Delhi District Court
Jagbir Singh vs . State on 13 January, 2012
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Crl. Revision No. 393/2011
Jagbir Singh Vs. State
13.1.2012
ORDER:
This revision petition has been filed against the order of charge dated 2.6.2011 passed by the Ld. MM by way of which charges under Section 420/467/468/471/448 IPC were framed against the accused Jagbir Singh (the revisionist before this Court) in case FIR No. 29/08, PS Swaroop Nagar. The revisionist has challenged the order of the Ld. MM on the ground that the trial court at the time of framing of charge has failed to appreciate that not even a single witness/ victim was cited by the prosecution regarding the wrongful loss to him and wrongful gain to the revisionist. It is pleaded that not even a single document had come on record or produced by the complainant with respect to the title/ ownership proof of the property in question nor any document was produced by the investigating agency which was allegedly forged by the revisionist for the purpose of wrongful loss to the complainant and wrongful gain to the revisionist. It is also pleaded that the Ld. Trial Court has failed to appreciate that the prosecution has failed to produce any document which was forged or fabricated by the revisionist or that document purports to be valuable security or a will or an authority. It is further pleaded that the Jagbir Singh Vs. State, CR No. 393/11 Page No. 1 of 12 Ld. Trial Court has failed to appreciate that at any point of time the revisionist intended to cheat the complainant or prepare the forged document with the purpose to cheat the complainant. According to the revisionist, the Ld. Trial Court has wrongly interpreted the para no. 15 of the judgment in the case of Mohd. Ibrahim & Ors. Vs. State of Bihar, reported in 2009 (4) Crimes 13 (SC) and has opined that the documents executed by the revisionist i.e. Jagbir in favour of Kumar though the revisionist was not the owner on the basis of the documents on record, however, the Ld. Trial Court has failed to appreciate that neither the statement of Amit Kumar was ever recorded by the investigating agency nor Amit Kumar was charge sheeted in the present case as an accused despite the fact that he is the best person who could have negated the truth whether he was deceived or not. It is also pleaded that the Ld. Trial court has failed to appreciate that the prosecution has failed to produce a single document which could suggest that at any point of time the revisionist used the forged document as genuine. The revisionist has further pleaded that the prosecution has failed to file any document to corroborate the version of the complainant that at a particular date or time or any point of time the revisionist entered into the boundary of the complainant without any authority. According to him, the prosecution failed to answer whether at any point of time the revisionist prepared or forged any document and used the same as a genuine as prescribed in Section 471 Indian Penal Code. It is also pleaded that there is not even a Jagbir Singh Vs. State, CR No. 393/11 Page No. 2 of 12 single instance to show that the revisionist induced any person which resulted into wrongful loss to any person or the wrongful gain to the revisionist and even as per the prosecution case no documents were placed by the investigating agency which could suggest that the revisionist committed the offence under Section 420 Indian Penal Code. According to the revisionist, Section 467 Indian Penal Code cannot be invoked against a person until and unless it is not covered as per the definition of forgery defined under Section 463 IPC. It is pleaded that the Ld. Trial Court has committed a manifest error of law while deciding the factum to frame primafacie charge against the revisionist.
No reply has been filed to the present revision and the complainant has only filed the written synopsis of arguments which I have perused. Before proceeding to decide the revision petition on merits, I may observe that the Hon'ble Supreme Court of India while analysing the law relating to provisions of Sections Sections 227, 239 and 245 of the Code in the case of R.S. Malik Vs. A.R. Antulay AIR 1986 has held that in case trial court was satisfied that primafacie case was made out, charge has to be framed and it was observed that:
"The truth, veracity and effect of the evidence which the prosecution proposed to adduce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied finally, is not exactly to be applied. At this stage, even a very strong suspicion founded upon the materials before the Magistrate which leads him to form a presumptive opinion as to existence Jagbir Singh Vs. State, CR No. 393/11 Page No. 3 of 12 of factual ingredients constituting the offence alleged may justify the framing of charge against the accused in respect of the commission of that offence"
In the case of B.N. Rao Vs. State reported in 1997 JCC 359 it has been specifically held that at the stage of framing of charge the evidence has not been examined minutely and the charge can be framed even if there is suspicion. Further in the case of Mathura Dass & Ors. Vs. State reported in DCLR 2003 (1) Delhi 694 it has been been held that :
".........the existence of primafacie case may be found even on the basis of strong suspicion against an accused....... The assessment, evaluation and weighing of the prosecution evidence is a criminal case at the final stage is on entirely different footing than it is at the stage of framing of charge........ At the final stage, if two views are possible, one which favours accused has to be accepted unlike at the stage of framing of charges, where the view favourable to prosecution has to be accepted......."
