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Alok Vashistha vs State Of Bihar & Anr on 4 May, 2012

Author: Aditya Kumar Trivedi

Bench: Aditya Kumar Trivedi

                    IN THE HIGH COURT OF JUDICATURE AT PATNA
                                  Criminal Miscellaneous No.36737 of 2010
                 ======================================================
                 Alok Vashistha son of Krishna Dutta Vasistha
                                                                        .... .... Petitioner/s
                                                   Versus
                 1. State Of Bihar
                 2. Akhilesh Kumar Sinha, son of Kedar Nath Lal
                                                                   .... .... Opposite Party/s
                 ======================================================
                 Appearance :
                 For the Petitioner/s     : Mr. K.N. Chaubey, Sr. Adv.
                                             Mr. Ambuj Nayan Chaubey, Adv.
                                             Mr. Siddharth Harsh, Adv.
                                             Mr. Gopal Swaroop Dubey, Adv.
                                              Mr. Akhilesh Kr. Pandey, Adv.
                 For the Opposite Party/s   : Mr. C. Sen. Pd. Singh, APP
                 ======================================================
                 CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR
                 TRIVEDI
                 ORAL ORDER

2   04-05-2012

Heard learned counsel for the petitioner as well as learned A.P.P. for the State.

Petitioner has challenged the order dated 16.9.2010 passed by the Addl. Sessions Judge, Vth, Rohtas at Sasaram, relating to Sessions Trial no.208 of 2008 whereby and whereunder the learned lower court had rejected the prayer of the petitioner more particularly under Section 228 of the Code of Criminal Procedure.

After hearing learned counsel for the petitioner it is evident that instead of arguing on the legal aspect he tried to attract the application under Section 228 (Code of Criminal Procedure), or under Section 227 of the Code of Criminal 2 Patna High Court Cr.Misc. No.36737 of 2010 (2) dt.04-05-2012 2/5 Procedure whichever may apply putting much stress over shooting of videography and suggesting that in those video cassettes there happens to be absence of the petitioner showing as an assailant. Also submitted that petitioner is not named in the F.I.R., no examination was made of the pistol recovered from his possession by the Forensic Science Laboratory, there happens to be no application of Section 307 of the Indian Penal Code. In like wise manner also suggested that no case under Section 304 of the Indian Penal Code is made out. Therefore, the order impugned refusing to accept the prayer of the petitioner by the learned lower court happens to be bad in law as well as, on facts, hence is fit to be set aside.

On the other hand, learned A.P.P. opposed the prayer and submitted that at the present stage, removing enquiry is not at all permissible. Whatever may be, the court is required to search out prima facie case which could justify framing of charge.

What material is to be considered and how the court will deal with when an objection is raised at the time of framing of charge, has properly been answered by the Hon'ble Apex Court after considering the various decisions as well as taking into account analytical approach of Sections 227 and 228 of the Code of Criminal Procedure in a decision reported in AIR SCW 3730 ( 3 Patna High Court Cr.Misc. No.36737 of 2010 (2) dt.04-05-2012 3/5 Sajjan Kumar V. Central Bureau of Investigation) by formulating the following points in paragraph-17 thereof.

" 17. Exercise of jurisdiction under sections 227 and 228 of Cr. P.C. On consideration of the authorities about the scope of Sections 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. "

Now taking into account the aforesaid criteria as a guideline, the order impugned has been gone through which is a detailed one and incorporates each and every material against the petitioner so collected during the course of investigation and submitted in pursuance of Section 173 of the Code of Criminal Procedure, which disentitles the petitioner to raise such plea on the fact.

5/5

Now coming to the legal aspect, Section 304 of the Indian Penal Code carries two parts. The first part deals with when an overt act is committed with an intention while the later part deals with such nature of act wherein it's lacking but done with knowledge. Therefore, when there was use of fire arms abruptly, the accused was within his knowledge that being a deadly weapon if it hits, it may cause death of an individual, then in that event certainly there will be application of Section 304 of the Indian Penal Code. In the facts and circumstances of the case, the allegation does survive.

As such, I do not see any cogent ground to interfere with the order impugned, consequent thereof the petition is dismissed.

(Aditya Kumar Trivedi, J) sudip/-