Himachal Pradesh High Court
Sanjay Kumar And Others vs State Of H.P on 2 January, 2024
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No. 31 of 2021 .
Reserved on: 21.11.2023 Date of Decision: 02.01.2024.
Sanjay Kumar and others ...Petitioners
of
Versus
State of H.P. ...Respondent
Coram
rt
Hon'ble Mr. Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes.
For the Petitioners : Mr. V.S. Chauhan, Senior Advocate with Mr. Rajul Chauhan, Advocate.
For the Respondent : Mr. Jitender Sharma, Additional Advocate General.
Rakesh Kainthla, Judge The present revision is directed against the order dated 12.1.2021, passed by the learned Sessions Judge (Forest), Shimla vide which multiple charges were framed against the petitioner (accused before the learned Trial Court). (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).
1Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 02/01/2024 20:33:44 :::CIS 22. Briefly stated, the facts giving rise to the present revision are that the informant Gulam (since deceased) and his .
brother Azad Ali were residing in Village Bholar. They were Gujjars by profession. Gulam Ali woke up on 24.7.2018 at around 2.00 AM and went to check his cattle. Ravin alias Tinu son of Ramesh and another person restrained him and gave him of beatings with kicks, fists and sticks. He shouted for help and both the people ran away. He narrated this incident to his rt brother Azad Ali, who brought him to the hospital. The Doctor informed the police. The police visited the hospital and recorded the statement of the informant-Gulam. Subsequently, the informant succumbed to his injuries. The police obtained the postmortem report. The Medical Officer stated that the deceased had sustained 20 injuries which were ante-mortem in nature and could have been caused by a blunt force. The cause of death was the cumulative effect of multiple antemortem injuries. The police arrested Ravin alias Tinu and found during the investigation that Ravin, Rohit, Sanjay Kumar, Digvijay Singh, Naveen Kumar and Prashant Rathore had given beatings to the deceased. The police added Sections 147, 148, 149, and 452 of IPC and removed Section 34 of IPC from the list of offences. The ::: Downloaded on - 02/01/2024 20:33:44 :::CIS 3 police arrested the accused persons and effected the recovery of various articles pursuant to the disclosure statement made by .
each of the accused. The police found out during the investigation that Rohit Kumar was posted as a Forest Guard in Mandal beet. Sanjay Kumar was posted as Forest Guard in Chajpur Beat, Digvijay was posted as Forest Guard in Kawalta of Beet and Prashant Rathore was posted as Forest Guard in Dhansar Beet. They associated Tinu with them on 23.7.2018.
rt They went to Bhollar nallah. They called the deceased and gave him beatings. The accused proclaimed that the deceased and his brother were in the habit of stealing the timber and they just wanted to know where the timber was kept by the deceased and his brother. When the deceased and his brother did not reveal the whereabouts of the stolen timber, they gave him beatings mercilessly.
3. The learned Trial Court heard the arguments on the charge and held that the Court is not to weigh the evidence at this stage. The Court is to see the prima facie case and apply its judicial mind. The material on record was sufficient to frame charges. Accordingly, the learned Trial Court framed charges ::: Downloaded on - 02/01/2024 20:33:44 :::CIS 4 against the accused for the commission of offences punishable under Sections 147, 148, 149, 323, 341, 302 and 452 of IPC.
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4. Being aggrieved from the order framing charge, the present revision has been filed asserting that the learned Trial Court erred in framing the charge. If two views are possible and the evidence on record gives rise to the suspicion only, the of accused can be discharged. Learned Trial Court did not deal with rt the submission raised by the accused and wrongly relied upon the judgment of the Hon'ble Supreme Court. The facts of the cited case are entirely different. The victim had made the statement that he was beaten by Ravin @ Tinu and other persons due to which he had sustained injuries. The learned Trial Court did not appreciate this statement and erred in framing the charge. First aid was provided to the victim at Civil Hospital, Rohru from where he was referred to IGMC, Shimla but he was not taken to IGMC Shimla rather he was taken to his home. The Medical Officer at Rohru had found five injuries, whereas twenty injuries were found in the postmortem examination. There is no explanation for the remaining injuries.
