Allahabad High Court
Purshottam Pandey & 3 Others vs State Of U.P. & Anr. on 17 July, 2019
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 13 A.F.R. Case :- CRIMINAL APPEAL No. - 1000 of 2019 Appellant :- Purshottam Pandey & 3 Others Respondent :- State Of U.P. & Anr. Counsel for Appellant :- Vinay Kumar Tiwari Counsel for Respondent :- Govt. Advocate,Sarjoo Ram Hon'ble Mohd. Faiz Alam Khan,J.
Heard learned counsel for the appellants, learned counsel for the respondent No.2 as well as learned AGA appearing for the State.
This appeal has been preferred by appellants to set-aside the judgment and order dated 28/29.04.2019 passed by Additional Sessions Judge, Court No.2, Pratapgarh passed in Session Trial No. 442 of 2018, arising out of Case Crime No. 25 of 2018, under Sections 354-A, 504, 506, 352 I.P.C. and Section 3(1) (10) & 3 (2)(5A) of SC/ST Act, Police Station Baghrai, District Pratapgarh and also to set-aside the summoning order dated 22.11.2018 passed by the learned trial court.
Learned counsel for the appellants submits that the court below has materially erred in summoning the appellants to face trial as well as in rejecting the application of the appellants moved before the court below under Section 227 Cr.P.C. to discharge them in pursuance of the order dated 24.01.2019 passed in Application u/s 482 No. 585 of 2019. It is further submitted that an F.I.R. was lodged by the opposite party No.2 against the appellants alleging that on 14.02.2018 at 4.30 P.M., when the victim was returning back from her college, the accused persons intercepted her and outraged her modesty by physically assaulting her and on her resistance they addressed her with ugly casteist remarks. The incident is alleged to have been witnessed by some persons, who were working nearby. It is further alleged that when the family members of the victim went to the house of the accused persons to protest, accused Purshottam Pandey took out a rifle and threatened them to shoot.
Highlighting the above factual matrix, learned counsel for the appellants submits that the allegations in the F.I.R. were patently absurd and could not be believed on the touchstone of probability. Allegations of the F.I.R. has been investigated by the Investigating Officer in a cursory manner and simply on the basis of the statement of the victim and interested witnesses, the charge-sheet has been submitted and the Magistrate concerned in a cursory manner has also taken the cognizance and issued the process against the appellants. It is next submitted that the order of the summoning of the appellants was challenged by them by filing an Application U/s 482 Cr.P.C. No. 585 of 2019 and a coordinate Bench of this Court vide order dated 24.01.2019 directed the appellants to approach the trial court by filing a discharge application within a period of two weeks from the date of the order with a further stipulation that the trial court will dispose the same within two months thereafter. It is next submitted that the appellants have filed an application for discharge before the court below highlighting each and every aspect of the matter. However, the court below without appreciating the grounds taken by the appellants in right perspective, rejected the discharge application vide impugned order dated 28/29.04.2019.
It is further submitted that it was apparent on record that the instant first information report has been filed on the basis of previous enmity as in the year 2009-10 the mother of the victim got a house allotted under Government Housing Scheme by showing her name as Smt. Shushila. In the year 2017-18, she changed her name from Smt. Shushila to Smt. Prabha Devi and got her name included in the eligible persons to get another house on subsidised rates and actually received Rs. 1,20,000/- from the Government. She also manufactured a fake Adhaar Card in the name of Smt. Prabha Devi. It is next submitted that the appellant No. 1 Purshottam Pandey had made a complaint, whereon an order was passed by the Government Authorities directing the mother of the victim to return this amount back. It is further submitted that there is also a litigation pending in between the appellant No. 1 Purshottam Pandey and one Chandra Bhushan Pandey pertaining to the agricultural land in Consolidation Court since 1978 and the witness of the instant fake incident is one Dhanjai Pandey, who is son of above mentioned Chandra Bhushan Pandey.
It is further submitted that the other witnesses of the alleged incident namely Munnu and Shiv Kumar are accused persons of a criminal case lodged by the appellant No. 1- Purshottam Pandey against Smt. Shushila, Munnu and Shiv Kumar. It is also highlighted by learned counsel for the appellants that at the time of incident the appellant No.3- Amit Pandey was admitted in a Government hospital at Allahabad and on 18.02.2018 marriage of the daughter of the appellant No. 1- Purshottam Pandey was held and on 14.02.2018 there was a ceremony of 'Mathmangara' and the appellants were busy in that and therefore, the whole story of the instant case is concocted and has been manufactured to take revenge by the mother of the victim. It is further submitted that the court below has materially erred in not appreciating the inherent weaknesses of the prosecution case and has rejected the discharge application of the appellants without appreciating the facts and law in right perspective.
