Chattisgarh High Court
Dilip Dhritlahre vs State Of Chhattisgarh on 28 November, 2024
2024:CGHC:46944
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRR No. 1313 of 2024
1 - Dilip Dhritlahre S/o Shiv Prasad Dhritlahre Aged About 36 Years R/o Village
Maharpur P.S. Lormi Distt. Mungeli (Chhattisgarh)
2 - Hira Singh Banjare S/o Meghwa Das Banjare Aged About 39 Years R/o Village
Maharpur P.S. Lormi Distt. Mungeli (Chhattisgarh)
3 - Kamal Prasad Banjare S/o Govardhan Banjare Aged About 33 Years R/o Village
Maharpur P.S. Lormi District Mungeli (Chhattisgarh)
... Applicants
versus
1 - State Of Chhattisgarh Thorugh S.H.O. Lormi P.S. Lormi Distt. Mungeli
(Chhattisgarh)
2 - Ram Kumar Miri S/o Devdas Miri Aged About 38 Years R/o Village
Maharpur Sardha P.S. Lormi District Mungeli (Chhattisgarh)
---- Respondents
(Cause title is taken from the CIS)
------------------------------------------------------------------------------------------------------------------
For Applicants : Shri Dheerendra Pandey, Advocate For Respondent/State : Shri Jitendra Shrivastava, GA
------------------------------------------------------------------------------------------------------------------
Hon'ble Shri Justice Ravindra Kumar Agrawal Order on Board 28.11.2024
1. Present Criminal Revision is filed under Section 438 read with Section 442 of the Bhartiya Nagrik Suraksha Sanhita Act, 2023 (BNSS) against the order dated 10.09.2024 passed by the learned First Additional Sessions Judge, Mungeli, in Sessions Case No.17 of 2024, whereby the application filed by the applicants under Section 227 of the CrPC was Crr 1313 of 2024 2 rejected, and charges have been framed under Section 294, 506 part-II, and 307/34 of the IPC against the applicants.
2. Brief facts of the case are that, applicants are accused persons in the Sessions Case No.17 of 2024, which is arising out of the Crime No.344 of 2023, registered at Police Station, Lormi, District-Mungeli, on the report made by the complainant Ram Kumar Miri (NA-2/Respondent- 2 herein) on 03.10.2023. It is alleged in the FIR that on 02.10.2023, in the night, when the complainant was sleeping in his house, a mobile phone call was made from the mobile phone of his cousin brother Boni @ Virendra Miri, since injured, at about 11 45 pm, that he received injuries on his head, and asked the complainant to come to the hospital. When he along with his uncle Krishna Kumar Miri, had gone to the Community Health Centre, Lormi, they found that his cousin brother Boni @ Virendra Miri was lying on a stretcher having injury on his neck, head, hand and legs. Injured informed them that on 02.10.2023, at about 10.30 pm, when he was going to Lormi, near Sardha turning, Dilip and his friends have assaulted him by hands & fists, and Lathi, on the previous enmity, and abused him. On the report made by the complainant, FIR has been registered against the present applicants, and the injured was sent for his medical examination to the Community Health Centre, Lormi, where his injuries have been examined by the doctor, and the doctor referred the injured to have the NCCT of head, ENT opinion, and X-ray of right hand, and he found three lacerated wounds, three abrasions, and swelling on his body. In the CT scan report, doctor has found linear fracture of right Crr 1313 of 2024 3 nasal bone, in the X-ray report of right hand, fracture of proximal Phalanx of right thumb was also found. After recording the evidence of the witnesses, and on conclusion of the investigation, charge-sheet has been filed by the Police before the learned trial Court for the offence under Sections 294, 506, 323, 307/34 of the IPC, and the case was committed to the trial Court, where charges have been framed under Sections 294, 506, 307/34 of the IPC, which is under challenge in the present petition.
3. Learned counsel for the applicants would submit that learned trial Court has erroneously dismissed their application filed under Section 227 of the CrPC, and without there being any sufficient material, framed the charge under Section 307 of the IPC. Doctor has clearly opined in his report that the injuries sustained by the injured were simple in nature, and death could not be possible from the said injuries. Therefore, there are no ingredients of Section 307 of the IPC in the case, yet, the charge for that offence has also been framed against the applicants. He would further submit that from the statements of the witnesses also, no ingredients of Section 307 of the IPC finds place to frame charge for the offence. Therefore, the revision may be allowed and by allowing the same under Section 227 of the CrPC, the applicants may be discharged from the alleged offences.
