Madhya Pradesh High Court
Dheeraj Tiwari vs The State Of Madhya Pradesh on 6 December, 2017
1
MCRC 3204/2017 [Dheeraj Tiwari vs. State of MP and Anr.]
Gwalior, dtd. 06/12/2017
Shri Devendra Sharma, Counsel for the applicant
Shri B.P.S. Chouhan, Public Prosecutor for the
respondent No.1/ State.
None for the respondent No.2.
Heard on the question of admission.
This application under Section 482 of Cr.P.C. has been filed against the order dated 27-2-2017 passed by J.M.F.C., Gwalior by which the charge under Section 354(A) of I.P.C. has been framed as well as for quashing the criminal proceedings in Criminal Case No.7125/2016.
The necessary facts for the disposal of the present application in short are that the respondent no.2 lodged a F.I.R. on 18-2-2015 to the effect that she was coming back to her house from the College. As some insect went inside her eyes, therefore, she stopped. All of a sudden, one boy on black Pulsar motorcycle came there and touched her breast and went away on his motorcycle. The registration number of the vehicle was not written and she would identify the said boy.
Thereafter, the matter remained pending. Another incident of similar in nature took place on 25-9-2016 with another girl "X" who lodged the F.I.R. and also disclosed the registration number of the motor cycle. On the basis of the registration number, the police arrested the applicant in crime no.329/2016.
It is submitted by the counsel for the applicant that the applicant was implicated in the present case, on the basis of the confessional statement of the applicant 2 recorded under Section 27 of Evidence Act.
The police after concluding the investigation, filed the charge sheet and the Trial Court by order dated 27-2-2017 framed charge under Section 354-A of I.P.C.
Challenging the order passed by the Trial Magistrate, the counsel for the applicant submits that the police did not conduct the Test Identification Parade of the applicant and the entire case is based on the confessional statement of the applicant which was recorded under Section 27 of Evidence Act, and in view of Section 25 and 26 of Evidence Act, the confessional statement is not admissible. Therefore, there is no admissible evidence against the applicant warranting his trial.
Per contra, it is submitted by the Counsel for the State that the order dated 27-2-2017 passed by Magistrate is a revisable order, and therefore, this petition under Section 482 of Cr.P.C. should not be entertained. Further, it is submitted that although it is true that the Test Identification Parade has not been conducted by the Police, but the substantive evidence is the identification of the accused in the Dock, therefore, at this stage, it cannot be said that there is no evidence against the applicant warranting his Trial.
Heard the learned Counsel for the parties. So far as the preliminary objection raised by the Counsel for the State with regard to maintainability of this application under Section 482 of Cr.P.C. without availing the remedy of Revision under Section 397 of Cr.P.C. is concerned, the question is no more in res-integra.
The Supreme Court in the case of Dhariwal Tobacco Prodcuts Ltd. Vs. State of Maharashtra reported in 3 (2009) 2 SCC 370 has held as under :-
''7. The power of the High Court can be exercised not only in terms of Section 482 of the Code but also in terms of Section 483 thereof. The said provision reads thus:
"483. Duty of High Court to exercise continuous superintendence over Courts of Judicial Magistrates.--Every High Court shall so exercise its superintendence over the Courts of Judicial Magistrates subordinate to it as to ensure that there is an expeditious and proper disposal of cases by such Magistrates."
