Jammu & Kashmir High Court
Vijay Kumar vs State Of J&K on 2 August, 2021
Author: Rajnesh Oswal
Bench: Rajnesh Oswal
Sr. No. 201
HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
AT JAMMU
CRMC No. 1/2012
Vijay Kumar .....Appellant/Petitioner(s)
Through :- Mr. D. S. Saini, Advocate
v/s
State of J&K .....Respondent(s)
Through :- Mr. Aseem Sawhney, AAG
Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
ORDER
1. The present petition has been filed by the petitioner for quashing of order dated 23.09.2011 passed by the learned Sessions Judge, Jammu (hereinafter to be referred as the trial court) in a criminal challan, titled, State vs Vijay Kumar pursuant to the FIR No. 32/2009 registered on the statement made by the complainant, Jeet Kumar S/o. Subash Chander, by virtue of which the petitioner has been charged under section 302 RPC.
2. The allegations against the petitioner are that on 14.09.2009 in the morning at around 9.30 A.M, the complainant was standing near the shop of „General Merchants‟ and suddenly he heard the noise from the house of Surinder Kumar and he went to the house of Surinder Kumar, where Surinder Kumar and Vijay Kumar were fighting with each other and during the scuffle, Vijay Kumar, petitioner herein by way of a knife (Chhuri) hit near the right ear of the Surinder Kumar, as a result of which, the blood started oozing out and Surinder Kumar fell down. Initially FIR was registered under sec 307 R.P.C 2 CRMC No. 1/2012 but as the deceased succumbed to the injuries, so later on offence under section 302 R.P.C was added.
3. The petitioner has sought quashing of order dated 23.09.2011 (supra) primarily on the ground that it was sudden fight between the Vijay Kumar and the Surinder Kumar and the petitioner due to sudden and grave provocation hit the deceased with the knife near the right ear as a result of which he died and further that the petitioner had no intention to murder the deceased.
4. Mr. D. S. Saini, learned counsel for the petitioner has reiterated the grounds those have been taken in the petition. He has also relied upon the judgments of the Supreme Court in 2011(2) SCC(Cri) 370, AIR 2011, SC 564, AIR 1989 SC 1094 and 2011 CrLJ 2475.
5. Heard and perused the record.
6. As per the mandate of sections 267 and 268 of the Code of Criminal Procedure (now sections 227 and 228 of the Cr.P.C.), while considering the issue of framing of charge/discharge of the accused, the learned trial court has to form an opinion on the basis of material placed on record by the Investigating Officer as to whether there is sufficient ground for presuming that the accused has committed an offence or not and the material on record would constitute the statement of witnesses, injury report/post-mortem report along with other material relied upon by the prosecution. At this stage, learned trial court cannot indulge in critical evolution of the evidence that can be done at the time of final appreciation of evidence after the conclusion of the trial.
3 CRMC No. 1/2012
7. The charge can be framed against the accused even when there is a strong suspicion about the commission of offence by the accused and at the same time, the learned trial court is not expected to merely act as a post office and frame the charge just because challan for commission of a particular offence has been filed against the accused. The learned trial court can sift the evidence brought on record by the prosecution so as to find out whether the un-rebutted evidence placed on record fulfils the ingredients of the offences or not. But at the same time, the learned trial court cannot conduct a mini trial to find out as to whether the accused/respondents can be convicted for a particular offence or not. If the ingredients are lacking then, the court has no option but to discharge.
8. The Apex Court in Sajjan Kumar v. CBI reported in (2010) 9 SCC 368 after considering of its various pronouncements has culled out the following principles of law:
"Exercise of jurisdiction under Sections 227 and 228 CrPC
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 CrPC 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.4 CRMC No. 1/2012
(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 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 there from taken at their face value disclose 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."
9. In State of Karnataka v. M. R. Hiremath, (2019) 7 SCC 515, the Apex Court has held as under:
"25. The High Court ought to have been cognizant of the fact that the trial court was dealing with an application for discharge under the provisions of Section 239 CrPC. The parameters which govern the exercise of this jurisdiction have found expression in several decisions of this Court. It is a settled principle of law that at the stage of considering an application for discharge the court must proceed on the assumption that the material which has been brought on the record by the 5 CRMC No. 1/2012 prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary to constitute the offence. In State of T.N. v. N. Suresh Rajan [State of T.N. v. N. Suresh Rajan, (2014) 11 SCC 709 : (2014) 3 SCC (Cri) 529 :
(2014) 2 SCC (L&S) 721] , adverting to the earlier decisions on the subject, this Court held: (SCC pp. 721-
22, para 29) "29. ... At this stage, 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."
10. Now this Court would examine the issues raised by the petitioner on the touchstone of law laid down by Apex Court as mentioned above.
11. The petitioner hit the deceased near ear and as result of which deceased suffered „Cranio Cerebral Damage‟ that is evident from the post mortem report.
12. The contention of the petitioner is that he had no intention to cause the injury and the death in this case was because of the single blow of knife during scuffle, so the petitioner cannot be charged for commission of offence under section 302 RPC, cannot be considered at this stage. Whether the petitioner had no intention to kill the deceased is to be determined during the trial by the trial court and this Court cannot appreciate the evidence while adjudicating the petition under section 561-A (now482) Cr.P.C. The judgments cited by the learned counsel pertain to the merits of the case, as such the 6 CRMC No. 1/2012 same cannot be relied upon while considering the question of charge/discharge. The learned trial court has not committed any illegality in passing the order impugned.
13. For all what has been discussed above, this petition has no merit and the same is dismissed. The trial court shall fix the calendar for three days every fortnightly and shall not grant unnecessary adjournments to either of the parties so that the trial is concluded expeditiously.
14. Record of the trial court be returned back forthwith along with a copy of this order.
(Rajnesh Oswal) Judge JAMMU 02.08.2021 Rakesh Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No