4. On the other hand, learned counsel for the State opposes the submissions made by learned counsel for the applicants, and submitted that from the material collected during the investigation, there is sufficient Crr 1313 of 2024 4 evidence available on record to frame charge for the alleged offence under Section 307 of the IPC. He would further submit that at the time of framing of charge, the Court could not examine the evidence available on record meticulously, and only to satisfy the prima facie evidence to charge, and proceeded with the trial of the case. Therefore, there is no merit in the petition, and the same is liable to be dismissed.
5. Heard learned counsel for the parties, and perused the material available on record.
6. The Hon'ble Supreme Court has laid down the principles in the case of State of M.P. vs. Deepak, 2019 (13) SCC 62, wherein the Hon'ble Supreme Court has held that at the stage of framing of charge, the court has to consider the material only with a view to find out if there is a ground for presuming that the accused had committed the offence. It is also held that the court is required to evaluate the material and documents on record with a view to finding out if facts emerging therefrom, taken at their face value, disclose the existence of all the ingredients constituting the alleged offence and at the stage of framing charge, the court is not required to appreciate the evidence on record and consider the allegations on merits and to find out on the basis of the evidence recorded is likely to be convicted or not. In the matter of Deepak (Supra), in its judgement, the Hon'ble Supreme Court has held that:-
Crr 1313 of 2024 5 14- It is of relevance to refer to certain judgements of this Court. In Chitresh Kumar Chopra v. State (NCT of Delhi) 7, the appellant and two other individuals were charged under Section 306 read with Section 34 of the Penal Code. It had been alleged that the appellant and the other accused persons had forcibly compelled the deceased to sign a settlement giving up a part of his share in the profits from the sale of certain land. This led to a dispute and as a result of the mental harassment suffered by the deceased, he committed suicide. The Court affirmed the framing of charges by the trial court. The two- judge Bench of this Court laid down the ingredients of the offence of abetment of suicide. Justice D K Jain held thus:
"19. As observed in Ramesh Kumar [(2001) 9 SCC 618 : 2002 SCC (Cri) 1088] , where the accused by his acts or by a continued course of conduct creates such circumstances that the deceased was left with no other option except to commit suicide, an "instigation" may be inferred. In other words, in order to prove that the accused abetted commission of suicide by a person, it has to be established that:
(i) the accused kept on irritating or annoying the deceased by words, deeds or willful omission or conduct which may even be a willful silence until the deceased reacted or pushed or forced the deceased by his deeds,words or willful omission or conduct to make the deceased move forward more quickly in a forward direction; and (ii) that the accused had the intention to provoke, urge or encourage the deceased to commit suicide while acting in the manner noted above. Undoubtedly, presence of mens rea is the necessary concomitant of instigation."
(Emphasis supplied) 15- After due consideration of the facts and circumstances, the Court noted that prima facie, the offence of abetment of suicide was made out:-
"22. In the present case, apart from the suicide note, extracted above, statements recorded by the police during the course of investigation, tend to show that on account of business transactions with the accused, including the appellant herein, the deceased was put under tremendous pressure to do something which he was perhaps not willing to do. Prima facie, it appears that the conduct of Crr 1313 of 2024 6 the appellant and his accomplices was such that the deceased was left with no other option except to end his life and therefore, clause Firstly of Section 107 IPC was attracted." (Emphasis supplied) 16-It was also noted that at the stage of framing of charges, the Court has to consider the material only with a view to find out if there is a ground for "presuming" that the accused had committed the offence:
"25. 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, disclose the existence of all the ingredients constituting the alleged offence or offences. For this limited purpose, the court may sift the evidence as it cannot be expected even at the initial stage to accept as gospel truth all that the prosecution states. At this stage, the court has to consider the material only with a view to find out if there is ground for "presuming" that the accused has committed an offence and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction."
17- A two-judge Bench of this Court, in Rajbir Singh v State of U P 8 noted that in 8 (2006) 4 SCC 51 accordance with Section 227, the High Court must ascertain whether there is "sufficient ground for proceeding against the accused" or there is ground for "presuming" that the offence has been committed. Justice G P Mathur held thus:
"9. In Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia, the Court while examining the scope of Section 227 held as under:
'14... Section 227 itself contains enough guidelines as to the scope of inquiry for the purpose of discharging an accused. It provides that 'the judge shall discharge when he considers that there is no sufficient ground for proceeding against the accused'. The 'ground' in the context is not a ground for conviction, but a ground for putting the accused on trial. It is in the trial, the guilt or the innocence of the accused will be determined and not at the time of framing of charge. The court, therefore, need not undertake an elaborate inquiry in sifting and weighing the Crr 1313 of 2024 7 material. Nor is it necessary to delve deep into various aspects. All that the court has to consider is whether the evidentiary material on record, if generally accepted, would reasonably connect the accused with the crime.'
