Madhya Pradesh High Court
Premchand Gupta vs The State Of Madhya Pradesh on 16 December, 2021
Author: Rajeev Kumar Shrivastava
Bench: Rajeev Kumar Shrivastava
1
High Court of Madhya Pradesh
Bench Gwalior
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SB:- Hon'ble Shri Justice Rajeev Kumar Shrivastava CRR No. 1881 of 2021 Premchand and Another Vs. State of MP ============================== Shri B.K. Sharma, Counsel for the applicants.
Smt. Padamshree Agarwal, Panel Lawyer for the respondent/State.
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Reserved on 10/12/2021
Whether approved for reporting ......../........
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O R D ER
(Passed.. 16/12/2021)
Per Rajeev Kumar Shrivastava, J
The present Criminal Revision u/S.397 read with Section 401 of CrPC has been preferred by applicants- Premchand Gupta and Mahesh Gupta, challenging the impugned order dated 13/07/2021 passed by Second Additional Sessions Judge, Sabalgarh, District Morena (MP) in Sessions Trial No.208/2021, whereby charges have been framed against them for commission of offences under Sections 294, 323/34 (two counts), 307/34, 506 Part 2 of IPC.
(2) Facts giving rise to present revision, in short, are that on 16/05/2020 at about 02:52 pm, complainant Dinesh Chand Bansal lodged at report at Police Station Sabalgarh, District Morena, alleging 2 therein that on the date of incident i.e.16/05/2020 at around 1:00 pm, he had gone to the shop at Sabalgarh for purchasing some grocery items and thereafter, he went to the house of his one relatives, namely, Rohit Tyagi. At that time, applicant No.2 Mahesh Gupta told him on telephone with regard to settlement of some commercial transaction. Thereafter, applicant No.2 Mahesh Gupta, applicant No.1 Premchand Gupta and one of their friends, came there and some altercation took place at there between applicants and the complainant and applicants abused him in filthy languages and both the applicants slapped on the cheek of Rohit Tyagi and said him not to interfere in the matter. Thereafter, both the applicants and another person who had come along with them, committed ''marpeet'' by means of kicks and fists. Another person who had come with the present applicants, also caused firearm injury at the right knee joint of the complainant by means of a katta. Afterwards, all of them threatened him to kill. Tulsiram Tyagi had also seen the incident. Thereafter, the complainant was brought to the Government hospital, where he was medically examined. On that basis, Police registered FIR bearing Crime No.181/2020 at Police Station Sabalgarh, District Morena for commission of offences under Sections 294, 323, 307, 506, 34 of IPC. Matter was investigated and statements of witnesses were recorded. Thereafter, charges for the aforesaid offences as mentioned in para 1 of this order, have been framed against 3 applicants by learned Court below.
(3) Challenging the impugned order of framing charges, learned counsel for the applicants submitted that the Court below did not appreciate the evidence and materials properly and committed grave error in framing charges against applicants. From the FIR, it is reflected that some other person has caused gunshot injury by means of katta to the complainant. There is no role attributed to the present applicants for committing the aforesaid offences, therefore, the order of framing charges passed against applicants is erroneous and contrary to law. Only present applicants have been made as accused excluding another person. It is further submitted that no firearm was recovered from the possession of applicants. Injuries caused to the complainant were not sufficient in nature to cause death of the complainant. The prosecution has utterly failed to prima facie prove that offence is made out against applicants. The learned Court below should have discharged the applicants from the aforesaid charges levelled against them. Therefore, it is prayed that the impugned order of framing of charges passed by learned Court below be set aside and present revision deserves to be allowed.
(4) Per contra, learned Counsel for the State supported the impugned order of framing charges and submitted that prima facie, offence is made out against applicants. It is further submitted that in the 4 alleged incident, firearm was used and injury was caused to the complainant. As per the MLC report, the complainant had sustained a lacerated wound over his right knee joint. Therefore, considering the medical evidence as well as statements of witnesses, prima facie, offence is made out against the applicants. Hence, prayed for dismissal of present revision.
(5) I have considered rival contentions of the parties and perused documents available on record.
(6) As regards framing of charges and quashing the charges, the law is well settled.
(7) In the case of Union of India Vs. Prafulla Kumar Samal and another [(1979) 3 SCC 4], it is held by the Apex Court as under:-
"10. 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 5 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 court cannot act merely as a post office or 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 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) In the case of Dilawar Balu Kurane Vs. State of Maharashtra [(2002) 2 SCC 135], it is held by the Apex Court as under:-
"12. Now the next question is whether a prima facie case has been made out against the appellant. In exercising powers under Section 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section 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; 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; by and large 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 justified to discharge the accused, and in exercising jurisdiction under Section 227 of the Code of Criminal Procedure, the Judge cannot act merely as a post office or 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 but 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 [See Prafulla Kumar Samal (supra)].