Learned Trial Court erred in relying upon the disclosure statement and consequent recoveries as well as the statement of ::: Downloaded on - 02/01/2024 20:33:44 :::CIS 5 Azad Ali, brother of the deceased. He had not objected to the statement of the victim/deceased. Even though he was present .
at the time of recording of his (deceased) statement. The petitioners are forest guards and they were associated with the removal of encroachment from the forest land. They had evicted many influential persons and a false case was made against of them due to this enmity. Hence, it was prayed that the present revision be allowed and the orders passed by the learned Trial rt Court be set aside.
5. I have heard Mr V.S. Chauhan, learned Senior Counsel assisted by Mr. Rajul Chauhan, learned counsel for the petitioner and Mr. Jitender Sharma, learned Additional Advocate General for the respondent-State.
6. Mr. V.S. Chauhan, learned Senior Counsel for the petitioners submitted that the petitioners are innocent and they were falsely implicated. The victim/deceased made a statement under Section 154 of Cr.P.C. in which he had named only two persons. Five injuries were found on the person of the deceased when he was examined at Civil Hospital Rohru; whereas 20 injuries were found on his person during the postmortem ::: Downloaded on - 02/01/2024 20:33:44 :::CIS 6 examination which shows that he was beaten by some other persons after recording the FIR. He was referred to IGMC, .
Shimla, but was not taken to the hospital, which shows that the prosecution has not come to the Court with clean hands and has concealed the truth from the Court, hence he prayed that the present petition be allowed and the order passed by learned of Sessions Judge (Forest), Shimla be set aside.
7. rt Mr. Jitender Sharma, learned Additional Advocate General for the respondent-State supported the order passed by the learned Sessions Judge (Forests) and submitted that the Court has to see only the prima-facie case at the time of framing of charge. There is sufficient material on record to connect the petitioners with the commission of the offences. Merely because the deceased had not named the petitioners is no reason to conclude that the petitioners were not involved in the commission of the crime. The Medical Officer has given his opinion on the possibility of the deceased being disoriented at the time of making the statement. Hence, his statement cannot be taken as a gospel truth. Therefore, he prayed that the present revision be dismissed.
::: Downloaded on - 02/01/2024 20:33:44 :::CIS 78. I have given considerable thought to the submissions at the bar and have gone through the records carefully.
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9. It was laid down by the Hon'ble Supreme Court in State of Gujarat v. Dilip Singh Kishor Singh Rao, 2023 SCC OnLine SC 1294 that the Judge has to examine the evidence placed by the prosecution while framing a charge and determine whether or of not sufficient grounds exist to proceed against the accused on rt the basis of the material placed before him or not. The Court has to proceed on the assumption that the material brought by the prosecution is correct. It was observed:-
7. It is trite law that the application of judicial mind being necessary to determine whether a case has been made out by the prosecution for proceeding with trial and it would not be necessary to dwell into the pros and cons of the matter by examining the defence of the accused when an application for discharge is filed. At that stage, the trial judge has to merely examine the evidence placed by the prosecution in order to determine whether or not the grounds are sufficient to proceed against the accused on the basis of charge sheet material. The nature of the evidence recorded or collected by the investigating agency or the documents produced in which prima facie it reveals that there are suspicious circumstances against the accused, so as to frame a charge would suffice and such material would be taken into account for the purposes of framing the charge. If there is no sufficient ground for proceeding against the accused necessarily, the accused would be discharged, but if the court is of the opinion, after such consideration of the material there are ::: Downloaded on - 02/01/2024 20:33:44 :::CIS 8 grounds for presuming that the accused has committed the offence which is triable, then necessarily charge has to be framed.
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8. At the time of framing of the charge and taking cognizance the accused has no right to produce any material and call upon the court to examine the same. No provision in the Code grants any right to the accused to file any material or document at the stage of framing of charge. The trial court has to apply its judicial mind to the facts of the case as may be necessary to determine of whether a case has been made out by the prosecution for trial on the basis of charge-sheet material only.
