Himachal Pradesh High Court
Krishna Devi vs State Of H.P on 21 November, 2016
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Cr. Revision No.138 of 2016.
Judgment reserved on: 16.11.2016.
Date of decision: November, 21s t , 2016.
Krishna Devi .....Petitioner.
of
Versus
State of H.P. ..... Respondent.
Coram
rt
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1Yes For the Petitioner : Mr.Manoj Pathak, Advocate.
For the Respondent : Ms.Meenakshi Sharma & Mr.Rupinder Singh Thakur, Additional Advocate Generals with Mr.J.S.Guleria, Assistant Advocate General.
Tarlok Singh Chauhan, Judge.
Aggrieved by the framing of charges under Sections 302, 212, 120-B of the IPC, the petitioner has filed the instant revision petition praying therein for quashing of the same.
2. The case emanates from the FIR lodged by Balwant Singh on the allegations that he was travelling in Bolero Camper bearing No.HP-06C-0750 (for short 'Jeep') being driven by Raghubir Singh to see a cultural programme during 'Lavi' fair. After programme had finished, Shri Ajay Kumar, son of Shri Rajender Thakur (now deceased) met them at Rampur and accompanied them on their way back to Nogli (Khakhrola). Accused Vijay Kumar happened to meet them and he sought help from the occupants of the Jeep on the pretext that his Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 15/04/2017 21:35:24 :::HCHP 2 vehicle bearing No.HP-06A-2195 had skidded and was stuck in the road. Ajay Kumar deceased alighted from the vehicle to help the .
accused Vijay Kumar, whereas, Balwant Singh and Raghubir Singh went home in the Jeep. When Ajay Kumar did not return back for quite some time, efforts were made to contact him on his phone, however, he did not attend the call. When searched by complainant Balwant Singh of and Raghubir Singh, they had found him lying in a pool of blood on the road at that very place where he had been dropped. Police was rt informed and on the statement of Balwant Singh recorded under Section 154 Cr.P.C., FIR was registered under Section 302 of the IPC as the deceased was last seen in the company of the accused Vijay Kumar.
Before going into the relative merits of the case, the contours and parameters for quashing of charges will have to be delineated.
3. In State of Bihar versus Ramesh Singh AIR 1977 SC 2018, it was held by the Hon'ble Supreme Court that at the time of framing of charges, evidence which the prosecutor proposes to adduce is not to be meticulously judged nor is any weight to be attached to the probable defence of the accused. It is not even obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. At the time of framing of charges, the Court is not to see whether there are sufficient grounds for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion, at this stage, which may lead the Court to think that there is a ground for presuming that the accused has ::: Downloaded on - 15/04/2017 21:35:24 :::HCHP 3 committed an offence, is sufficient ground for proceeding against the accused. It is apt to reproduce the relevant observations which read .
thus:-
"4. Under section 226 of the Code while opening the case for the prosecution the Prosecutor has got to describe the charge against the accused and state by what evidence he proposes to of prove the guilt of the accused. Thereafter comes at the initial stage the duty of the Court to consider the record of the case and the documents submitted therewith and to hear the rt submissions of the accused and the prosecution in that behalf. 'The Judge has to pass thereafter an order either under section 227 or section 228 of the Code. If "the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing", as enjoined by section 227. If, on the other hand, "the Judge is of opinion that there is ground for presuming that the accused has committed an offence which-
........ ...... ...... ...... ........
(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused'', as provided in section 228. Reading the two provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under section 227 or section 228 of the Code. At that stage the Court is not to 'see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the ::: Downloaded on - 15/04/2017 21:35:24 :::HCHP 4 matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial .
stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the, initial stage is not in the sense of the law of governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the rt Court should proceed with the trial or not. 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 the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the, trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But, if, on the other hand, it is so at the initial stage of making an order under section 227 or section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under section 228 and not under section
227."
4. In Union of India versus Prafulla Kumar Samal and another AIR 1979 SC 366, the Hon'ble Supreme Court laid down the following principles which are required to be borne in mind by the Courts at the time of framing of charges.
"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 ::: Downloaded on - 15/04/2017 21:35:24 :::HCHP 5 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 of lay down a rule of universal application. By and large however if two views are equally possible and the Judge rt 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 the present Code is a senior and experienced Court cannot act merely as a Post-Office or a mouth-piece 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."
5. In State of Maharashtra versus Priya Sharan Maharaj and others AIR 1997 SC 2041, it was held by the Hon'ble Supreme Court that at the stage of Sections 227 and 228 of the Code, 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 existence of all the ingredients constituting the alleged offence. The Court may, 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. Th erefore, at the stage of ::: Downloaded on - 15/04/2017 21:35:24 :::HCHP 6 framing of the charge, the Court has to consider the material with a view to find out as to whether there is any ground for presuming that the .
accused has committed the offence or that there is not sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction.
6. At the stage of framing of charges, all that is required to be of established is that a prima facie case is made out by the prosecution.
Sufficiency of the evidence resulting into conviction is not to be seen.
rt Charges can be framed if there is some material showing possibility of crime as against certainty. (Refer: Keshub Mahindra versus State of M.P. (1996) 6 SCC 129, State of M.P. versus S.B.Johari and others (2000) 2 SCC 57, State of Delhi versus Gyan Devi and others (2000) 8 SCC 239 and State of A.P. versus Golconda Linga Swamy and another (2004) 6 SCC 522.
