Allahabad High Court
Ravindra Pratap Shahi @ Pappu Shahi vs State Of U.P. And Another on 25 October, 2021
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on 07.10.2021 Delivered on 25.10.2021 Court No. - 38 Case :- CRIMINAL REVISION No. - 2183 of 2021 Revisionist :- Ravindra Pratap Shahi @ Pappu Shahi Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Rakesh Kumar Srivastava Counsel for Opposite Party :- G.A.,Satyendra Narayan Singh,Shesh Narain Mishra Connected with Case :- APPLICATION U/S 482 No. - 13664 of 2021 Applicant :- Ravindra Pratap Shahi @ Pappu Shahi Opposite Party :- State of U.P. and Another Counsel for Applicant :- Mithilesh Kumar Tiwari,Gopal Swarup Chaturvedi (Senior Adv.),Rakesh Kumar Srivastava Counsel for Opposite Party :- G.A.,Satyendra Narayan Singh,Shesh Narain Mishra Hon'ble Rajeev Misra,J.
1. Heard Mr. Gopal Swaroop Chaturvedi, learned Senior Advocate assisted by Mr. Rakesh Kumar Srivastava and Mr. Mithlesh Kumar Tiwari, learned counsel for revisionist/applicant, Mr. Prashant Kumar, learned A.G.A. for State along with Mr. P.K. Sahi, learned Brief Holder and Mr. S.N. Singh, learned counsel representing first informant opposite party 2.
2. Perused the record.
3. Criminal Misc. Application under Section 482 Cr. P. C. No. 13664 of 2021, (Ravindra Pratap Shahi @ Pappu Shahi Vs. State of U.P. and others) has been filed challenging charge sheet dated 10.05.2021, submitted in Case Crime No. 0085 of 2021, under Section 306 IPC, P.S. Mahuli, District Sant Kabir Nagar, the Cognizance Taking Order dated 12.05.2021, passed by Chief Judicial Magistrate, Sant Kabir Nagar, upon aforesaid charge sheet as well as entire proceedings of consequential criminal case No. 6488 of 2021 (State Vs. Ravindra Pratap Shahi @ Pappu Shahi), under Section 306 IPC, P.S. Mahuli, District Sant Kabir Nagar, now pending in the Court of Chief Judicial Magistrate, Sant Kabir Nagar.
4. Criminal Revision No. 2183 of 2021 (Ravindra Pratap Shahi @ Pappu Shahi Vs. State of U.P.) has been filed challenging order dated 02.09.2021, passed by Sessions Judge, Sant Kabir Nagar, in S.T. No. 554 of 2021 (State Vs. Ravindra Pratap Shahi @ Pappu Shahi) arising out of Case Crime No. 0085 of 2021, under Section 306 IPC, P.S. Mahuli, District Sant Kabir Nagar, whereby discharge application filed by revisionist has been rejected.
5. During pendency of aforementioned criminal revision, revisionist filed an amendment application seeking challenge to the order dated 04.09.2021, passed by Court below, whereby charges have been framed against revisionist.
6. Record shows that one Raghuveer Gupta (deceased) son of first informant opposite party 2 Ram Bachan, was a railway employee and posted as Gate Man at Railway Station Takia, District Unnao. On the fateful day i.e. 13.03.2021, he consumed some poisonous substance. Ultimately, Raghuveer Gupta died on 13.03.2021 at around 22.00 hours at District Hospital, Unnao, where he was undergoing treatment.
7. Upon death of Raghuveer Gupta, Station Superintendent, Railway Station Takia, District Unnao, sent a written report to Station House Officer, Police Station Bihar, District Unnao. Upon receipt of aforesaid information, an entry regarding same was made in the General Diary of above mentioned Police Station, as G.D. entry no. 19.
8. On the basis of aforesaid G.D. entry, inquest of Raghveer (deceased) was conducted on 14.03.2021. Accordingly, an inquest report dated 14.03.2021 was prepared.
9. Thereafter, post-mortem of the body of deceased was conducted on 14.03.2021 and a post-mortem report dated 14.03.2021 was prepared.