Learned counsel for the opposite party No.2 (Prosecutrix) submits that there is no illegality so far as the order of the subordinate court is concerned, whereby the discharge application of the appellants has been dismissed. It is further submitted that the allegations contained in the F.I.R., which was lodged by the victim herself has been corroborated during the investigation by independent witnesses and also by the statement of the prosecutrix recorded under Section 164 Cr.P.C. and the stand, which has been taken by the appellants pertaining to the previous enmity, is not correct as the mother the victim had never applied for any house after getting one allotted in her favour and actually when she got a notice dated 06.07.2018 pertaining to the illegal transfer of certain money in her favour, she submitted an application to the Government Authorities on 09.08.2018, therefore, the stand of the appellants that the instant case has been initiated on the basis of the previous enmity is not correct.
It is further submitted that all grounds taken by the appellants in the discharge application were not sufficient to discharge the appellants, as at the stage of framing of charge only sufficiency of material pertaining to the framing of charge is to be seen and the material/ evidence against the appellants is not derived as is required for conviction, therefore, there is no illegality in the order of the court below.
Learned A.G.A. also supported the order of the subordinate court on the ground that no illegality has been committed by the court below as minute points, which may be seen during trial could not be appreciated at the stage of framing of charges as only prima facie case is to be seen at the stage of framing of the charges.
Having heard the arguments learned counsel for the appellants, learned counsel for the respondent No.2 as well as learned A.G.A. appearing for the State, perusal of record reveals that an F.I.R. was lodged by the respondent No.2 against the appellants, wherein serious allegations pertaining to outraging her modesty by the appellants had been alleged. It is also alleged in the F.I.R. that one of the appellant namely Purshottam Pandey on a complaint being made by the family member of the victim threatened them of their lives by showing rifle. Various grounds have been taken and arguments have been advanced by learned counsel for the appellants attempting to show that there was no sufficient material before the court below to summon the appellants. Learned A.G.A. however has taken a stand that all grounds pertaining to the summoning of the appellants had already been taken by the appellants when they approached this Court by filing Application U/s 482 No. 585 of 2019 and vide order dated 24.01.2019, it was provided that the appellant could moves an application for discharge before the court below, which shall be decided by a speaking order, therefore, they can not agitate the same grounds again, in this proceedings.
So far as the submissions of Ld Counsel for the Appellant with regard to alleged illegality committed by the court below pertaining to the taking of cognizance and summoning the Appellants to face trial is concerned, the Law in this regard is now well-settled.
In Darshan Singh Ram Kishan v. State of Maharashtra MANU/SC/0089/1971 : (1971) 2 SCC 654, it was held that the process of taking cognizance does not involve any formal action, but it occurs as soon as the Magistrate applies his mind to the allegations and thereafter takes judicial notice of the offence "8. As provided by Section 190 of the Code of Criminal Procedure, a Magistrate may take cognizance of an offence either, (a) upon receiving a complaint, or (b) upon a police report, or (c) upon information received from a person other than a police officer or even upon his own information or suspicion that such an offence has been committed. As has often been held, taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance, therefore, takes place at a point when a Magistrate first takes judicial notice of an offence. This is the position whether the Magistrate takes cognizance of an offence on a complaint, or on a police report, or upon information of a person other than a police officer. Therefore, when a Magistrate takes cognizance of an offence upon a police report, prima facie he does so of the offence or offences disclosed in such report."
In Kishun Singh and Ors. v. State of Bihar MANU/SC/0460/1993 : (1993) 2 SCC 16, this Court reiterated the position that where, on application of mind, the allegations in the complaint, according to the Magistrate, if proved, would constitute an offence, cognizance is to be is taken of the offence so as to proceed further against the accused. To quote:
"7.... Even though the expression 'take cognizance' is not defined, it is well settled by a catena of decisions of this Court that when the Magistrate takes notice of the accusations and applies his mind to the allegations made in the complaint or police report or information and on being satisfied that the allegations, if proved, would constitute an offence decides to initiate judicial proceedings against the alleged offender he is said to have taken cognizance of the offence. It is essential to bear in mind the fact that cognizance is in regard to the offence and not the offender. Mere application of mind does not amount to taking cognizance unless the Magistrate does so for proceeding Under Sections 200/204 of the Code...."
In State of W.B. and Anr. v. Mohd. Khalid and Ors. MANU/SC/0154/1995 : (1995) 1 SCC 684, it has been held by this Court that while exercising the power to take cognizance, a Magistrate has to see whether there is any basis for initiating judicial proceedings. At paragraph-43, it has been held as follows:
"43....Section 190 of the Code talks of cognizance of offences by Magistrates. This expression has not been defined in the Code. In its broad and literal sense, it means taking notice of an offence. This would include the intention of initiating judicial proceedings against the offender in respect of that offence or taking steps to see whether there is any basis for initiating judicial proceedings or for other purposes. The word 'cognizance' indicates the point when a Magistrate or a Judge first takes judicial notice of an offence. It is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons."
In Kanti Bhadra Shah and Anr. v. State of W.B. MANU/SC/0004/2000 : (2000) 1 SCC 722. this Court has taken the view that it is quite unnecessary to write detailed orders at the stage of issuing process.
