Rajasthan High Court - Jaipur
Shatrudhan Tiwari S/O Late Shri Naresh ... vs State Of Rajasthan on 7 April, 2022
Author: Narendra Singh Dhaddha
Bench: Narendra Singh Dhaddha
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous (Petition) No. 8024/2021
Shatrudhan Tiwari S/o Late Shri Naresh Kumar Sharma, Aged
About 34 Years, R/o Near Aheer Atta Chakki, Ward No. 21,
Neemda Gate Bharatpur, At Present Secretary District Cricket
Association, Bharatpur.
----Petitioner
Versus
1. State Of Rajasthan, Through Public Prosecutor.
2. Ashish Kumar S/o Shri Ashok Kumar, R/o Jaswant Nagar, Bharatpur.
----Respondents For Petitioner(s) : Mr. Swadeep Singh Hora, Adv.
For Respondent(s) : Mr. Riyasat Ali, PP
For Complainant(s) : Mr. S. N. Sharma, Adv. on behalf of
Mr. G. S. Fauzdar, Adv.
HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA Order ORDER RESERVED ON :: 05/04/2022 ORDER PRONOUNCED ON :: 07/04/2022 This Criminal Miscellaneous Petition has been filed by the petitioner under Section 482 Cr.P.C. against the order dated 17.11.2021 passed by learned Additional Sessions Judge No.3, Bharatpur(for Short 'learned Revisional Court') in Criminal Revision Petition No.12/2021 (CIS No.46/2021) whereby revision petition filed by the petitioner was dismissed and upheld the order framing charge dated 01.02.2021 passed by learned Additional Judicial Magistrate No.2, Bharatpur (for Short 'learned Trial Court) in case No.217/2019 by which charge for the offence under Section 353 IPC has been framed.
(Downloaded on 08/04/2022 at 09:17:15 PM)
(2 of 7) [CRLMP-8024/2021] Learned counsel for the petitioner submits that the learned trial Court had wrongly framed the charge for offence under Section 353 IPC against the petitioner. Learned counsel for the petitioner also submits that the learned Revisional Court erred in dismissing the revision petition. Learned counsel for the petitioner also submits that there is no evidence to frame the charge for offence under Section 353 IPC against the petitioner. Learned counsel for the petitioner further submits that after investigation, Police has not found the charge proved against the petitioner but learned trial Court had wrongly believed the statements of the witnesses-Dheerendra Pal, Prateek Choudhary, Devendra Kumar Gupta and Mukesh Chand. Learned counsel for the petitioner also submits that the charges could not be framed merely on the basis of the witnesses recorded under Section 202 Cr.P.C without taking the previous statement recorded by the Investigating Officer during the investigation.
Learned counsel for the petitioner further submits that the learned trial Court had not considered the transcript and CD while framing the charge for offence under Section 353 IPC against the petitioner. So, order of the learned trial Court as well as learned Revisional Court be set-aside.
Learned counsel for the respondent as well as learned Public Prosecutor has opposed the arguments advanced by learned counsel for the petitioner and submitted that the order of the learned trial Court as well as learned Revisional Court do not suffer from any irregularity or infirmity, so, petition filed by the petitioner be dismissed.
(Downloaded on 08/04/2022 at 09:17:15 PM)
(3 of 7) [CRLMP-8024/2021] I have considered the arguments advanced by learned counsel for the petitioner, learned counsel for the respondent as well as learned Public Prosecutor.
The provisions under the Cr.P.C. with respect to charge are reproduced as under:-
"227. Discharge. --If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, 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.
"228. Framing of charge.--(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which--
(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, [or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate] shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report;
(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused. (2) Where the Judge frames any charge under clause
(b) of sub-section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried."
The Hon'ble Supreme Court as well as various High Courts have interpreted the provisions in the understated judgements, that have effectuated the principles to be considered while a Judge is framing charge or discharging an accused: -
In Union of India vs Prafulla Kumar Samal, (1979) 3 SCC 4, the Hon'ble Supreme Court laid down the principles regarding the (Downloaded on 08/04/2022 at 09:17:15 PM) (4 of 7) [CRLMP-8024/2021] considerations before the concerned Court while framing of charges and discharging an accused: -
"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 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."
