Madhya Pradesh High Court
Bhola Prasad Gupta vs The State Of Madhya Pradesh on 23 November, 2019
Equivalent citations: AIRONLINE 2019 MP 1885
Author: Rajeev Kumar Dubey
Bench: Rajeev Kumar Dubey
1
HIGH COURT OF MADHYA PRADESH : JABALPUR
SINGLE BENCH: HON.SHRI RAJEEV KUMAR DUBEY, J.
CR.R.-2134-2019
BHOLA PRASAD GUPTA
Vs
THE STATE OF MADHYA PRADESH & ANOTHER
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Shri Shri Sankalp Kochar, Advocate for the applicant.
Shri M.K. Singh, PL for the respondent No.1/State.
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ORDER
(Reserved on 21/11/2019) (Delivered on 23/11/2019) This criminal revision has been filed under Section 397 read with Section 401 of Cr.P.C. (further referred as "Code") against the order dated 05/04/2019 passed by Special Judge (under the M.P. Dakaiti Aur Vyapharan Prabhavit Kshetra Adhiniyam, 1981), Satna (MP) in Special S.T.No.9/2019, whereby learned ASJ framed the charges against the applicant for the offence punishable under Sections 386, 34 of the IPC and Section 11 read with Section 13 of the M.P. Dakaiti Aur Vypharan Prabhavit Kshetra Adhiniyam, 1981 (hereafter referred to as "the Adhiniyam").
2. Brief facts of the case are that the nephews of complainant Premlal Ravat namely Priyansh Rawat and Shreyansh Rawat were kidnapped on 12/09/2018. On 19/02/2019 at 10.30 a.m. Brajesh Kumar, brother of the complainant Premlal received a phone call on his mobile and the caller said he had information regarding their kids and asked them to come to Digitally signed by ANURAG SONI Date: 25/11/2019 18:47:46 2 Satna along with money after which he would free the children and if they did not give money, they would not get their children safe. On that, complainant Premlal his brother Brajesh Kumar along with Dharmendra Agnihotri went to the Satana. When they reached Rewa road, ahead of Satana, applicant Bhola and co-accused Vinod Kumar met them in a car and demanded Rs.10 lakh for returning their children safe. Brajesh Kumar told the applicant and co-accused Vinod Kumar that he did not have enough money to give them. On that applicant and co-accused took Rs.3,600/- from Brajesh Kumar which he had at that time. After getting money, when the applicant and co-accused proceeded further, they caught hold of them and produced them before the Police at Police Station Nayagaon and Premlal lodged the report of the incident at Police Station Nayagaon. On that report Police registered Crime No.30/2019 for the offence punishable under Sections 386 and 34 of the IPC and investigated the matter. After investigation, Police filed charge-sheet against the applicant and co-accused. On that charge sheet, special ST No.9/2019 was registered and vide order dated 05/04/2019 learned trial Court framed charges against the applicant and co-accused for the offence punishable under Section 386 and 34 of the IPC and Sections 11/13 of M.P. Dakaiti Aur Vypharan Prabhavit Kshetra Adhiniyam, 1981. Being aggrieved from that order, the applicant filed this revision.
3. Learned counsel for the applicant submitted that there is no direct evidence on record to show that the applicant and co-accused took money from Brajesh Rawat and threatened them to murder Priyansh Rawat and Shreyansh Rawat on failing to do so. In the FIR it is only mentioned that applicant and co-accused threatened complainant and his brother Brajesh Rawat to give them Rs.10 lac, if they wanted their children back safe. So the offence punishable under Section 386 of the IPC is not made out Digitally signed by ANURAG SONI Date: 25/11/2019 18:47:46 3 against the applicant. At the most, the offence punishable under Section 383 of the IPC is made out against the applicant. Likewise, the provisions of Sections 11 and 13 of the Adhiniyam is only attracted when a person committed dacoity, while it is not alleged against the applicant that the applicant committed dacoity, so offence under Sections 11 & 13 of the Adhiniyam also not made out against the applicant. Learned trial Court committed mistake in framing charges against the applicant for the offences punishable under Section 386 of the IPC and Section 11 & 13 of the Adhiniyam. So, applicant be discharged from the said charges.