9. If the accused is able to demonstrate from the charge-
rt sheet material at the stage of framing the charge which might drastically affect the very sustainability of the case, it is unfair to suggest that such material should not be considered or ignored by the court at that stage. The main intention of granting a chance to the accused of making submissions as envisaged under Section 227 of the Cr.
P.C. is to assist the court to determine whether it is required to proceed to conduct the trial. Nothing in the Code limits the ambit of such hearing, to oral hearing and oral arguments only and therefore, the trial court can consider the material produced by the accused before the I.O.
10. It is a settled principle of law that at the stage of considering an application for discharge the court must proceed on an assumption that the material which has been brought on record by the prosecution is true and evaluate said material in order to determine whether the facts emerging from the material taken on its face value, disclose the existence of the ingredients necessary of the offence alleged. This Court in State of Tamil Nadu v. N. Suresh Rajan, (2014) 11 SCC 709 adverting to the earlier propositions of law laid down on this subject has held:
"29. We have bestowed our consideration to the rival submissions and the submissions made by Mr. Ranjit ::: Downloaded on - 02/01/2024 20:33:44 :::CIS 9 Kumar commend us. True it is that at the time of consideration of the applications for discharge, the court cannot act as a mouthpiece of the prosecution or .
act as a post office and may sift evidence in order to find out whether or not the allegations made are groundless so as to pass an order of discharge. It is trite that at the stage of consideration of an application for discharge, the court has to proceed with an assumption that the materials brought on record by the prosecution are true and evaluate the of said materials and documents with a view to find out whether the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. At this stage, the rt 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 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."
11. The defence of the accused is not to be looked into at the stage when the accused seeks to be discharged. The expression "the record of the case" used in Section 227 Cr. P.C. is to be understood as the documents and articles, if any, produced by the prosecution. The Code does not give any right to the accused to produce any document at the stage of framing of the charge. The submission of the accused is to be confined to the material produced by the investigating agency.
::: Downloaded on - 02/01/2024 20:33:44 :::CIS 1012. The primary consideration at the stage of framing of charge is the test of the 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 v. Som Nath Thapa, (1996) 4 SCC 659 and the State of MP v. Mohan Lal Soni, (2000) 6 SCC 338 has held the nature of evaluation to be made by the court at the stage of framing of the charge is to test the existence of the prima-facie case. It is also held at the stage of framing of charge, the court has of to form a presumptive opinion to the existence of factual ingredients constituting the offence alleged and it is not expected to go deep into the probative value of the material on record and to check whether the material on rt record would certainly lead to conviction at the conclusion of trial.
10. This position was reiterated in Vishnu Kumar Shukla vs. State of U.P., 2023 SCC OnLine SC 1582, wherein it was observed:-
15. Although the instant case pertains to Trial of Warrant-Cases by Magistrates and is a case instituted on a police report, meaning Sections 239-240, CrPC are relevant, we also propose to glance at Section 245, CrPC (concerning trial of warrant-cases by Magistrates apropos cases instituted otherwise than on police report), as also Sections 227-228, CrPC, which pertain to Trial before a Court of Session.
16. The extent of scrutiny permissible when an application for discharge is being considered has attracted this Court's attention on a number of occasions.
It is appropriate to take note of the leading precedents on the subject. Insofar as Section 245, CrPC is concerned, the decision of this Court in Ajoy Kumar Ghose v. State of Jharkhand, (2009) 14 SCC 115 is instructive:
::: Downloaded on - 02/01/2024 20:33:44 :::CIS 11'19. The essential difference of procedure in the trial of a warrant case on the basis of a police report and that instituted otherwise than on the police report is .
particularly marked in Sections 238 and 239 CrPC on one side and Sections 244 and 245 CrPC on the other. Under Section 238, when in a warrant case, instituted on a police report, the accused appears or is brought before the Magistrate, the Magistrate has to satisfy himself that he has been supplied the necessary documents like the police report, FIR, statements of recorded under sub-section (3) of Section 161 CrPC of all the witnesses proposed to be examined by the prosecution, as also the confessions and statements recorded under Section 164 and any other documents rt which have been forwarded by the prosecuting agency to the court.