The inherent power of the High Court is not conferred by statute but has merely been saved thereunder. It is, thus, difficult to conceive that the jurisdiction of the High Court would be held to be barred only because the revisional jurisdiction could also be availed of.'' In the case of Prabhu Chawla Vs. State of Rajasthan reported in (2016) 16 SCC 30, the Supreme Court has held as under :
''8. In our considered opinion the learned Single Judge of the High Court should have followed the law laid down by this Court in Dhariwal Tobacco Products Ltd. and other earlier cases which were cited but wrongly ignored them in preference to a judgment of that Court in Sanjay Bhandari passed by another learned Single Judge on 5-2-2009 in SB Criminal Miscellaneous Petition No. 289 of 2006 which is impugned in the connected criminal appeal arising out of Special Leave Petition No. 4744 of 2009. As a result, both the appeals, one preferred by Prabhu Chawla and the other by Jagdish Upasane and others are allowed. The impugned common order dated 2- 4-20091 passed by the High Court of Rajasthan is set aside and the matters are remitted back to the High Court for fresh hearing of the petitions under Section 482 CrPC in the light of law explained above and for disposal in accordance with law. Since the matters have remained pending for long, the High Court is requested to hear and decide the matters 4 expeditiously, preferably within six months.'' Thus, the preliminary objection raised by the Counsel for the State with regard to maintainability of this application under Section 482 of Cr.P.C. without availing the alternative remedy of revision under Section 397 of Cr.P.C. is rejected.
It is contended by the Counsel for the applicant that the entire case is based on the confessional statement of the applicant recorded under Section 27 of Evidence Act, which is not admissible in the light of Sections 25 and 26 of Evidence Act, thus, there is no admissible evidence available on record, warranting prosecution of the applicant.
The Supreme Court in the case of Madhu Vs. State of Kerala reported in (2012) 2 SCC 389, has held as under :-
''47. The most significant issue in the present controversy is the veracity of the confessional statements made by the accused Madhu and Sibi before P.J. Thomas PW 21, Circle Inspector of Police on 13-5-1998. It is evident that the aforesaid statements were made by the accused before a police officer while the accused were in custody of the police. Section 25 of the Evidence Act postulates that a confession made by an accused to a police officer cannot be proved against him.
Additionally, Section 26 of the Evidence Act stipulates that a confession made by an accused while in police custody cannot be proved against him. It is evident from the factual position narrated hereinabove, that the statements made by the accused Madhu and Sibi were made to a police officer while the accused were in police custody. It is, therefore, apparent that in terms of the mandate of Sections 25 and 26 of the Evidence Act, the said statements could not be used against accused Madhu and Sibi. But then, there is an 5 exception to the rule provided for by Sections 25 and 26 aforesaid, under Section 27 of the Evidence Act.
48. Section 27 of the Evidence Act is being extracted hereunder:
"27. How much of information received from accused may be proved - Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
49. As an exception, Section 27 of the Evidence Act provides that a confessional statement made to a police officer or while an accused is in police custody, can be proved against him, if the same leads to the discovery of an unknown fact. The rationale of Sections 25 and 26 of the Evidence Act is, that police may procure a confession by coercion or threat. The exception postulated under Section 27 of the Evidence Act is applicable only if the confessional statement leads to the discovery of some new fact. The relevance under the exception postulated by Section 27 aforesaid, is limited "... as relates distinctly to the fact thereby discovered....". The rationale behind Section 27 of the Evidence Act is, that the facts in question would have remained unknown but for the disclosure of the same by the accused. The discovery of facts itself, therefore, substantiates the truth of the confessional statement. And since it is truth that a court must endeavour to search, Section 27 aforesaid has been incorporated as an exception to the mandate contained in Sections 25 and 26 of the Evidence Act.
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58. On account of the fact that the confessional statements made by Madhu Accused 1 and Sibi Accused 2, which is the main linking factor in the circumstantial evidence of the prosecution version of the controversy, being inadmissible as the same cannot be proved against them, we are of the view that the prosecution's case stands fully demolished. In view of 6 inadmissibility of evidence which was taken into consideration by the trial court, as well as, the High Court to implicate the accused with the commission of the offence alleged against them, shall have to be reconsidered on the basis of the remaining evidence.'' The Supreme Court in the case of Indra Dalal Vs. State of Haryana reported in (2015) 11 SCC 31 has held as under :
''23. It is clear that Section 27 is in the form of proviso to Sections 25 and 26 of the Evidence Act. It makes it clear that so much of such information which is received from a person accused of any offence, in the custody of a police officer, which has led to discovery of any fact, may be used against the accused. Such information as given must relate distinctly to the fact discovered. In the present case, the information provided by all the appellant- accused in the form of confessional statements, has not led to any discovery.'' Thus, it is clear that Section 27 of Evidence Act is an exception to Sections 25 and 26 of Evidence Act. If the statement made under Section 27 of Evidence Act, does not lead to a discovery of fact, then it would not be admissible in law.