4. On the other hand, learned counsel for the respondent/State opposed the prayer and submitted that from the FIR and the evidence collected by the prosecution during investigation of the Crime No.9/2019, it is apparent that the applicant and co-accused Vinod Kumar threatened complainant and his brother Brajesh Rawat that if they wanted their children safe they give them Rs.10 lac. which clearly shows that the applicant took money from Brajesh Rawat by giving life threat to their children, so prima facie offence under Section 386 of the IPC is clearly made out against the applicant. Likewise, in the schedule given under M.P. Dakaiti Aur Vypharan Prabhavit Kshetra Adhiniyam, 1981 offence under Section 386 of IPC is also included and scheduled offence committed by any person in the area notified under the M.P. Dakaiti Aur Vypharan Prabhavit Kshetra Adhiniyam, 1981 will come under the purview of Section 11 of the Adhiniyam. It is alleged that the applicant demanded money from Brajesh Rawat for releasing his children who had been earlier kidnapped by some miscreants and extorted money from Brajesh Rawat giving life threat to their children. So, offence under Sections 11 of the Adhiniyam is clearly made out against the applicant. In these circumstances learned trial Court did not commit any mistake in Digitally signed by ANURAG SONI Date: 25/11/2019 18:47:46 4 framing the charges against the applicant for the offences punishable under Section 386 of the IPC and Section 11 & 13 of the Adhiniyam. Hence, the revision be dismissed.
5. This Court has gone through the record and arguments advanced by the learned counsel for the parties.
6. Hon'ble apex Court in his judgment passed in Hem Chand Vs. St. of Jharkhand reported in (2008) 5 SCC 113 has held that at the stage of framing of charge, Court exercises a limited jurisdiction. It has to see whether prima facie case has been made out or not, concerned of the Court should be to see whether the case of probable conviction for commission of an offence has been made out on the basis of the materials found during the investigation. It would ordinarily not consider whether accused would be able to establish his defence if any. In the case of Bharat Parikh Vs. Central Bureau of Investigation and another, (2008) 10 SCC 109 Hon'ble Apex Court also held "while framing charge the trial Court can only look into the materials produced by the prosecution while giving an opportunity to the accused to show that the said materials were insufficient for the purpose of framing charge. At the stage of framing of charge, the submissions on behalf of the accused have to be confined to the material produced by the investigating agency". In the case of Soma Chakravarty Vs. State through CBI, (2007) 5 SCC 403 held "at the stage of framing of charge-Material brought on record has to be accepted true." In the case of State Of Orissa Vs. Debendra Nath Padhi, AIR 2003 SC 1512 Hon'ble Apex Court considered the matter in detail and held that at the stage of framing of charge the defence of the accused cannot be considered. In the matter of Sheoraj Singh Ahlawat and others Vs. State of Uttar Pradesh and another, (2013) 11 SCC 476, their Lordships of the Supreme Court, while reiterating the law laid down in Debendra Nath Digitally signed by ANURAG SONI Date: 25/11/2019 18:47:46 5 Padhi's case (supra), have clearly held that at the time of framing charge, the accused is entitled to urge his contentions only on materials submitted by the prosecution, he is not entitled to produce any material at this stage and the Court is not required to consider any such material, if submitted.
7. This shows that at the time of framing of a charge what the trial Court is required to, and can, consider only the Police report referred to under Section 173 Cr.P.C. and the documents sent with it. For framing of charge strong suspicion about the commission of the offence and accused's involvement of offence is sufficient. On merits, materials/documents filed by accused can not be considered. The material produced by prosecution alone is to be considered. Roving inquiry and mini-trial is not permissible. Defence of accused is not relevant. The only right the accused has at that stage is of being heard and nothing beyond that. Accused is competent to make his submissions only on the material supplied by the prosecution.
8. From the FIR and the case diary statements of prosecution witnesses recorded by the investigation officer during investigation of the crime prima facie it appears that applicant and co-accused demanded money from Brajesh Rawat for releasing his children, who had been earlier kidnapped by some miscreant and extorted money from the Brajesh Rawat giving life threat to his children. So prima facie offence under section 386 of IPC is clearly made out against the applicant. Digitally signed by ANURAG SONI Date: 25/11/2019 18:47:46 6
9. As far as the charge under Section 11 read with Section 13 of the Adhiniyum is concerned, there is no dispute that in the area where alleged offences is reportedly committed is declared as a dacoity and kidnapping affected area under Section 3 of the Adhiniyam. The relevant provisions of the Adhiniyam reads as under:-
Section 2 of the Adhiniyam. Definitions.- In this Act, unless the context otherwise requires,-
(a) ..............
