Allahabad High Court
Gopal Tiwari vs State Of U.P. & Another on 24 September, 2015
Bench: Pramod Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 36
Case :- CRIMINAL REVISION No. - 72 of 2013
Revisionist :- Gopal Tiwari
Opposite Party :- State Of U.P. & Another
Counsel for Revisionist :- Sameer Jain
Counsel for Opposite Party :- Govt. Advocate
Hon'ble Pramod Kumar Srivastava,J.
1.Heard learned counsel for the revisionist, learned AGA and perused the records.
2.This revision has been preferred against the order dated 16.10.2012 passed by Additional Chief Judicial Magistrate (Eastern Railway), Varanasi in Crl. Case No. 1847/2011 of 1999 (State v. Gopal Tiwari & Another) in case crime no. 465/1999 u/s 171, 467, 468, 420, 342, 506 and 392 IPC to accused Gopal Tiwari and Mohd. Shahid were challaned.
3.The prosecution was that two accused had introduced themselves to informant Dr. Sriprakash Singh as S.P. and Inspector of C.B.I. New Delhi, detained informant and and threatened him by showing revolver and looted him. AT the time of this incident, complainant saw the other policeman, approached them and informed the matter to them, then two accused were apprehended in the aforementioned case, as well as case no. 464/1999 u/s 3/25 Arms Act. After completion of investigation, charge-sheet was submitted against those two accused persons. During trial the prosecution side had moved application dated 24.10.2011 u/s 323 CrPC. Then the trial court had received objection on the said application from the accused and thereafter disposed of said application after hearing the parties, and ordered that cognizance of offence u/s 397 IPC is also taken against the accused Goptal Tiwari and Mohd. Shahid. Accordingly, two accused were directed to present before the court for committal/trial of the case. Aggrieved by this order, present revision has been preferred by one of the accused Gopal Tiwari.
4.Learned counsel for the revisionist contended that according to the prosecution case, at the time of alleged incident, robbery was committed by showing threat of firing by revolver, but any culprit had not used any deadly weapon or caused grievous hurt to any person, therefore offence u/s 397 IPC cannot be said to have been made out. Therefore the impugned order of taking cognizance of offence u/s 397 IPC is erroneous, as such, revision should be allowed and the impugned order should be quashed.
5.Learned AGA refuted the arguments of the revisionist side and contended that in present matter according to prosecution case revolver was used during robbery, therefore court below had not committed any error or taking cognizance of offence u/s 397 IPC. He also contended that the impugned order has been passed after appreciating evidences and facts of the case, and if case is committed to court of sessions then the accused revisionist will again have right of hearing on the point of framing of charge. Therefore no prejudice will be caused to the revisionist by the impugned order. He also contended that for removal of possibility of error, alternative charges are framed and cognizance of those offences are also taken. Impugned order had been passed on basis of prima facie proof which is available on record, but the matter will be meticulously considered at the time of framing of charge. Therefore, the impugned order suffers from no error or irregularity, and as such the revision should be dismissed.
6.I have considered the rival contentions, perused the records and legal position.
7.A perusal of the impugned order reveals that learned Magistrate had considered the facts, circumstances and evidences collected during the investigation and thereafter passed the impugned order after appreciating the prima facie proof of use of revolver at the time of alleged incident and robbery by the revisionist and his accomplice. In any case of warrant trial, either triable by the Magistrate or the Sessions Court, the charges cannot be framed unless the accused is afforded opportunity of hearing on the point of charge. The accused has right to take plea of his discharge in relevant cases u/s 227 CrPC. If he does not exercise this right even in that case also charge is framed u/s 228 CrPC which, according to this provision, is framed only ?after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presume that the accused has committed an offence?. The provisions of Section 228 CrPC makes it explicitly clear that in any case, charge can be framed only after 'hearing', which means after affording opportunity of hearing to accused. This provision also directs that after 'hearing and consideration', the charge can be framed. Thus the impugned order is not going to prejudice any legal right of the revisionist who will have opportunity of hearing and place his argument before the court concerned before framing of the charge.
8.So far factual finding of the learned Magistrate regarding prima facie commission of offence is concerned the same cannot be interfered in exercise of revisional jurisdiction by replacing the factual finding of the trial court with that of another factual finding of revisional court on the basis of probability and possibility.
9.On the basis of above discussions, the impugned order appears to have been passed without any illegality or irregularity. Therefore, this revision is dismissed.
Order Date :- 24.9.2015
Sanjeev
