Madhya Pradesh High Court
Jagesh vs The State Of Madhya Pradesh on 9 June, 2020
Equivalent citations: AIRONLINE 2020 MP 816
Author: Rajendra Kumar Srivastava
Bench: Rajendra Kumar Srivastava
THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Hon'ble Shri Justice Rajendra Kumar Srivastava
Cr.R. No.404/2019
Jagesh
Vs
State of M.P.
Cr.R. No.1620/2019
Dashrath
Vs
State of M.P.
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Shri Pushpendra Dubey, learned counsel for the petitioner.
Shri Vinod Mishra, learned P.L. for the respondent/State.
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ORDER
(09.06.2020) Since, both the petitions arise from the same order and the relief sought are identical, therefore, these petitions are being heard and decided analogously by this common order.
2. These revision petitions under Section 397/401 Cr.P.C. have been preferred by the petitioners being aggrieved by the order dated 16.08.2018 in S.T. No. 40/2018 passed by 3 rd Additional Sessions Judge, Multai, Distt. Betul, whereby the learned ASJ has framed the charges for the offence punishable under Sections 420, 467, 468, 471 and 120-B of IPC against the petitioners.
3. According to the case, a written complaint was made by one Chayendra Kumar Budekar, Project Officer, Child Welfare 2 Cr.R. No. 404/19 Cr.R. No. 1620/2019 Service, Amla, District Betul, to the police station-Amla alleging that the applications were invited for the post of Aanganwadi Worker, in pursuance to which the interested candidates have filed their candidature-ship enclosing the relevant documents with their applications. It is further stated that on the basis of merits of applicants therein, the merit list was published but certain objections were filed in respect of filing forged mark-sheets by the candidates, hence, the same was enquired about and mark-sheets of four persons, namely, Priyanka, Meera Bai, Anjani and Tulsi Bai were found forged. Thereafter, the police has registered the FIR and during investigation, recorded the memorandum of co-accused Anjani Pawar, wherein she stated that she had taken forged mark-sheet from the petitioner-Jagesh, hence, the petitioner has been made as an accused in the case. Thereafter, in his memorandum, petitioner-Jagesh informed the police that he gave rupees 60,000/- to petitioner- Dashrath for preparing forge mark-sheet of Anjani Pawar. After completing the investigation, the police has filed the charge-sheet before the concerning Magistrate who committed the case to the Court of Sessions and by passing the impugned order, the learned ASJ has framed the charges which are under challenge in these petitions.
4. Learned counsel for the petitioners submits that the learned Court below erred in framing the charges against the petitioners whereas no case is made out against them even after accepting the whole prosecution case as it is. He further submits that the Court below failed to see that there are four persons who have 3 Cr.R. No. 404/19 Cr.R. No. 1620/2019 produced the forged mark-sheets and out of them, only one namely Anjani has stated against the petitioner-Jagesh. Her statement is inadmissible in evidence in the eye of law and petitioner cannot be convicted on that basis. Petitioner-Dashrath has also been impleaded in the case on the basis of memorandum of co-accused/petitioner- Jagesh. There is no other evidence in the case except the memorandum of co-accused persons and no ingredient of conspiracy is found in the case. With the aforesaid, he prays for allowing these revision petitions. In support of his contention, he has relied the order of this High Court passed in M.Cr.C. No. 25653/2017 (Kamal Singh and others Vs. State of MP) and M.Cr.C. No. 24620/2017 (Jankilal Vs. State of MP).
5. On the other hand, learned panel lawyer for the respondent/State opposes the petitions submitting that there is sufficient material available on record for framing the charges of the aforesaid offences against the petitioners. He submits that defence of petitioners may not be considered at this stage and these revision petitions may not be allowed at this initial stage of trial, the petitioners may raise all the grounds before the trial Court at appropriate stage of trial. With the aforesaid, he prays for dismissal of these petitions. In support of his contention he has relied the order in the High Court of MP passed in M.Cr.C. No. 25653/2017 (Kamal Singh and others Vs. State of MP), M.Cr.C. No. 24620/2017 (Jankilal Vs. State of MP) and M.Cr.C. No. 24381/2017 (Raju @ Rajmal Vs. State of MP.
4Cr.R. No. 404/19 Cr.R. No. 1620/2019
6. Heard both the parties and perused the case-diary.
7. Before embarking on the facts of the case, it would be necessary to consider the legal aspects first. Since, by way of filing this revision petition, the petitioner has challenged the charge framed by the learned trial Court, therefore, I would prefer to deal with the provision of Section 227 of Code of Criminal Procedure, 1973, the same reads 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."