10. The High Court did not at all apply the relevant test, namely, whether there is sufficient ground for proceeding against the accused or whether there is ground for presuming that the accused has committed an offence. If the answer is in the affirmative an order of discharge cannot be passed and the accused has to face the trial. The High Court after merely observing that "as the firing was aimed at the other persons and accidentally the deceased Pooja Balmiki was passing through that way and she was hit" and further observing that "the applicant neither intended to kill the deceased nor was she aimed at because of the reason that she was a Scheduled Caste" set aside the order by which the charges had been framed against Respondent 2. There can be no manner of doubt that the provisions of Section 301 IPC have been completely ignored and the relevant criteria for judging the validity of the order passed by the learned Special Judge directing framing of charges have not been applied. The impugned order is, therefore, clearly erroneous in law and is liable to be set aside."
(Emphasis supplied)
7. In the matter of Manjit Singh Virdi vs. Hussain Mohammad Shattaf 2023 (7) SCC 633, the Hon'ble Supreme Court has held in para 12 of its judgment that:-
12- The law on the point has been summarised in a recent judgment of this Court in State of Rajasthan v. Ashok Kumar Kashyap2. Relevant paras are extracted below: -
"11.1. In P. Vijayan v. State of Kerala, (2010) 2 SCC 398, this Court had an occasion to consider Section 227 CrPC What is required to be considered at the time of framing of the charge and/or considering the discharge application has been considered elaborately in the said decision. It is observed and held that at the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not Crr 1313 of 2024 8 there is sufficient ground for proceeding against the accused. It is observed that in other words, the sufficiency of grounds 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. It is further observed that if the Judge comes to a conclusion that there is sufficient ground to proceed, he will frame a charge under Section 228 CrPC, if not, he will discharge the accused. It is further observed that while exercising its judicial mind to the facts of the case in order to 2 (2021) 11 SCC 191 Criminal Appeal No. 1399 of 2023 determine whether a case for trial has been made out by the prosecution, 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. 11.2. In the recent decision of this Court in State of Karnataka v. M.R. Hiremath, (2019) 7 SCC 515, one of us (D.Y. Chandrachud, J.) speaking for the Bench has observed and held in para 25 as under: - "25. The High Court [M.R. Hiremath v. State, 2017 SCC OnLine Kar 4970] ought to have been cognizant of the fact that the trial court was dealing with an application for discharge under the provisions of Section 239 CrPC. The parameters which govern the exercise of this jurisdiction have found expression in several decisions of this Court. It is a settled principle of law that at the stage of considering an application for discharge the court must proceed on the assumption that the material which has been brought on the record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary to constitute the offence. In State of T.N. v. N. Suresh Rajan, (2014) 11 SCC 709, Criminal Appeal No. 1399 of 2023 adverting to the earlier decisions on the subject, this Court held:- "29. ... At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the Crr 1313 of 2024 9 basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage."
8. Further, in the matter of State by SP through the SPE, CBI vs. Uttamchand Bohra, 2022 (16) SCC 663, the Hon'ble Supreme Court has held in para-21 of its judgment that:-
21- In CBI v. K. Narayana Rao this Court, after reviewing the previous decisions that dealt with the question of the applicable standard relating to discharge of accused in a criminal case, summarized the principles in the Following terms:-
"12. The first decision in Ramesh Singh relates to interpretation of Sections 227 and 228 of the Code for the considerations as to discharge the accused or to proceed with trial. Para 4 of the said judgment is pressed into service which reads as under:-
4. Under Section 226 of the Code while opening the case for the prosecution the Prosecutor has got to describe the charge against the accused and state by what evidence he proposes to prove the guilt of the accused. Thereafter comes at the initial stage the duty of the Court to consider the record of the case and the documents submitted therewith and to hear the submissions of the accused and the prosecution in that behalf. The Judge has to pass thereafter an order either under Section 227 or Section 228 of the Code. If "the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing", as enjoined by Section 227. If, on the other hand, "the Judge is of opinion that there is ground for presuming that the accused has committed an offence which (b) is exclusively triable by the court, he shall frame in writing a charge against the accused", as provided in Section 228. Reading the two provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Crr 1313 of 2024 10 Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. 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 the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is 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. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even, at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial is to end inking an order under Section 227 or Section 228, then in such a Crr 1313 of 2024 11 situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section 227.
13. Discharge of the accused under Section 227 of the Code was extensively considered by this Court in P. Vijayan wherein it was held as under:-
'10.... If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage he is not to see whether the trial will end in conviction or acquittal. 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.