In the present case, the confessional statement made by the applicant has not led to a discovery of fact, therefore, the same is not admissible in law.
It is next contended by the Counsel for the State that so far as non-holding of Test Identification Parade by the police is concerned, the underlying principle is the satisfaction of the police that the investigation is proceeding in a right direction. Test Identification Parade conducted by the Police is not a substantive piece of evidence and it is the identification in the Court, which is 7 the substantive piece of evidence and it is a well established principle of law that the dock identification cannot be discarded merely on the ground that it was not preceded by Test Identification Parade by Police. In the present case, the complainant will have an opportunity to identify the applicant in the dock, as it was specifically mentioned in the F.I.R., that she would identify the applicant.
The Supreme Court in the case of Mukesh Vs. State (N.C.T. of Delhi) reported in (2017) 6 SCC 1 has held as under :-
''143. In Santokh Singh v. Izhar Hussain, it has been observed that the identification can only be used as corroborative of the statement in court.
144. In Malkhansingh v. State of M.P., it has been held thus: (SCC pp. 751-52, para 7) "7. ... The identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure which obliges the investigating agency to hold, or confers a right upon the accused to claim a test identification parade.
They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure.
Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. ..."
And again: (SCC p. 755, para 16) "16. It is well settled that the substantive evidence is the evidence of identification in court and the test identification parade provies corroboration to the identification of the witness in court, if required.
However, what weight must be 8 attached to the evidence of identification in court, which is not preceded by a test identification parade, is a matter for the courts of fact to examine. ..."
145. In this context, reference to a passage from Visveswaran v. State would be apt. It is as follows: (SCC p. 78, para 11) "11. ... The identification of the accused either in test identification parade or in Court is not a sine qua non in every case if from the circumstances the guilt is otherwise established. Many a time, crimes are committed under the cover of darkness when none is able to identify the accused. The commission of a crime can be proved also by circumstantial evidence. ..."
146. In Manu Sharma v. State (NCT of Delhi), the Court, after referring to Munshi Singh Gautam v. State of M.P., Harbajan Singh v. State of J&K and Malkhansingh, came to hold that the proposition of law is quite clear that even if there is no previous TIP, the court may appreciate the dock identification as being above board and more than conclusive.
Thus, it is clear that the Dock Identification cannot be rejected merely on the ground that no Test Identification Parade was conducted by the Police.
There is some force in the argument advanced by the Counsel for the State that during the evidence, the applicant may be identified by the complainant, and what would be the effect of such identification, will have to be decided by the Trial Court. It is further submitted that the possibility of conviction cannot be a criteria for framing a charge. A strong suspicion that the applicant/ accused might have committed an offence is sufficient to frame charges.
The Supreme Court in the case of Ajay Kumar Parmar vs. State of Rajasthan, reported in AIR 2013 SC 633 has 9 held as under:-
"14. The Magistrate, in exercise of its power under Section 190 Cr.P.C., can refuse to take cognizance if the material on record warrants so. The Magistrate must, in such a case, be satisfied that the complaint, case diary, statements of the witnesses recorded under Sections 161 and 164 Cr.P.C., if any, do not make out any offence. At this stage, the Magistrate performs a judicial function. However, he cannot appreciate the evidence on record and reach a conclusion as to which evidence is acceptable, or can be relied upon. Thus, at this stage appreciation of evidence is impermissible. The Magistrate is not competent to weigh the evidence and the balance of probability in the case."