20. After that, comes the stage of discharge, for which it is provided in Section 239 CrPC that the Magistrate has to consider the police report and the documents sent with it under Section 173 CrPC and if necessary, has to examine the accused and has to hear the prosecution of the accused, and if on such examination and hearing, the Magistrate considers the charge to be groundless, he would discharge the accused and record his reasons for so doing. The prosecution at that stage is not required to lead evidence. If, on examination of the aforementioned documents, he comes to the prima facie conclusion that there is a ground for proceeding with the trial, he proceeds to frame the charge. For framing the charge, he does not have to pass a separate order. It is then that the charge is framed under Section 240 CrPC and the trial proceeds for recording the evidence. Thus, in such a trial prosecution has only one opportunity to lead evidence and that too comes only after the charge is framed.
Xxx ::: Downloaded on - 02/01/2024 20:33:44 :::CIS 12
22. In the warrant trial instituted otherwise than the police report, the complainant gets two opportunities to lead evidence, firstly, before the charge is framed .
and secondly, after the framing of the charge. Of course, under Section 245(2) CrPC, a Magistrate can discharge the accused at any previous stage of the case, if he finds the charge to be groundless.
23. Essentially, the applicable sections are Sections 244 and 245 CrPC since this is a warrant trial instituted otherwise than on police reports. There had of to be an opportunity for the prosecution to lead evidence under Section 244(1) CrPC or to summon its witnesses under Section 244(2) CrPC. This did not happen and instead, the accused proceeded to file an rt application under Section 245(2) CrPC on the ground that the charge was groundless.
24. Now, there is a clear difference in Sections 245(1) and 245(2) of CrPC. Under Section 245(1), the Magistrate has the advantage of the evidence led by the prosecution before him under Section 244 and he has to consider whether if the evidence remains unrebutted, the conviction of the accused would be warranted. If there is no discernible incriminating material in the evidence, then the Magistrate proceeds to discharge the accused under Section 245(1) CrPC.
25. The situation under Section 245(2) CrPC is, however, different. There, under subsection (2), the Magistrate has the power of discharging the accused at any previous stage of the case i.e. even before such evidence is led. However, for discharging an accused under Section 245(2) CrPC, the Magistrate has to come to a finding that the charge is groundless. There is no question of any consideration of evidence at that stage because there is none. The Magistrate can take this decision before the accused appears or is brought before the court or the evidence is led under ::: Downloaded on - 02/01/2024 20:33:44 :::CIS 13 Section 244 CrPC. The words appearing in Section 245(2) CrPC "at any previous stage of the case", clearly bring out this position.
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36. The Magistrate has the power to discharge the accused under Section 245(2) CrPC at any previous stage i.e. before the evidence is recorded under Section 244(1) CrPC, which seems to be the established law, particularly in view of the decision in Cricket Assn. of of Bengal v. State of W.B. [(1971) 3 SCC 239: 1971 SCC (Cri) 446], as also the subsequent decision of the Bombay High Court in Luis de Piedade Lobo v. MahadevVishwanathParulekar [1984 Cri LJ rt 513 (Bom)]. The same decision was followed by the Kerala High Court in Manmohan Malhotra v. P.M. Abdul Salam [1994 Cri LJ 1555 (Ker)] and Hon'ble Justice K.T. Thomas, as the learned Judge then was, accepted the proposition that the Magistrate has the power under Section 245(2) CrPC to discharge the accused at any previous stage. The Hon'ble Judge relied on a decision of the Madras High Court in Mohd. Sheriff Sahib v. Abdul Karim Sahib [AIR 1928 Mad 129 (1)], as also the judgment of the Himachal Pradesh High Court in Gopal Chauhan v. Satya [1979 Cri LJ 446 (HP)].
