Jharkhand High Court
Sujit Kumar vs The State Of Jharkhand on 28 September, 2022
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
-1- Cr.M.P. No. 2867 of 2016
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 2867 of 2016
1. Sujit Kumar
2. Dilip Mahto ..... ... Petitioners
Versus
1. The State of Jharkhand.
2. Baleshwar Bhagat ..... ... Opposite Parties
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CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioners : Mr. Jageshwar Mahto, Advocate. For the State : Mr. S.K. Srivastava, A.P.P. For the O.P. No. 2 : Mr. Radhey Shyam, Advocate.
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09/ 28.09.2022 Heard learned counsel for the parties.
2. This petition has been filed for quashing of the order dated 02.09.2016, passed in Cr. Rev. No. 151 of 2016 by the learned Judicial Commissioner, Ranchi. Further prayer has been made for quashing of the order dated 08.07.2016, passed in G.R. Case No. 1085 of 2015 arising out of Sikidiri P.S. Case No. 06 of 2015, by the learned Judicial Magistrate, 1st Class, Ranchi, the case is pending in the court of learned Judicial Magistrate, 1st Class, Ranchi.
3. The FIR was lodged by the informant by filing written report before Sikidiri police station on 12.02.2015 alleging therein that the informant has piece of land situated at village-Haratu, P.S.-Sikidiri, District-Ranchi being Khata No. 2, plot No. 56, area 57.5 decimal in joint property with younger brother Jainandan Bhagat with equal share and they are in possession of the land. He has in need of money and he has no option but to sell the aforesaid land. There, he executed a power of attorney at the rate of Rs. 10,000/- per decimal on 08.12.2009 in the name of Asheswar Lal Gupta, son of late Khem Lal Sahu, R/o village-Pancha, P.S.-Ormanjhi, District-Ranchi. Asheshwar Lal Gupta paid Rs. 65,000/- cash and assured that rest would be paid at the time of registration of sale deed but after one month, he sold the land without his knowledge and did not pay rest amount till now. On repeated demand of rest amount the accused gave two cheques of Rs. 25,000/- each of the informant and his brother. When they presented the cheque for encashment, the cheques were bounced thereafter on 30.08.2014 when the informant along with his brother Jainandan Bhagat went to the house of the accused Asheshwar Lal Gupta along with his associates Sujit Kumar and Dilip Mahto, by making forgery deceived the informant and his brother. Hence the case is filed against the accused persons.
-2- Cr.M.P. No. 2867 of 20164. The petitioners at the time of framing of charge, filed the discharge petition under Section 239 Cr.P.C., which was considered by the learned Trial Court and rejected the same by order dated 08.07.2016 and aggrieved with that order, the petitioners have also filed revision before the learned revisional court, but the same was also dismissed. Aggrieved by the said order of revisional Court, the petitioners have filed this petition. By order dated 07.02.2018, notices were issued to the O.P. No. 2 and the O.P. No. 2 has appeared through advocate.
5. Learned counsel appearing for the petitioners submits that the learned trial court and the learned revisional court have not applied their judicial mind and rejected the petition filed under Section 239 Cr.P.C. He submits that the case is purely civil in nature, however, the colour of criminality has been given and the petitioners have been falsely dragged in this case. He further submits that the informant has also filed civil suit for cancellation of the deed, which is still pending. He further submits that the case of the petitioners is fully covered by the judgment of the Hon'ble Supreme Court in the case of Randheer Singh Versus State of U.P. & Ors., reported in (2021) SCC Online SC 942, wherein the Hon'ble Supreme Court in para-33 of the said judgment, held as follows:-
"33. In this case, it appears that criminal proceedings are being taken recourse to as a weapon of harassment against a purchaser. It is reiterated at the cost of repetition that the FIR does not disclose any offence so far as the Appellant is concerned. There is no whisper of how and in what manner, this Appellant is involved in any criminal offence and the charge sheet, the relevant part whereof has been extracted above, is absolutely vague. There can be no doubt that jurisdiction under Section 482 of the Cr.P.C. should be used sparingly for the purpose of preventing abuse of the process of any court or otherwise to secure the ends of justice. Whether a complaint discloses criminal offence or not depends on the nature of the allegation and whether the essential ingredients of a criminal offence are present or not has to be judged by the High Court. There can be no doubt that a complaint disclosing civil transactions may also have a criminal texture. The High Court has, however, to see whether the dispute of a civil nature has been given colour of criminal offence. In such a situation, the High Court should not hesitate to quash the criminal proceedings as held by this Court in Paramjeet Batra (supra) extracted above."
