HONOURABLE JUSTICE G.SRI DEVI
CRL.R.C.No.222 of 2020
O R D E R:
This Criminal Revision Case is directed against the order of the IV-Additional Chief Metropolitan Magistrate, Hyderabad, passed in Crl.M.P.No.4589 of 2019 in C.C.No.1598 of 2018, dated 27.01.2020, whereby the learned Magistrate dismissed the petition filed by the petitioner/A-15, under Section 239 of Cr.P.C., seeking to discharge him for the alleged offences punishable under Sections 143, 147, 148, 342, 186, 353, 120-B read with Section 149 of the I.P.C. and Section 7 (1) (a) of the Criminal Law (Amendment) Act, 1932.
Revision Petitioner is accused No.15 in Crime No.526 of 2017 registered for the offences punishable under Sections 143, 147, 148, 342, 186, 353, 120-B read with Section 149 of the I.P.C. and Section 7 (1) (a) of the Criminal Law (Amendment) Act, 1932. Subsequently the Sub-Inspector of Police, Osmania University Police Station, after completion of entire investigation, filed charge sheet against the petitioner and others for the aforesaid offences, which was taken cognizance as C.C.No.1598 of 2018. It is stated that since the name of the petitioner is not shown in the First Information Report and no specific overt acts were attributed against the petitioner in the charge sheet and also in the statements of the witnesses recorded by the police under Section 161 of Cr.P.C., the petitioner filed Crl.M.P.No.4589 of 2019 under Section 239 of Cr.P.C. requesting the 2 GSD, J Crlrc_222_2020 trial Court to discharge him for the said alleged offences. However, the trial Court having considered the entire material available on record, dismissed the said petition by its order, dated 27.01.2020. Aggrieved by the said order, the petitioner/A-15 filed the present Criminal Revision Case.
Heard learned Counsel appearing for the petitioner; learned Assistant Public Prosecutor appearing for respondents 1 and 2, learned Standing Counsel appearing for the 3rd respondent and perused the record.
It has been submitted by the learned Counsel appearing for the petitioner that the order passed by the trial Court is arbitrary, illegal, weight of evidence and against the facts and probabilities of the case. It is also submitted that on the basis of documentary evidence on record and legal submissions made by the learned Counsel for the petitioner, the learned Magistrate ought to have allowed the petition filed for discharge of the petitioner for the charges framed against him. It is further submitted that the trial Court ought to have seen that the name of the petitioner was not mentioned in the accused column at Sl.No.15 of the First Information Report and that there are no specific overt acts attributed against the petitioner in the charge sheet and also in the statement of witnesses recorded by the police under Section 161 of Cr.P.C. It is also submitted that the trial Court ought to have seen 3 GSD, J Crlrc_222_2020 that the 2nd respondent is none other than the Sub-Inspector of Police and he has no knowledge about the students, who had attacked the police officials, and that he filed the complaint only after obtaining the hostel inmate records from the concerned authority. It is further submitted that the trial Court ought to have seen that there is no evidence to show that the petitioner participated in prosecution of common object of unlawful assembly by the university students and moreover there are no specific overt acts against the petitioner. It is further submitted that the trial Court ought to have seen that the alleged incident occurred in front of new Maneru Hostel of the university, in which one student committed suicide, but the petitioner was a resident of another hostel and he has nothing to do with the alleged offence occurred in front of Maneru Hostel and that mere presence of the petitioner when the alleged incident was occurred does not constitute any offence. It is also submitted that as per admitted facts and documents relied upon by the prosecution, no case is made out against the petitioner and, therefore, the trial Court ought to have dropped the criminal proceedings initiated against the petitioner. It is further submitted that the trial Court ought to have seen that the petitioner is a Post Graduate student and he got selected for the post of constable and if he is not discharged from the case, he will be put to irreparable loss and injury.
