Rajasthan High Court - Jodhpur
Roshni Devi vs State on 8 May, 2013
Author: Vijay Bishnoi
Bench: Vijay Bishnoi
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
ORDER
S.B. CRIMINAL MISC. PETITION NO.1278/2009
Roshni Devi Vs. State of Rajasthan & Anr.
Date of order : 8th May, 2013
PRESENT
HON'BLE MR. JUSTICE VIJAY BISHNOI
Mr. Pankaj Gupta, for petitioner.
Mr. A.R. Nikub, Public Prosecutor
Mr. D.S. Thind for respondent No.2.
BY THE COURT:-
This criminal misc. petition has been preferred by the petitioner against the order dated 26.3.2009 passed by the Additional Sessions Judge, Anoopgarh (hereinafter referred to as 'the revisional Court') while dismissing the revision petition filed by the petitioner against the order dated 20.9.2006 passed by the Judicial Magistrate, First Class, Anoopgarh (hereinafter referred to as 'the trial court') whereby the charge was framed against the petitioner for the offence punishable under Section 406 I.P.C.
2
Brief facts of the case are that respondent No.2 Bahaudin filed a complaint before the trial court while stating that he and the petitioner are residents of the same village and she is his Dharm Bahan (sister in relation). On 2.11.2000, he handed over Rs.50,000/- to petitioner Roshni Devi on the Bus Stand Anoopgarh to hand it over to his brother at Village Sataiya. However, on 3.11.2000, when he inquired from his brother about money, then his brother informed that petitioner Roshni Devi did not hand over any money to him. The respondent Bahaudin then approached the petitioner Roshni Devi, but she refused to return the money.
On receiving this complaint, the trial court forwarded the same to the police under Section 156(3) Cr.P.C. for investigation. The police station Anoopgarh, District Sri Ganganagar lodged an FIR No.7/2000 against the petitioner Roshni Devi for the offences punishable under Sections 420 & 406 I.P.C. After investigation police submitted a negative final report while concluding that no offence as alleged in the complaint had been committed.
The respondent No.2 thereafter preferred a 3 protest petition before the trial court and got recorded his statements and other witnesses under Section 200 & 202 Cr.P.C. On the basis of that the learned trial court vide order dated 20.11.2002, took cognizance against the petitioner for the offence punishable under Section 406 I.P.C. and ordered for registering regular criminal case with a direction to the Additional Public Prosecutor to submit the list of witnesses. The petitioner moved an application for recalling the order of taking cognizance. The said application of the petitioner was rejected by learned trial court on 1.2.2005 against which the petitioner preferred a revision petition, the said revision petition was also rejected by the revisional Court on 9.6.2006.
On 20.9.2006, the trial court framed charge against the petitioner for the offence punishable under Section 406 I.P.C. Petitioner challenged the said order of framing charge by way of filing a revision petition, however, the revisional Court has dismissed the same vide order dated 26.3.2009, against which the petitioner has preferred this criminal misc. petition.
It is contended by learned counsel for the 4 petitioner that the learned trial court has grossly erred in framing charge against the petitioner for the offence under Section 406 I.P.C. though there is no material available on record to frame the charge against the petitioner for the said offence. It is further contended by the learned counsel for the petitioner that the case against the petitioner was a warrant case and when the police had filed a negative final report then the pre charges evidence should have been recorded by the trial court, but the trial court had not recorded pre charges evidence, therefore, the order of framing charge against the petitioner is liable to be quashed. It is also contended that while framing of charge, the trial court has not taken into consideration the statements of the independent witnesses recorded by the police during the investigation and, therefore, also the order of framing charge against the petitioner is not sustainable in the eye of law. Learned counsel for petitioner has further contended that the dispute between the petitioner and the complainant was of civil nature and the police after thorough investigation has also concluded in the same manner and as such there was no reason for the trial 5 court to proceed against the petitioner in a matter of purely civil nature. On the strength of above contentions, the counsel for petitioner prayed for quashing orders passed by the trial court as well as revisional court on 20.9.1996 and 26.3.2009 respectively.