8. If the Court finds that sufficient material is available to connect the accused with the offence, then Section 228 of Code Of Criminal Procedure, 1973, comes into role, provision is also quoted as under:
"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, and thereupon the Chief Judicial 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."5 Cr.R. No. 404/19 Cr.R. No. 1620/2019
9. The Hon'ble Supreme Court in the case of Niranjan Singh Karam Singh Punjabi, Advocate Vs. Jitendra Bhimraj Bijja and others (AIR 1990 SC 1962) has held as under:-
"7. Again in Supdt. & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja, (1979) 4 SCC 274: (AIR 1980 SC 52) this Court observed in paragraph 18 of the Judgment as under:
"The standard of test, proof and judgment which is to be applied finally before finding, the accused guilty or otherwise, is not exactly to be applied at the stage of Section 227 or 228 of the Code of Criminal Procedure, 1973. At this stage, even a very strong suspicion founded upon materials before the Magistrate which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged may justify the framing of charge against the accused in respect of the commission of that offence".
From the above discussion it seems well-settled that at the Sections 227-228 stage 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. The Court may 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."
10. Further, in the case of Union of India Vs. Prafulla Kumar Samal and another (AIR 1979 SC 366), the Hon'ble Supreme Court again has held as under:-
"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.6 Cr.R. No. 404/19 Cr.R. No. 1620/2019
(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 Judge cannot act merely as a Post office or a mouth-piece 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."
11. Further, the Hon'ble Apex Court in the case of State of Orissa Vs. Debendra Nath Padhi, (2005) 1 SCC 568 has held as under:-
"23. As a result of the aforesaid discussion, in our view, clearly the law is that at the time of framing charge or taking cognizance the accused has no right to produce any material, Satish Mehra case, holding that the trial court has powers to consider even materials which the accused may produce at the stage of Section 227 of the Code has not been correctly decided."
12. The Hon'ble Apex Court in the case of State of M.P. Vs. S.B. Johari and others reported in 2000(2) M.P.L.J (SC) 322, has also held as under:-
"4...........It is settled law that at the stage of framing the charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully 7 Cr.R. No. 404/19 Cr.R. No. 1620/2019 accepted before it is challenged by cross examination or rebutted by defence evidence, if any, cannot show that accused committed the particular offence. In such case, there would be no sufficient ground for proceeding with the trial. In Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjayya and Others etc. reported in (1990) 4 SCC 76, after considering the provisions of Sections 227 and 228, Cr.P.C., the Court posed a question, whether at the stage of framing the charge, the trial court should marshal the materials on the record of the case as he would do on the conclusion of the trial. The Court held that at the stage of framing the charge inquiry must necessarily be limited to deciding if the facts emerging from such materials constitute the offence with which the accused could be charged. The Court may peruse the records for that limited purpose, but it is not required to marshal it with a view to decide the reliability thereof. The Court referred to earlier decisions in State of Bihar v. Ramesh Singh (1977) 4 SCC 39, Union of India v. Prafulla Kumar Samal (1979) 3 SCC 4 and Supdt. & Remembrancer of Legal Affair, West Bengal vs. Anil Kumar Bhunja (1979) 4 SCC 274 and held thus:
"From the above discussion it seems well settled that at the Sections 227-228 stage 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. The court may for this limited purpose shift the evidence as it cannot be expected even at the 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. (emphasis supplied)
13. In Asian Resurfacing of Road Agency Pvt.Ltd and Anr. v. Central Bureau of Investigation reported in (2018) 16 SCC 299, wherein the Hon'ble Supreme Court has held that petitions challenging the charge should be entertained in rare and rarest of case only to correct the pattern error of jurisdiction and not to re-appreciate the matter.
14. Therefore, it is manifest that while framing the charges, the Court is required to evaluate the material and documents on 8 Cr.R. No. 404/19 Cr.R. No. 1620/2019 record with a view to find out that if the facts emerging therefrom are taken at their face-value, disclose the existence of all the ingredients constituting the alleged offence. The accused has no right to produce any material and deep merits of the case cannot be considered at this stage. The Court should see only the documents annexed with the charge-sheet. The petition challenging the charge should be entertained in rare and rarest of case only to correct the pattern error of jurisdiction and not to re-appreciate the matter.
15. Further, on careful reading of the charge, it appears that the Court has framed the charges of offences under Sections 420, 467, 468, 471 of IPC in furtherance to the offence of Criminal Conspiracy under Section 120-B IPC. On reading of the provision of Section 120-A of I.P.C., it is manifest that a criminal conspiracy exists when two or more people agree to commit any unlawful act, then take some steps towards it's completion. The offence of criminal conspiracy constitutes by two ways, first, by an illegal act or secondly, by an act which may be legal but done through an illegal means, such agreement is designated as a criminal conspiracy. Further, on reading of another provision of IPC, of which charges are framed against the petitioners as well as principle laid down in this regard by the Hon'ble Apex Court in its various pronouncements, in order to apply section 420 IPC, the essential ingredients are:-
(i) cheating;
(ii) dishonestly inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or signed or is capable of being converted into a valuable security, and 9 Cr.R. No. 404/19 Cr.R. No. 1620/2019
(iii) mens-rea of the accused at the time of making the inducement."