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GSD, J Crlrc_222_2020 Learned Assistant Public Prosecutor appearing on behalf of respondents 1 and 2 contended that the statements of the witnesses namely D.Ashok, Y.Venkata Santa Rao and S.Ranjith Kumar recorded by the police under Section 161 of Cr.P.C. would clearly disclose that the petitioner was also one of the members of an unlawful assembly and he is also involved in committing rioting with deadly weapons and obstructing the police officers from entering into the hostel and, therefore, the material on record prima facie proves the involvement of the petitioner in the commission of the offence.
Learned Standing Counsel appearing for the 3rd respondent would submit that a mob of students formed into an unlawful assembly, protested the suicidal death of a student in the Osmania University hostel and obstructed the police from entering into the hostel.
Since the petitioner filed application under Section 239 Cr.P.C. before the trial Court seeking discharge, it would be appropriate to refer Section 239 of Cr.P.C. which reds as under:-
"Section 239. When accused shall be discharged : If, upon considering the police report and the documents sent with it under Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and 5 GSD, J Crlrc_222_2020 the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing."
The Magistrate shall discharge the accused recording reasons, if after :
1) considering the police report and documents mentioned in Section 173 Cr.P.C.;
2) examining the accused, if necessary;
3) hearing the arguments of both sides he thinks the charge against him to be groundless i.e. either there is no legal evidence or that the facts do not make put any offence at all.
As the Section expressly authorizes the use of statements of witnesses examined by the police for considering the question of discharge or of framing a charge, it must be construed as an exception to Section 162 (1) of Cr.P.C. Section 239 of Cr.P.C. has to be read along with Section 240 of Cr.P.C. Reading two sections together it clearly means that if there is no ground for presuming that the accused has committed an offence, the charge must be considered to be groundless. The Magistrate is entitled and indeed has a duty to consider the entire material referred to in Section 239 of Cr.P.C. In order to hold a charge groundless, there should either be no iota of evidence or the evidence should centra-indicate the offence or there should be other fundamental error in assuming cognizance of the offence. This provision of law is calculated to eliminate further 6 GSD, J Crlrc_222_2020 harassment to the accused persons when the evidentiary materials gathered after a prolonged and thorough investigation of the occurrence falls short of minimum requirement, and therefore, the provision of law cannot be reduced into a dead letter and the accused persons made to understand the rigour of the futile trial where such a trial of materials available is palpably, not warranted against him.
The function of Magistrate under Section 239 of Cr.P.C. is not to marshal the evidence and judge the truth, veracity and effect of such evidence which the prosecution proposes to adduce and what weight to be attached to the probable defence of the accused. If there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed the offence, it has to pass an order under Section 240 Cr.P.C.
The trial Court under Section 239 Cr.P.C. or the High Court under Section 482 of Cr.P.C. is not called upon to embark upon an enquiry as to whether evidence in question is reliable or not or evidence relied upon is sufficient to proceed further or not. However, if upon the admitted facts and the documents relied upon by the complainant or the prosecution and without weighting or sifting of evidence, no case is made out, the criminal proceedings instituted against the accused are required to be dropped or 7 GSD, J Crlrc_222_2020 quashed. In Rajesh Bajaj v. State NCT of Delhi1, the Apex Court held that the High Court or the Magistrate also not supposed to adopt a strict hyper-technical approach to sieve the complaint through a colander of finest gauzes for testing the ingredients of offence with which the accused is charge. Such an endeavour may be justified during trial but no during the initial state.
In State v. S. Selvi2, the Apex Court held that if on the basis of material on record, the Court prima facie forms an opinion that the accused may have committed the offence, it can frame charges. At the time of framing of charge, the Court is required to proceed on presumption that the material produced by the prosecution is true. At that stage, the Court is not expected to go deep into the matter and hold that the material produced does not warrant conviction. In paragraph Nos.6 and 7 the Apex Court held as under:-
"6. It is well settled by this Court in a catena of judgments including Union of India v. Prafulla Kumar Samal (1979) 3 SCC 4, Dilawar Balu Kurane v. State of Maharashtra (2002) 2 SCC 135 : Sajjan Kumar v. CBI (2010) 9 SCC 368, State v. A. Arun Kumar (2015) 2 SCC 417, Sonu Gupta v. Deepak Gupta (2015) 3 SCC 424, State of Orissa v. Debendra Nath Padhi (2003) 2 SCC 711, Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya (1990) 4 SCC 76 and Superintendent & Remembrancer of Legal Affairs v. Anil Kumar Bhunja (1979) 4 SCC 274 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 1 AIR 1999 SC 1216 2 (2018) 13 SCC 455 8 GSD, J Crlrc_222_2020 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."