6. On the other hand, learned counsel appearing for the O.P. No. 2 submits that if the materials are there and two learned courts have -3- Cr.M.P. No. 2867 of 2016 already applied their minds under Section 239 Cr.P.C., this Court in the garb of second revision may not interfere in the matter. Since there are materials against the petitioners, the both the learned courts have rightly rejected the discharge petition and now the charge has already been framed against the petitioners. On the point of interpretation of Section 237 and Section 239, he relied in the case of State through Deputy Superintendent of Police Versus R. Soundirarasu etc., reported in 2022 Live Law (SC) 741, wherein the Hon'ble Supreme Court in paras-60 to 74 held as follows:-
"60. Section 239 envisages a careful and objective consideration of the question whether the charge against the accused is groundless or whether there is ground for presuming that he has committed an offence. What Section 239 prescribes is not, therefore, an empty or routine formality. It is a valuable provision to the advantage of the accused, and its breach is not permissible under the law. But if the Judge, upon considering the record, including the examination, if any, and the hearing, is of the opinion that there is "ground for presuming" that the accused has committed the offence triable under the chapter, he is required by Section 240 to frame in writing a charge against the accused. The order for the framing of the charge is also not an empty or routine formality. It is of a far-reaching nature, and it amounts to a decision that the accused is not entitled to discharge under Section 239, that there is, on the other hand, ground for presuming that he has committed an offence triable under Chapter XIX and that he should be called upon to plead guilty to it and be convicted and sentenced on that plea, or face the trial.
61. Section 239 of the CrPC lays down that if the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused. The word 'groundless', in our opinion, means that there must be no ground for presuming that the accused has committed the offence. The word 'groundless' used in Section 239 of the CrPC means that the materials placed before the Court do not make out or are not sufficient to make out a prima facie case against the accused.
62. The learned author Shri Sarkar in his Criminal P.C., 5th Edition, on page 427, has opined as:-
"The provision is the same as in S. 227, the only difference being that the Magistrate may examine -4- Cr.M.P. No. 2867 of 2016 the accused, if necessary, of also S. 245. The Magistrate shall discharge the accused recording reasons, if after (i) considering the police report and documents mentioned in S. 173; (ii) examining the accused, if necessary and (iii) hearing the arguments of both sides he thinks the charge against him to be groundless, i.e., either there is no legal evidence or that the facts do not make out any offence at all."
63. In short, it means that if no prima facie case regarding the commission of any offence is made out, it would amount to a charge being groundless.
64. In Century Spinning and Manufacturing Co. Ltd. v. State of Maharashtra, AIR 1972 SC 545, this Court has stated about the ambit of Section 251(A)(2) of the CrPC 1898, which is in pari materia with the wordings used in Section 239 of the CrPC as follows:-
"It cannot be said that the Court at the stage of framing the charge has not to apply its judicial mind for considering whether or not there is a ground for presuming the commission of the offence by the accused. The order framing the charges does substantially affect the person's liberty and it cannot be said that the Court must automatically frame the charge merely because the prosecuting authorities by relying on the documents referred to in S. 173 consider it proper to institute the case. The responsibility of framing the charges is that of the Court and it has to judicially consider the question of doing so. Without fully adverting to the material on the record it must not blindly adopt the decision of the prosecution."