37. We are convinced that under Section 245(2) CrPC the Magistrate can discharge the accused at any previous stage i.e. even before any evidence is recorded under Section 244(1) CrPC. In that view, the accused could have made the application. It is obvious that the application has been rejected by the Magistrate. So far, there is no difficulty.' (emphasis supplied)
17. Turning to Sections 239-240, CrPC, this Court held as under in MinakshiBala v. Sudhir Kumar, (1994) 4 SCC 142:
::: Downloaded on - 02/01/2024 20:33:44 :::CIS 14'6. Having regard to the fact that the offences, for which the charge sheet was submitted in the instant case and cognizance taken, were triable as a warrant .
case the Magistrate was to proceed in accordance with Sections 239 and 240 of the Code at the time of framing of the charges. Under the above sections, the Magistrate is first required to consider the police report and the documents sent with it under Section 173 CrPC and examine the accused, if he thinks necessary, and give an opportunity to the prosecution of and the accused of being heard. If on such consideration, examination and hearing the Magistrate finds the charge groundless he has to discharge the accused in terms of Section 239 CrPC; rt conversely, if he finds that there is ground for presuming that the accused has committed an offence triable by him he has to frame a charge in terms of Section 240 CrPC.
7. If charges are framed in accordance with Section 240 CrPC on a finding that a prima facie case has been made out -- as has been done in the instant case -- the person arraigned may, if he feels aggrieved, invoke the revisional jurisdiction of the High Court or the Sessions Judge to contend that the charge-sheet submitted under Section 173 CrPC and documents sent with it did not disclose any ground to presume that he had committed any offence for which he is charged and the revisional court if so satisfied can quash the charges framed against him. To put it differently, once charges are framed under Section 240 CrPC the High Court in its revisional jurisdiction would not be justified in relying upon documents other than those referred to in Sections 239 and 240 CrPC; nor would it be justified in invoking its inherent jurisdiction under Section 482 CrPC to quash the same except in those rare cases where forensic exigencies and formidable compulsions justify such a course. We hasten to add even in such exceptional cases the High Court can look ::: Downloaded on - 02/01/2024 20:33:44 :::CIS 15 into only those documents which are unimpeachable and can be legally translated into relevant evidence.
8. Apart from the infirmity in the approach of the High .
Court in dealing with the matter which we have already noticed, we further find that instead of adverting to and confining its attention to the documents referred to in Sections 239 and 240 CrPC the High Court has dealt with the rival contentions of the parties raised through their respective affidavits at length and on a of threadbare discussion thereof passed the impugned order. The course so adopted cannot be supported; firstly, because finding regarding the commission of an offence cannot be recorded on the basis of affidavit rt evidence and secondly, because at the stage of framing of charge, the Court cannot usurp the functions of a trial court to delve into and decide upon the respective merits of the case.' (emphasis supplied)
18. With great respect, we express our reservations in fully acceding to what has been stated above. If Paragraph 8 of MinakshiBala (supra) is accepted as it is, the necessary concomitant would be that despite examining the matter in detail, a Court would find its wings clipped to intercede. This would amount to forcing a person to stand trial, even when the overwhelming material points to his/her innocence. Obviously, the hands of a Court ought not to be tied down, and especially not by a higher Court, and more so not against liberty. Paragraph 7 of MinakshiBala (supra) does enable examining unimpeachable documents. We are conscious that MinakshiBala (supra) has been followed in later decisions by the Court. However, we have chosen to survey the precedents further, and then decide on the road we wish to take.
19. In Rumi Dhar v. State of West Bengal, (2009) 6 SCC 364, this Court held that the Judge concerned with an ::: Downloaded on - 02/01/2024 20:33:44 :::CIS 16 application under Section 239, CrPC has to '... go into the details of the allegations made against each of the accused persons so as to form an opinion as to whether any case at all .
has been made out or not as a strong suspicion in regard thereto shall subserve the requirements of law.'
