Chattisgarh High Court
Devendra Pandey vs State Of Chhattisgarh on 12 January, 2023
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Revision No.557 of 2022
1. Devendra Pandey S/o Late Kashi Ram Pandey, Aged About 60 Years, R/o
C1-C2 Maharana Pratap Nagar, Korba, District-Korba, Chhattisgarh
2. Shivam Pandey S/o Devendra Pandey, Aged About 30 Years, R/o C1-C2
Maharana Pratap Nagar, Korba, District-Korba, Chhattisgarh
---- Applicants
Versus
1. State Of Chhattisgarh Through its Secretary Department of Home
Affairs, Mahanadi Bhavan, Atal Nagar, Nava Raipur, Chhattisgarh
2. State of Chhattisgarh, Through Station House Officer, Police Station, Ajak
Korba, District Korba Chhattisgarh
3. Sandeep Kanwar S/o Nanki Ram Kanwar, Aged About 51 Years, R/o Rani
Road Dhanuharpara, Korba, Kotwali, District-Korba, Chhattisgarh
---Respondents
For Applicants: Dr.N.K.Shukla, Senior Advocate with Ms Priya Mishra, Advocate For Respondents No.1&2 Mr.AmritoDas, Additional Advocate General For Respondent No.3 Mr.Sanjay Agrawal, Advocate Hon'ble Shri Justice Deepak Kumar Tiwari Order on Board 12.1.20223
1. The applicants have filed this criminal revision against the order dated 4.4.2022 passed by the Special Judge, SC/ST (Prevention of Atrocities) Act, Korba, in Special Criminal Case No.06/2021, whereby the Special Judge has framed the charge for offences under Sections 342, 294, 323, 506B Part-II, 325 read with Section 34 of the IPC and Section 3(2) (va) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter called as 'Act of 1989') against the applicants.
2. At the outset, Dr.N.K.Shukla, learned Senior Counsel with Ms Priya Mishra, learned counsel for the applicants, would submit that he only 2 emphasized the charge which has been framed under Section 3(2)(va) of the Act of 1989, for which there is complete want of necessary material. So, no offence of said Section is attracted. Even if the entire charge-sheet is taken as it is, the allegation for the Act of 1989 is not available. He would further submit that the dispute was not on the fact that complainant / respondent No.3 was a member of Scheduled Tribes. He also submits that finding that the applicants were aware of caste of the informant is wholly inconsequential as the knowledge does not bar any person to protect his rights. There is money dispute with respondent No.3 as the applicants have not acted in any manner with intention to humiliate respondent No.3 on the ground that he is belonging to Scheduled Tribes. So, continuance of proceeding in the said charge is clearly abuse of process of law. The Special Judge has committed grave legal error in framing of such charge. So, he prays to allow the instant revision and discharge the applicant from the said charge. He placed reliance on the judgment of this Court in the matter of Krishna Yadav and Another v. State of Chhattisgarh, Through Station House Officer1. Learned Senior Counsel contended that presumption under Section 8 of the Act of 1989 has also not attracted in the facts of the present case. He also placed reliance on the judgments of the Supreme Court in the matters of M.S.Narayana Menon alias Mani v. State of Kerala and another 2 and Izhar Khan v. Union of India3.
3. Per contra, Mr.Amrito Das, learned Additional Advocate General for respondents No.1 & 2 /State and Mr.Sanjay Agrawal, learned counsel for respondent No.3, would support the impugned order and submit 1 2021 SCC OnLine Chh 431 2 (2006) 6 SCC 39 3 AIR 1962 SC 1052 3 that in the revision itself it has not disputed that applicant No.1- Devendra Pandey is also political figure. They would further submit that father of respondent No.3 is also one of the Board of Directors of Shrishti Medical College as applicant No.1 and father of respondent No.3/complainant both have belonged to the same political party and father of the complainant prior to complaint has also worked as Home Minister in State of Chhattisgarh and very well known to everyone that he has contested the election against reserved category of Scheduled Tribes and applicant No.1 is also active political member, so he is much aware of caste of respondent No.3. Even in the revision, the applicants have not denied that they are not aware of caste of the complainant. They further submitted that even applicant No.1 has lodged complaint on 31.8.2016 to the Inspector General of Police, Bilaspur Range alleging that he has an apprehension that the complainant may rope him in a false case of Atrocities Act. Thereafter, the incident took place on 26.8.2020 at about 7.30 p.m. when the applicants along with other co-accused restrained the complainant on his way and also assaulted and abused in filthy language and also threatened to kill him. So, the said offence is mentioned in Schedule of the Act of 1989. They also contended that to attract Section 3(2)(va) of the Act of 1989, at the stage of charge, the Court has only to see that whether the offence is specified in the Schedule and the accused knowing that such person is a member of such category committed an offence for the Schedule offence. They lastly submitted that at the stage of charge, only strong suspicion is sufficient and there is also presumption under Section 8(c) of the Act of 1989. They placed reliance on the judgment of the 4 Supreme Court in the matter of Manendra Prasad Tiwari v. Amit Kumar Tiwari and Another4.
4. I have heard learned counsel for the parties, considered their rival submissions made hereinabove and also perused the documents annexed with revision.