14. We have perused the records and we agree with the above views expressed by the High Court. We find that 6 in the alleged trap no police agency was involved; the FIR was lodged after seven days; no incriminating articles were found in the possession of the accused and statements of witnesses were recorded by the police after ten months of the occurrence. We are, therefore, of the opinion that not to speak of grave suspicion against the accused, in fact the prosecution has not been able to throw any suspicion. We, therefore, hold that no prima facie case was made against the appellant.
(9) In the case of Sajjan Kumar Vs. Central Bureau of Investigation [(2010) 9 SCC 368], it is held by the Apex Court as under:-
"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 Cr.P.C. 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 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 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 offence, it can frame the charge, though for conviction the conclusion is required to be proved 7 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 discloses 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."
(10) In the case of State through Central Bureau of Investigation Vs. Dr. Anup Kumar Srivastava [AIR 2017 SC 3698], it is held by the Apex Court as under:-
"23.... The legal position is well-settled that at the stage of framing of charge the trial court is not to examine and assess in detail the materials placed on record by the prosecution nor is it for the court to consider the sufficiency of the materials to establish the offence alleged against the accused persons. At the stage of charge the court is to examine the materials only with a view to be satisfied that a prima facie case of commission of offence alleged has been made out against the accused persons. It is also well settled that when the petition is filed by the accused under Section 482 of the Code seeking for the quashing of charge framed against him the court should not interfere with the order unless there are strong 8 reasons to hold that in the interest of justice and to avoid abuse of the process of the court a charge framed against the accused needs to be quashed. Such an order can be passed only in exceptional cases and on rare occasions. The court is required to consider the "record of the case" and documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. Once the facts and ingredients of the section exists, then the court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. This presumption is not a presumption of law as such. The satisfaction of the court in relation to the existence of constituents of an offence and the facts leading to that offence is a sine qua non for exercise of such jurisdiction. It may even be weaker than a prima facie case."
(11) Similarly, in the case of Soma Chakravarti Vs. State, reported in (2007) 5 SCC 403, it is held by the Hon'ble Apex Court that at the time of framing of charges the probative value of material on record cannot be gone into, and the material brought on record by the prosecution has to be accepted as true. 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. Whether the accused committed the offence or not, can only be decided in the trial. The charge may although be directed to frame when there exists the strong suspicion but it is also trite that the Court must come to a prima facie finding that there exists some material therefor.
9(12) Further, this Court in the case of Colgate Palmolive India Ltd. vs. Satish Rohra, [2005 (4) MPLJ 380], has held in the following manner:-
"6. I have heard the learned Counsel of both the parties and carefully perused the evidence and the material on record. Before considering the evidence and the material on record for the limited purpose of finding out whether a prima facie case for issuance of process has been made out or not, it may be mentioned at the very outset that the various documents and the reports filed by the petitioners/Company along with the petition can not be looked into at the stage of taking cognizance or at the stage of framing of the charge. The question whether prima facie case is made out or not has to be decided purely from the point of view of the complainant without at all adverting to any defence that the accused may have. No provision in the Code of Criminal Procedure grants to the accused any right to file any material or document at the stage of taking cognizance or even at the stage of framing of the charge in order to thwart it. That right is granted only at the stage of trial. At this preliminary stage thematerial produced by the complainant alone is to be considered."
(13) It is undisputed fact that during the incident, applicants along with another person came on the spot voluntarily and the complainant got firearm injury on his right knee joint. The MLC of the complainant fully corroborates the prosecution case. The learned Court below has considered the material with a view to find out if there is ground for presuming that the accused persons have committed the offence. The Court below has analyzed the material for the purpose of finding out whether or not the prima facie case against the accused has been made out. The truthfulness of the statements or circumstances or documents 10 of the prosecution cannot be questioned at this stage by the defence. The material on record discloses the grave suspicion. On the basis of the material on record, the Court could form an opinion that the accused might have committed an offence. It is established that at the time of framing of charges, there is no scope to appreciate the entire evidence in details. The Court below has examined the case and found prima facie case against the applicants. Therefore, the Court below has not committed any error in passing the impugned order of framing charges.
(14) In view of aforesaid discussion as well as the law laid down by the Hon'ble Apex Court and this Court, I find no perversity or illegality in the order impugned passed by learned Court below warranting any interference by this Court at the stage of framing of charges. (15) Accordingly, the impugned order dated 13/07/2021 passed by Second Additional Sessions Judge, Sabalgarh, District Morena (MP) in Sessions Trial No.208/2021 is hereby affirmed. Consequently, present revision being devoid of merits, is hereby dismissed.
A copy of the order be sent to the Court below for information and compliance.
(Rajeev Kumar Shrivastava) Judge MKB MAHENDRA Digitally signed by MAHENDRA BARIK DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, postalCode=474001, st=Madhya Pradesh, 2.5.4.20=8c6d4d6122d7ee987e457a3bec5922cacbc050c998981397 BARIK a35d9758a2b55074, pseudonym=61167CBF346371FDA4919D07819090142FCCA056, serialNumber=AB90F893988F10D718DA01F8065D87F25DDC9B6C8 C3FF0E5E280DD36D476F6BA, cn=MAHENDRA BARIK Date: 2021.12.16 17:06:43 +05'30'