The Supreme Court in the case of Soma Chakravarty vs. State (The CBI), reported in 2007 AIR SCW 3683 has held as under:-
"20. It may be mentioned that the settled legal position, as mentioned in the above decisions, is that if on the basis of 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. At the time of framing of the charges the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution has to be accepted as true at that stage. Before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commitment of offence by the accused was possible. Whether, in fact, the accused committed the offence, can only be decided in the trial."
The Supreme Court in the case of P. Vijayan vs. State of Kerala and Anr. reported in 2010 CRI. L.J. 1427 has 10 held as under:-
"10. 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. Further, the words "not sufficient ground for proceeding against the accused"
clearly show that the Judge is not a mere Post Office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the Court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the Court, after the trial starts. At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In other words, the sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the Court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him."
The Supreme Court in the case of State of Bihar vs. Ramesh Singh reported in AIR 1977 SC 2018 has held as under:-
"... ...Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient 11 ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. .... "
This Court has thus held that whereas strong suspicion may not take the place of the proof at the trial stage, yet it may be sufficient for the satisfaction of the Trial Judge in order to frame a charge against the accused."
The Supreme Court in the case of Union of India vs. Prafulla Kumar Samal, reported in AIR 1979 SC 366 has held as under:-
"(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 12 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."
The Supreme Court in the case of Niranjan Singh vs. K.S. Punjabi vs. Jitendra Bhimraj Bijjaya, reported in AIR 1990 SC 1869 has held as under:-
"Can he marshal the evidence found on the record of the case and in the documents placed before him as he would do on the conclusion of the evidence adduced by the prosecution after the charge is framed? It is obvious that since he is at the stage of deciding whether or not there exists sufficient grounds for framing the charge, his enquiry must necessarily be limited to deciding if the facts emerging from the record and documents constitute the offence with which the accused is charged. At that stage he may sift the evidence for that limited purpose but he is not required to marshal the evidence with a view to separating the grain from the chaff. All that he is called upon to consider is whether there is sufficient ground to frame the charge and for this limited purpose he must weigh the material on record as well as the documents relied on by the prosecution. In the State of Bihar v. Ramesh Singh (AIR 1977 SC 2018) this Court observed that at 13 the initial stage of the framing of a charge if there is a strong suspicion-evidence which leads the court to think that there is ground for presuming that the accused has committed an offence then it is not open to the court to say that there is no sufficient ground for proceeding against the accused. 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 the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. In Union of India v. Prafulla Kumar Samal (AIR 1979 SC 366) this Court after considering the scope of Section 227 observed that the words 'no sufficient ground for proceeding against the accused' clearly show that the Judge is not merely a post office to frame charge at the behest of the prosecution but he has to exercise his judicial mind to the facts of the case in order to determine that a case for trial has been made out by the prosecution. In assessing this fact it is not necessary for the court to enter into the pros and cons of the matter or into weighing and balancing of evidence and probabilities but he may evaluate the material to find out if the facts emerging therefrom taken at their face value establish the ingredients constituting the said offence."
It is well established principle of law that at the time of framing of charges, meticulous appreciation of evidence is not required and even a strong suspicion is sufficient to frame the charges. If the allegations made against the applicant are considered, then it is clear that there appears to be strong suspicion against the applicant warranting framing of charges.
Considering the nature of allegations, this Court is of the considered opinion, that the Trial Magistrate, did not commit any mistake in framing charge under Section 14 354(A) of I.P.C.
Accordingly, the order dated 27-2-2017 passed by J.M.F.C., Gwalior in Criminal Case No.7125/2016 is hereby affirmed.
The application fails and is hereby dismissed.
(G.S. Ahluwalia) Judge *MKB* MAHENDRA KUMAR BARIK 2017.12.11 19:13:11 +05'30'