In U.P. Pollution Control Board v. Mohan Meakins Limited and Ors. MANU/SC/0199/2000 : (2000) 3 SCC 745, the position was further clarified that it was not necessary to pass a speaking order at the stage of taking cognizance.
In Deputy Chief Controller of Imports and Exports v. Roshanlal Agarwal and Ors. MANU/SC/0182/2003 : (2003) 4 SCC 139, it was held that at the stage of issuing the process to the accused, Magistrate is not required to record reasons".
In Jagdish Ram v. State of Rajasthan and Anr.MANU/SC/0196/2004 : (2004) 4 SCC 432, the law was restated,in the following way, holding that at the stage of issuing process to the accused, the Magistrate is not required to record reasons. However, he has to be satisfied that there is sufficient ground for proceeding and such satisfaction is not whether there is sufficient ground for conviction :-
"10.... The taking of cognizance of the offence is an area exclusively within the domain of a Magistrate. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons."
In S.K. Sinha, Chief Enforcement Officer v. Videocon International Limited and Ors. MANU/SC/7011/2008 : (2008) 2 SCC 492, it was held in the following paragraphs that taking cognizance in criminal law connotes that a judicial notice is taken of an offence, after application of mind :-
"19. The expression "cognizance" has not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means "become aware of and when used with reference to a court or a Judge, it connotes "to take notice of judicially". It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone.
20. "Taking cognizance" does not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance is taken prior to commencement of criminal proceedings. Taking of cognizance is thus a sine qua non or condition precedent for holding a valid trial. Cognizance is taken of an offence and not of an offender. Whether or not a Magistrate has taken cognizance of an offence depends on the facts and circumstances of each case and no rule of universal application can be laid down as to when a Magistrate can be said to have taken cognizance."
In U.P. Pollution Control Board v. Dr. Bhupendra Kumar Modi and Anr. MANU/SC/8395/2008 : (2009) 2 SCC 147, at paragraph-23, the position has been discussed as follows:
"23. It is a settled legal position that at the stage of issuing process, the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he is only to be prima facie satisfied whether there are sufficient grounds for proceeding against the accused."
The perusal of the case law mentioned herein above would clearly show that cognizance of an offence on complaint is taken for the purpose of issuing process to the accused. Since it is a process of taking judicial notice of certain facts which constitute an offence, there has to be application of mind as to whether the allegations in the complaint, when considered along with the statements recorded or the inquiry conducted thereon, would constitute violation of law so as to call a person to appear before the criminal court. It is not a mechanical process or matter of course.
In C.H.C.L.Employees Stock Option Trust VS. India Infalin Ltd. 2013(4) SCC 505 It was empasised by the Honble Supreme Court that summoning of accused in a criminal case is a serious matter. Hence, criminal law cannot be set into motion as a matter of course. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. The Magistrate has to record his satisfaction with regard to the existence of a prima facie case on the basis of specific allegations made in the complaint supported by satisfactory evidence and other material on record.
In AIR 1998 S. C . 128 , M/s. Pepsi Foods Ltd. and another v. Special Judicial Magistrate and others held as under:-
"Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is primafacie committed by all or any of the accused."
In AIR 2012 SUPREME COURT 1747,Bhushan Kumar and Anr v. State (NCT of Delhi) and Anr" the Apex Court has held that "10. Section 204 of the Code does not mandate the Magistrate to explicitly state the reasons for issuance of summons. It clearly states that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, then the summons may be issued. This section mandates the Magistrate to form an opinion as to whether there exists a sufficient ground for summons to be issued but it is nowhere mentioned in the section that the explicit narration of the same is mandatory, meaning thereby that it is not a pre-requisite for deciding the validity of the summons issued."
In AIR 1976 SUPREME COURT 1947, Smt. Nagawwa v/s Veeranna Shivalingappa Konjalgi & others, It is held by The Apex Court that "It is well settled by a long catena of decisions of this Court that at the stage of issuing process the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he is only to be prima facie satisfied whether there are sufficient grounds for proceedings against the accused. It is not the province of the Magistrate to enter into a detailed discussion of the merit or de-merits of the case nor can the High Court go into this matter in its revisional jurisdiction which is a very limited one."
"4.It would thus be clear from the two decisions of this Court that the scope of the inquiry under Section 202 of the Code of Criminal Procedure is extremely limited - limited only to the ascertainment of the truth or falsehood of the allegations made in the complaint - (i) on the materials placed by the complainant before the Court; (ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; and (iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have. In fact it is well settled that in proceedings under Section 202 the accused has got absolutely no locus standi and is not entitled to be heard on the question whether the process should be issued against him or not."
