Abdul Hasan Khan And 3 Others vs State Of U.P. And Another
2015 Latest Caselaw 2963 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R. 
 
Court No. - 47
 

 
Case :- APPLICATION U/S 482 No. - 29990 of 2015
 

 
Applicant :- Abdul Hasan Khan And 3 Others
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- Kuldeep Kumar
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Karuna Nand Bajpayee,J.

This application u/s 482 Cr.P.C. has been filed seeking the quashing of order dated 14.09.2015, framing of charge against the applicants, passed by Additional Sessions Judge, Court No.2, Bulandshahr in Special Case No. 3/2001 arising out of Case Crime No. 92/1998, Police Station Khurja Dehat, District Bulandshahr, under Sections 467, 468, 471, 420, 409, 201, 218, 120B I.P.C. read with Section 13(c)(d), 8/13 (2) of Prevention of Corruption Act, 1998 related to applicant no. 1 and under Sections 467, 468, 471, 420 read with Section 120B I.P.C. related to applicant nos. 2 to 4.

Heard learned counsel for the applicants and learned AGA. Perused the record.

Submission of counsel for the applicants is that there was a departmental enquiry which was held with regard to role played by the applicant no.1 in the transactions, which are subject matter of this case and in that departmental enquiry, charges could not be substantiated. Submission is that therefore criminal proceedings should be dropped with regard to applicant no. 1 and charges should also not be framed with regard to applicant nos. 2, 3 and 4. It is said that the applicant nos. 2 and 3 are the tenure holders of the land in question while the applicant no. 4 resides in another village and has nothing to do with the controversy in question. Certain other submissions were raised with regard to pure factual aspects of the case.

Before proceeding to adjudge the validity of the impugned order it may be useful to cast a fleeting glance to some of the representative cases decided by the Hon'ble Supreme Court which have expatiated upon the legal approach to be adopted at the time of framing of the charge or at the time of deciding whether the accused ought to be discharged. It shall be advantageous to refer to the observations made by the Hon'ble Apex Court in the case of State of Bihar vs. Ramesh Singh 1977 (4) SCC 39 which are as follows :-

4. Under S. 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 u/s. 227 or u/s. 228 of the Code. If "the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing", so enjoined by s. 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 S. 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 this stage of deciding the matter under s. 227 and 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, if any, cannot show that the accused committed the offence, 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 S. 227 or S. 228, then in such a situation ordinarily and generally the order which will have to be made will be one under S. 228 and not under S. 227.

Aforesaid case was again referred to in another Apex Court's decision Superintendent and Remembrancer of Legal Affairs, West Bengal Versus Anil Kumar Bhunja AIR 1980 (SC) 52 and the Apex Court proceeded to observe as follows:

"18. It may be remembered that the case was at the stage of framing charges; the prosecution evidence had not yet commenced. The Magistrate had, therefore, to consider the above question on a general consideration of the materials placed before him by the investigating police officer. At this stage, as was pointed out by this Court in State of Bihar v. Ramesh Singh, AIR 1977 SC 2018, the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of Section 227 or 228 of the Code of Criminal Procedure, 1973. At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged; may justify the framing of charge against the accused in respect of the commission of that offence.

In yet another case of Palwinder Singh Vs. Balvinder Singh AIR 2009 SC 887 the Apex Court had the occasion to reflect upon the scope of adjudication and its ambit at the time of framing of the charge and also about the scope to consider the material produced by the accused at that stage. Following extract may be profitably quoted to clarify the situation :

"12. Having heard learned counsel for the parties, we are of the opinion that the High Court committed a serious error in passing the impugned judgment insofar as it entered into the realm of appreciation of evidence at the stage of the framing of the charges itself. The jurisdiction of the learned Sessions Judge while exercising power under Section 227 of the Code of Criminal Procedure is limited. Charges can be framed also on the basis of strong suspicion. Marshalling and appreciation of evidence is not in the domain of the Court at that point of time. This aspect of the matter has been considered by this Court in state of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568 wherein it was held as under :

"23. As a result of the aforesaid discussion, in our view, clearly the law is that at the time of framing charge or taking cognizance the accused has no right to produce any material. Satish Mehra's Case holding that the trial Court has powers to consider even materials which the accused may produce at the stage of Section 227 of the Code has not been correctly decided."

The following observations made by the Hon'ble Supreme Court in the case of Sanghi Brothers (Indore) Pvt. Ltd. v. Sanjay Choudhary AIR 2009 SC 9 also reiterated the same position of law :-

"10. After analyzing the terminology used in the three pairs of sections it was held that despite the differences there is no scope for doubt that at the stage at which the Court is required to consider the question of framing of charge, the test of a prima facie case to be applied.

11. The present case is not one where the High Court ought to have interfered with the order of framing the charge. As rightly submitted by learned counsel for the appellant, even if there is a strong suspicion about the commission of offence and the involvement of the accused, it is sufficient for the Court to frame a charge. At that stage, there is no necessity of formulating the opinion about the prospect of conviction. That being so, the impugned order of the High Court cannot be sustained and is set aside. The appeal is allowed.

Illumined with the aforesaid proposition of law this Court has perused the entire record of the case including the impugned order. A threadbare discussion of various facts and circumstances, as they emerge from the allegations made against the accused, is being purposely avoided by the Court for the reason, lest the same might cause any prejudice to either side during trial. Suffice it to say that the perusal of the material collected by the I.O. and the record reflects that the charge could have framed against the accused and the impugned order does not reflect any illegality or abuse of court's process. Even strong suspicion may form basis of framing the charge. Framing the charge does not mean that the accused should also be convicted for the same. It all depends upon the ultimate analysis of facts and evidence and the proof beyond reasonable doubt. The standard of appreciation of facts to be applied at the stage of final adjudication is necessarily different from the standard  of appreciation of evidence which is called for to be applied at the stage of framing of the charges.

All the contentions raised by the counsel for the applicants relate to disputed questions of fact. The court has also been called upon to adjudge the testimonial worth of prosecution evidence and evaluate the same on the basis of various intricacies of factual details which have been touched upon on behalf of applicants. The veracity and credibility of material furnished on behalf of the prosecution has been questioned and false implication has been pleaded. The submissions made by the learned counsel for the applicants call for adjudication on pure questions of fact which may be adequately adjudicated upon only by the trial court and while doing so even the submissions made on points of law can also be more appropriately gone into by the trial court in this case. This Court does not deem it proper, and therefore cannot be persuaded to have a pre-trial before the actual trial begins.

So far as the departmental enquiry and its effect is concerned, it may be observed that the charges in the criminal trial are to be framed on the basis of material collected by the Investigating Officer which forms part of the case diary. The fate of the departmental enquiry is not to determine the fate of the criminal trial. If in a departmental enquiry a particular person has been held liable for certain wrongs, it does not necessarily entail that in the criminal proceedings which have been initiated against him, the charges should also be framed against him. It is quite possible that the Investigating Officer may fail to collect necessary evidence or material against a particular accused and it is possible that at the time of framing of the charge, the presiding officer may find that there is no adequate material to substantiate charge or to proceed against a particular accused. It all depends upon the facts and material collected by the Investigating Officer. In any extraneous proceedings what material was collected is wholly irrelevant to decide whether charge against the accused should be framed or not. Therefore, the submission raised by defence counsel that on the basis of some favourable finding in the departmental enquiry, charge should not be framed against the accused lacks merits and cannot be accepted. 

In the aforesaid facts and circumstances of the case and the law as has been discussed, the application has no force and is hereby dismissed.

Order Date :- 7.10.2015

Rmk.