The Hon'ble Supreme Court in the case of Union of India Vs. Prafulla reported as 1979 SC 366 AIR held that :
"............ At the time of framing of charges, the court has power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against accused has been made out........."
Jagbir Singh Vs. State, CR No. 393/11 Page No. 4 of 12 Further in the same judgment the hon'ble High Court has observed that:
".........When the material placed before the Court discloses great suspicion against the accused, the Court will be justified in framing charge. If two views are equally possible and the evidence produced gives rise to some suspicion but not grave suspicion against the accused, the judge will be fully within his right to discharge the accused.........."
It was also observed that :
".........At the time of framing of charge, the Court cannot act merely as a post office or a mouthpiece of the prosecution but is to consider the broad probabilities of the case, the total aspect of the evidence and the documents produced before the Court and any basic infirmities in the case and so on........"
However, a word of caution was added in this judgment that the judge should not make a roving inquiry into the pros and cons of the matter and weigh the evidence is if he was conducting a trial.
Later in the case of State Vs. S. Bangarappa reported in 2001 (1) CC Cases SC 1 the Hon'ble Supreme Court reiterated that :
"........ Time and again this Court has pointed out that at the stage of framing of charge, the Court should not enter upon a process of evaluating the evidence by deciding its worthy or credibility. The limited exercise during that stage is to find out whether the materials offered by the prosecution to be adduced as evidence are sufficient for the Court to proceed further ........."
Jagbir Singh Vs. State, CR No. 393/11 Page No. 5 of 12 Again in the year 2001 the hon'ble Supreme Court in the case of Kanti Bhadra Shah Vs. State of West Bengal had observed that:
"......... If trial Court decides to frame charge there is no legal requirement that the trial Court should pass an order specifying the reasons as to why it opts to do so. Framing of charge itself is prima facie order that the trial judge has formed the opinion after considering the report and the documents and after hearing both decides that there is ground for presuming that the accused has committed the offence. It was held that a magistrate is required to record his reasons for discharging the accused but there is no such requirement if he forms the opinion that there is ground for presuming that accused had committed offence. In such a situation the magistrate is only required to frame a charge in writing against the accused."
Also in Para 12 the Hon'ble Court had observed that :
"........ If there is no legal requirement that the trial Court should write an order showing the reasons for framing of charge, why should the already burdened trial Courts be further burdened with such an extra work. Time has reached to adopt all possible measures to expedite the Court procedures and to chalk out measures to avert all roadblocks causing avoidable delays. If a magistrate is to write detailed orders at different stage merely because the counsel would address arguments at all stage, the snail pace progress of proceedings in trial Court would further be slowed down."
Jagbir Singh Vs. State, CR No. 393/11 Page No. 6 of 12 The Hon'ble Supreme Court again in the case of State of Orissa Vs. Debendra Nath Padhi reported as 2003 II AD (Crl) S.C. 69 observed that :
".......... If after doing so the Court comes to the conclusion that there is ground for presuming that the accused has committed an offence, then the Court shall frame charge under Section 228 of the Code, otherwise it shall discharge accused under Section 227 of the Code."
A similar view was taken by the Hon'ble High Court in the case of Subhadra Vs. State reported as 1996 JCC 665 that :
".......... At the stage of framing of charge, the Court has not to apply the same standard of test, which is applied at the time of judgment and recording finding of guilt or otherwise. At the stage, the Court has to see whether there is ground for presuming that the accused has committed the offence."
Also in the case of Ms. Soma Chakravarty Vs. State (Through CBI) reported in 2006 (1) JCC 152 (DHC) it has been held that :
"It is settled law that at the time of framing of charge, the Court is not required to make a roving enquiry into the pros and cons of the matter and weigh evidence as if it is conducting a trial. Court is not required to make appraisal of evidence meticulously at this stage and there the material placed before the Court discloses grave suspicion against the accused which has not been Jagbir Singh Vs. State, CR No. 393/11 Page No. 7 of 12 property explained and indicate the involvement of the accused then it is sufficient to frame the charge."
Also in the case of Dilawar Balu Kurane Vs. State of Maharastra reported in JT 2002 (1) SC 6 it has been held that ".........It is a settled preposition of law that the judge while considering the question of framing of charge in the said Section has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a primaface case against the accused has been made out, where the material placed before the court disclose grave suspension of 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............." While during the trial if two views are equally possible and the judge is satisfied that the evidence produced before him wile giving rise to such suspicion but not grave suspicion against the accused he will be fully justified to discharge the accused ........."
The Hon'ble Supreme Court had also in the case of State of Karnatka Vs. L. Muniswamy reported in AIR 1977 SC 1489 held that:
"........At the stage of framing of charge the court has to apply its mind to the question where or not there is any ground for presuming the commission of of the offence by the accused...."