20. In State of Tamil Nadu v. N Suresh Rajan, (2014) 11 SCC 709, it was observed notwithstanding the difference in the language of Sections 227 and 239, CrPC, the approach of the Court concerned is to be common under both provisions. The principles holding the field under of Sections 227 and 228, CrPC are well-settled, courtesy, inter alia, State of Bihar v. Ramesh Singh, (1977) 4 SCC 39; Union of India v. Prafulla K Samal, (1979) 3 SCC 4; StreeAtyacharVirodhiParishad v. Dilip N Chordia, (1989) 1 rt SCC 715; Niranjan Singh Karam Singh Punjabi v. Jitendra B Bijjaya, (1990) 4 SCC 76; Dilawar B Kurane v. State of Maharashtra, (2002) 2 SCC 135; Chitresh K Chopra v. State (Government of NCT of Delhi), (2009) 16 SCC 605; Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460; Dinesh Tiwari v. State of Uttar Pradesh, (2014) 13 SCC 137; DipakbhaiJagdishchandra Patel v. State of Gujarat, (2019) 16 SCC 547; and State (NCT of Delhi) v. Shiv Charan Bansal, (2020) 2 SCC 290. We need only refer to some, starting with Prafulla K Samal (supra), where, after considering Ramesh Singh (supra), K P Raghavan v. M H Abbas, AIR 1967 SC 740 and Almohan Das v. State of West Bengal, (1969) 2 SCR 520, it was laid down as under:
'10. Thus, on 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 ::: Downloaded on - 02/01/2024 20:33:44 :::CIS 17 has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.
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(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 of accused, he will be fully within his right to discharge the accused.
(4) That in exercising his jurisdiction under Section rt 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.' (emphasis supplied)
11. The present matter has to be decided as per the parameters laid down by the Hon'ble Supreme Court.
12. The Investigating Officer filed an application seeking an opinion of the Medical Officer whether the patient was disoriented at the time of making the statement or not. The Medical Officer gave his opinion in writing that while the patient ::: Downloaded on - 02/01/2024 20:33:44 :::CIS 18 was seen by him on 24.7.2018, at 9.45, he was drowsy but well-
oriented to time, place and person despite sustaining multiple .
injuries, however, the possibility of getting disoriented and losing mental balance during the statement given to the police cannot be ruled out. Therefore, the Medical Officer has stated that there is a possibility of the deceased being disoriented at the of time of making his statement, and the statement made by the deceased/victim cannot be taken as a gospel truth.
rt
13. Heavy reliance was placed upon the fact that five injuries were found on the person of the deceased when he was examined by the Medical Officer on 24.7.2018 at 9.45 PM, however, the post-mortem report shows 20 injuries in the body.
It was submitted that the possibility of the injuries being sustained after the examination cannot be ruled out. This submission is not acceptable. The medico-legal report (MLC) of the deceased shows that wounds were present over the left elbow, a bruise was present over the right thigh, bruises were found over the right and left planks and multiple bruises were present over the upper back. The opinion was reserved, which was to be given after the receipt of the expert forensic medicine team's opinion. The post-mortem report signed by the ::: Downloaded on - 02/01/2024 20:33:44 :::CIS 19 Registrar, Forensic Medicine, IGMC, Shimla shows the list of 20 external antemortem injuries over the legs, buttocks, chest and .
forehead. The Medical Officer had also noticed multiple contusions over the legs and buttocks, abrasion over the forehead, and tenderness over the spine. Thus the injuries noticed by the Medical Officer who conducted the medical of examination initially and the Medical Officer who conducted the post-mortem examination are almost similar. The report of rt Registrar, Forensic Medicine is quite detailed. This report mentions each contusion and injury with detailed dimensions and descriptions. Therefore, it cannot be said that there was an increase in the number of injuries and the prosecution case would become suspect due to the increase in the number of injuries. It appears that the Medical Officer who had conducted the medical examination initially had given a general description, whereas the forensic team has given a specific description with details of the injuries. Thus, not much advantage can be derived from the discrepancies in the injuries.