"It is true that in coming to a decision as to whether a process should be issued the Magistrate can take into consideration inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations but there appears to be a very thin line of demarcation between a probability of conviction of the accused and establishment of a primafacie case against him. The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. Once the Magistrate has exercised his discretion it is not for the High Court, or even the Supreme Court, to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused. These considerations are totally foreign to the scope and ambit of an inquiry under Section 202 which culminates into an order under Section 204. Thus in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside:
(1) Where the allegations made in the complaint or the statement of the witness recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;
(2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;
(3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible and (4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like."
In AIR 2015 SUPREME COURT 923,Sunil Bharti Mittal v. Central Bureau of Investigation (Three Judges Bench) Hon,ble Apex Court held as under:
"45. On the other hand, Section 204 of the Code deals with the issue of process, if in the opinion of the Magistrate taking cognizance of an offence, there is sufficient ground for proceeding. This Section relates to commencement of a criminal proceeding. If the Magistrate taking cognizance of a case (it may be the Magistrate receiving the complaint or to whom it has been transferred under Section 192), upon a consideration of the materials before him (i.e., the complaint, examination of the complainant and his witnesses if present, or report of inquiry, if any), thinks that there is a prima facie case for proceeding in respect of an offence, he shall issue process against the accused.
46. A wide discretion has been given as to grant or refusal of process and it must be judicially exercised. A person ought not to be dragged into Court merely because a complaint has been filed. If a prima facie case has been made out, the Magistrate ought to issue process and it cannot be refused merely because he thinks that it is unlikely to result in a conviction.
47. However, the words "sufficient grounds for proceeding" appearing in the Section are of immense importance. It is these words which amply suggest that an opinion is to be formed only after due application of mind that there is sufficient basis for proceeding against the said accusedaand formation of such an opinion is to be stated in the order itself. The order is liable to be set aside if no reason is given therein while coming to the conclusion that there is prima facie case against accused, though the order need not contain detailed reasons. A fortiori, the order would be bad-in-law if the reason given turns out to be ex facie incorrect."
In AIR 2012 SUPREME COURT 1921,Nupur Talwar v. Central Bureau of Investigation and Anr it is propounded by the Hon'ble Supreme Court that "Moreover, this Court has held in Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and Ors. [(1976) 3 SCC 736 :(AIR 1976 SC 1947)] thatwhether the reasons given by the Magistrate issuing process under Section 202 or 204 Cr.P.C. were good or bad, sufficient or insufficient, cannot be examined by the High Court in the revision. All that the High Court, however, could do while exercising its powers of revision under Section 397 Cr.P.C when the order issuing process under Section 204 Cr.P.C. was under challenge was to examine whether there were materials before the Magistrate to take a view that there was sufficient ground for proceeding against the persons to whom the processes have been issued under Section 204 Cr.P.C ".
Perusal of the record in the back ground of the above noted case laws would reveal that there appears no illegality or irregularity in the order of the subordinate court so far as summoning of the appellants to face trial under relevant penal sections, wherein they have been summoned, is concerned. It is to be remembered that an F.I.R. was lodged by the respondent No.2 against the appellants stating clear allegations against them pertaining to outraging her modesty and also of threatening her family members when a complaint regarding the act of the appellants was made. Further after investigation charge-sheet has been filed by the Investigating Officer and the Magistrate after applying his judicial mind has taken the cognizance and summoned the appellants. and keeping in view, the above case laws there appears no illegality so far as the summoning of the appellants is concerned.
Coming to the next submission of Ld Counsel for the appellant that the Court below has materially erred in rejecting the application of discharge moved in persuance of the order of this Court, the facts of the case are required to be seen in the background of various submissions made by ld Cousel of the Appellant as well in the backdrop of settled law on this point more particularly on the subject as to whether the defence of the proposed accused can be considered at this stage.
In State of Bihar v. Ramesh Singh MANU/SC/0139/1977 : 1977CriLJ1606 , considering the scope of Sections 227 and 228 of the Code, it was held that at the stage of framing of charge it is not obligatory for the Judge 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 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, at the initial stage of framing of charge, is sufficient to frame the charge and in that event it is not open to say that there is no sufficient ground for proceeding against the accused.
Hon'ble Supreme Court in the case of State- Anti Corruption Bureau, Hyderabad and another Vs. P. Suryaprakasam has held as under:
"4. In passing the impugned order, the High Court first made the following observation:
"In fact it is a settled law that while framing charges, the court should apply its mind and consider the entire materials not only produced by the prosecution but also the explanation and the materials produced by the accused and this should be objectively done and not subjectively. But in this case, the lower court has utterly failed to do so and then proceeded to consider the documents filed by the respondent to substantiate his claim that no offence as alleged was committed by him. After a detailed discussion thereon, the High Court upheld his claim and quashed the proceeding.