10. Subsequent to above, first informant/opposite party 2 Ram Bachan lodged an F.I.R. dated 15.03.2021, which was registered as Case Crime No. 0085 of 2021, under Section 306 IPC, P.S. Mahuli, District Sant Kabir Nagar. In the aforesaid F.I.R., applicant/revisionist Ravindra Pratap Shahi and Jitendra Kannaujia have been nominated as named accused, whereas one unknown person has also been nominated as an accused.
11. After registration of aforementioned F.I.R., Investigating Officer, proceeded with statutory investigation of above mentioned case crime number in terms of Chapter XII Cr. P. C. Investigating Officer recorded statements of first informant and other witnesses under Section 161 Cr. P. C. Witnesses so examined substantially supported the prosecution story, as unfolded in F.I.R. On the basis of above and other material gathered by Investigating Officer during course of investigation, Investigating Officer opined to submit a charge sheet but only against applicant/revisionist. Accordingly, Investigating Officer submitted charge sheet dated 10.05.2021, whereby applicant/revisionist alone has been charge sheeted, whereas named and unknown accused mentioned in F.I.R. have been exculpated.
12. After submission of above noted charge sheet, In-charge Chief Judicial Magistrate, Sant Kabir Nagar, vide order dated 12.05.2021, took cognizance and simultaneously summoned applicant/revisionist in aforementioned criminal case, vide Cognizance Taking Order/Summoning Order dated 12.05.2021, passed in Case No. 6488 of 2021 (State Vs. Rasvindra Pratap Shahi @ Pappu Shahi).
13. Feeling aggrieved by the charge sheet dated 10.05.2021, Cognizance Taking Order/Summoning Order dated 12.05.2021, passed by Chief Judicial Magistrate, Sant Kabir Nagar, as well as entire proceedings of above mentioned criminal case, applicant, who is a charge sheeted accused, approached this Court by means of aforementioned Criminal Misc. Application.
14. Instant application came up for admission on 07.09.2021 and this Court passed following order:-
"Heard Mr. Gopal Swarup Chaturvedi, learned Senior Counsel assisted by Mr. Mithilesh Kumar Tiwari, learned counsel for applicant, learned A.G.A. for State and Mr. Satyendra Narayan Singh, learned counsel representing opposite party-2.
At the very outset, Mr. S.N. Singh, learned counsel for first informant/opposite party-2 informs the Court that during pendency of present application under Section 482 Cr.P.C., applicant moved a discharge application in terms of Section 227 Cr.P.C. before court below which have been dismissed. He, therefore, contends that in view of above, no relief can be granted to present applicant.
At this juncture, Mr. G.S. Chaturvedi, learned Senior Counsel submits that hearing of present application be deferred so as to enable applicant to file criminal revision, challenging the order passed by court below on discharge application and thereafter the Criminal Revision as well as present application be heard together.
Submission urged by Mr. G.S. Chaturvedi, learned Senior Counsel merits consideration. Accordingly, hearing of present application is deferred.
Matter shall re-appear as fresh on 17.09.2021."
15. During pendency of aforementioned Criminal Misc. Application, concerned Magistrate committed the case to Court of Sessions, as offence complained of, is triable by Court of Sessions.
16. Consequently, Sessions Trial No. 554 of 2021 (State Vs. Ravindra Pratap Shahi @ Pappu Shahi) came to be registered. Subsequently, applicant/revisionist filed a discharge application dated 24.08.2021, claiming discharge in above mentioned Sessions Trial.
17. Discharge application dated 24.08.2021 filed by applicant came to be rejected, vide order dated 02.09.2021 passed by Sessions Judge, Sant Kabir Nagar.
18. Feeling aggrieved by above order dated 02.09.2021, revisionist has filed Criminal Revision No. 2183 of 2021 (Ravindra Pratap Shahi @ Pappu Shahi Vs. State of U.P. and another).
19. During pendency of above noted criminal revision, Court below, vide order dated 04.09.2021, framed charges against revisionist.