11. At the stage of Section 227, the Judge has merely to sift the 9 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. While considering the very same provisions i.e. framing of charges and discharge of the accused, again in Sajjan Kumar, this Court held thus: -
19. It is clear that at the initial stage, if there is a strong suspicion which leads the court to think that there is 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 only for the purpose of deciding prima facie whether the court should proceed with the trial or not. If the evidence which the prosecution proposes to adduce proves the guilt of the accused even if fully accepted Crr 1313 of 2024 12 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.
20. A Magistrate enquiring into a case under Section 209 CrPC is not to act as a mere post office and has to come to a conclusion whether the case before him is fit for commitment of the accused to the Court of Session. He is entitled to sift and weigh the materials on record, but only for seeing whether there is sufficient evidence for commitment, and not whether there is sufficient evidence for conviction. If there is no prima facie evidence or the evidence is totally unworthy of credit, it is the duty of the Magistrate to discharge the accused, on the other hand, if there is some evidence on which the conviction may reasonably be based, he must commit the case. It is also clear that in exercising jurisdiction under Section 227 CrPC, the Magistrate should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. Exercise of jurisdiction under Sections 227 and 228 CrPC
21. On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge:
(i) The Judge while considering the question of framing the charges under Section 227 CrPC 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. The test to determine prima facie case would depend upon the facts of each case.
(ii) 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.
(iii) The court cannot act merely as a post office or a a mouthpiece 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, etc. However, at this stage, there cannot be a roving enquiry into the Crr 1313 of 2024 13 pros and cons of the matter and weigh the evidence as if he was conducting a trial.
(iv) If on the basis of the material on record, the court could form an opinion that the accused might have committed offende it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.
(v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.
(vi) At the stage of Sections 227 and 228, 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. 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.
(vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal.'"
9. The Hon'ble supreme Court has further held in para-12 of its judgment in the case of State of Gujarat vs. Dilipsinh Kishorsinh Rao, 2023 SCC Online SC 1294, that:-
"12. The primary consideration at the stage of framing of charge is the test of existence of a prima-facie case, and at this stage, the probative value of materials on record need not be gone into. This Court by referring to its earlier decisions in the State of Maharashtra Vs. Som Nath Thapa (1996) 4 SCC 659 and the State of MP Vs. Mohan Lal Soni (2000) 6 SCC 338 as held the nature of evaluation to be made by the Crr 1313 of 2024 14 court at the stage of framing of the charge is to test the existence of prima-facie case. It is also held at the stage of framing of charge, the court has to form a presumptive opinion to the existence of factual ingredients constituting the offence alleged and it is not expected to go deep into probative value of the material on record and to check whether the material on record would certainly lead to conviction at the conclusion of trial."
10. In the matter of State (NCT of Delhi) vs. Shiv Charan Bansal and Others, 2020 (2) SCC 290, the Hon'ble Supreme Court has held that at the stage of framing of charge, the trial court is not required to conduct a meticulous appreciation of evidence or a roving inquiry into the same and has the power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case is made out against the accused to proceed with the trial.
11. In the present case, FIR has been lodged by Ram Kumar Miri, NA- 2/respondent-2 herein, to whom the victim has informed the incident that the accused persons have assaulted him by hands and fists, by which he received injuries on his body. The doctor, who medically examined him, has found numerous injuries on his body, and advised him for NCCT of head, ENT opinion, and X-ray of his right hand. He found three lacerated wounds, three abrasions, and swelling on his body. In the CT scan report, doctor has found linear fracture of right nasal bone, in the X-ray report of right hand, fracture of proximal Phalanx of right thumb was also found. Although the doctor has opined that death could not be possible from the said injuries, but for the offence of Section 307 of the IPC, only the intention coupled with some overt act to be seen, and not the nature Crr 1313 of 2024 15 of injuries. Further, from the statement of witnesses, and also the manner in which the victim being assaulted by the applicants herein, the learned trial Court considered it sufficient to frame charge under Section 307 of the IPC including other offences of IPC, which in the opinion of this court, cannot be found any faulty, and cannot found any ground to interfere with the order of the learned trial Court to frame charge against the applicants. Learned trial Court has rightly came to the conclusion that there is sufficient ground for framing of charge and to proceed with the same, dismissed the application of the applicants, filed under Section 227 of lthe CrPC, which cannot be said to be either perverse, or contrary to facts of the case, calling for any interference invoking revisional jurisdiction under Section 438, and 442 of the BNSS Act, 2023, conferred upon this Court.
12. In the result, the petition does not have any merit, is liable to be, and it is hereby dismissed.
Sd/-
(Ravindra Kumar Agrawal) JUDGE padma