5. Without meaning any disrespect to the High Court, we are constrained to say that the settled law is just the reverse of what the High Court has observed in the above-quoted passage as would be evident from even a cursory reading of Sections 239 and 240 Cr.P.C., which admittedly govern the case of the respondent. According to the above sections, at the time of framing of a charge what the trial court is required to, and can, consider are only the police report referred to under Section 173 Cr.P.C. and the documents sent with it. The only right the accused has at that stage is of being heard and nothing beyond that. Of course, at that stage the accused may be examined but that is a prerogative and of the court only. Though, in view of the clear language of the above Sections, no authority need be cited for the above proposition still we may refer to the judgment of this Court in Minakshi Bala V. Sudhir Kumar (to which one of us was a party) for therein, the scope and ambit of the above sections came up for consideration and it was held:
"6. Having regard to the fact that the offences, for which charge- sheet was submitted in the instant case and cognizance taken, were triable as a warrant case the Magistrate was to proceed in accordance with Section 239 and 240 of the Code at the time of framing of the charges. Under the above sections, the Magistrate is first required to consider the police report and the documents sent with it under Section 173 Cr.P.C. and examine the accused, if he thinks necessary, and give an opportunity to the prosecution and the accused of being heard. If on such consideration, examination and hearing the Magistrate finds the charge groundless he has to discharge the accused in terms of Section 239 Cr.P.C.; conversely, if he finds that there is ground for presuming that the accused has committed an offence triable by him he has to frame a charge in terms of Section 240 Cr.P.C.
6. From the impugned judgment, we next find that the High Court took exception to the fact that the respondent's explanation was not properly considered by the State Government in spite of the earlier order of the High Court as quoted above. this finding of the High Court is also against the law laid down by this Court in State of Bihar Vs. P.P. Sharma wherein, in dealing with the question as to whether such an opportunity of giving an explanation and hearing must be granted to the accused and the non-grant of the same would vitiate the order of sanction in a case under Section 5 (2) of the Act, this Court observed:
"It is equally well settled that before granting sanction the authority or the appropriate Government must have before it the necessary report and the material facts which primafacie establish the commission of offence charged for and the sanction is only an administrative act and not a quasi- judicial one nor is a lis involved. Therefore, the order of sanction need not contain detained reasons in the offence must be apparent on the impugned order and the record must bear out the reasons in that regard. The question of giving an opportunity to the public servant at that stage as was contended for the respondents does not arise."
(emphasis supplied)
7. Again in State of Maharashtra V. Ishwar Piraji Kalpatri this Court held, relying upon its earlier judgment in K. Veeraswami v. Union of India that the opportunity which has to be afforded to the delinquent officer under Section 3(1)(e) of the Act of satisfactorily explaining about his assets is before the court when the trial commenced and not at an earlier stage.
8. As already stated, the High Court in quashing the proceedings not only looked into the documents filed by the respondent in support of his claim that no case was made out against him even before the trial had commenced - but relied upon them to conclude that no offence was committed by him. This approach of the High Court is also contrary to the settled law of the land which was reiterated in Minakshi case with the following words:
"8. Apart from the infirmity in the approach of the High Court in dealing with the matter which we have already noticed, we further find that instead of adverting to and confining its attention to the documents referred to in Section 239 and 240 Cr.P.C. the High Court has dealt with the rival contentions of the parties raised through their respective affidavits at length and on a threadbare discussion thereof passed the impugned order. The course so adopted cannot be supported; firstly, because finding regarding commission of an offence cannot be recorded on the basis of affidavit evidence and secondly, because at the stage of framing of charge the Court cannot usurp the functions of a trial court to delve into and decide upon the respective merits of the case."
Hon'ble Supreme Court in the case of State of Delhi Vs. Gyan Devi and others (2008) 8 Supreme Court Cases 239, held as under:
"7. .....The legal position is well settled that at the stage of framing of charge the Trial Court is not to examine and assess in detail the material placed on record by the prosecution nor is it for the Court to consider the sufficiency of the materials to establish the offence alleged against the accused persons. At the stage of charge the Court is to examine the materials only with a view to be satisfied that a prima facie case of commission of offence alleged has been made out against the accused persons. It is also well settled that when the petition is filed by the accused under Section 482 Cr.P.C. seeking for the quashing of charge framed against them the Court should not interfere with the order unless there are strong reasons to hold that in the interest of justice and to avoid abuse of the process of the Court a charge framed against the accused needs to be quashed. Such an order can be passed only in exceptional cases and no rare occasions. It is to be kept in mind that once the Trial Court has framed a charge against an accused the trial must proceed without unnecessary interference by a superior court and the entire evidence from the prosecution side should be placed on record. Any attempt by an accused for quashing of a charge before the entire prosecution evidence has come on record should not be entertained sans exceptional cases.
8. In this connection we may refer to the case of Radhey Shyam v. Kunj Behari in which a bench of three learned Judges of this Court referring to the decision in Mohd. Akbar Dar and Ors.vs. State of Jammu and Kashmir and Ors. 1981 Supp SCC 80,pointed out that at the stage of framing of charges meticulous consideration of evidence and materials by the Court is not required. This Court further observed:
The High Court has also deemed it necessary to quash the charge against respondents 1 to 3 because in its opinion the evidence proposed to be adduced by the prosecution, even if fully accepted, cannot show that respondents 1 to 3 committed any offence and referred in that behalf to the decision in State of Bihar v. Ramesh Singh MANU/SC/0139/1977 : 1977CriLJ1606 . We find that the High Court's conclusion about the inadequacy of the evidence against respondents 1 to 3, besides being a premature assessment of evidence, is also attributable to the wrong premises on which the High Court's reasoning is based.