7. In Amit Kapoor versus Ramesh Chander and another (2012) 9 SCC 460, the Hon'ble Supreme Court laid down the following principles to be considered for proper exercise of jurisdiction, particularly with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 have been summarized as follows:-
"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.
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 ::: Downloaded on - 15/04/2017 21:35:24 :::HCHP 7 the offence or not. 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.
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 of charge or quashing of charge.
4. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some rt grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers.
5. Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused.
6. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender.
7. The process of the Court cannot be permitted to be used for an oblique or ultimate/ulterior purpose.
8. Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a 'civil wrong' with no 'element of criminality' and does not satisfy the basic ingredients of a criminal offence, the Court may be justified in quashing the charge. Even in such cases, the Court would not embark upon the critical analysis of the evidence.
9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to 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 ::: Downloaded on - 15/04/2017 21:35:24 :::HCHP 8 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.
.
10. It is neither necessary nor is the court called upon to hold a fullfledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction.
11. Where allegations give rise to a civil claim and also amount of to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained.
12. In exercise of its jurisdiction under Section 228 and/or under rt Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed therewith by the prosecution.
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.
14. Where the charge-sheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge.
15. Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae, i.e. to do real and substantial justice for administration of which alone, the courts exist.
{Ref. State of West Bengal & Ors. v. Swapan Kumar Guha & Ors. [AIR 1982 SC 949]; Madhavrao Jiwaji Rao Scindia & Anr. v. Sambhajirao Chandrojirao Angre & Ors. [AIR 1988 SC 709]; Janata Dal v. H.S. Chowdhary & Ors. [AIR 1993 SC 892]; Mrs. Rupan Deol Bajaj & Anr. v. Kanwar Pal Singh Gill & Ors. [AIR 1996 SC 309; G. Sagar Suri & Anr. v. State of ::: Downloaded on - 15/04/2017 21:35:24 :::HCHP 9 U.P. & Ors. [AIR 2000 SC 754]; Ajay Mitra v. State of M.P. [AIR 2003 SC 1069]; M/s. Pepsi Foods Ltd. & Anr. v. Special .
Judicial Magistrate & Ors. [AIR 1988 SC 128]; State of U.P. v.
O.P. Sharma [(1996) 7 SCC 705]; Ganesh Narayan Hegde v. s. Bangarappa & Ors. [(1995) 4 SCC 41]; Zundu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque & Ors.
[AIR 2005 SC 9]; M/s. Medchl Chemicals & Pharma (P) Ltd. v. M/s. Biological E. Ltd. & Ors. [AIR 2000 SC 1869]; Shakson of Belthissor v. State of Kerala & Anr. [(2009) 14 SCC 466]; V.V.S. Rama Sharma & Ors. v. State of U.P. & Ors. [(2009) 7 SCC 234]; Chunduru Siva Ram Krishna & Anr. v. Peddi rt Ravindra Babu & Anr. [(2009) 11 SCC 203]; Sheo Nandan Paswan v. State of Bihar & Ors. [AIR 1987 SC 877]; State of Bihar & Anr. v. P.P. Sharma & Anr. [AIR 1991 SC 1260];
Lalmuni Devi (Smt.) v. State of Bihar & Ors. [(2001) 2 SCC 17]; M. Krishnan v. Vijay Singh & Anr. [(2001) 8 SCC 645]; Savita v. State of Rajasthan [(2005) 12 SCC 338]; and S.M. Datta v. State of Gujarat & Anr. [(2001) 7 SCC 659]}.
16. These are the principles which individually and preferably cumulatively (one or more) be taken into consideration as precepts to exercise of extraordinary and wide plenitude and jurisdiction under Section 482 of the Code by the High Court. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance of the requirements of the offence."
8. Similar reiteration of law can be found in the recent judgment of the Hon'ble Supreme Court in State of Tamil Nadu versus Mariya Anton Vijay (2015) 9 SCC 294.
9. Shri Manoj Pathak, learned counsel for the petitioner, has vehemently argued that the learned Court has failed to appreciate that there is no reliable and cogent evidence to prove the involvement of the petitioner in the alleged offence. Rather, a perusal of the charge-sheet would clearly goes to show that there are no allegations against the ::: Downloaded on - 15/04/2017 21:35:24 :::HCHP 10 petitioner that she had harboured or concealed principal accused Vijay Kumar.
.
10. Shri J.S.Guleria, learned Assistant Advocate General, on the other hand, has vehemently contended that even strong suspicions, at this stage, can be a sufficient ground to frame the charges and has drawn my attention to the statements of the complainant and other of persons associated during the course of investigation.
11. Having gone through the statements of the complainant rt coupled with those of Medh Ram, Raghubir Singh and Balwant Singh, the involvement of the petitioner, at this stage, cannot be ruled out.
However, I need not further delve on this issue, lest it causes prejudice to the case of the petitioner. But, suffice it to say that no ground for quashing of the charge-sheet at the threshold is made out. Moreover, the learned Court below appears to have meticulously perused the material placed on record by the prosecution and only thereafter has framed the charges that too after coming to the conclusion that a prima facie case has been made out by the prosecution for trial of the petitioner.
12. For all the aforesaid reasons, the present revision petition is devoid of any merit and accordingly the same is dismissed. Pending application, if any, also stands disposed of.
13. However, before parting, it is clarified that any observation made hereinabove shall not be taken as an expression of opinion on merits of the case and the trial Court shall decide the matter uninfluenced by the same.
November, 21s t, 2016. (Tarlok Singh Chauhan) (krt) Judge.
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