Hon'ble Supreme Court in Bhawna Bai v. Ghanshyam, (2020) 2 SCC 217, has laid down as under:
"13. ... 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.
"15. Considering the scope of Sections 227 and 228 CrPC, in Amit Kapoor v. Ramesh Chander [Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 :
(2012) 4 SCC (Civ) 687 : (2013) 1 SCC (Cri) 986] , the Supreme Court held as under : (SCC pp. 477-79, paras 17 & 19) (Downloaded on 08/04/2022 at 09:17:15 PM) (5 of 7) [CRLMP-8024/2021] "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..... 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."
16. After referring to Amit Kapoor [Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 : (2012) 4 SCC (Civ) 687 : (2013) 1 SCC (Cri) 986] , in Dinesh Tiwari v. State of U.P. [Dinesh Tiwari v. State of U.P., (2014) 13 SCC 137 : (2014) 5 SCC (Cri) 614] , the Supreme Court held that for framing charge under Section 228 CrPC, 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."
Hon'ble Supreme Court in Dilawar Balu Kurane v. State of Maharashtra, (2002) 2 SCC 135 12 has observed as under:-
"12. Now the next question is whether a prima facie case has been made out against the appellant. In exercising powers under Section 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie (Downloaded on 08/04/2022 at 09:17:15 PM) (6 of 7) [CRLMP-8024/2021] case against the accused has been made out; 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; by and large 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 justified to discharge the accused, and in exercising jurisdiction under Section 227 of the Code of Criminal Procedure, the Judge 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 but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial (see Union of India v. Prafulla Kumar Samal [(1979) 3 SCC 4 : 1979 SCC (Cri) 609]).
In Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia, (1989) 1 SCC 715, Hon'ble Supreme Court reiterated as hereinunder:-
"14. These two decisions do not lay down different principles. Prafulla Kumar case [(1979) 3 SCC 4 :
1979 SCC (Cri) 609 : (1979) 2 SCR 229] has only reiterated what has been stated in Ramesh Singh case [(1977) 4 SCC 39 : 1977 SCC (Cri) 533 : (1978) 1 SCR 257] . In fact, Section 227 itself contains enough guidelines as to the scope of enquiry for the purpose of discharging an accused. It provides that "the Judge shall discharge when he considers that there is no sufficient ground for proceeding against the accused". The "ground" in the context is not a ground for conviction, but a ground for putting the accused on trial. It is in the trial, the guilt or the innocence of the accused will be determined and not at the time of framing of charge. The court, therefore, need not undertake an elaborate enquiry in sifting and weighing the material. Nor is it necessary to delve deep into various aspects. All that the court has to consider is whether the evidentiary material on record if generally accepted, would reasonably connect the accused with the crime. No more need be enquired into.
The above laid principles suggest that the learned Judge framing charges shall limit itself to the prima facie consideration of the material and evidence on record. The judge need not be (Downloaded on 08/04/2022 at 09:17:15 PM) (7 of 7) [CRLMP-8024/2021] satisfied on the question of whether the trial, when conducted, will lead to the conviction or acquittal of the accused, but the consideration needs to be whether the accused is to be sent for trial at the first instance or not, based on the material on record. An investigation into the offence and elaborate appreciation of evidence is not required, and is rather discouraged, at this stage of framing of the charges and only the material prima facie establishing a case against or in favour of the accused is what is significant. Moreover, as per the requirement of Section 227 and 228 of the Cr.P.C., the learned Judge shall consider whether "sufficient grounds" exist or not and such consideration shall be supported by material on record.
In my considered opinion, learned trial Court as well as learned Revisional Court had not erred in ordering for framing of charge under Section 353 IPC against the petitioner because prima facie material exist against the petitioner for framing of the charge. So, the present petition is devoid of merit and liable to be dismissed.
Hence, this Criminal Miscellaneous Petition stands dismissed.
Stay application also stands disposed of accordingly.
(NARENDRA SINGH DHADDHA),J Gourav/44 (Downloaded on 08/04/2022 at 09:17:15 PM) Powered by TCPDF (www.tcpdf.org)