the police personnel reached Ajmer where complainant was found in
the possession of petitioner-accused, then complainant told all the
incident to her parents. Thereafter complainant lodged FIR at the
Police Station Madan Mahal, Jabalpur. She stated in the FIR that
petitioner-accused telephoned her and also threatened her to kill her
family members. Due to this she went with the petitioner to Ajmer.
The complainant went with the petitioner-accused at Dargah where he
looted Rs. 5000/- from her. Petitioner-accused kept her in a house
against her will. During the investigation the statements of witnesses
have been recorded. After investigation charge-sheet has been filed
against the petitioner-accused for the offence punishable under
Sections 342, 366, 386 and 506 Part-II of IPC.
3. Learned counsel for the petitioner-accused submits that there is
no prima-facie material against the petitioner-accused on which
charges can be framed. Petitioner-accused is the resident of Indore
whereas the complainant is the resident of Damoh and she was
studying in B.Sc. Final Year in Home Science College, Jabalpur at the
time of incident. She was living in a private hostel and merely on
asking of the petitioner-accused she has boarded the train from
Jabalpur to Ajmer and remained in the company of the petitioner-
accused. When she was caught by the police and brought to Jabalpur
she has lodged report against the petitioner-accused. Learned trial
Judge should have seen that the story as built up by the prosecution in
implicating the petitioner-accused is imaginary and has no locus and
even if whole case of prosecution is accepted on the prima facie value,
no case for commission of any offence is at all made out. The bank
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(Nadeem Husain Vs. State of M.P.
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account details filed along with challan completely belies the
withdrawal of the money of Rs. 5000/- from Ajmer and which proves
the falsity of the case of the prosecution. The impugned order lacks
the application of judicious mind as there is no case of wrongful
confinement and no case of kidnapping or abducting the complainant
for marrying her and no case for extortion and for threat to kill is
made out from any material available on record, so framing of
charge is liable to be set-aside.
4. Learned counsel for the respondent-State submits that there is
prima-facie material available on record on which charges can be framed on the strong suspicion, so there is no perversity or illegality in the impugned order, so petitioner be dismissed.
5. Heard both the parties and perused the record.
6. It is evident from the record that learned trial judge framed the charges against the petitioner-accused under Sections 342, 366, 386, 506 Part II of IPC, so it must be seen that what is the evidence against the petitioner-accused. Section 227 of Code Of Criminal Procedure, 1973 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.
Section 228 of Code Of Criminal Procedure, 1973 reads 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-
Criminal Revision No. 433/2019 (Nadeem Husain Vs. State of M.P. (4)
(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.
7. Hon'ble Supreme Court in the case of Niranjan Singh Karam Singh Punjabi, Advocate Vs. Jitendra Bhimraj Bijja and others AIR 1990 SC 1962 has held as under:-
7. Again in Supdt. & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja & Ors., [1979] 4 SCC 274 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 other-
wise, 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 rounded 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."
Hon'ble Supreme Court again in the case of Union of India Vs. Prafulla Kumar Samal and another AIR 1979 SC 366 has held as under:-
Criminal Revision No. 433/2019 (Nadeem Husain Vs. State of M.P. (5) 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.
(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.
8. Hon'ble Apex Court in the case of Onkar Nath Mishra and others Vs. State (NCT of Delhi) and another 2005(2) SCC 561 has held as under:-
"It is trite that at the stage of framing of charge 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, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the Court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicing the accused has been made out. At that state, even strong suspicion founded on material which leads that court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the Criminal Revision No. 433/2019 (Nadeem Husain Vs. State of M.P. (6) framing of charge against the accused in respect of the commission of that offence."
9. Hon'ble Apex Court in the case of State of Orissa Vs. Debendra Nath Padhi, (2005) 1 SCC 568 has held as under:-
"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 power to consider even materials which the accused may produce at the stage of Section 227 of the Code has not been correctly decided."
10. The 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 held as under:-
"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 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 etc. 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., 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 Criminal Revision No. 433/2019 (Nadeem Husain Vs. State of M.P. (7) 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)
11. The 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 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."
12. It is true that the complainant is adult lady. She was missing from 06/03/2015 then her father informed to the police station Madan Mahal, Jabalpur In this regard missing person report was registered on 10/03/2015 then complainant was found in the possession of the petitioner-accused on 12/03/2015, thereafter complainant lodged a report in which she lodged that petitioner-accused threatened her and Criminal Revision No. 433/2019 (Nadeem Husain Vs. State of M.P. (8) also told to kill her family members, due to this, she went with the petitioner-accused to Ajmer from Dayodaya Express. Petitioner- accused confined her in a room against her will. Petitioner-accused draw Rs. 5000/-from her bank account by ATM against her will. Petitioner-accused wants to marry with complainant against her will, but complainant was not ready. So prima-facie material is available under Sections 342, 386 and 506 of IPC. Section 362 of IPC defines meaning of abduction. Section 362 of IPC reads as under:-
362. Abduction.--Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person.
Considering the provision of Section 362 of IPC, it is evident that if any person by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person. So in this regard prima-facie material is available on record that petitioner-accused threatened her to leave Jabalpur. In this circumstances there is strong suspicion to commit alleged offence. Complainant was consent party as alleged by learned counsel for petitioner-accused, this fact will be considered at the stage of trial. It is established principle of law, charge can be framed on strong suspicion, so there is no illegality or perversity in the impugned order warranting interference.
13. Accordingly, this petition is dismissed.
(RAJENDRA KUMAR SRIVASTAVA) JUDGE MISHRA Digitally signed by ARVIND KUMAR MISHRA Date: 2019.08.09 15:17:52 +05'30'