20. Consequently, revisionist filed an amendment application challenging framing of charge order dated 04.09.2021.
21. Mr. Gopal Swaroop Chaturvedi, learned Senior counsel assisted by Mr. Rakesh Kumar Srivastava and Mr. Mithlesh Kumar Tiwari, learned counsel for revisionist/applicant submits that entire proceedings of above mentioned criminal case are wholly malicious and therefore liable to be quashed by this Court. In support of his challenge to the entire proceedings of above mentioned criminal case as well as order dated 04.09.2021, whereby Court below has rejected the discharge application filed by revisionist, learned Senior counsel contends that from the material collected by Investigating Officer, no offence under Section 306 IPC is made out against applicant/revisionist. He has then invited attention of Court to the suicide note of the deceased, which is part of the case diary and is also on record at page 64 of the paper book. On the basis of above, learned Senior counsel contends that no abetment, instigation or conspiracy is made out against applicant/revisionist. He further contends that from a plain reading of suicide note, it is apparent that no grudge has been expressed by deceased against applicant/revisionist. The deceased had grievance with the police, who according to deceased, falsely implicated him in a criminal case and in spite of repeated request made by deceased, he was not exculpated. Elaborating his submission, learned Senior counsel further contends that deceased was implicated in a case under Section 354 IPC. Deceased was charge-sheeted and therefore, remedy of deceased was to initiate appropriate legal proceedings for quashing of aforesaid proceedings, which admittedly were not undertaken by him. On the basis of above, learned Senior Counsel further contends that it cannot be that there was any abetment to suicide on the part of applicant/revisionist. He has further invited attention of Court to the judgement rendered by Supreme Court in Arnab Manoranjan Goswami Vs. The State of Maharastra and others, 2021 (2) SCC 427 and has relied upon paragraphs-46, 47, 48, 49, 50, 51, 52 of the judgement. It is also contended by learned Senior counsel that cancellation of lease granted to deceased cannot be attributed to applicant/revisionist. Lease granted to deceased has been cancelled by District Magistrate, as same was illegal. In case, deceased was aggrieved by the cancellation of lease, remedy was to challenge the order of District Magistrate, before appropriate forum. It is, thus, sought to be contended that even on aforesaid premise, it cannot be said that applicant/revisionist has abetted in commission of suicide by deceased. On the aforesaid premise, learned Senior Counsel vehemently submits that applicant/revisionist had made out a cast iron case for discharge. In the present case neither there is any material to establish abetment to suicide on the part of applicant/revisionist nor there is grave suspicion against applicant/revisionist regarding commission of alleged crime. It is thus urged that revision be allowed. Impugned order dated 02.09.2021 be set aside and applicant/revisionist be discharged in afore-mentioned Sessions Trial.
22. Per contra, learned A.G.A. has opposed above mentioned criminal misc. application as well as criminal revision. Mr. Prashant Kumar, learned A.G.A. along with Mr. P.K. Sahi, learned Brief Holder contends that all the submissions urged by learned Senior Counsel in support of criminal revision referred to above, are no longer available to the applicant/revisionist to claim discharge. According to learned A.G.A., it is an admitted position that vide order dated 04.09.2021, charges have been framed against applicant/revisionist. He therefore, submits that once charges have been framed, plea of discharge becomes infructuous. According to learned A.G.A., discharge can be claimed only prior to the framing of charge. Once charges have been framed, Court has no jurisdiction to discharge an accused. After framing of charge, Court can either convict an accused or acquit an accused, but cannot discharge an accused. On the aforesaid premise, learned A.G.A. contends above mentioned criminal misc. application as well as criminal revision require no interference by this court and are liable to be consigned to the record.