In para 15, this Court has stated as:-
"Under sub-sec. (2), if upon consideration of all the documents referred to in S. 173, Criminal P.C. and examining the accused, if considered necessary by the Magistrate and also after hearing both sides, the Magistrate considers the charge to be groundless, he must discharge the accused. This sub-section has to be read along with sub- sec. (3), according to which, if after hearing the arguments and hearing the accused, the Magistrate thinks that there is ground for presuming that the accused has committed an offence triable under Chap. XXI of the Code within the Magistrate's competence and for which he can punish adequately, he has to frame in writing a charge against the accused. Reading the two sub-sections together, it clearly means that if -5- Cr.M.P. No. 2867 of 2016 there is no ground for presuming that the accused has committed an offence, the charges must be considered to be groundless, which is the same thing as saying that there is no ground for framing the charges." (Emphasis supplied)
65. Thus the word 'groundless', as interpreted by this Court, means that there is no ground for presuming that the accused has committed an offence.
66. This Court has again dealt with this aspect of the matter in Superintendent and Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja, AIR 1980 SC 52. This Court has stated in the said case as:-
"At this stage, even a very strong suspicion found upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, may justify the framing of charges against the accused in respect of the commission of that offence."
67. The suspicion referred to by this Court must be founded upon the materials placed before the Magistrate which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged. Therefore, the words "a very strong suspicion" used by this Court must not be a strong suspicion of a vacillating mind of a Judge. That suspicion must be founded upon the materials placed before the Magistrate which leads him to form a presumptive opinion about the existence of the factual ingredients constituting the offence alleged.
68. Section 239 has to be read along with Section 240 of the CrPC.
If the Magistrate finds that there is prima facie evidence or the material against the accused in support of the charge (allegations), he may frame charge in accordance with Section 240 of the CrPC.
But if he finds that the charge (the allegations or imputations) made against the accused does not make out a prima facie case and does not furnish basis for framing charge, it will be a case of charge being groundless, so he has no option but to discharge the accused. Where the Magistrate finds that taking cognizance of the offence itself was contrary to any provision of law, like Section 468 of the CrPC, the complaint being barred by limitation, -6- Cr.M.P. No. 2867 of 2016 so he cannot frame the charge, he has to discharge the accused. Indeed, in a case where the Magistrate takes cognizance of an offence without taking note of Section 468 of the CrPC, the most appropriate stage at which the accused can plead for his discharge is the stage of framing the charge. He need not wait till completion of trial. The Magistrate will be committing no illegality in considering that question and discharging the accused at the stage of framing charge if the facts so justify.
69. The real test for determining whether the charge should be considered groundless under Section 239 of the CrPC is that whether the materials are such that even if unrebutted make out no case whatsoever, the accused should be discharged under Section 239 of the CrPC. The trial court will have to consider, whether the materials relied upon by the prosecution against the applicant herein for the purpose of framing of the charge, if unrebutted, make out any case at all.
70. The provisions of discharge under Section 239 of the CrPC fell for consideration of this Court in K. Ramakrishna and others v.
State of Bihar and another, (2000) 8 SCC 547, and it was held that the questions regarding the sufficiency or reliability of the evidence to proceed further are not required to be considered by the trial court under Section 239 and the High Court under Section
482. It was observed as follows:-
"4. The trial court under Section 239 and the High Court under Section 482 of the Code of Criminal Procedure is not called upon to embark upon an inquiry as to whether evidence in question is reliable or not or evidence relied upon is sufficient to proceed further or not. However, if upon the admitted facts and the documents relied upon by the complainant or the prosecution and without weighing or sifting of evidence, no case is made out, the criminal proceedings instituted against the accused are required to be dropped or quashed. As observed by this Court in Rajesh Bajaj v. State NCT of Delhi, [1999 (3) SCC 259] the High Court or the Magistrate are also not supposed to adopt a strict hypertechnical approach to sieve the complaint through a colander of finest gauzes for testing the ingredients of offence with which the accused is charge. Such an endeavour may be justified during trial but not during the initial stage."-7- Cr.M.P. No. 2867 of 2016
71. In the case of State by Karnataka Lokayukta, Police Station, Bengaluru v. M.R. Hiremath, (2019) 7 SCC 515, this Court observed and held in paragraph 25 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 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, 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 tobe 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 law does not permit a mini trial at this stage.""