16. Further, under the IPC, the cheating is defined in Section 415 and on reading of the said provision in the light of legal verdicts passed in this regard, the following ingredients are necessary to constitute the offence of cheating :-
(1) Deception of any person.
(2) (a) Fraudulently or dishonestly inducing that person;
(i) to deliver any property to any person; or
(ii) to consent that any person shall retain any property; or
(b) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property.
17. Further, the Court below has also framed the charges of Sections 467, 468 and 471 of IPC which are related to the offence of forgery. The definition of forgery is provided under Section 463 IPC and according to it, whoever makes any false documents or false electronic record or part of a document or electronic record with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery. Section 467 of IPC prescribes punishment for making forgery of valuable security, bill, etc. whereas Section 468 of IPC speaks about the punishment for forgery for the purpose of cheating. So far as Section 471 of IPC is concerned, it comes to effect when any person used the documents as genuine knowing the fact that the same is 10 Cr.R. No. 404/19 Cr.R. No. 1620/2019 forged. Section 464 of IPC provides about the making a false documents.
18. After careful reading of aforesaid provisions and principle, I revert back to the facts of the case. On perusal of documents annexed with the case, it is found that the allegation against the petitioner- Jagesh is that he got 70,000/- rupees from the co-accused Anjani Pawar for preparing a forged mark sheet of class 12th which was submitted by her in the office of Women and Child Welfare Department for getting recruitment of the post of "Aanganwadi Worker". On the basis of memorandum of petitioner- Jagesh, police also made Dashrath as accused who allegedly got rupees 60,000/- from the petitioner-Jagesh for preparing forged mark sheet of co-accussed-Anjani Pawar. At this juncture, I would prefer to mention that according to memorandum of petitioner/accused Dashrath, he gave rupees 45,000/- to one Jitendra Prajapati for the same purpose, who is not charge-sheeted by the police. The police has recovered the amount of Rs. 10,000/- from petitioner/accused Jagesh and the amount of Rs. 5,000/- from the possession of petitioner/accused Dashrath. Since, the present case is based upon the memorandum of accused person, therefore, Section 27 of Evidence Act be necessary to read as under:-
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.11 Cr.R. No. 404/19 Cr.R. No. 1620/2019
19. Bare reading of Section 27 of Evidence Act, indicates that statement under Section 27 of Indian Evidence Act is in exception to the ban imposed upon the Courts to utilize confessional statement made under Section 25 and 26 of Indian Evidence Act, so as to protect a person making disclosure from being falsely implicated by the police in whose custody that person remained at the time of making disclosure statement. The provisions of Section 27 of Indian Evidence Act further indicates that the facts disclosed under Section 27 of the Evidence Act can be used only against the person making disclosure statement.
20. On the case in hand, it prima facie appears from the case diary that the mark sheet of four persons were found forged but the petitioners have been made as an accused in relation to forged mark sheet of co-accused Anjani Pawar. Although, the trial Court has framed the aforesaid charges against the petitioners/accused in relation to other persons also allegedly whose mark sheet found to be forged but this is not a case of prosecution. It is not disputed that on the basis of memorandum of Anjani Pawar, the petitioner Jagesh has been implicated as an accused who disclosed about the petitioner Dashrath. There is no other evidence against the petitioners except the memorandum of co-accused. Although, the seizure of Rs. 10,000/- from the possession of petitioner-Jagesh and Rs. 5,000/- from the possession of petitioner-Dashrath were made by the police but same was done after long time of its giving, moreover, there is no material on the record on which it can be said that the seized amount was in 12 Cr.R. No. 404/19 Cr.R. No. 1620/2019 connection with the co-accused Anajni Pawar in any manner. Further during the investigation, the Investigating Officer has also recorded the statement of husband of Anjani Pawar who expressed his unawareness regarding payment of alleged amount by her wife to petitioner/accused for preparing forged mark sheet. There is also no investigation found in relation to Jitendra Prajapati who allegedly got rupees 45,000/- from the co-accused Dashrath. There is no material on the record on which it can be said that the petitioners committed alleged offences. Apart from that there is no material which shows that the petitioners and co-accused Anjani Pawar were entered into an agreement and for getting a job, they prepared and submitted a forged mark-sheet as genuine. In regard to criminal conspiracy, there is no material available on the record as well as no extra judicial confession of petitioners/accused in which he confess his offence. Further no statement of any witnesses is recorded who told that petitioners/accused received any amount from co-accused Anjani Pawar.
21. Therefore, on the aforesaid fact and circumstances of the case, these petitions are allowed and the petitioners are hereby discharged from the offence of Sections 420, 467, 468, 471 and 120- B of IPC.
22. C.C. as per rules.
(Rajendra Kumar Srivastava) Judge L.R. Digitally signed by LALIT SINGH RANA Date: 2020.06.09 16:36:02 +05'30'