23. Mr. S. N. Singh, learned counsel representing first informant/opposite party-2 has adopted the arguments raised by learned A.G.A. He further submits that apart from above on date four prosecution witnesses of fact namely P.W.-1 Ram Bachan, P.W.-2 Shiv Bachan Gupta, P.W.-3 Jai Kisun, P.W.-4 Hari Ram have been examined upto this stage. Therefore, challenge to the framing of charge order dated 04.09.2021 has virtually become meaningless. He further submits that charges can be framed on the basis of grave suspicion or on the basis of material on record. Elaborating his contention, Mr. S. N. Singh submits that abetment to suicide can be gathered from the conduct of an accused also. To lend legal support to his submission, he has relied upon paragraph 11 of judgement in Ranganayaki Vs. State by Inspector of Police, (2004) 12 SCC, 521. For ready reference, paragraph 11 is, accordingly, reproduced herein under:-
"Under Section 109 the abettor is liable to the same punishment which may be inflicted on the principal offender; (1) if the act of the latter is committed in consequence of the abetment and (2) no express provision is made in the IPC for punishment for such an abetment. This section lays down nothing more than that if the IPC has not separately provided for the punishment of abetment as such then it is punishable with the punishment provided for the original offence. Law does not require instigation to be in a particular form or that it should only be in words. The instigation may be by conduct. Whether there was instigation or not is a question to be decided on the facts of each case. It is not necessary in law for the prosecution to prove that the actual operative cause in the mind of the person abetting was instigation and nothing else, so long as there was instigation and the offence has been committed or the offence would have been committed if the person committing the act had the same knowledge and intention as the abettor. The instigation must be with reference to the thing that was done and not to the thing that was likely to have been done by the person who is instigated. It is only if this condition is fulfilled that a person can be guilty of abetment by instigation. Further the act abetted should be committed in consequence of the abetment or in pursuance of the conspiracy as provided in the Explanation to Section 109. Under the Explanation an act or offence is said to be committed in pursuance of abetment if it is done in consequence of (1) instigation (b) conspiracy or (c) with the aid constituting abetment. Instigation may be in any form and the extent of the influence which the instigation produced in the mind of the accused would vary and depend upon facts of each case. The offence of conspiracy created under Section 120A is bare agreement to commit an offence. It has been made punishable under Section 120B. The offence of abetment created under the second clause of Section 107 requires that there must be something more than mere conspiracy. There must be some act or illegal omission in pursuance of that conspiracy. That would be evident by Section 107 (secondly), "engages in any conspiracy.......for the doing of (hat thing, if an act or omission took place in pursuance of that conspiracy". The punishment for these two categories of crimes is also quite different. Section 109 IPC is concerned only with the punishment of abetment for which no express provision has been made in the IPC. The charge under Section 109 should, therefore, be along with charge for murder which is the offence committed in consequence of abetment. An offence of criminal conspiracy is, on the other hand, an independent offence. It is made punishable under Section 120B for which a charge under Section 109 is unnecessary and inappropriate. [See Kehar Singh and Ors. v. The State (Delhi Admn,), AIR (1988) SC 1883]. Intentional aiding and active complicity is the gist of offence of abetment."
24. He has further referred to the order dated 05.04.2021 passed by Court below, whereby bail application of applicant/revisionist was rejected. Photo copy of aforesaid order, relied upon by learned counsel representing opposite party 2 was placed before Court, which was taken on record. It is thus urged that framing of charge order dated 04.09.2021 is perfectly just and legal. Consequently, it is submitted that no indulgence be granted by this Court in favour of applicant/revisionist.
24. Having heard learned counsel for applicant/revisionist, learned A.G.A. for State, Mr. S. N. Singh, learned counsel representing opposite party-2 and upon perusal of material on record, this Court finds that the fate of criminal misc. application no. 13664 of 2021 (Ravindra Pratap Shahi @ Pappu Shahi Vs. State of U.P. and Another) shall ultimately abide by the result of Criminal Revision No. 2183 of 2021 (Ravindra Pratap Shahi @ Pappu Shahi Vs. State of U.P. and Another). Consequently, Court is required to examine the veracity of order dated 02.09.2021, whereby discharge application filed by applicant/revisionist has been rejected and also the necessity to decide the same.
25. Case in hand arises out of proceedings of Sessions Trial. Consequently, discharge could be claimed by applicant/revisionist under Section 227 Cr.P.C. Accordingly Section 227 Cr.P.C. is reproduced herein 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 no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing."
26. Section 227 Cr.P.C. contemplates that court shall discharge an accused provided there is no sufficient ground for proceeding against the accused. The term "sufficient ground" has been explained by Supreme Court and therefore, no longer subject matter of debate. Apex Court in Yogesh Joshi Vs. State of Maharastra, AIR 2008 Supreme Court 2971, considered the aforesaid term and ultimately delineated its views in paragraphs- 13, 14 and 15, which are reproduced herein-under:-
"13. Before adverting to the rival submissions, we may briefly notice the scope and ambit of powers of the Trial Judge under Section 227 of the Code.
14. Chapter XVIII of the Code lays down the procedure for trial before the Court of Sessions, pursuant to an order of commitment under Section 209 of the Code. Section 227 contemplates the circumstances whereunder there could be a discharge of an accused at a stage anterior in point of time to framing of charge under Section 228. It provides that upon consideration of the record of the case, the documents submitted with the police report and after hearing the accused and the prosecution, the Court is expected, nay bound to decide whether there is "sufficient ground" to proceed against the accused and as a consequence thereof either discharge the accused or proceed to frame charge against him.
