Srinarayan Alias Piladi Rai And 7 ... vs State Of U.P. And Anr.
2014 Latest Caselaw 351 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 5									A.F.R.
 
Case :- CRIMINAL REVISION No. - 674 of 2014
 
Revisionist :- Srinarayan Alias Piladi Rai And 7 Others
 
Opposite Party :- State Of U.P. And Anr.
 
Counsel for Revisionist :- Mahendra Pratap Yadav
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Het Singh Yadav,J.

This criminal revision is directed against the order dated 19.6.2014 passed by the learned Sessions Judge, Sant Kabir Nagar in Sessions Trial No. 23 of 2012, State Vs. Srinarayan Rai @ Piladi Rai and others, under Sections 147, 148, 149, 452, 323, 308, 504, 506, 427 I.P.C. by which the application moved by the accused persons purported to be under Section 228 (1)(a) of the Code of Criminal Procedure (in short 'the Code') has been rejected.

Filtering out unnecessary details, the facts leading to filing of this criminal revision are that the opposite party no. 2 lodged F.I.R. against the revisionists alleging that they have beaten to pulp Vakil Rai (the injured) with sticks and other blunt objects because of previous hostility due to election rivalry. He sustained multiple severe injuries. The injury no. 1 was on his head and grievous in nature. The investigating officer having concluded investigation submitted charge-sheet against the accused persons named in the F.I.R. (revisionists herein) under the aforementioned sections. Since the offence under Section 308 I.P.C. is triable exclusively by a court of Session and therefore, the learned Magistrate concerned committed the case to the court of Session for trial. The revisionists, however, moved application under Section 228(1)(a) of the Code before the trial Judge that all the accused persons have been framed in this case levelling general allegations due to party faction in the village and the injuries caused, as per medical opinion, were simple in nature. Thus, no prima facie case under Section 308 I.P.C. is made out against them. It is hardly, as argued, a case of voluntarily causing simple hurt punishable under Section 323 I.P.C. triable by the Magistrate. Therefore, prayer was made to order to transfer the case for trial to the Chief Judicial Magistrate or any other Judicial Magistrate having jurisdiction to try the offence in accordance with the procedure of warrant case instituted on the police report.

The learned Sessions Judge upon hearing the public prosecutor and the learned defence counsel and upon consideration of the record of the case, was of the opinion that there is a ground for presuming that the accused persons have committed an offence which is exclusively triable by the court of Session. He accordingly rejected the application vide the impugned order and directed to frame charges against the accused persons under sections as discerned in the charge sheet.

I have heard learned counsel for the revisionists, learned A.G.A. and have also been taken through the material on record.

Learned counsel for the revisionists in his submissions made a bid to assail the impugned order on factual as well as legal grounds. It is argued that Section 228 (1)(a) of the Code enacts that the court of Session upon consideration of the record of the case and the documents submitted therewith and after hearing the submissions of the prosecution and the accused persons, is of opinion that there is ground for presuming that the accused has committed an offence which is not exclusively triable by the court of Session, he may frame charge against the accused and by order transfer the case for trial to the Chief Judicial Magistrate/Judicial Magistrate concerned. Thereupon, such Magistrate shall try the offence in accordance with the procedure of the trial of warrant cases instituted on a police report. Learned counsel vociferously argued that in this case, as per medical opinion and other material on record, prima facie, no offence under Section 308 I.P.C. appears to have been committed. The medical opinion on record disclosing that the injured sustained only 4 injuries caused by hard and blunt objects which are simple in nature and not dangerous to the life of the injured in any way. Although overt act had been attributed against each of the accused, who are eight in number and were having 'lathis' and other lethal weapons, only 4 injuries had been caused and out of them only one was said to be grievous being on the head of the injured. Thus, upon consideration of the material on record, prima facie there is no ground for presuming that the accused persons have committed offence under Section 308 I.P.C. triable exclusively by the court of session. Hardly there may be ground for presuming that the accused persons have committed offence which is not exclusively triable by the court of Session. The trial court, however, in a whimsical and wanton manner without assigning any reason, rejected the application of the applicants/revisionists. The impugned order is highly penal and prejudicial to the revisionists as their right of appeal in the court of session has been taken away.

The main grievance of the revisionist is that as per medical opinion, the injured had allegedly sustained four injuries. All are simple in nature caused by hard and blunt objects. Except the injury no. 1, other injuries are traumatic contusions and abraded contusions and are on non vital parts of the body. Even, there is no strong suspicion against the revisionists that they had any intention or knowledge to commit culpable homicide not amounting to murder of the injured. Thus, from the material on record, prima facie, no offence under Section 308 I.P.C. appears to have been committed. The learned Magistrate concerned has committed the case to the court of Sessions under Section 209 of the Code simply on the ground that in the police report submitted under Section 173 of the Code also described commission of offence under Section 308 I.P.C. allegedly committed along with other offences which is obviously triable by the court of Session.

It is almost settled law that at the stage of framing of charge it is not obligatory for the court to consider in detail and in-sensitive willing whether the facts is proved, would be in conviction of the innocent or the accused. The court is not to see at this stage whether there is a sufficient ground for conviction of the accused or that the trial is to sure in conviction. The strong suspicion at the stage of framing of charge is sufficient to frame the charge. At the stage of framing of charge, court is required to evaluate the material and the documents with a view to finding out if the facts emerging there from taking at their face value, disclosing existence of ingredients constituting the alleged offence.

