Allahabad High Court
Brijesh Kumar vs State Of U.P. And Another on 15 December, 2020
Author: Deepak Verma
Bench: Deepak Verma
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 90 Case :- APPLICATION U/S 482 No. - 18228 of 2020 Applicant :- Brijesh Kumar Opposite Party :- State of U.P. and Another Counsel for Applicant :- Shionath Jaishal Counsel for Opposite Party :- G.A. Hon'ble Deepak Verma,J.
1. Heard learned counsel for the applicant; learned counsel for the opposite party no. 2 and; learned A.G.A. for the State.
2. The present 482 Cr.P.C. application has been filed to quash the order dated 04.03.2020 passed by learned Additional Sessions Judge, FTC, Room No.1, Mau in S.T. No.207 of 2017 (State Vs. Subhash and others) arising out of Case Crime No.234 of 2017, under Sections 302 and 307 I.P.C., P.S. Mohammadabad, District Mau framing of charges only to extent Section 307 I.P.C.
3. Learned counsel for the applicant submits that no offence under Section 307 I.P.C. is made out against the applicant and framing of charge under Section 302 and 307 I.P.C. is without any material on record. He further submitted that as per F.I.R. and material on record, no prima facie case or offence under Section 307 I.P.C. has been made out against the applicant and without any evidence on record and medical evidence, framing of charge under Section 307 I.P.C. is totally illegal and against the evidence on record.
4. Learned AGA opposed the prayer of applicant and submitted that at this stage trial court has rightly framed the charges against the applicant under Section 307 and 302 I.P.C. and framing of charges are based on evidence collected during the investigation and all the charges framed is to be scrutinized during trial, as such, no interference is required. It is further argued that while framing under Section 228 Cr.P.C., the judge is not required to record detailed reasons as to why such charge is framed. On perusal of record and hearing of parties, if the judge is of the opinion that there is sufficient ground for presuming that the accused has committed the offence triable by the Court of Session, he shall frame the charge against the accused for such offence.
5. Considering the arguments raised by learned counsel for the applicant as well as learned AGA, it is settled view that trial while framing of charges under Section 228 Cr.P.C., he had to see whether, prima facie, case is made out. In the aforesaid section, he is not required to record detailed reason as to why such charges framed.
6. Hon'ble Apex Court in the case of Mauvin Godinho Vs. State of Goa has held that the court while framing charges under Section 227 of the Code of Criminal Procedure should apply the prima facie standard. Although the application of this standard depends on facts and circumstance in each case, a prima facie case against the accused is said to be made out when the probative value of the evidence on all the essential elements in the charge taken as a whole is such that it is sufficient to induce the court to believe in the existence of the facts pertaining to such essential elements or to consider its existence so probable that a prudent man ought to act upon the supposition that those facts existed or did happen. 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.
7. The court has to see is that the material on record and the facts would be compatible with the innocence of the accused or not. The final test of guilt is not to be applied at that stage.
8. The Hon'ble Apex Court in the case of Amit Kapoor v. Ramesh Chander and another (2012) 9 SCC 460, has held as under:-
"17. Framing of a charge is an exercise of jurisdiction by the trial court in terms of Section 228 of the Code, unless the accused is discharged under Section 227 of the Code. Under both these provisions, 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. There is a fine distinction between the language of Sections 227 and 228 of the Code. Section 227 is the expression of a definite opinion and judgment of the Court while Section 228 is tentative. Thus, to say that at the stage of framing of charge, the Court should form an opinion that the accused is certainly guilty of committing an offence, is an approach which is impermissible in terms of Section 228 of the Code.
19. At the initial stage of framing of a charge, the court is concerned not with proof but with a strong suspicion that the accused has committed an offence, which, if put to trial, could prove him guilty. All that the court has to see is that the material on record and the facts would be compatible with the innocence of the accused or not. The final test of guilt is not to be applied at that stage. We may refer to the well-settled law laid down by this Court in State of Bihar v. Ramesh Singh
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 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 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 no 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 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 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 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"
9. Hon'ble Apex Court in the case of Bhawna Bai vs Ghanshyam and others, (2020) 2 SCC 217, has held in para 13 and 16, which are as follows:
"13. Though the circumstances alleged in the charge sheet are to be established during the trial by adducing the evidence, the allegations in the charge sheet show a prima facie case against the accused-respondent Nos.1 and 2. The circumstances alleged by the prosecution indicate that there are sufficient grounds for proceedings against the accused. At the time of framing the charges, only prima facie case is to be seen; whether case is beyond reasonable doubt, is not to be seen at this stage. At the stage of framing the charge, the court has to see if there is sufficient ground for proceeding against the accused. While evaluating the materials, strict standard of proof is not required; only prima facie case against the accused is to be seen.
16. After referring to Amit Kapoor, in Dinesh Tiwari v. State of Uttar Pradesh and another (2014) 13 SCC 137, the Supreme Court held that for framing charge under Section 228 Crl.P.C., the judge is not required to record detailed reasons as to why such charge is framed. On perusal of record and hearing of parties, if the judge is of the opinion that there is sufficient ground for presuming that the accused has committed the offence triable by the Court of Session, he shall frame the charge against the accused for such offence"
10. In view of the observation of Hon'ble Apex Court, trial court's order is not required to be interfered, as Court prima facie has found case under Sections 302 and 307 I.P.C. read with Section 34 I.P.C. against the applicant and has rightly framed the charge therein.
11. After having considered the submissions advanced by learned counsel for the parties and after perusing the material available on record, I do not find any good ground to interfere in the matter in exercise of inherent power under Section 482 Cr.P.C. for quashing of the impugned order.
12. The present 482 Cr.P.C. application lacks merit. It is accordingly, dismissed.
Order Date :- 15.12.2020 Nitin Verma (Deepak Verma, J.)