Punjab-Haryana High Court
Jaspal Singh vs State Of Haryana on 2 December, 2023
Neutral Citation No:=2023:PHHC:155195
CRR No.2761 of 2023 (O&M) -1- 2023:PHHC:155195
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
107. CRR No.2761 of 2023 (O&M)
Date of Decision:02.12.2023
Jaspal Singh ... Petitioner
Versus
State of Haryana ... Respondent
CORAM : HON'BLE MR. JUSTICE HARPREET SINGH BRAR
Present: Mr. Keshav Pratap Singh, Advocate and
Mr. Vishal Singh, Advocate
for the petitioner.
***
HARPREET SINGH BRAR, J. (ORAL)
1. The petitioner has approached this Court under Section 401 Cr.P.C. challenging the impugned order dated 28.08.2023 passed by the learned Additional Sessions Judge, Ambala whereby the petitioner has been chargesheeted to face trial under Sections 323, 325, 307, 506, 34 IPC on the ground that the said order is not sustainable in the eyes of law as no prima facie case is made out against the petitioner.
2. Learned counsel for the petitioner inter alia contends that the final report under Section 173 Cr.P.C. and the documents attached therewith do not indicate that offence under Section 307 IPC is made out in any manner and the doctor has given a categoric opinion that the injuries are not dangerous to life. However, despite the opinion given by the doctor, the investigating officer had sought opinion of the concerned District Attorney and procured an opinion against the opinion given by the doctor. The injured Jasmer Singh son of Kadam Singh suffered 7 injuries and out of those injures, two are abrasions, four are 1 of 6 ::: Downloaded on - 07-12-2023 21:17:35 ::: Neutral Citation No:=2023:PHHC:155195 CRR No.2761 of 2023 (O&M) -2- 2023:PHHC:155195 lacerated wounds and one is complaint of pain. The medical evidence is totally in contradiction to the ocular version. The injured-Jasmer Singh did not suffer any crush injury.
3. Notice of motion.
4. On the asking of the Court, Ms. Geeta Sharma, DAG, Haryana, who is present in Court, accepts notice of the respondent-State and opposes the stand of the petitioner on the ground that the trial Court after examining the entire material has rightly framed the charge under Section 307 IPC against the petitioner.
5. I have heard learned counsel for the parties and perused the case file with their able assistance. With the consent of parties, the case is taken up for final disposal.
6. The law on the issue with regard to the nature and degree of evaluation of the evidence presented by the investigating agency before the trial Court at the time of framing of charge is well settled. The trial Court at this stage is only to form a presumptive opinion with regard to the existence of the factual ingredients breaching the threshold of the offence alleged. At the stage of formation of opinion under Sections 227, 239 and 240 Cr.P.C., the trial Court is not required to weigh the probative value of the material brought on record in the golden scale or to presume the prosecution story as gospel truth. The Hon'ble Supreme Court has in extension laid down the principles for the purpose of framing of charges in P. Vijayan Vs. State of Kerala (2010) 2 SCC 398.
7. A two Judge Bench of the Hon'ble Supreme Court in Union of India Vs. Prafulla K Samal (1979) 3 SCC 4 speaking through Justice S.M. Fazalali, has held as under:-
2 of 6 ::: Downloaded on - 07-12-2023 21:17:36 ::: Neutral Citation No:=2023:PHHC:155195 CRR No.2761 of 2023 (O&M) -3- 2023:PHHC:155195 (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 the present Code is a senior and experienced Judge 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."
