Madhya Pradesh High Court
Dharmendra @ Dheeru Sharma vs The State Of Madhya Pradesh on 27 April, 2022
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
MCRC 44156 of 2019
Dharmendra alias Dheeru Sharma & Ors.
Vs.
State of MP
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Shri JS Rathore, counsel for petitioners.
Shri Purushottam Tanwar, Panel Lawyer for respondent/State.
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Reserved on : 23-04-2022
Whether approved for reporting : ...../......
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ORDER
(Passed on 27/04/2022) Per Rajeev Kumar Shrivastava, J:-
Invoking inherent powers of this Court u/S 482 Cr.P.C. this petition has been filed by petitioners challenging the order dated 20-08-2019 passed by First Additional Sessions Judge, Bhind in Criminal Revision No.50/2019 whereby, the revision filed by the petitioners against the order of framing charges dated 11-05-2019 passed by JMFC, Mehgaon in Criminal Case No. 627 of 2018, has been dismissed. (2) Facts giving rise to present petition, in short, are that on 11-07-2018 Dhamendra Sharma (herein petitioner No.1) submitted a written complaint before the Police Station Mehgaon, District Bhind on 11-07-2018 at around 06:15 pm stating therein, that on the date of incident, a phone call of his brother Rahul came on the mobile of one Sachin and Sachin asked Rahul as to why his mobile number has been provided to other. On that, after twenty minutes i.e. at around 04:30 pm, Satyakumar Sharma and Sunil Sharma came to his house and hurled abuses. When he objected to it, Satyakumar Sharma inflicted an axe blow on the elbow of his right hand. Sunil 2 Sharma inflicted a lathi blow on the head of his mother. On raising hue and cry of his mother, his brother Rahul, father Devidayal, brother Monu (herein petitioners No.2 to 4) came there for rescue. Ramprakash Sharma, Surendra Sharma and Pappu Sharma also came there. Satyakumar inflicted an axe blow on the head and Surendra inflicted a lathi blow on the back of Rahul. Pappu Sharma inflicted a stick blow on the right finger, Ramprakash Sharma inflicted a lathi blow on the right rib, Sunil inflicted a lathi blow on right elbow of his father Devidayal. Nivas Sharma inflicted a lathi blow on the right hand and on the left elbow of complainant. Ramprakash inflicted also inflicted lathi blows on the back and head of Monu Sharma. Dhruv Sharma (the witness of incident) had intervened the matter. All accused persons (herein complaint party) threatened the dire consequences while fleeing away from spot. On the basis of this, aforesaid FIR has been lodged by on behalf of petitioners against complainant party and offences u/Ss. 323, 294, 506, 34 of IPC has been registered.
(ii) Subsequently,complainant Sanat Kumar Sharma lodged a cross-FIR at Crime No.238 of 2018 at Police Station Mehgaon, District Bhind on 11-07-2018 at around 09:14 pm alleging therein that on 11-07-2018 at around 05:00 pm, he was running his flour mill and at that time, his cousins Sunil, Ramnaresh and Surendra were sitting in the room. All of a sudden, accused Rahul came there on a motorcycle and hurled abuses, on which his cousin Surendra came out of room and objected to it and asked Rahul to leave. On that, all accused (herein petitioners Dharmendra, Rahul, Devidayal and Monu) armed with lathi and axe came there. Rahul inflicted a lathi blow on the head and Dharmendra inflicted a lathi blow on the left shoulder and on right elbow and Devidayal inflicted a lathi blow on left side of his hand. Devidayal inflicted another 3 lathi blow on the head of his cousin Ramnaresh. Monu inflicted a blow by means of back of axe on the head and also inflicted another blow below right waist of his cousin Surendra. Monu also inflicted another axe blow at the little finger of his cousin Surendra. It is further alleged that cousins of complainant Surendra and Ramnaresh tried to intervene the matter and all accused (herein petitioners) threatened the dire consequences while fleeing away from the spot. On the basis of this, aforesaid FIR has been lodged against petitioners. (3) After completion of investigation, police filed a charge sheet before the Court of JMFC, Mehgaon under Sections 323/34 (four counts), 294, 506 Parat II of IPC and enhanced Section 325 of IPC against petitioners u/Ss 294, 323/34(four counts), 325/34, 506 Part-II of IPC. Hence, this petition. (4) It is the say of the counsel for the petitioners that in order to make offence graver, the complainant in collusion with police authorities and doctors, got prepared MLC depicting as if fracture was caused due to infliction of injury to Surendra Sharma on the date of incident. It is further say of the counsel for petitioners that as per records of District Medical Board the said Surendra Sharma was operated at Sarvodaya Hospital, Gwalior prior to two years of incident, despite no fracture was sustained by him. Upon considering MLC & X-ray reports, learned JMFC has committed an error in passing an order of framing charge under enhanced Section 325 IPC against petitioners. Therefore, the order of framing charge affects the personal liberty of petitioners substantially and it is the duty of Court to consider judicially as to whether on the materials on which prosecution proposed to prosecute petitioners makes out a prima facie case while justifying framing of charge or not. Hence, it is prayed that impugned order of framing charge under enhanced Section 325 IPC 4 passed by the Court of JMFC against petitioners deserves to be set aside, so also impugned order passed by Revisional Court deserves to be set aside.
(5) On the other hand, learned counsel for the State opposed contention of counsel for petitioners and submitted that considering the nature of allegations as well as injuries sustained by complainant party, no case is made out for quashment of charge sheet. Hence, prayed for dismissal of this petition.
(6) Heard the counsel for the parties.
(7) As regards framing of charges and quashing the
charges, the law is well settled.
(8) 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 within his right to discharge the accused. (4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under 5 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."
(9) 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 6 High Court. We find that 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. (10) 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 beyond reasonable doubt that the accused has committed the offence.
(v) At the time of framing of the charges, the 7 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."
(11) 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 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 8 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."
(12) 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. (13) 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 9 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."
(14) So far as much stress given by learned counsel for the petitioners on the point that injured Surendra Sharma was examined just after eight day of alleged incident and the police in collusion with complainant party, by way of false MLC & X-ray report, has enhanced Section 325 of IPC is concerned, the veracity of said documents of prosecution cannot be questioned at this stage by the defence. That being so, in compliance of order of this Court, petitioners did not file any document on record to show the authenticity of said documents. On the basis of material collected by police, the Court below has arrived at a conclusion that the petitioners might have committed an offence. It is established principle of law that at the time of framing of charges, there is no scope to appreciate the entire evidence in details. Whether petitioners-accused committed the alleged offence or not, can only be decided in the trial. Once ingredient of Section 325 of IPC exists, then the Court would be right in presuming that there is a ground to proceed against accused and frame charge accordingly. Since the Court below has examined case and found prima facie case against petitioners, therefore,it cannot 10 be said that the Court below has committed an illegality in passing the impugned order of framing charges against petitioners.
(15) In view of the above as well as the law laid down by Hon'ble Apex Court and this Court, I find no perversity or illegality in the order impugned passed by the Court below, warranting any interference by this Court at the stage of framing of charges.
(16) Accordingly, the order dated 20-08-2019 passed by First Additional Sessions Judge, Bhind in Criminal Revision No.50/2019 dismissing revision filed by petitioners against the order of framing charges dated 11-05-2019 passed by JMFC, Mehgaon in Criminal Case No.627 of 2018 is hereby affirmed. Petition being bereft of merits, is hereby dismissed.
A copy of the order be sent to concerning Courts below for information.
(Rajeev Kumar Shrivastava) Judge MKB Digitally signed by MAHENDRA BARIK Date: 2022.04.27 17:02:08 +05'30'