Madhya Pradesh High Court
Ashok Kumar Tripathi vs Chhotelal @ Chhotkva Kol on 15 March, 2024
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 M.Cr.C. No.40369/2022
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 15th OF MARCH, 2024
MISCELLANEOUS CRIMINAL CASE No. 40369 of 2022
BETWEEN:-
ASHOK KUMAR TRIPATHI S/O LATE SHRI
RAMPYARE TRIPATHI, AGED ABOUT 57 YEARS,
OCCUPATION: AGRICULTURE R/O RAMPUR
BAGHELAN (BANDHA) DISTRICT SATNA
(MADHYA PRADESH)
.....APPLICANT
(BY SHRI GAJENDRA TAMSIKAR - ADVOCATE)
AND
1. CHHOTELAL @ CHHOTKVA KOL S/O
CHUKAEYA KOL R/O WARD NO. 12 RAMPUR
BAGHELAN POLICE STATION RAMPUR
BAGHELAN DISTRICT SATNA (MADHYA
PRADESH)
2. MOTILAL PATEL S/O RAM KUMAR PATEL,
AGED ABOUT 56 YEARS, R/O VILLAGE
BANDHA POLICE STATION RAMPUR
BAGHELAN DISTRICT SATNA (MADHYA
PRADESH)
3. DURGESH SINGH PATEL S/O MOTILAL
PATEL, AGED ABOUT 36 YEARS, R/O
VILLAGE BANDHA POLICE STATION
RAMPUR BAGHELAN DISTRICT SATNA
(MADHYA PRADESH)
4. UMESH SINGH S/O MOTILAL, AGED ABOUT
40 YEARS, R/O VILLAGE BANDHA POLICE
STATION RAMPUR BAGHELAN DISTRICT
SATNA (MADHYA PRADESH)
5. MUKESH SINGH S/O MOTILAL, AGED
ABOUT 27 YEARS, R/O VILLAGE BANDHA
POLICE STATION RAMPUR BAGHELAN
DISTRICT SATNA (MADHYA PRADESH)
2 M.Cr.C. No.40369/2022
6. THE STATE OF MADHYA PRADESH
THROUGH STATION HOUSE OFFICER
RAMPUR BAGHELAN DISTRICT SATNA
(MADHYA PRADESH)
.....RESPONDENTS
(RESPONDENTS NO.1 TO 5 BY SHRI OM PRAKASH TRIPATHI - ADVOCATE)
............................................................................................................................................
This application coming on for admission this day, the court passed
the following:
ORDER
This application under Section 482 of Cr.P.C. has been filed against order dated 16/07/2022 passed by Additional Sessions Judge, Rampur Baghelan, District Satna in Criminal Revision No.4/2021 arising out of order dated 06/09/2019 passed by JMFC, Rampur Baghelan, District Satna in RCT No.326/2018.
2. It is submitted by counsel for the applicant that with great difficulty and only after a complaint was made on CM Helpline, his FIR No.326/2018 was registered at Police Station Rampur Baghelan, District Satna for offence under Section 379 of IPC. It is submitted that on 22/06/2017 at about 10 AM, accused persons came to his field along with lathi, farsa as well as electric Sawmill and they started forcibly cutting trees. When he got information from Rakesh Mahapatra about cutting of trees by the accused persons, he immediately went to the spot and found that accused persons were standing with danda and farsa along with Chotkaya Kol who was having aara machine (Sawmill) with him. They had already taken away the Babool wood and were in the process of taking away the remaining wood lying on the spot. When it was objected by the applicant, then all the accused persons started abusing him in the name of mother and sister and became aggressive 3 M.Cr.C. No.40369/2022 and threatened that in case if applicant comes nearer to them, then he too will be killed by farsa and tangi as well as by same electric Saw machine. It is also alleged that accused persons also forcibly destroyed the markings affixed in his field and also forcibly ploughed a part of his land and took away the wood by loading on Tractor and also extended a threat to his life. It is submitted that Police after completing the investigation filed a charge-sheet under Section 379 of IPC. The applicant filed an application under Section 190 read with Section 323 of Cr.P.C. and requested the Trial Court to take cognizance of offence under Sections 379, 395, 447, 294, 506 (Part-2), 427 and 149 of IPC. That application has been partially allowed but the Trial Court has refused to take cognizance of offence under Section 395 of IPC.