It was held that since the framing of charge affected a person's liberty substantially, hence need for proper consideration of Jagbir Singh Vs. State, CR No. 393/11 Page No. 8 of 12 material warranting such order was emphasized.
Further in the case of L.K. Advani Vs. CBI reported in 1997 Crl. L. J. 2559 it has been held that:
"..............Charge can be framed by the court against the accused if the material placed before it raises a strong suspicion that the accused has committed an offence. In other words, the court would be justified in framing the charges against the accused if the prosecution has sown the seed in the form of the incriminating material which has got the potential to develop itself into a fullfledged tree of conviction later on.........".
The law as emerges is at this stage of framing of charge this court is not required to assess, evaluate and weight the prosecution evidence in a criminal case as it is done at the final stage. In case if two views are possible one which favours the prosecution has to be accepted at this stage. It is not open for this court to sift and weigh the evidence as if it is conducting a mini trial and charge can be framed on the basis of grave suspicion and the evidential value of the statement recorded during the course of investigations is required to be seen at the time of appropriate trial. It is a settled law that at this stage of framing of charge the court is only required to consider whether primafacie there exists sufficient ground to proceed against the accused. A roving and fishing inquiry is impermissible. It is sufficient if the prosecution is able to show primafacie the commission of offence and the involvement of the charged person.
Jagbir Singh Vs. State, CR No. 393/11 Page No. 9 of 12 Applying the settled principles of law to the facts of the present case it is borne out from the record that Smt. Vijaya Sharma the complainant had entered into an Agreement to Sell with the Revisionist Jagbir Singh in respect of the property in question situated in the revenue estate of village Kadipur Delhi abadi known as Kadi Vihar, Delhi and as per the terms and conditions of the agreement possession of the said land was to be handed over to the revisionist by the complainant at the time of the completion of the deal i.e. registration of the sale documents on or before 30.9.2007 (Clause 2 of the agreement). She had entered into the said Agreement to Sell being the attorney of the original owners Praveen Kumar Jain and Surender Kumar Jain. During this period the disputes allegedly arose between the parties on account of which the complainant had cancelled the aforementioned Agreement to Sell on 6.4.2007 and is stated to have informed the revisionist by sending him the cancellation of the agreement by UPC and also publishing an advertisement in the news paper at the relevant time. Despite the aforesaid, primafacie having knowledge of the aforesaid and despite knowing well that the agreement between him and the complainant has already been cancelled, the revisionist Jagbir Singh had sold the major portion of the land in question which on the face of it was without any right, title or interest and as per the allegations involved had been threatening the complainant and her family to face dire consequences. It is further evident that Smt. Vijaya Sharma is the attorney of the owners of the property namely Praveen Jagbir Singh Vs. State, CR No. 393/11 Page No. 10 of 12 Kumar Jain and Surender Kumar Jain who were the registered owners as per the revenue record. The seizure memo dated 13.9.2008 the property in question belong to Praveen Kumar Jain and Surender Kumar Jain by way of the sale deed, mutation, copy of Khatoni and two separate General Power of Attorneys in favour of Smt. Viajaya Sharma by Surender Kumar Jain and P.K. Jain. Even otherwise, it is pleaded by the revisionist that at the time of execution of the Agreement to Sell dated 20.12.2006 the complainant Smt. Vijaya Sharma represented herself as the owner of the land in question whereas the Agreement to Sell conclusively shows that she was the General Power of Attorney of Praveen Kumar and Surender Kumar Jain.
At this stage, it is not open for the Court to sift and weigh the evidence and the defence of the revisionist that the complainant Vijaya Sharma was not competent to execute the Agreement to Sell with the revisionist or that she was under the legal obligation to obtain a NOC from the Government are the aspects which can only be looked into by the Ld. Trial Court after due evidence and trial. Further, primafacie execution of sale deed purporting to convey/ transfer the property which he knew did not belong to him, is primafacie an act which is criminal in nature intending to defraud the victim who purchases such a property. The perusal of the charge sheet, statement of the various witness and documents on record show that primafacie the offences under Sections 420/467/468/471/488 Indian Penal Code are made out. Jagbir Singh Vs. State, CR No. 393/11 Page No. 11 of 12 I find no illegality or irregularity in the order of the Ld. MM dated 2.6.2011 directing the framing of charges under Sections 420/467/468/471/488 Indian Penal Code against the revisionist Jagbir Singh. Revision petition is hereby dismissed being devoid of merits. Trial Court record be sent back along with the copy of this order.
Revision file be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU) Dated:13.1.2012 ASJII(NW)/ ROHINI Jagbir Singh Vs. State, CR No. 393/11 Page No. 12 of 12