15. It is trite that the words "not sufficient ground for proceeding against the accused" appearing in the Section postulate exercise of judicial mind on the part of the Judge to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. However, in assessing this fact, the Judge has the power to sift and weigh the material 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 a prima facie case depends upon the facts of each case and in this regard it is neither feasible nor desirable 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 gives rise to suspicion only as distinguished from grave suspicion, he will be fully within his right to discharge the accused. At this stage, he is not to see as to whether the trial will end in conviction or not. The broad test to be applied is whether the materials on record, if unrebutted, makes a conviction reasonably possible. [See: State of Bihar Vs. Ramesh Singh and Prafulla Kumar Samal (supra)]"
27. Subsequently, the ambit and scope of Section 227 Cr.P.C. as well as parameters regarding exercise of jurisdiction under Section 227 Cr.P.C. came to be considered by a three Judges Bench of Supreme Court in Tarun Jit Tejpal Vs. State of Goa and Another, 2019 SCC Online Sc 1053, wherein Court concluded as under in paragraphs 27, 28, 29, 30, 31, 32:
" 27. Now, so far as the prayer of the appellant to discharge him and the submissions made by Shri Vikas Singh, learned Senior Advocate on merits are concerned, the law on the scope at the stage of Section 227/228 CrPC is required to be considered.
28. In the case of N. Suresh Rajan (Supra) this Court had an occasion to consider in detail the scope of the proceedings at the stage of framing of the charge under Section 227/228 CrPC. After considering earlier decisions of this Court on the point thereafter in paragraph 29 to 31 this Court has observed and held as under:
"29. We have bestowed our consideration to the rival submissions and the submissions made by Mr Ranjit Kumar commend us. True it is that at the time of consideration of the applications for discharge, the court cannot act as a mouthpiece of the prosecution or act as a post office and may sift evidence in order to find out whether or not the allegations made are groundless so as to pass an order of discharge. It is trite that at the stage of consideration of an application for discharge, the court has to proceed with an assumption that the materials brought on record by the prosecution are true and evaluate the said materials and documents with a view to find out whether the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage.
30. Reference in this connection can be made to a recent decision of this Court in Sheoraj Singh Ahlawat v. State of U.P. [(2013) 11 SCC 476 : (2012) 4 SCC (Cri) 21 : AIR 2013 SC 52] , in which, after analysing various decisions on the point, this Court endorsed the following view taken in Onkar Nath Mishra v. State (NCT of Delhi) [(2008) 2 SCC 561 : (2008) 1 SCC (Cri) 507] : (Sheoraj Singh Ahlawat case [(2013) 11 SCC 476 : (2012) 4 SCC (Cri) 21 : AIR 2013 SC 52] , SCC p. 482, para 15) "15. '11. It is trite 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, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence.' (Onkar Nath case [(2008) 2 SCC 561 : (2008) 1 SCC (Cri) 507] , SCC p. 565, para 11)" (emphasis in original)
31. Now reverting to the decisions of this Court in Sajjan Kumar [Sajjan Kumar v. CBI, (2010) 9 SCC 368 : (2010) 3 SCC (Cri) 1371] and Dilawar Balu Kurane [Dilawar Balu Kurane v. State of Maharashtra, (2002) 2 SCC 135 : 2002 SCC (Cri) 310] , relied on by the respondents, we are of the opinion that they do not advance their case. The aforesaid decisions consider the provision of Section 227 of the Code and make it clear that at the stage of discharge the court cannot make a roving enquiry into the pros and cons of the matter and weigh the evidence as if it was conducting a trial. It is worth mentioning that the Code contemplates discharge of the accused by the Court of Session under Section 227 in a case triable by it; cases instituted upon a police report are covered by Section 239 and cases instituted otherwise than on a police report are dealt with in Section 245. From a reading of the aforesaid sections it is evident that they contain somewhat different provisions with regard to discharge of an accused:
31.1. Under Section 227 of the Code, the trial court is required to discharge the accused if it "considers that there is not sufficient ground for proceeding against the accused". However, discharge under Section 239 can be ordered when "the Magistrate considers the charge against the accused to be groundless". The power to discharge is exercisable under Section 245(1) when, "the Magistrate considers, for reasons to be recorded that no case against the accused has been made out which, if unrebutted, would warrant his conviction".