3. By referring to said order, it is submitted by counsel for the applicant that Trial Court has held that there is nothing on record to suggest that accused persons had voluntarily caused or attempted to cause any person death or hurt or wrongful restraint or fear of instant death or of instant hurt or of instant wrongful restraint, therefore, no offence under Section 395 of IPC is made out. It is submitted that the applicant in his statement recorded under Section 161 of Cr.P.C. has specifically stated that a threat to his life was given and they had also extended a threat that in case if he comes nearer to the accused persons then he would be killed and therefore the basic ingredients of Section 395 of IPC are available and the Trial Court committed a material illegality by not taking cognizance of offence under Section 395 of IPC and should have committed the matter to the Sessions Court. It is further submitted that the Revisional Court has rejected the Revision primarily on the ground that scope of revision is much narrower than the scope of appeal. Accordingly, it is submitted that when the basic allegations are 4 M.Cr.C. No.40369/2022 available on record to indicate that accused persons might have committed an offence under Section 395 of IPC, then the concerning Magistrate should have taken cognizance of said offence.
4. Per contra, application is vehemently opposed by counsel for the respondents. It is submitted that the Police after conducting investigation had filed the charge-sheet for offence under Section 379 of IPC and the ingredients of dacoity are not available on record.
5. Considered the submissions made by counsel for the parties.
6. Section 390 of IPC reads as under:-
"390. Robbery.-- In all robbery there is either theft or extortion.
When theft is robbery.-- Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
When extortion is robbery.-- Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted. Explanation.-- The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint."5 M.Cr.C. No.40369/2022
7. Sections 391 of IPC reads as under:-
"391. Dacoity.-- When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit "dacoity"."
8. Section 395 of IPC reads as under:-
"395. Punishment for dacoity.-Whoever commits dacoity shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."
9. The only difference between robbery and dacoity is number of accused persons.
10. The applicant in his statement recorded under Section 161 of Cr.P.C. has stated that when he reached on the spot and objected to the cutting of Babool trees, then all the four accused persons started abusing him filthily in the name of mother and sister and also extended a threat that in case if he comes nearer to them, then he would be killed and he would be cut into pieces like the wood was cut and also extended a threat to his life. Chotkawa Kol was threatening that remaining trees would also be cut and he would also cut the complainant into pieces.
11. The only question for consideration is as to whether this allegation is sufficient to make out an offence under Section 395 of IPC or not?
12. The Supreme Court in the case of M.E. Shivalingamurthy v. CBI, Bengaluru, reported in (2020) 2 SCC 768 has held as under :-
6 M.Cr.C. No.40369/2022"17. This is an area covered by a large body of case law. We refer to a recent judgment which has referred to the earlier decisions viz. P. Vijayan v. State of Kerala [P. Vijayan v. State of Kerala, (2010) 2 SCC 398 : (2010) 1 SCC (Cri) 1488] and discern the following principles:
17.1. If two views are possible and one of them gives rise to suspicion only as distinguished from grave suspicion, the trial Judge would be empowered to discharge the accused. 17.2. The trial Judge is not a mere post office to frame the charge at the instance of the prosecution.
17.3. The Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding. Evidence would consist of the statements recorded by the police or the documents produced before the Court.
17.4. 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 offence, then, there will be no sufficient ground for proceeding with the trial".
17.5. It is open to the accused to explain away the materials giving rise to the grave suspicion. 17.6. The court has to consider the broad probabilities, 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, would not entitle the court to make a roving inquiry into the pros and cons.
17.7. At the time of framing of the charges, the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution, has to be accepted as true.
7 M.Cr.C. No.40369/202217.8. There must exist some materials for entertaining the strong suspicion which can form the basis for drawing up a charge and refusing to discharge the accused.
18. The defence of the accused is not to be looked into at the stage when the accused seeks to be discharged under Section 227 CrPC (see State of J&K v. Sudershan Chakkar [State of J&K v. Sudershan Chakkar, (1995) 4 SCC 181 :
1995 SCC (Cri) 664 : AIR 1995 SC 1954] ). The expression, "the record of the case", used in Section 227 CrPC, is to be understood as the documents and the 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. At the stage of framing of the charge, the submission of the accused is to be confined to the material produced by the police (see State of Orissa v. Debendra Nath Padhi [State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568 : 2005 SCC (Cri) 415 : AIR 2005 SC 359])."
13. The Supreme Court in the case of Soma Chakravarty v. State, through CBI, reported in (2007) 5 SCC 403 has held as under :-
"10. It may be mentioned that the settled legal position, as mentioned in the above decisions, is that if on the basis of 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 beyond reasonable doubt that the accused has committed the offence. At the time of framing of the charges the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution has to be accepted as true at that stage. Before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the 8 M.Cr.C. No.40369/2022 commitment of offence by the accused was possible. Whether, in fact, the accused committed the offence, can only be decided in the trial.