In Sajjan Kumar v. CBI3, the Supreme Court on consideration of the various decisions about the scope of Sections 227 and 228 of the Code, laid down the following principles:
"(i) The Judge while considering the question of framing the charges under Section 227 Cr.P.C 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 3 (2010) 9 SCC 368 9 GSD, J Crlrc_222_2020 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 10 GSD, J Crlrc_222_2020 at this stage, he is not to see whether the trial will end in conviction or acquittal."
The Supreme Court further in the case of Asim Shariff v. NIA4, has dealt with the scope of Section 227 of the Cr.P.C. for discharge of an accused. In the aforesaid judgment, it has been held that "in exercise of power under Sections 227 and 228 Cr.P.C., in the Sessions Court (Section 239 Cr.P.C. pertaining to warrant cases), the trial Court has 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. If the material placed before the Court discloses grave suspicion against the accused which has not been properly explained, the Court is justified in framing the charge. It has also been held that if two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspension, the trial Judge would be empowered to discharge the accused."
In view of the legal position, as enunciated above, it has to be seen whether the F.I.R. and the documents accompanying the final report under Section 173 of Cr.P.C. including the statements recorded by the prosecution under Section 161 of Cr.P.C., disclose the commission of any offence against the petitioner. In the instant case, the police during the investigation examined as many as fourteen witnesses and out of them L.Ws.1 to 6 are police officials. Admittedly the accusation is against mob of students. A perusal of 4 (2019) 7 SCC 148 11 GSD, J Crlrc_222_2020 the statements of the witnesses would disclose that one B.Murali, student of M.Sc. (Physics), who was staying in Room No.159, Maneru Hostel, OU Camps, has committed suicide on 03.12.2017 in common bathroom of the hostel building and when the local police went there for enquiry, some of the students gathered and protested in various manners and prevented the police from reaching the dead body and also rioted in the hostel and they also started stone pelting and dropping iron rods, chairs and cots from the terrace. L.Ws.1 to 6, who were present at the place of occurrence, have categorically stated in their 161 Cr.P.C. statements that some of the named students and several others have obstructed the public servants while discharging their legitimate duties, by wrongfully confining and assaulted on the police. There is no material to substantiate that the petitioner had assaulted the police by pushing them with fist blows and also obstructed them. There are no specific overt acts against the petitioner and the allegation is general and omnibus. Therefore, without there being any evidence about the specific overt act against the petitioner towards the occurrence, his mere presence at the place of occurrence is not enough to fasten him with any criminal liability. On considering the material on record, this Court is of the view that no prima facie case is made out against the petitioner.
For the aforesaid reasons and having regard to the law laid down by the Apex Court in the aforesaid decisions, the Criminal 12 GSD, J Crlrc_222_2020 Revision Case is allowed and the order, dated 27.01.2020, passed in Crl.M.P.No.4589 of 2019 in C.C.No.1598 of 2018 on the file of the IV- Additional Chief Metropolitan Magistrate, Hyderabad, is hereby set aside and consequently, the petitioner is discharged for the offences punishable under Sections 143, 147, 148, 342, 186, 353 and 120-B read with Section 149 of I.P.C. and Section 7 (1) (a) of the Criminal Law (Amendment) Act, 1932.
Miscellaneous petitions, if any, pending, shall stand closed.
____________________ JUSTICE G.SRI DEVI 13-07-2021 gkv/Gsn