31.2. Section 227 and 239 provide for discharge before the recording of evidence on the basis of the police report, the documents sent along with it and examination of the accused after giving an opportunity to the parties to be heard. However, the stage of discharge under Section 245, on the other hand, is reached only after the evidence referred in Section 244 has been taken.
31.3. Thus, there is difference in the language employed in these provisions. But, in our opinion, notwithstanding these differences, and whichever provision may be applicable, the court is required at this stage to see that there is a prima facie case for proceeding against the accused. Reference in this connection can be made to a judgment of this Court in R.S. Nayak v. A.R. Antulay [(1986) 2 SCC 716 : 1986 SCC (Cri) 256] . The same reads as follows: (SCC pp. 755 56, para 43) "43. ... Notwithstanding this difference in the position there is no scope for doubt that the stage at which the Magistrate is required to consider the question of framing of charge under Section 245(1) is a preliminary one and the test of 'prima facie' case has to be applied. In spite of the difference in the language of the three sections, the legal position is that if the trial court is satisfied that a prima facie case is made out, charge has to be framed."
29. In the subsequent decision in the case of S. Selvi (Supra) this Court has summarised the principles while framing of the charge at the stage of Section 227/228 of the CrPC. This Court has observed and held in paragraph 6 and 7 as under:
"6. It is well settled by this Court in a catena of judgments including Union of India v. Prafulla Kumar Samal [Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4 : 1979 SCC (Cri) 609] , Dilawar Balu Kurane v. State of Maharashtra [Dilawar Balu Kurane v. State of Maharashtra, (2002) 2 SCC 135 : 2002 SCC (Cri) 310] , Sajjan Kumar v. CBI[Sajjan Kumar v. CBI, (2010) 9 SCC 368 : (2010) 3 SCC (Cri) 1371] , State v. A. Arun Kumar [State v. A. Arun Kumar, (2015) 2 SCC 417 : (2015) 2 SCC (Cri) 96 : (2015) 1 SCC (L&S) 505] , Sonu Gupta v. Deepak Gupta [Sonu Gupta v. Deepak Gupta, (2015) 3 SCC 424 : (2015) 2 SCC (Cri) 265] , State of Orissa v. Debendra Nath Padhi [State of Orissa v. Debendra Nath Padhi, (2003) 2 SCC 711 : 2003 SCC (Cri) 688] , Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya [Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya, (1990) 4 SCC 76 : 1991 SCC (Cri) 47] and Supt. & Remembrancer of Legal Affairs v. Anil Kumar Bhunja [Supt. & Remembrancer of Legal Affairs v. Anil Kumar Bhunja, (1979) 4 SCC 274 : 1979 SCC (Cri) 1038] that the Judge while considering the question of framing charge under Section 227 of the Code in sessions cases (which is akin to Section 239 CrPC pertaining to warrant cases) 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; where the material placed before the court discloses grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing the charge; by and large 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 rights to discharge the accused. The Judge 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 statements 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 materials as if he was conducting a trial.
7. In Sajjan Kumar v. CBI [Sajjan Kumar v. CBI, (2010) 9 SCC 368 : (2010) 3 SCC (Cri) 1371] , this Court on consideration of the various decisions about the scope of Sections 227 and 228 of the Code, laid down the following principles: (SCC pp. 376, 77, para 21) "(i) The Judge while considering the question of framing the charges under Section 227 CrPC 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 disclose 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."
30. In the case of Mauvin Godinho (Supra) this Court had an occasion to consider how to determine prima facie case while framing the charge under Section 227/228 of the CrPC. In the same decision this Court observed and held that while considering the prima facie case at the stage of framing of the charge under Section 227 of the CrPC 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.
31. At this stage the decision of this Court in the case of Stree Atyachar Virodhi Parishad (Supra) is also required to be referred to. In that aforesaid decision this Court had an occasion to consider the scope of enquiry at the stage of deciding the matter under Section 227/228 of the CrPC. In paragraphs 11 to 14 observations of this Court in the aforesaid decision are as under :
"11. Section 227 of the Code of Criminal Procedure having bearing on the contentions urged for the parties, provides:
"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 no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing."