* * *
19. Some of the questions, however, which have been raised by the appellant are of some importance and it may be necessary to deal therewith. The learned trial Judge, it appears, did not properly apply its mind in regard to the different categories of the accused while framing charges. It ought to have been done. Charge may although be directed to be framed when there exists a strong suspicion but it is also trite that the court must come to a prima facie finding that there exist some materials therefor. Suspicion cannot alone, without anything more, it is trite, form the basis therefor or held to be sufficient for framing charge."
14. The Supreme Court in the case of State (NCT of Delhi) v. Shiv Charan Bansal, reported in (2020) 2 SCC 290 has held as under :-
"39. The court while considering the question of framing charges under Section 227 CrPC has the power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case has been made out against the accused. The test to determine prima facie case would depend upon the facts of each case. If the material placed before the court discloses grave suspicion against the accused, which has not been properly explained, the court will be fully justified in framing charges and proceeding with the trial. The probative value of the evidence brought on record cannot be gone into at the stage of framing charges. 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 ingredients constituting the alleged offence. At 9 M.Cr.C. No.40369/2022 this stage, there cannot be a roving enquiry into the pros and cons of the matter, the evidence is not to be weighed as if a trial is being conducted. Reliance is placed on the judgment of this Court in State of Bihar v. Ramesh Singh [State of Bihar v. Ramesh Singh, (1977) 4 SCC 39 : 1977 SCC (Cri) 533] where it has been held that at the stage of framing charges under Sections 227 or 228 CrPC, if there is a strong suspicion which leads the court to think that there is ground for presuming that the accused had committed the offence, then the court should proceed with the trial.
40. In a recent judgment delivered in Dipakbhai Jagdishchandra Patel v. State of Gujarat [Dipakbhai Jagdishchandra Patel v. State of Gujarat, (2019) 16 SCC 547] decided on 24-4-2019, this Court has laid down the law relating to framing of charges and discharge, and held that all that is required is that the court must be satisfied with the material available, that a case is made out for the accused to stand trial. A strong suspicion is sufficient for framing charges, which must be founded on some material. The material must be such which can be translated into evidence at the stage of trial. The veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged at this stage, nor is any weight to be attached to the probable defence of the accused at the stage of framing charges. The court is not to consider whether there is sufficient ground for conviction of the accused, or whether the trial is sure to end in the conviction."
15. The Supreme Court in the case of State of Rajasthan v. Fatehkaran Mehdu, reported in (2017) 3 SCC 198 has held as under :-
"26. The scope of interference and exercise of jurisdiction under Section 397 CrPC has been time and again explained by this Court. Further, 10 M.Cr.C. No.40369/2022 the scope of interference under Section 397 CrPC at a stage, when charge had been framed, is also well settled. At the stage of framing of a charge, the court is concerned not with the proof of the allegation rather it has to focus on the material and form an opinion whether there is strong suspicion that the accused has committed an offence, which if put to trial, could prove his guilt. The framing of charge is not a stage, at which stage final test of guilt is to be applied. Thus, to hold that at the stage of framing the charge, the court should form an opinion that the accused is certainly guilty of committing an offence, is to hold something which is neither permissible nor is in consonance with the scheme of the Code of Criminal Procedure."
16. Therefore, it is clear that if the allegation made in the charge-sheet makes out a case of grave suspicion that the accused might have committed an offence, then it is lawful for the Court to frame the charges thereby prosecuting the accused for the said offence.
17. Although the Trial Court had written that the ingredients of Sections 390, 391 of IPC are not available but looking to the allegations made in the FIR as well as allegations made in the statement recorded under Section 161 of Cr.P.C., this Court is of considered opinion that prima facie the ingredients of Section 390 of IPC punishable under Section 395 of IPC are available on record and therefore, the Trial Court committed a material illegality by not taking cognizance of offence under Section 395 of IPC.
18. As a consequence thereof, order dated 16/07/2022 passed by Additional Sessions Judge, Rampur Baghelan, District Satna in Criminal Revision No.4/2021 and order dated 06/09/2019 passed by JMFC, Rampur Baghelan, District Satna in RCT No.326/2018, are hereby set 11 M.Cr.C. No.40369/2022 aside. Trial Court is directed to take cognizance of offence under Section 395 of IPC.
19. Since offence under Section 395 of IPC is triable by Sessions Court, therefore Trial Court is directed to commit the case to the Sessions Court.
20. With aforesaid observation, application is finally disposed of.
(G.S. AHLUWALIA) JUDGE S.M. Digitally signed by SHUBHANKAR MISHRA Date: 2024.03.18 19:11:27 +05'30'