The learned Public Prosecutor as well as learned counsel for the complainant has supported the orders passed by the learned revisional court as well as of learned trial court and has contended that from the statements of the witnesses recorded under Sections 200 and 202 Cr.P.C. Prima facie case for the offence punishable under Section 406 I.P.C. is made out against the petitioner and, therefore, the trial court as well as the revisional court has not committed any illegality in passing the orders dated 20.9.1996 and 26.9.2009.
Heard learned counsel for the parties and perused the record.
The learned trial court after taking into consideration the statements of the witnesses recorded under Sections 200 and 202 Cr.P.C. found that prima facie evidence for framing charge against the petitioner for the offence punishable under Section 406 I.P.C. is 6 available on record. The contention of learned counsel for the petitioner that the trial court has not recorded the pre charge evidence has been negated by the trial court as well as learned revisional Court while taking into consideration the fact that on 20.11.2002 the trial court while taking cognizance against the petitioner for the offence punishable under Section 406 I.P.C. had ordered for treating the case as regular criminal case with a direction to Assistant Public Prosecutor to produce list of witnesses and as such the case against the petitioner became a State case and, therefore, there was no requirement of recording pre charge evidence as required in a private complaint.
The Hon'ble Apex Court in Amit Kapoor Vs. Ramesh Chandra & Anr. (2012) 9 SCC 460 while examining the powers of High Court under Sections 397 and 482 Cr.P.C. has observed as under:-
"19. At the initial stage of framing of a charge, the court is concerned not with proof but with a strong suspicion that the accused has committed an offence, which, if put to trial, could prove him guilty. All that the court has to see is that the material on 7 record and the facts would be compatible with the innocence of the accused or not. The final test of guilt is not to be applied at that stage"
The Hon'ble Apex Court has further enlisted the principles with reference to which the Courts should exercise jurisdiction under Section 397 and Section 482 of the Code of Criminal Procedure and has held as under:-
"27. Having discussed the scope of jurisdiction under these two provisions i.e. Section 397 and Section 482 of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but is inherently impossible to state with precision such principles. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or 8 Section 482 of the Code or together, as the case may be :
27.1. Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.
27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.
27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. 27.4. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some 9 grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers.
27.5. Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused. 27.6. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender.
27.7. The process of the Court cannot be permitted to be used for an oblique or ultimate/ulterior purpose.
27.8. Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a "civil wrong" with no "element of criminality" and does not satisfy the basic ingredients of a criminal offence, the Court may be justified in quashing the charge. Even in such cases, the Court would not embark upon the critical analysis of the evidence.
27.9. Another very significant caution that the courts have to observe is that it cannot examine 10 the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the Court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.
27.10. It is neither necessary nor is the court called upon to hold a full- fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction.
27.11. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained.
27.12. In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed therewith by the prosecution. 27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation 11 of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie. 27.14. Where the charge-sheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge. 27.15. Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae, i.e. to do real and substantial justice for administration of which alone, the courts exist.
27.16. These are the principles which individually and preferably cumulatively (one or more) be taken into consideration as precepts to exercise of extraordinary and wide plenitude and jurisdiction under Section 482 of the Code by the High Court. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence."12
In the light of principles enlisted by Hon'ble Apex Court in the above referred decision, this Court has perused the impugned orders and scanned the record. The learned trial court has framed the charge against the petitioner for the offence punishable under Section 406 I.P.C. and after perusing the complaint, protest petition and statements of witnesses recorded under Section 200 and 202 Cr.P.C., this Court is of the opinion that material is available on record for framing charge against the petitioner for commission of alleged offence.
A case may be purely a civil wrong or purely a criminal offence or a civil wrong has also a criminal case for the offence constituting both on the same set of fact but if the records disclose commission of a criminal offence and the ingredients of the offence are satisfied, then such criminal proceedings cannot be quashed merely because a civil wrong has also been committed.
In view of the above discussions, this Court does not find any force in this petition and, therefore, the same is dismissed.
[ VIJAY BISHNOI ], J.
13babulal/