Rajasthan High Court - Jaipur
Bhushfan Kumar And Ans vs State on 28 April, 2011
Author: R.S.Chauhan
Bench: R.S.Chauhan
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR Bhushan Kumar & Anr. V/s. The State of Rajasthan S.B. Criminal Revision Petition No.816/2003 S.B. Criminal Revision Petition under Section 397 Read With Section 401 Cr.P.C. Date of Order :: April 28, 2011 HON'BLE MR.JUSTICE R.S.CHAUHAN Mr. A.K. Gupta for the petitioners.
Mr. Laxman Meena PP for the State.
Aggrieved by the order dated 22nd May, 2003 passed by learned Civil Judge (Jr. Div.) and Judicial Magistrate, Viratnagar, District Jaipur, whereby the Magistrate has framed charges for offence under Sections 458, 384 and 323 IPC, the petitioners have approached this Court.
The learned counsel for the petitioners has contended that because of certain civil disputes which existed between the parties, the complainant has falsely implicated the petitioners in a criminal case. Secondly, the ingredients of offence under Section 458 IPC is not made out. Section 443 IPC defines lurking house-trespass as whoever commits house-trespass having taken precautions to conceal such house-trespass from some person who has a right to exclude or eject the trespasser from the building, tent or vessel which is the subject of the trespass, is said to commit lurking house-trespass. However, according to the complainant himself, the petitioners had come knocking at his door. Therefore, the question of concealing themselves from the complainant does not even arise. At wrost, the case would be of house-trespass and would fall within the ambit of Sections 451 IPC. Therefore, the charge framed for offence under Section 458 IPC is untenable.
Moreover, although the complainant claims that certain stamp papers were taken away from him, no stamp papers were recovered from the petitioners. Therefore, the charge for offence under Section 384 IPC is not made out.
He further contends that until and unless there is a strong prima facie case against the petitioners, the charge should not have been framed. After all, framing of the charge is not a mere formality. Moreover, the learned trial Court cannot not act as a post office and spokesman for the prosecution. It must have applied its mind to the facts and circumstances to see whether the offence has actually been committed or not.
On the other hand, the learned Public Prosecutor has contended that at the time of framing of the charge, the learned trial Court is concerned merely to see whether a strong prima faice case does exist or not? At the initial stage of framing of the charge the trial Court cannot meticulously sift through the evidence. Moreover, even if the petitioners have been charged for offence under Section 458 IPC, even then they cab be convicted for offfence under Section 451 IPC which is a lesser offence than lurking house trespass. Furthermore, even if the stamp-papers have not been recovered from the petitioners, it would not absolve them from the offence under Section 384 IPC. Whether they have committed the offence under Section 384 IPC or not, is a matter of evidence. The issue can only be adjudicated after the evidence is produced by the prosecution and countered by the defence. Therefore, it is too early to decide whether the petitioners have committed offence under Section 384 IPC or not.
In rejoinder, the learned counsel for the petitioners has contended that the entire criminal case is a counter blast of the civil cases filed by the petitioners. Therefore, this criminal case filed by the complainant is motivated.
Heard the learned counsel for the parties and perused the impugned order.
It is, indeed, a settled position of law that at the time of framing of the charges, the learned trial court is required merely to see if a strong prima faice case is made out against the accused persons or not. The learned trial Court, at the initial stage, cannot go the meticulous examination of the evidence. Moreover, the learned trial Court would be justified in framing the charge for a graver offence and for convicting the accused person for a lesser offence. Therefore, the learned trial Court was certainly justified in framing the charge for offence under Section 484 IPC rather than for offence under Section 451 IPC.
Even if the stamp papers were allegedly taken away by the petitioners, and even if they have not been recovered from them, it would not absolve them, at this initial stage, offence under Section 384 IPC. Again, this issue can only be decided after the entire evidence from the side of the prosecution and the defence is marshaled out. Therefore, it is too early to decide whether the petitioners have committed the offence under Section 384 IPC or not?
Therefore, this Court does not find any illegality or perversity in the impugned order. Hence, this petition is devoid of any merit; it is, hereby, dismissed.
Consequently the stay application is also dismissed.
The registry is directed to immediately send the record back to the concerned trial Court.
(R.S.CHAUHAN)J. A.Asopa/-