We, therefore, find that there was no warrant for the High Court to quash the charge against respondents 1 to 3 in exercise of its powers under Section 482 Cr.P.C....
9. In the case of Minakshi Bala v. Sudhir Kumar and Ors. MANU/SC/0702/1994 : [1994]3SCR1008 , this Court considered the question of quashing of charge by the High Court in invoking its inherent jurisdiction under Section 482 Cr.P.C. In that context, this Court made the following pertinent observations:
......To put it differently, once charge are framed under Section 240 CrPC the High Court in its revisional jurisdiction would not be justified in relying upon documents other than those referred to in Sections 239 and 240 CrPC; nor would it be justified in invoking its inherent jurisdiction under Section 482 CrPC to quash the same except in those rare cases where forensic exigencies and formidable compulsions justify such a course. We hasten to add even in such exceptional cases the High Court can look into only those documents which are unimpeachable and can be legally translated into relevant evidence.
Apart from the infirmity in the approach of the High Court in dealing with the matter which we have already noticed, we further find that instead of adverting to and confining its attention to the documents referred to in Sections 239 and 240 CrPC the High Court has dealt with the rival contentions of the parties raised through their respective affidavits at length and on a threadbare discussion thereof passed the impugned order. The course so adopted cannot be supported; firstly, because finding regarding commission of an offence cannot be recorded on the basis of affidavit evidence and secondly, because at the stage of framing of charge the Court cannot usurp the functions of a trial court to delve into and decide upon the respective merits of the case.
10. In a recent decision in State of M.P. v. S.B. Johari and Ors. MANU/SC/0025/2000 : 2000CriLJ944 , this Court, adverting to the question of quashing of charges in the light of the provisions contained in Sections 227 & 288, 401 & 397 and 482 Cr.P.C. did not favour the approach of the High Court in meticulously examining the materials on record for coming to the conclusion that the charge could not have been framed for a particular offence. This Court, while quashing and setting aside the order passed by the High Court, made the following observations:
...After considering the material on record, learned Sessions Judge framed the charge as stated above. That charge is quashed by the High Court against the respondents by accepting the contention raised and considering the details of the material produced on record. The same is challenged by filing these appeals.
In our view, it is apparent that the entire approach of the High Court is illegal and erroneous. From the reasons recorded by the High Court, it appears that instead of considering the primafacie case, the High Court has appreciated and weighed the materials on record for coming to the conclusion that charge against the respondents could not have been framed. It is settled law that at the stage of framing the charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the court is satisfied that a primafacie case is made out for proceeding further then a charge has to be framed. The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross-examination or rebutted by defence evidence, if any, cannot show that the accused committed the particular offence. In such case, there would be no sufficient ground for proceeding with the trial."
Hon'ble Supreme Court in the case of Sajjan Kumar Vs. Central Bureau of Investigation (2010) 9 SCC 368 has held as under:
20. ........ It is also clear that in exercising jurisdiction under Section 227 of Cr.P.C., the Magistrate should not make roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
Exercise of jurisdiction under Sections 227 & 228 of Cr.P.C.
21. On consideration of the authorities about the scope of Section 227 and 228 of the Code, the following principles emerge:
(i) The Judge while considering the question of framing the charges under Section 227 of the Cr.P.C. 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.
(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 therefrom taken at their face value discloses 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.
Hon'ble Supreme Court in the case of State of Orissa Vs. Debendra Nath Padhi (2005) 1 SCC 568 has held as under:
6. At the stage of framing charge, the trial court is required to consider whether there are sufficient grounds to proceed against the accused. Section 227 of the Code provides for the eventuality when the accused shall be discharged. If not discharged, the charge against the accused is required to be framed under Section 228. ..
7. Similarly, in respect of warrant cases triable by Magistrates, instituted on a police report, Sections 239 and 240 of the Code are the relevant statutory provisions. Section 239 requires the Magistrate, to consider 'the police report and the documents sent with it under Section 173' and, if necessary, examine the accused and after giving accused an opportunity of being heard, if the Magistrate considers the charge against the accused to be groundless, the accused is liable to be discharged by recording reasons thereof.
8. What is to the meaning of the expression 'the record of the case' as used in Section 227 of the Code. Though the word 'case' is not defined in the Code but Section 209 throws light on the interpretation to be placed on the said word. Section 209 which deals with the commitment of case to Court of Session when offence is triable exclusively by it, inter alia, provides that when it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall commit 'the case' to the Court of Session and send to that court 'the record of the case' and the document and articles, if any, which are to be produced in evidence and notify the Public Prosecutor of the commitment of the case to the Court of Session. It is evident that the record of the case and documents submitted therewith as postulated in Section 227 relate to the case and the documents referred in Section 209. That is the plain meaning of Section 227 read with Section 209 of the Code, No provision in the Code grants to the accused any right to file any material or document at the stage of framing of charge. That right is granted only at the stage of the trial.
