HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved/AFR Court No. 13 Case :- CRIMINAL REVISION No. - 4253 of 2010 Revisionist :- Yashpal Opposite Party :- State Of U.P. & Another Counsel for Revisionist :- Dharmendra Singhal Counsel for Opposite Party :- Govt. Advocate Hon'ble Amar Singh Chauhan, J.
Heard Shri Ankit Agarwal, holding brief of Shri Dharmendra Singhal, learned counsel for the revisionist and learned Additional Government Advocate and perused the record of the case.
This criminal revision has been filed against the order dated 16.9.2010 passed by the Additional Sessions Judge, Deoband, district Saharanpur in ST No. 147 of 2010 arising out of case crime No. 692 of 2009 whereby the application moved by the accused-revisionist for discharge under sections 272, 273 IPC and 60/62 of the Excise Act has been rejected and charages were framed against the revisionist under sections 272, 273 IPC and 60 of the Excise Act. However, the learned Judge discharged the accused-revisionist under section 62 of the Excise Act.
In brief, the facts of the case as set out in the FIR lodged by SSI Sri Suresh Babu Itoria on 15.9.2009 at 4.10 P.M. at case crime No. 692 of 2009 are that on an information, the police party headed by him arrested the revisionist Yashpal along with five other accused persons. From the possession of the revisionist a plastic cane containing 50 litres of liquor was recovered, which was smelling like rectified adulterated liquor. After taking the sample, the liquor was sealed.
On enquiry, the revisionist confessed that the recovered item is rectified adulterated liquor and the same was to be sold at Deoband and other adjoining villages. On the basis of the alleged confession of the accused-revisionist, the offence comes within the purview of sections 272, 273 IPC and 60/62 Excise Act. The accused was made aware of the alleged offence and arrest memo was prepared. For the monitory benefit, the accused-revisionist along with others are selling the rectified adulterated liquor and playing with the lives of the people.
After investigation, the charge sheet was submitted against the revisionist under sections 272, 273 IPC and 60/62 of the Excise Act. However, the accused was discharged under section 62 of the Excise Act by the learned Judge by the impugned order.
The recovered item was sent to Forensic Science Laboratory, Agra for chemical examination and as per the report of the Forensic Science Laboratory, Agra dated 5.6.2010, the recovered item contained Ethyl alcohol which is poisonous.
Learned counsel for the revisionist has contended that only Ethyl alcohol was found in the recovered liquor, which is an essential ingredient of liquor and is not noxious as per Parikh's Textbook of Medical Jurisprudence, Forensic Medicine and Toxicology under the heading Alcohol (Ethyl Alcohol).
It is further submitted that the recovered liquor was not adulterated.
It is also submitted that the learned Magistrate has illegally and arbitrarily rejected the application of the revisionist for discharge and framed the charges.
Per contra, learned Additional Government Advocate submitted that from the possession of the revisionist huge quantity of adulterated liquor was recovered, which contained Ethyl alcohol, which is poisonous as per the report of the Forensic Science Laboratory, Agra dated 5.6.2010.
Learned Additional Government Advocate has further submitted that learned court below has sufficient evidence to frame the charges against the revisionist under sections 272, 273 IPC and 60 Excise Act and discharged him from the charges under section 62 of the Excise Act.
The purpose of framing a charge is to give intimation to the accused of clear, unambiguous and precise notice of the nature of accusation that the accused is called upon to meet in the course of a trial.
Before considering the claim of the parties, it is useful to refer to sections 227 and 228 of the Code of Criminal Procedure, which are reproduced below:
Discharge.
"227. 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. "
Framing of charge.
228. (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 or any other Judicial magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of first class, on such date as he deems fit, and thereupon such Magistrate shall try the offence in accordance with the procedure for the trial of warrant-cases 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 frame 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."
Relative scope of sections 227 and 228 of the Code was noticed and considered by the Hon'ble Supreme Court in Amit Kapoor Vs. Ramesh Chander and another, (2012) 9 SCC 460. The Hon'ble Supreme Court held as undeer:
"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 charage. Once the facts and ingrediants 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 quo 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 judgement of the court while section 228 is tentative. Thus, to say that at the stage of framing of charage, 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."
In the case of Onkar Nath Mishra and others Vs. State (NCT of Delhi) and another (2008) 2 SCC 561, the Hon'ble Apex Court in paragraph 11 of the judgement held as under:
"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."
A three Judges Bench of Hon'ble Supreme Court in the case of State of Maharashtra Vs. Som Nath Thapa, (1996) 4 SCC 659 after noting three pairs of sections viz. (i) Sections 227 and 228 insofar as sessions trial is concerned (ii) Sections 239 and 240 relatable to trial of warrant cases, and (iii) Sections 245(1) and (2) qua trial of summons cases, which dealt with the question of framing of charge or discharge, stated 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 courts 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 committed the offence. It is apparent that at the staage of framing of a charage, 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.