72. The ambit and scope of exercise of power under Sections 239 and 240 of the CrPC, are therefore fairly well settled. The obligation to discharge the accused under Section 239 arises when the Magistrate considers the charge against the accused to be "groundless". The Section mandates that the Magistrate shall discharge the accused recording reasons, if after (i) considering the police report and the documents sent with it under Section 173, (ii) examining the accused, if necessary, and (iii) giving the prosecution and the accused an opportunity of being heard, he considers the charge against the accused to be groundless, i.e., -8- Cr.M.P. No. 2867 of 2016 either there is no legal evidence or that the facts are such that no offence is made out at all. No detailed evaluation of the materials or meticulous consideration of the possible defences need be undertaken at this stage nor any exercise of weighing materials in golden scales is to be undertaken at this stage - the only consideration at the stage of Section 239/240 is as to whether the allegation/charge is groundless.
73. This would not be the stage for weighing the pros and cons of all the implications of the materials, nor for sifting the materials placed by the prosecution- the exercise at this stage is to be confined to considering the police report and the documents to decide whether the allegations against the accused can be said to be "groundless".
74. The word "ground" according to the Black's Law Dictionary connotes foundation or basis, and in the context of prosecution in a criminal case, it would be held to mean the basis for charging the accused or foundation for the admissibility of evidence. Seen in the context, the word "groundless" would connote no basis or foundation in evidence. The test which may, therefore, be applied for determining whether the charge should be considered groundless is that where the materials are such that even if unrebutted, would make out no case whatsoever."
7. On these grounds, learned counsel appearing for the O.P. No. 2 submits that this petition is fit to be dismissed.
8. In view of such submissions of the parties, the court has gone through the records and finds that the allegation is that the informant has executed a power of attorney on 08.12.2009 in the name of Asheshwar Lal Gupta and said Asheshwar Lal Gupta paid a sum of Rs. 65,000/- cash to the informant and assured that the rest amount will be paid at the time of registration of the sale deed. It has been further alleged that after one month, he sold the land without his knowledge and did not pay the rest amount and in that view of the matter, the FIR was registered.
9. The learned trial court as well as the revisional court has considered the materials available on record and from the order of the learned trial court, it transpires that the said court has relied upon Paras- 1, 2, 4, 7, 8, 9, 23, 37, 48, 51, 76, 139 and 140 of the case diary and thereafter has rejected the discharge petition of the petitioners. The orders of both the learned courts are well reasoned order and the judgment relied by Mr. Mahto in the case of Randheer Singh (Supra) is not in dispute. It -9- Cr.M.P. No. 2867 of 2016 is well settled that if the case is civil in nature, the High Court can exercise the power under Section 482 Cr.P.C., however, in the case in hand, allegations are there of selling the land of the O.P. No. 2 in connivance with others, as such the judgment relied by him is not helping the petitioners.
10. So far as the proceeding with regard to Section 239 Cr.P.C. is concerned, the learned counsel appearing for the O.P. No. 2 has relied in the case of State through Deputy Superintendent of Police (Supra) is helping the O.P. No. 2.
11. Since the charge has already been framed against the petitioners, no case of interference is made out. As such, this petition is dismissed. Pending I.A., if any, stands dismissed.
12. Interim order, granted earlier, stands vacated.
(Sanjay Kumar Dwivedi, J.) Amitesh/-