9. Further, the scheme of the Code when examined in the light of the provisions of the old code of 1898, makes the position more clear. In the old code, there was no provision similar to Section 227. Section 227 was incorporated in the Code with a view to save the accused from prolonged harassment which is a necessary concomitant of a protracted criminal trial. It is calculated to eliminate harassment to accused persons when the evidential materials gathered after investigation fall short of minimum legal requirements. If the evidence even if fully accepted cannot show that the accused committed the offence, the accused deserves to be discharged. In the old Code, the procedure as contained in Sections 207 and 207(a) was fairly lengthy. Section 207, inter alia, provided that the Magistrate, where the case is exclusively triable by a Court of Session in any proceedings instituted on a police report, shall follow the procedure specified in Section 207(a). Under Section 207(a) in any proceeding instituted on a police report the Magistrate was required to hold inquiry in terms provided under Sub-section (1), to take evidence as provided in Sub-section (4), the accused could cross-examine and the prosecution could re- examine the witnesses as provided in Sub-section (5), discharge the accused if in the opinion of the Magistrate the evidence and documents disclosed no grounds for committing him for trial, as provided in Sub-section (6) and to commit the accused for trial after framing of charge as provided in Sub-section (7), summon the witnesses of the accused to appear before the court to which he has been committed as provided in Sub-section (11) and send the record of the inquiry and any weapon or other thing which is to be produced in evidence, to the Court of Session as provided in Sub-section (14). The aforesaid Sections 207 and 207(a) have been omitted from the Code and a new Section 209 enacted on the recommendation of the Law Commission contained in its 41st Report. It was realised that the commitment inquiry under the old Code was resulting in inordinate delay and served no useful purpose. That inquiry has, therefore, been dispensed with in the Code with the object of expeditious disposal of cases. Instead of committal Magistrate framing the charge, it is now to be framed by Court of Session under Section 228 in case the accused is not discharged under Section 227. This change brought out in the code is also required to be kept in view while determining the question. Under the Code, the evidence can be taken only after framing of charge."
Thereafter Honble Apex Court by referring to the ratio laid down in State of Bihar v. Ramesh Singh MANU/SC/0139/1977 : 1977CriLJ1606, State of Delhi v. Gyan Devi and Ors. MANU/SC/0649/2000 , State of Madhya Pradesh v. S.B. Johari and Ors. MANU/SC/0025/2000 : 2000CriLJ944 State of Maharashtra v. Priya Sharan Maharaj and Ors. MANU/SC/1146/1997 : 1997CriLJ2248 and State Anti- Corruption Bureau, Hyderabad and Anr. v. P. Suryaprakasam 1999 SCC (Crl.) 373 wherein the Supreme Court reiterated that at the stage of framing of charge the trial court is not to examine and assess in detail the materials placed on record by the prosecution nor is it for the court to consider the sufficiency of the materials to establish the offence alleged against the accused persons and also held that the charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted, can not show that the accused committed the particular offence. In that case, there would be no sufficient ground for proceeding with the trial and at the stage of framing of charge there can only be limited evaluation of materials and documents on record and sifting of evidence to prima facie find out whether sufficient ground exists or not for the purpose of proceeding further with the trial, have so held with reference to materials and documents produced by the prosecution and not the accused. The above mentioned decisions proceed on the basis of settled legal position that the material as produced by the prosecution alone is to be considered and not the one produced by the accused. The latter aspect relating to the accused though has not been specifically stated, yet it is implicit in the decisions. It seems to have not been specifically so stated as it was taken to be well settled proposition. This aspect, however, has been adverted to in where considering the scope of Sections 239 and 240 of the Code it was held that at the time of framing of charge, what the trial court is required to, and can consider are only the police report referred to under Section 173 of the Code and the documents sent with it. The only right the accused has at that stage is of being heard and nothing beyond that . The Supreme Court further held that judgment of the High Court quashing the proceedings by looking into the documents filed by the accused in support of his claim that no case was made out against him even before the trial had commenced was reversed by the Supreme Court.
It was thus concluded that at Sections 227 and 228 stage 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.
Hon'ble Supreme Court in the case of State of Supt. And Remembrancer of Legal Affairs, West Bengal Vs. Anil Kumar Bhunja and others (1979) 4 SCC 274 has held as under:-
"18. It may be remembered that the case was at the stage of framing charges; the prosecution evidence had not yet commenced. The Magistrate had therefore, to consider the above question on a general consideration of the materials placed! before him by the investigating police officer. At this stage, as was pointed out by this Court in State of Bihar v. Ramesh Singh MANU/SC/0139/1977 : 1977CriLJ1606 , the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of Section 227 or 228 of the CrPC, 1973. At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as the existence of the factual ingredients constituting the offence alleged; may justify the framing of charge against the accused in respect of the commission of the offence."