In State of M.P. Vs. Mohanlal Soni, (2000) 6 SCC 338, the Hon'ble Supreme court held in paragraph 7 as under"
" 7.The crystallised judicial view is that at the stage of framing 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 evidence to conclude whether the materials produced are sufficient or not for convicting the accused. "
In the case of State of Orissa Vs. Debendra Nath Padhi, (2005)1 SCC 568, Hon'ble Supreme court while considering the question whether the trial court can at the time of framing of charges consider the material filed by the accused, answered in negative in following words:
"18. We are unable to accept the aforesaid contention.The reliance on Articles 14 and 21 is misplaced...... Further, at the stage of framing of charge roving and fishing inquiry is impermissible. If the contention of the accused is accepted, there would be a mini-trial at the stage of framing of charage. That would defeat the object of the Code. It is well settled that at the stage of framing of charge the defence of the accused cannot be put forth. The acceptance of the contention of the learned counsel for the accused would mean permitting the accused to adduce his defence at the stage of framing of charge and for examination thereof at that stage which is against the criminal jurisprudence. By way of illustration it may be noted that the plea of alibi taken by the accused may have to be examined at the stage of framing of charage if the contention of the accused is accepted despite the well settled proposition that it is for the accused to lead evidence at the trial to sustain such a plea. The accused would be entitled to produce materials and doucments in proof of such a plea at the stage of framing of the charage, in case we accept the contention put forth on behalf of the accused. That has never been the intention of the law well settled for over one hundred years now. It is in this light that the provision about hearing the submissions of the accused as postulated by Section 227 is to be understood. It is only means hearing the submissions of the accused on the record of the case as filed by the prosecution and documents submitted therewith and nothing more. The expression"hearing the submissions of the accused" cannot mean opportunity to file material to be granted to the accused and thereby changing the settled law. At the stage of framaing of charage hearing the submissions of the accused has to be confined to the material produced by the police."
In Union of India Vs. Prafulla Kumar Samal,(1979)3 SCC 4, the scope of section 227 Cr.P.C. was considered and after adverting to various decisions, the Hon'ble Supreme court has enumerated the following principles:
"(1) That the Judges 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 discloses 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 depends 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 discharage the accused.
(4) That in exercising his jurisdiction under section 227 of the Code the Judge which under the present Code a senior and experienced 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 infirmitites 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.
Hon'ble Supreme Court in Sajjan Kumar Vs. Central Bureau of Investigation, (2010)9 SCC, held in paragraph 24 of the judgement as under"
"At the stage of framing of charage under section 228 Cr.P.C. or while considering the discharge petition filed under Section 227, it is not for the Magistrate or the Judge concerned to analyse all the materials including pros and cons, reliability or acceptability, etc. It is at the trial, the Judge concerned has to appreciate their evidentiary value, credibility or otherwise of the statement, veracity of various documents and is free to take a decision one way or the other."
In Sheoraj Singh Ahlawat and others Vs. State of Uttar Pradesh and another, (2013)11 SCC 476, Hon'ble Apex Court after citing the catena of judgements has summorised the principles in respect of framing of charges or discharage of the accused and held as under:
"While framing charages, court is required to evaluate materials and documents on record to decide whether facts emerging therefrom taken at their face value would disclose existence of ingredients constituting the alleged offence. At this stage, the court is not required to go deep into probative value of materials on record. It needs to evaluate whether there is a ground for presuming that accused had committed offence. But it should not evaluate sufficiency of evidence to convict accused. Even if, there is a grave suspicion against the accused and it is not properly explained or court feels that accused might have committed offence, then framing of charge against the accused is justified. It is only for conviction of accused that materials must incidate that accused had committed offence but for framing of charges if materials indicate that accused might have committed offence, then framing of charge is proper. Materials brought on by prosecution must be believed to be true and their probative value cannot be decided at this stage. The accused entitled to urge his contentions only on materials submitted by prosecution. He is not entitled to produce any material at this stage and the court is not required to consider any such material, if submitted. Whether the prima facie case made out depends upon fact and circumstances of each case. If two views are possible and materials indicate mere suspicion, not being grave suspicion, against accused then he may be discharged. The court has to consider broad probabilities of case, total effect of evidence and documents produced before it.The court should not act as mouthpiece of prosecution and it is impermissible to have roving enquiry at the stage of framing of charges."
In the case in hand, huge quantity of liquor was recovered from the possession of the revisionist-accused and sample of the same was sent to Forensic Science Laboratory, Agra and vide report dated 5.6.2010, it has affirmed that in the recovered liquor Ethyl alcohol poison was found. Section X of Parikh's Textbook of Medical Jurisprudence, Forensic Medicine and Toxicology at Q.10.09 it is provided that Ethyl alcohol drpresses the central nervous system irregularly in descending order from cortex to medulla. It first depresses the higher centres which control judgement and behaviour, then the motor centres and finally the vital centres in the medulla.
Moreover, the defence of the applicant that Ethyl alcohol is not noxious cannot be considered at this stage and charage can even be framed on the basis of strong suspicious circumstances.
Having considered the submissions of the parties, I am of the view that there is no infirmity or illegality in the impugned order dated 16.9.2010 passed by the Additional Sessions Judge, Deoband, district Saharanpur. The revision is accordingly dismissed.
Interim order dated 5.10.2010 stands discharged.
Dated: 20.11.2015 Ishrat