Allahabad High Court
Smt. Pratibha Jha vs State Of U.P. And 3 Others on 11 November, 2020
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 15.10.2020 Delivered on 11.11.2020 Court No. - 87 Case :- CRIMINAL REVISION No. - 509 of 2020 Revisionist :- Smt. Pratibha Jha Opposite Party :- State Of U.P. And 3 Others Counsel for Revisionist :- In Person Counsel for Opposite Party :- G.A.,Man Bahadur Singh,Rajeev Kumar Hon'ble Raj Beer Singh,J.
1. The present criminal revision has been preferred against Judgement and order dated 13.11.2019 passed by learned Additional District & Sessions Judge/Special Judge (SC/ST Act), Ghaziabad in criminal revision no. 170 of 2019 (CNR No. UPGZ- 01007067-2019), under Sections 420, 506, 507 IPC (State v. Ashok Jha and others).
2. It has been argued by the revisionist that after investigation of the matter, police have submitted charge-sheet against the private respondents for the offence under Sections 420, 506, 507 IPC. The private respondents have moved an application for discharge, which was rejected by the trial court on 09.04.2019 by means of a reasoned and speaking order. Against that order, opposite party nos. 2 and 3 have filed a criminal revision, which has been allowed by the court of Additional District & Sessions Judge/Special Judge (SC/ST Act), Ghaziabad vide impugned order dated 13.11.2019. It was stated that there was sufficient evidence against the private respondents for charge under Sections 420, 506, 507 IPC, but learned lower revisional court has entered into merits of the case and examined veracity of evidence and rendered finding of fact that no case under Sections 420, 506, 507 IPC is made out. Revisionist has further submitted that there are clear allegations against the private respondents that respondent no. 2 has got encashed the cheques sent by customers of the informant/revisionist for her, whereas she was sole owner of Creative Media Advertising Agency, Vaishali Ghaziabad and that the private respondents have launched 'Pragati Media' Company by using forged documents.
3. Learned counsel for private respondent has argued that there is no illegality or perversity in the impugned order. There is no evidence of any cheating so as to satisfy the ingredients of offence under section 420 IPC.
4. Heard the revisionist in person, learned counsel for respondent no. 2 and learned A.G.A. for State.
5. In Amit Kapoor v Ramesh Chander (2012) 9 SCC 460, the Apex Court elucidated the revisional power of the Court under Section 397 and held as under:-
"12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error and it may not be appropriate for the court to scrutinise the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits.
13, Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much advanced stage in the proceedings under the CrPC."
6. It is also well settled that at the stage of framing of charge, the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclose the existence of all the ingredients constituting the alleged offence or offences. For this limited purpose, the court may sift the evidence as it cannot be expected even at the initial stage to accept as gospel truth all that the prosecution states. At this stage, the court has to consider the material only with a view to find out if there is ground for "presuming" that the accused has committed an offence and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in exercise of its revisional jurisdiction unless the case substantially falls within the categories afore stated..
7. At the stage of charge, the Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.
8. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.
9. In State of Rajasthan v Fatehkaran Mehdu (2017) 3 SCC 198, Hon'ble Apex Court has elucidated the scope of the interference permissible under Section 397 with regard to the framing of a charge and held:
"26. The scope of interference and exercise of jurisdiction under Section 397 CrPC has been time and again explained by this Court. Further, the scope of interference under Section 397 CrPC at a stage, when charge had been framed, is also well settled. At the stage of framing of a charge, the court is concerned not with the proof of the allegation rather it has to focus on the material and form an opinion whether there is strong suspicion that the accused has committed an offence, which if put to trial, could prove his guilt. The framing of charge is not a stage, at which stage final test of guilt is to be applied. Thus, to hold that at the stage of framing the charge, the court should form an opinion that the accused is certainly guilty of committing an offence, is to hold something which is neither permissible nor is in consonance with the scheme of the Code of Criminal Procedure.".
10. In Munna Devi vs. State of Rajasthan and Ors., AIR 2002 SC 107, it has been held by the Supreme Court as under:
"3. ...The revision power under the Code of Criminal Procedure cannot be exercised in a routine and casual manner. While exercising such powers the High Court has no authority to appreciate the evidence in the manner as the trial and the appellate courts are required to do. Revisional powers could be exercised only when it is shown that there is a legal bar against the continuance of the criminal proceedings or the framing of charge or the facts as stated in the First Information Report even if they are taken at the face value and accepted in their entirety do not constitute the offence for which the accused has been charged."
11. Recently in the case titled Dipakbhai Jagdishchandra Patel vs State of Gujarat and Another, decided on 24.4.2019, in Criminal Appeal No. 714 of 2019, Hon'ble Apex Court made observations regarding the law relating to framing of charge and discharge and has held that all that is required is, that the Court must be satisfied that with the material available, a case is made out for the accused to stand trial. A strong suspicion suffices. However, a strong suspicion must be founded on some material. The material must be such as can be translated into evidence at the stage of trial.
12. Keeping the above discussed position of law in mind, in the instant case it may be seen that the learned trial court has found that on the basis of material collected during investigation a prima facie case for charge under section 420/506/507 IPC is made out and the application of private respondents seeking discharge was rejected. The perusal of impugned order shows that the learned lower revisional court entered in to meticulous examination of material / evidence collected during investigation and rendered findings of fact. It was observed by the learned lower revisional court that in the absence of documentary evidence, the allegation of first informant (revisionist herein) that accused Ashok Jha has got en-cashed her cheques can not be believed and also observed that even if the cheques were sent to first informant, it is impossible that accused would get them en-cashed. It appears that in this connection, the learned court below did not consider the allegation of informant that accused Ashok Jha was fraudulently running an Ad agency by using her address and usurp the cheques sent to her. Examining the evidence, the learned lower revisional court has rendered finding of fact that the allegation of first informant that she is sole owner of 'Creative Media' is not correct. In view of all these facts, it is apparent that the learned revisional court exceeded its jurisdiction by entering in to meticulous examination of evidence.
13. Further the lower revisional court also observed that earlier the informant has lodged a false case under section 498-A IPC against accused/ respondent No. 2. In this connection it may be observed that whether earlier the informant has lodged some false case or not, it is not a relevant material in this case to consider that a prima facie case is made out or not. In the instant matter, the court has to consider the first information report and material collected during investigation of this case.
14. As observed earlier, the revisional court cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; rather the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence or not. The revisional court has ignored the basic principles for exercise of revisional powers and exceeded its jurisdiction by entering in to examination of facts, evidence and materials on record.
15. In view of aforesaid, the impugned order is set aside and the matter is remitted back to the learned lower revisional court to consider the matter in view of the above discussed settled position of law and pass the order afresh in accordance with law.
16. Revision is accordingly allowed.
Order Date :- 11.11.2020/Anand