(b) "dacoit" in relation to a dacoity and kidnapping affected area, means a person who commits or has committed an offence punishable under Section 395 of the Indian Penal Code or a specified offence, or as the case may be, a person accused of commission of any such offence;
(c) "dacoity" and "kidnapping affected area" means an area declared as a dacoity and kidnapping affected area under Section3;
(d) ..............
(e) ..............
(f) "specified offence" means-
(i) an offence specified in the schedule committed in relation to an area declared under Section 3 being an offence forming part or arising out of/or connected with the commission of dacoity or kidnapping.
The Schedule
(i) Offences punishable under Sections 1(***), 302, 303, 304, 307, 308, 325, 326, 327, 329, 331, 333, 363, 364, 365, 368, 369, 386, 387, 400 and 2(435) of the Indian Penal Code, 1860 (XLV of 1860).
(ii) Kidnapping or abduction for ransom;
(iii) .............
(iv) ............
(v) .............
(vi) ............
(vii) ................
(viii) ..............
10. On a combined reading of the aforesaid provisions of the Adhiniyam, it transpires that any offence which is mentioned in the schedule is said to be specified offence, when it is committed along with murder or kidnapping in an area declared as a dacoity and kidnapping affected area under Section 3 of the Adhiniyam and for the Adhiniyam "dacoit" means a person, who commits specified offence along with Digitally signed by ANURAG SONI Date: 25/11/2019 18:47:46 7 murder or kidnapping in area declared as a dacoity and kidnapping affected area under Section 3 of the Adhiniyam.
11. A Coordinate Bench of this Court in the case of Satish Vs. State of M.P., 2007(4) MPLJ 396 also held that Section 2(f) of the Adhiniyam makes it clear that for an offence to be a specified offence within the definition, it is not enough that it should be an offence mentioned in the schedule and that it is further necessary that the offence should be forming a part or arise or be connected with the commission of dacoity or kidnapping.
12. In this case also in the FIR it is clearly mentioned that the children of Brajesh Ravt namely Priyansh Rawat and Shreyansh Rawat were kidnapped on 12/09/2018. On 19/02/2019 at 10.30 a.m. Brajesh Kumar, received a phone call on his mobile and the caller said that he had information regarding their kids and asked them to come to Satna along with money after which he would free the children and if they did not give money, they would not get their children safe. On that, complainant Premlal his brother Brajesh Kumar along with Dharmendra Agnihotri went to the Satna. When they reached Rewa road, ahead of Satana, applicant Bhola and co-accused Vinod Kumar met them in a car and demanded Rs.10 lakh for returning their children safe and extorted Rs.3,600/- from Brajesh Kumar. So from the FIR prima facie it appears that act of the applicant Bhola Prasad & co-accused Vinod Kumar was connected with the commission of kidnapping of Brijesh Rawat's children or related with that crime or arising out of that crime.
13. At this stage only the averment of the FIR should be seen prima facie assuming it to be true. Whether the allegation mentioned in the FIR is true or not can not be considered at this stage because it requires evidence to decide. Whether applicant Bhola Prasad & co-accused Vinod Kumar were connected with the commission of kidnapping of Brijesh Rawat's children or related with that crime or not is a matter of fact which can not be considered at this stage because it also requires evidence to decide. Therefore, prima facie offence punishable under Section 11 read Digitally signed by ANURAG SONI Date: 25/11/2019 18:47:46 8 with Section 13 of M.P. Dakaiti Aur Vypharan Prabhavit Kshetra Adhiniyam, 1981 is also made out against the applicant.
14. So, in the considered opinion of this Court learned trial Court did not commit any mistake in framing charge against the applicant for the offence punishable under Sections 386, 34 of the IPC and Section 11 read with Section 13 of M.P. Dakaiti Aur Vypharan Prabhavit Kshetra Adhiniyam, 1981.
15. Hence, the revision is dismissed with the liberty that the applicant is free to raise all his objections before the trial Court at the appropriate stage.
Certified copy as per rules.
(Rajeev Kumar Dubey) Judge monika/as Digitally signed by ANURAG SONI Date: 25/11/2019 18:47:46