14. The police recorded the statement of the brother of the deceased in which he gave a complete description regarding the incident. He stated that the deceased told him about the ::: Downloaded on - 02/01/2024 20:33:44 :::CIS 20 beatings given to him by Rohit, Tinu and 5-6 persons who were inquiring about the stolen timber. The police also recorded the .
statement of Abbal, who stated that 5-6 persons had given beatings to the deceased. He could identify Tinu and Rohit but did not know the names of other persons. Statements of Mastu, Emna wife of Mastu, Shameem Akhtar, and Jareef Ahmad were of also recorded who stated that the beatings were given in their presence. The effect of variation in the dying declaration made rt by the deceased is to be seen along with the other evidence by the learned Trial Court at the time of the conclusion of the trial.
At this stage, the Court is not to sift the evidence or appreciate the truthfulness or otherwise of the statement. The Court has to take the statements as true and if these are taken to be true, it clearly shows the involvement of the petitioners by direct evidence.
15. The petitioners have made various disclosure statements leading to various recoveries. Tinu got recovered a stick with which the deceased was beaten. Ravin got recovered one slipper which was recovered by him from Gulam Rasool.
Digvijay Singh, Naveen Sharma, Rohit, Sanjay Kumar and Prashant also got recovered the sticks with which the deceased ::: Downloaded on - 02/01/2024 20:33:44 :::CIS 21 was beaten. As per the opinion of the Forensic Experts, the sticks shown to them could have caused the injuries. Some of the .
injuries could have been caused by punches/kicks and some could have been caused by falls on a hard surface. All the evidence collected by the prosecution, prima facie established, at this stage, that the petitioners had given beatings to the of deceased due to which he died. Therefore, the learned Trial Court had rightly framed the charges against the petitioners.
rt
16. It was laid down by the Hon'ble Supreme Court in Dilip Singh (supra) that while hearing a revision petition under Section 397 of Cr.P.C., the Court has to set right a patent defect or an error of jurisdiction or law. This power cannot be exercised routinely and the Court will not interfere with the order unless the case falls within the categories mentioned above. It was observed:-
13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex-facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in the exercise ::: Downloaded on - 02/01/2024 20:33:44 :::CIS 22 of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much-advanced stage in the proceedings .
under the CrPC."
14. This Court in the aforesaid judgment has also laid down principles to be considered for the exercise of jurisdiction under Section 397 particularly in the context of prayer for quashing of charge framed under Section 228 Cr. P.C. is sought for as under:
of "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 rt 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 the proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or 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.::: Downloaded on - 02/01/2024 20:33:44 :::CIS 23
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.
of 27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to rt 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.
27.13. 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 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."
15. The revisional court cannot sit as an appellate court and start appreciating the evidence by finding out inconsistency in the statement of witnesses and it is not legally permissible. The High Courts ought to be cognizant of the fact that the trial court was dealing with an application for discharge.
17. A heavy reliance was placed upon the judgment of the Hon'ble Court in Sanjay Kumar Ravi Vs. State of U.P. 2021 SCC ::: Downloaded on - 02/01/2024 20:33:44 :::CIS 24 Online SC 367, wherein the Hon'ble Supreme Court had held that the Court is not to act as a mere post office and to find out .
whether there are sufficient grounds to try the suspect or not.
There can be no dispute with this proposition of law. In the present case, if the evidence is prima facie seen, as shown above, the same is sufficient to frame the charges and the learned Trial of Court had not erred in framing the charges based on the material placed on record. rt
18. Therefore, there is no infirmity in the order passed by the learned Trial Court. Hence, the present revision fails and the same is dismissed.
19. The observation made herein before shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.
20. The parties through their respective counsel are directed to appear before the learned Trial Court on 21.02.2024.
(Rakesh Kainthla) Judge 2nd January, 2024 (Chander) ::: Downloaded on - 02/01/2024 20:33:44 :::CIS