5. Recently, the Supreme Court in the matter of Manendra Prasad Tiwari (supra) has held that the scope of interference and exercise of jurisdiction under Section 397 of CrPC to quash the charges framed by the trial court, the principle is reiterated that at this stage, the Court has to consider the material only with a view to find out if there is ground for "presuming" that the accused has committed an offence and only form an opinion whether there is strong suspicion that the accused has committed an offence and the relevant paras read as under:-
"21. The law is well settled that although it is open to a High Court entertaining a petition under Section 482 of the CrPC or a revision application under Section 397 of the CrPC to quash the charges framed by the trial court, yet the same cannot be done by weighing the correctness or sufficiency of the evidence. In a case praying for quashing of the charge, the principle to be adopted by the High Court should be that if the entire evidence produced by the prosecution is to be believed, would it constitute an offence or not. The truthfulness, the sufficiency and acceptability of the material produced at the time of framing of a charge can be done only at the stage of trial. To put it more succinctly, at the stage of charge the Court is to examine the materials only with a view to be satisfied that prima facie case of commission of offence alleged has been made out against the accused person. It is also well settled that when the petition is filed by the accused under Section 482 CrPC or a revision Petition under Section 397 read with Section 401 of the CrPC seeking for the quashing of charge framed against him, the Court should not interfere with the order unless there are strong reasons to hold that in the interest of justice and to avoid abuse of the process of the Court a charge framed against the 4 2022 SCC OnLIne 1057 5 accused needs to be quashed. Such an order can be passed only in exceptional cases and on rare occasions. It is to be kept in mind that once the trial court has framed a charge against an accused the trial must proceed without unnecessary interference by a superior court and the entire evidence from the prosecution side should be placed on record. Any attempt by an accused for quashing of a charge before the entire prosecution evidence has come on record should not be entertained sans exceptional cases. [se State of Delhi v. Gyan Devi, (2000) 8 Scc 239].
22. The scope of interference and exercise of jurisdiction under Section 397 of CrPC has been time and again explained by this Court. Further, the scope of interference under Section 397 CrPC at a stage, when charge had been framed, is also well settled. At the stage of framing of a charge, the court is concerned not with the proof of the allegation rather it has to focus on the material and form an opinion whether there is strong suspicion that the accused has committed an offence, which if put to trial, could prove his guilt. The framing of charge is not a stage, at which stage the final test of guilt is to be applied. Thus, to hold that at the stage of framing the charge, the court should form an opinion that the accused is certainly guilty of committing an offence, is to hold something which is neither permissible nor is in consonance with the scheme of Code of Criminal Procedure.
24. It is useful to refer to judgment of this Court in Amit Kapoor and Ramesh Chander, (2012) 9 SCC 460, where the scope of Section 397 CrPC has been succinctly considered and explained. Para 12 and 13 resply are as follows:
"12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error and it may not be appropriate for the court to scrutinize the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not 6 exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits.
"13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much advanced stage in the proceedings under the CrPC."
25. The Court in para 27 has recorded its conclusion and laid down the principles to be considered for the exercise of jurisdiction under Section 397 particularly in the context of quashing of charge framed under Section 228 CrPC. Paras 27, 27(1), (2), (3), (9), (13) resply are extracted as follows:
27. Having discussed the scope of jurisdiction under these two provisions, i.e., Section 397 and Section 482 of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but is inherently impossible to state with precision such principles. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be:
27.1. Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.
27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted 7 therewith prima facie establish the offence or not.
If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.
27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.
XXXXXXXXX 27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the Court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.
XXXXXXXXX 27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie...."
26. This Court in the case of Chitresh Kumar Chopra v. State (Government of NCT of Delhi), reported in (2009) 16 SCC 605, observed in para 25 as under:--
"25. 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, disclose the existence of all the ingredients constituting the alleged offence or offences. For this limited purpose, the court may sift the evidence as it cannot be expected even at the initial stage to accept as gospel truth all that the prosecution states. At this stage, the court has to consider the material only with a view to find out if there is ground for "presuming" that the accused has committed an offence and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction.8
27. In State of Maharashtra v. Som Nath Thapa, (1996) 4 SCC 659, a three-Judge Bench of this Court explained the meaning of the word "presume". Referring to the dictionary meanings of the said word, the Court observed thus:
32. ...if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the Court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has commuted the offence. It is apparent that at (1990) 4 SCC 76 the stage of framing of charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage."
6. Reverting to the facts of the present case in light of principle of law laid down by the Supreme Court in Manendra Prasad Tiwari (supra) and considering the presumption under Section 8 of the Act of 1989, further considering the attending circumstances of the case, whether the said presumption attracts or not that has to be seen during the trial, also considering that applicant No.1 himself has made prior complaint against respondent No.3 on 31.8.2016 and from perusal of the material filed by the prosecution, it appears that the respondent No.3 belongs to Scheduled Tribes and for which caste certificate has also been annexed with charge-sheet, this Court is of the view that the Special Judge has not committed any illegality or infirmity in framing of charge under Section 3(2)(va) of the Act of 1989 against the applicants.
7. Accordingly, the criminal revision deserves to be and is hereby dismissed. However, it is made clear that the observation made hereinabove shall not be construed as as expression of any opinion on the merits of the case and the same shall be dealt with strictly in 9 accordance with law.
Sd/-
(Deepak Kumar Tiwari) Judge B/-