12. Section 228 requires the Judge to frame charge if he considers that there is ground for presuming that the accused has committed the offence. The interaction of these two sections has already been the subject matter of consideration by this Court. In State of Biharv. Ramesh Singh [(1977) 4 SCC 39 : 1977 SCC (Cri) 533 : (1978) 1 SCR 257] , Untwalia, J., while explaining the scope of the said sections observed: [SCR p. 259 : SCC pp. 41 42 : SCC (Cri) pp. 535 36, para 4] Reading the two provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously Judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. 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 ground for proceeding against the accused.
13. In Union of India v. Prafulla Kumar Samal [(1979) 3 SCC 4 : 1979 SCC (Cri) 609 : (1979) 2 SCR 229] , Fazal Ali, J., summarised some of the principles: [SCR pp. 234 35 : SCC p. 9 : SCC (Cri) pp. 613 14, para 10] "
(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 had 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 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."
14. These two decisions do not lay down different principles. Prafulla Kumar case [(1979) 3 SCC 4 : 1979 SCC (Cri) 609 : (1979) 2 SCR 229] has only reiterated what has been stated in Ramesh Singh case [(1977) 4 SCC 39 : 1977 SCC (Cri) 533 : (1978) 1 SCR 257] . In fact, Section 227 itself contains enough guidelines as to the scope of enquiry for the purpose of discharging an accused. It provides that "the Judge shall discharge when he considers that there is no sufficient ground for proceeding against the accused". The "ground" in the context is not a ground for conviction, but a ground for putting the accused on trial. It is in the trial, the guilt or the innocence of the accused will be determined and not at the time of framing of charge. The court, therefore, need not undertake an elaborate enquiry in sifting and weighing the material. Nor is it necessary to delve deep into various aspects. All that the court has to consider is whether the evidentiary material on record if generally accepted, would reasonably connect the accused with the crime. No more need be enquired into."
32. Applying the law laid down by this Court in the aforesaid decisions and considering the scope of enquiry at the stage of framing of the charge under Section 227/228 if the CrPC, we are of the opinion that the submissions made by the learned Counsel appearing on behalf of the appellant on merits, at this stage, are not required to be considered. Whatever submissions are made by the learned Counsel appearing on behalf of the appellant are on merits are required to be dealt with and considered at an appropriate stage during the course of the trial. Some of the submissions may be considered to be the defence of the accused. Some of the submissions made by the learned Counsel appearing on behalf of the appellant on the conduct of the victim/prosecutrix are required to be dealt with and considered at an appropriate stage during the trial. The same are not required to be considered at this stage of framing of the charge. On considering the material on record, we are of the opinion that there is more than a prima facie case against the accused for which he is required to be tried. There is sufficient ample material against the accused and therefore the learned Trial Court has rightly framed the charge against the accused and the same is rightly confirmed by the High Court. No interference of this Court is called for."
28. Having noted the law regarding exercise of jurisdiction under Section 227 Cr.P.C., this Court is further required to examine as to whether after charges have been framed the issue relating to discharge of an accused can be considered by court or not. Aforesaid issue is no longer res-integra and stands concluded by the judgement of Supreme Court in Ratilal Bhanji Mithani Vs. State of Maharastra and others (1979) 2 SCC 179, paragraph 28, which has been followed in Bharat Parikh Vs. C.B.I. and another, (2008) 10 SCC 109, paragraph 16, State through C.B.I. New Delhi Vs. Jitendra Kumar Singh, (2014) 11 SCC, 724, paragraph 40, Hardeep Singh Vs. State of Punjab, (2014) 3 SCC, 92, paragraph 31.
29. It is thus apparent that once charges have been framed, the issue of discharge becomes redundant, as Courts have no jurisdiction to allow discharge after charges having been framed. After charges have been framed, Court can either convict or acquit an accused. Admittedly, in the present case, charges have been framed, vide order dated 04.09.2021. Resultantly, this Court now cannot examine the veracity of order dated 02.09.2021, whereby discharge application filed by applicant was rejected.
30. This leads to the last question to be considered by this Court i.e. the veracity of the order dated 04.09.2021, whereby charges have been framed against applicant/revisionist.