At this juncture, before discussing the legal point involved in this case, it would be proper to have a look at Section 228 of the Code which reads thus:-

"228.Framing of charge.

(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which-

(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate {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 the 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 instituted on a police report ;

(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.

(2) Where the Judge frames any charge under clause (b) of subsection (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."

Hon'ble Supreme Court in Vinay Tyagi Vs. Irshad Ali 2013 (5) SCC 762 while interpreting the provisions of Section 228 of the Code held thus:-

"17.1. It may be noticed that the language of Section 228 opens with the words,

"If, after such consideration and hearing as aforesaid, the Judge is of the opinion that there is ground for presuming that the accused has committed an offence",

he may frame a charge and try him in terms of Section 228(1)(a) and if exclusively triable by the Court of Sessions, commit the same to the Court of Sessions in terms of Section 228(1)(b). Why the legislature has used the word "presuming" is a matter which requires serious deliberation. It is a settled rule of interpretation that the legislature does not use any expression purposelessly and without any object. Furthermore, in terms of doctrine of plain interpretation, every word should be given its ordinary meaning unless context to the contrary is specifically stipulated in the relevant provision.

17.2. Framing of charge is certainly a matter of earnestness. It is not merely a formal step in the process of criminal inquiry and trial. On the contrary, it is a serious step as it is determinative to some extent, in the sense that either the accused is acquitted giving right to challenge to the complainant party, or the State itself, and if the charge is framed, the accused is called upon to face the complete trial which may prove prejudicial to him, if finally acquitted. These are the courses open to the Court at that stage.

17.3. Thus, the word "presuming" must be read ejusdem generis to the opinion that there is a ground. The ground must exist for forming the opinion that the accused had committed an offence. Such opinion has to be formed on the basis of the record of the case and the documents submitted therewith. To a limited extent, the plea of defence also has to be considered by the Court at this stage. For instance, if a plea of proceedings being barred under any other law is raised, upon such consideration, the Court has to form its opinion which in a way is tentative. The expression "presuming" cannot be said to be superfluous in the language and ambit of Section 228 of the Code. This is to emphasize that the Court may believe that the accused had committed an offence, if its ingredients are satisfied with reference to the record before the Court."

In Amit Kapoor Vs. Ramesh Chandra 2012 (9) SCC 460, Hon'ble Supreme Court held as under:

"16. The above-stated principles clearly show that inherent as well as revisional jurisdiction should be exercised cautiously. If the jurisdiction under Section 482 of the Code in relation to quashing of an FIR is circumscribed by the factum and caution afore-noticed, in that event, the revisional jurisdiction, particularly while dealing with framing of a charge, has to be even more limited.

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 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.

18. It may also be noticed that the revisional jurisdiction exercised by the High Court is in a way final and no inter court remedy is available in such cases. Of course, it may be subject to jurisdiction of this court under Article 136 of the Constitution of India. Normally, a revisional jurisdiction should be exercised on a question of law. However, when factual appreciation is involved, then it must find place in the class of cases resulting in a perverse finding. Basically, the power is required to be exercised so that justice is done and there is no abuse of power by the court. Merely an apprehension or suspicion of the same would not be a sufficient ground for interference in such cases."

In the instant case, the relation between the injured and the accused persons were tense due to election rivalry. The injured had made a complaint raising serious irregularities and corruption in the distribution of essential commodities by one of the accused persons, who is a dealer of government fair price shop. It is on his complaint that the authorities made surprise spot inspection of the shop and made a probe relating to the complaint. This had given rise all the accused persons belong to one faction, intense motive to assault the injured, who was present at the time of surprise inspection. He, however, ran away to his house to save himself but the accused persons chased him and barged into his house. They all inflicted 'lathis' blows upon him. The injured sustained 4 injuries and the injury no. 1 was on his head. As per medical opinion, the head injury was grievous in nature and he remained hospitalized for a considerable period for his treatment. Thus, the accused persons had intention/knowledge of the gravity, as is required to constitute an offence under Section 308 I.P.C.

As held above by the apex court in Vinay Tyagi case (supra) that the word 'presuming' as mentioned in the opening words of Section 228 of the Code means that there is a ground. The word 'presuming' must be read as ejusdem generis to the opinion that there is a ground. The ground must exist for forming the opinion that the accused has committed an offence. Such grounds has to be formed on the basis of the record of the case and the documents submitted therewith. In this case, the learned Sessions Judge was of the opinion that there is a ground for presuming that the accused persons have committed an offence under Section 308 I.P.C. which is exclusively triable by the court of Session. Learned Sessions Judge formed his opinion after considering the entire material on record and considering that the accused persons had animosity with the injured due to election rivalry which given rise motive to the accused persons to intentionally and knowingly causing injuries to the injured in such circumstances that in case the injured would have died as a result of those injuries, the accused persons would have been guilty of committing culpable homicide not amounting to murder. The learned Sessions Judge which formed his opinion also considered the injury no. 1 which is on the head of the injured, a vital part of his body and as per the medical opinion, is grievous in nature. Therefore, at the stage of framing of charge, the learned Sessions Judge was of the definite opinion that there is a ground for presuming that the accused persons have committed an offence under Section 308 I.P.C. which is exclusively triable by the court of Session. The learned Sessions Judge has rejected the application of the revisionists after considering the entire factual aspects and the propositions of law applicable to the case in hand. Learned Sessions Judge, in my considered view, has committed no error or illegality in rejecting application of the revisionists by the impugned order.

The revision has no merit and accordingly dismissed.

Order Date :- 31.3.2014

Naresh