Hon'ble Supreme Court in the case of State of Tamil Nadu Vs. N. Suresh Rajan and others (2014) 11 SCC 709 has held as under:-
"The aforesaid decisions consider the provision of Section 227 of the Code and make it clear that at the stage of discharge the Court can not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if it was conducting a trial. It is worth mentioning that the Code contemplates discharge of the accused by the Court of Sessions under Section 227 in a case triable by it; cases instituted upon a police report are covered by Section 239 and cases instituted otherwise than on a police report are dealt with in Section 245. From a reading of the aforesaid sections it is evident that they contain somewhat different provisions with regard to discharge of an accused.
31.1 Under Section 227 of the Code, the trial Court is required to discharge the accused if it "considers that there is not sufficient ground for proceeding against the accused". However, discharge under Section 239 can be ordered when "the Magistrate considers the charge against the accused to be groundless". The power to discharge is exercisable under Section 245(1) when, "the Magistrate considers, for reasons to be recorded that no case against the accused has been made out which, if not repudiated, would warrant his conviction".
31.2 Section 227 and 239 provide for discharge before the recording of evidence on the basis of the police report, the documents sent along with it and examination of the accused after giving an opportunity to the parties to be heard. However, the stage of discharge under Section 245, on the other hand, is reached only after the evidence referred in Section 244 has been taken.
31.3 Thus, there is difference in the language employed in these provisions. But, in our opinion, notwithstanding these differences, and whichever provision may be applicable, the Court is required at this stage to see that there is a prima facie case for proceeding against the accused. Reference in this connection can be made to a judgment of this Court in the case of R.S. Nayak v. A.R. Antulay MANU/SC/0198/1986 : (1986) 2 SCC 716. The same reads as follows:
43...Notwithstanding this difference in the position there is no scope for doubt that the stage at which the magistrate is required to consider the question of framing of charge under Section 245(1) is a preliminary one and the test of "prima facie" case has to be applied. In spite of the difference in the language of the three sections, the legal position is that if the Trial Court is satisfied that a prima facie case is made out, charge has to be framed."
Keeping in view the above mentioned case laws on the subject if the facts of the present case are scrutinized within the permissible limits mentioned herein above it is apparent that though there appears previous enmity in between the parties but that alone could not be the basis of culminating the proceedings and result in discharging the accused-appellants. The material, which has been placed before this Court by the appellants may be used by them during the course of the trial to impeach the prosecution witnesses or to show during the course of the trial that the prosecution witnesses are inimical and appellants have been falsely implicated, but this procedure can only be adopted during the course of the trial. Culmination of trial at the stage of framing of charge, requires very strong and cogent grounds and inherent weaknesses in the version of prosecution apparent on the face to demonstrate that trial will either result in failure of justice or will be a futile exercise or will operate as engines of oppression to the appellant or no ingredients of alleged penal offences are existing. There can not be any another proposition except the fact that the law leans in favour of trial unless there are strong, compelling and substantial grounds to culminate the same.
I have gone through the whole record and have perused the material in depth including the material/ documents, which have been relied on by learned counsel for the appellants to show that they have been falsely implicated, but I am not inclined to accept the submission that there is no sufficient grounds in this case to proceed further. Needless to say that enmity is a double edged weapon and the falsehood or the truthfulness of the allegations can only be tested in the trial. The trial of a criminal case is nothing but a journey to unearth the truth and this course can only be disrupted when some strong, compelling grounds and material is available, which uproots the prosecution from its roots and nothing is left for the prosecution. Unfortunately that is not a case here.
Therefore, keeping in view the above mentioned legal propositions and factual position, I am not inclined to accept the submissions of learned counsel for the appellants that the court below has erred in dismissing their discharge application. Resultantly this criminal appeal filed by the appellants is dismissed and the order of the subordinate court dated 28/29.04.2019 passed by Additional Sessions Judge, Court No.2 Pratapgarh passed in Session Trial No. 442 of 2018, arising out of Case Crime No. 25 of 2018, under Sections 354-A, 504, 506, 352 I.P.C. and Section 3(1)(10) and 3(2)(5A) of SC/ST Act, P.S. Baghrai, District Pratapgarh, whereby the discharge application of the appellants was rejected, is confirmed.
Since the appellants appears to have not obtained bail in the instant matter and also keeping in view the entirety of facts and circumstances of the case, it is directed that in case the applicants appear and surrender before the court below within 30 days from today and apply for bail, their prayer for bail shall be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgement passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P. For a period of 30 days from today or till surrender of applicants before trial court, whichever is earlier, no coercive steps shall be taken against the applicants in the above mentioned case.
Order Date :- 17.7.2019 Praveen/Abhishek