8. While dealing with similar controversy, a two Judge Bench of the Hon'ble Supreme Court Vishnu Kumar Shukla and another Vs. The State of Uttar Pradesh and another in Criminal Appeal No.3618 of 2023 decided on 28.11.2023, speaking through Justice Ahsanuddin Amanullah, has held as under:-
"19. In Rumi Dhar v State of West Bengal, (2009) 6 SCC 364, this Court held that the Judge concerned with an application under Section 239, CrPC has to '... go into the details of the allegations made against each of the accused persons so as to form an opinion as to whether any case at all has been made out or not as a strong suspicion in regard thereto shall subserve the requirements of law.' 3 of 6 ::: Downloaded on - 07-12-2023 21:17:36 ::: Neutral Citation No:=2023:PHHC:155195 CRR No.2761 of 2023 (O&M) -4- 2023:PHHC:155195
20. In State of Tamil Nadu v N Suresh Rajan, (2014) 11 SCC 709, it was observed notwithstanding the difference in language of Sections 227 and 239, CrPC, the approach of the Court concerned is to be common under both provisions. The principles holding the field under Sections 227 and 228, CrPC are wellsettled, courtesy, inter alia, State of Bihar v Ramesh Singh, (1977) 4 SCC 39; Union of India v Prafulla K Samal, (1979) 3 SCC 4; Stree Atyachar Virodhi Parishad v Dilip N Chordia, (1989) 1 SCC 715; Niranjan Singh Karam Singh Punjabi v Jitendra B Bijjaya, (1990) 4 SCC 76; Dilawar B Kurane v State of Maharashtra, (2002) 2 SCC 135; Chitresh K Chopra v State (Government of NCT of Delhi), (2009) 16 SCC 605; Amit Kapoor v Ramesh Chander, (2012) 9 SCC 460;
Dinesh Tiwari v State of Uttar Pradesh, (2014) 13 SCC 137; Dipakbhai Jagdishchandra Patel v State of Gujarat, (2019) 16 SCC 547; and State (NCT of Delhi) v Shiv Charan Bansal, (2020) 2 SCC 290. We need only refer to some, starting with Prafulla K Samal (supra), where, after considering Ramesh Singh (supra), K P Raghavan v M H Abbas, AIR 1967 SC 740 and Almohan Das v State of West Bengal, (1969) 2 SCR 520, it was laid down 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 4 of 6 ::: Downloaded on - 07-12-2023 21:17:36 ::: Neutral Citation No:=2023:PHHC:155195 CRR No.2761 of 2023 (O&M) -5- 2023:PHHC:155195 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 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.' (emphasis supplied)
21. In Niranjan Singh Karam Singh Punjabi (supra), this Court was alive to reality, stating that '... it cannot be expected even at the 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.' If a view gives rise to suspicion, as opposed to grave suspicion, the Court concerned is empowered to discharge the accused, as pointed out in Sajjan Kumar v Central Bureau of Investigation, (2010) 9 SCC 368. The Court, in Dinesh Tiwari (supra) had reasoned that if the Court concerned opines that there is ground to presume the accused has committed an offence, it is competent to frame a charge even if such offence is not mentioned in the Charge Sheet. As to what is 'strong suspicion', reference to Dipakbhai Jagdishchandra Patel (supra) is warranted, where it was explained that it is '... the suspicion which is premised on some material which commends itself to the court as sufficient to entertain the prima facie view that the accused has committed the offence.'
9. Recently, the Hon'ble Supreme Court in Shashikant Sharma and others Vs. State of Uttar Pradesh and another passed in Criminal Appeal @ SLP (Criminal) No.5323 of 2023 on 01.12.2023 has held that from the admitted evidence of the prosecution as reflected in the documents filed by the 5 of 6 ::: Downloaded on - 07-12-2023 21:17:36 ::: Neutral Citation No:=2023:PHHC:155195 CRR No.2761 of 2023 (O&M) -6- 2023:PHHC:155195 Investigating Officer in the report under Section 173 Cr.P.C., if the necessary ingredients of an offence are not made out, then the Court is not obligated to frame charge for such offence against the accused.
10. In the present case, the doctor after examining the nature and extent of injuries had opined that the injuries on the person of the injured-Jasmer Singh were not dangerous to life. The injuries reflected in the MLR are reproduced as under:-
Sr. No. Injuries
1. Abrasion over abdomen 11x2cm.
2. Abrasion over right HC 3x2CM.
3. Lacerated abrasion over anterior abdomen.
4. Pain and difficulty in right level movement.
5. Lacerated wound over left arm.
6. Lacerated wound over left forearm.
11. However, the District Attorney gave his opinion over and above the opinion of the doctor that in his opinion, Section 307 IPC along with Sector 34 IPC is clearly attracted in the present case. The trial Court vide impugned order dated 28.08.2023 without going into the documents filed by the Investigating Officer along with the report under Section 173 Cr.P.C. and without determining whether ingredients of offence under Section 307 IPC are made out or not, framed charge under Section 307 IPC by accepting whatever recommended by the investigating agency as gospel truth. Resultantly, the impugned order dated 28.08.2023 is set aside and the case is remanded back to the trial Court to take a fresh decision in the matter, in view of the settled law as referred to above.
12. With the aforesaid observations, the instant petition stands disposed of.
(HARPREET SINGH BRAR)
JUDGE
December 02, 2023
Pankaj* Whether speaking/reasoned Yes/No
Whether reportable Yes/No
Neutral Citation No:=2023:PHHC:155195
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