31. In a Sessions Trial, charges are framed under Section 228 Cr. P. C. Parameters regarding exercise of jurisdiction under Section 228 Cr. P. C. has now been considered by a three Judges Bench of Apex Court in Bhawna Bai Vs. Ghanshyam and others, 2020 (2) SCC, 217, wherein Court has held as follows in paragraphs 15 and 16.
"15. Considering the scope of Sections 227 and 228 Crl.P.C., in Amit Kapoor v. Ramesh Chander and another (2012) 9 SCC 460, the Supreme Court held as under:-
"17. Framing of a charge is an exercise of jurisdiction by the trial court in terms of Section 228 of the Code, unless the accused is discharged under Section 227 of the Code. Under both these provisions, the court is required to consider the "record of the case" and documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. Once the facts and ingredients of the section exists, then the court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. This presumption is not a presumption of law as such. The satisfaction of the court in relation to the existence of constituents of an offence and the facts leading to that offence is a sine qua non for exercise of such jurisdiction. It may even be weaker than a prima facie case. There is a fine distinction between the language of Sections 227 and 228 of the Code. Section 227 is the expression of a definite opinion and judgment of the Court while Section 228 is tentative. Thus, to say that at the stage of framing of charge, the Court should form an opinion that the accused is certainly guilty of committing an offence, is an approach which is impermissible in terms of Section 228 of the Code. ...........
19. At the initial stage of framing of a charge, the court is concerned not with proof but with a strong suspicion that the accused has committed an offence, which, if put to trial, could prove him guilty. All that the court has to see is that the material on record and the facts would be compatible with the innocence of the accused or not. The final test of guilt is not to be applied at that stage. We may refer to the well-settled law laid down by this Court in State of Bihar v. Ramesh Singh (1977) 4 SCC 39: (SCC pp. 41-42, para 4) "4. Under Section 226 of the Code while opening the case for the prosecution the Prosecutor has got to describe the charge against the accused and state by what evidence he proposes to prove the guilt of the accused. Thereafter comes at the initial stage the duty of the court to consider the record of the case and the documents submitted therewith and to hear the submissions of the accused and the prosecution in that behalf. The Judge has to pass thereafter an order either under Section 227 or Section 228 of the Code. If ''the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing', as enjoined by Section 227. If, on the other hand, ''the Judge is of opinion that there is ground for presuming that the accused has committed an offence which -- ... (b) is exclusively triable by the court, he shall frame in writing a charge against the accused', as provided in Section 228. Reading the two provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction.
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 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. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section 227.""
16. After referring to Amit Kapoor, in Dinesh Tiwari v. State of Uttar Pradesh and another (2014) 13 SCC 137, the Supreme Court held that for framing charge under Section 228 Crl.P.C., the judge is not required to record detailed reasons as to why such charge is framed. On perusal of record and hearing of parties, if the judge is of the opinion that there is sufficient ground for presuming that the accused has committed the offence triable by the Court of Session, he shall frame the charge against the accused for such offence.
32. Admittedly, discharge claimed by applicant/revisionist has been refused by Court below, vide order dated 02.09.2021. Criminal Revision preferred by applicant/revisionist cannot be considered now as charges have already been framed. Thus by necessary implication, this Court now cannot examine the veracity of the framing of charge order dated 04.09.2021.
33. Apart from above, when framing of charge order is examined in the light of ambit and scope of Section 228 Cr. P. C. as defined by Apex Court in aforementioned judgement, this Court is of considered opinion that at this stage, it cannot be said that no offence under Section 306 IPC is made out against applicant/revisionist. Arguments raised on behalf of applicant/revisionist, the submissions urged by learned A.G.A. and Mr. S.N. Singh, learned counsel representing opposite party 2 will all have to be considered to decide the correctness of order dated 04.09.2021. This exercise will itself amount to mini trial, which is not permissible, while deciding the correctness of an order passed in terms of Section 228 Cr. P. C.
34. For the facts and reasons noted above, this Court does not find any good ground to interfere. As a result, Criminal Misc. Application as well as Criminal Revision filed by applicant/revisionist are liable to be dismissed.
35. They are, accordingly, dismissed.
36. Cost made easy.
Order Date :- 25.10.2021 HSM