Hasnain Khan vs State Of U.P. And Another
2021 Latest Caselaw 1673 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 76
 

 
Case :- APPLICATION U/S 482 No. - 18806 of 2020
 

 
Applicant :- Hasnain Khan
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Ajay Sengar
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Dinesh Kumar Singh-I,J.

Heard Sri Ajay Sengar, learned counsel for the applicant and Sri G.P. Singh, learned A.G.A. for the State and perused the record.

This application u/s 482 Cr.P.C. has been filed with a prayer to quash the entire proceedings as well as the impugned order dated 19.03.2020 registered in S.T. No. 101 of 2019 as Case Crime No. 171 of 2019, under Sections 147, 148, 452, 323/149, 504, 506, 302/149 I.P.C. P.S. Kalpi , District Jalaun.

Submission is that by the impugned order, charges which have been framed against the accused applicant is erroneous because there is no evidence on record of constituting offence under Section 302 I.P.C., therefore, said charges should be quashed and entire proceedings is also prayed to be quashed

As per F.I.R., prosecution case is that informant, Ram Rishi Mehrotra (later on died as a result of injuries received) has mentioned in F.I.R. that on 31.05.2019 at about 1:00 p.m. when the informant was having food inside the house, right then accused applicant along with other co-accused named in the F.I.R. together with 15 unknown persons entered his house started assaulting him with axe, country made pistol, lathi-danda etc. Informant was beaten up by co-accused, Vedansh Tiwari by the butt of country made pistol and Manoj and Devendra Tiwari had assaulted him by axe with iron-rods by which he received serious injuries; when he started screaming, his brother, Adarsh Mehrotra and wife, Anshu Mehrotra, passer by, Bhoop Singh also came there on the spot and saved him and then accused fled from the scene of occurrence giving him threat of life. He has drawn attention of the Court towards the post-mortem report in which deceased is found to have sustained one abrasion on left elbow and joint, black color stab present over the right parietal region and the cause of death could not be ascertained, hence viscera was preserved.

The contention of the learned counsel for the applicant is that there was no evidence under Section 302 I.P.C. against the applicant, yet police has submitted charge-sheet and thereafter impugned order has been passed by the court below framing charge against the applicant under Sections 302 read with Section 149 I.P.C. along with other sections i.e. 147, 148, 452, 323 I.P.C. read with Section 149, 504 and 506 I.P.C. He has placed reliance towards the judgements of passed by Madhya Pradesh High Court in Rakesh Dwivedi Alias Bablu Dwivedi Vs. The State of Madhya Pradesh 2017(175) AIC 454 and of Gujarat High Court passed in Harit Ishwarbhai Andhariya and Anr Vs. State of Gujarat 2000 (1) GujLH 496 copies of which are provided and the same are taken on record. Learned counsel for the applicant further stated that if proceedings are allowed to continue, that would amount to an abuse of process of court.

Learned A.G.A. has vehemently opposed the prayer for quashing and stated that informant who later on died, his statement is annexed at page no. 30 of the paper book in which he has stated the same version as stated in F.I.R. coupled with the fact that he received injury no. 2 on his head which was the cause of his death, no ascertainment of the same was done by the doctor who conducted the post-mortem and viscera report is still awaited but at this stage, it cannot be said that the charge-sheet against the accused applicant is erroneous because deceased himself is said to have been assaulted by applicant and other persons.

It would be pertinent to refer here the law laid down by the Hon'ble Apex Court in Amit Kapoor vs Ramesh Chander & Anr (2012) 9 SCC 460, relevant para of which are quoted below:

"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.

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. We may refer to the well settled law laid down by this Court in the case of State of Bihar v. Ramesh Singh (1977) 4 SCC 39:

"4. Under Section 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 under Section 227 or Section 228 of the Code. If 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, as enjoined by Section 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 Section 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 the stage of deciding the matter under Section 227 or Section 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. It 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 evidence, if any, cannot show that the accused committed the offence, then 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 Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section 227.

In view of the law cited above, no interfere is warranted by this Court in the impugned order dated 19.03.2020 passed by the court's below in jurisdiction of Section 482 Cr.P.C., hence, this application u/s 482 Cr.P.C. is, accordingly, rejected.

Order Date :- 28.1.2021

A. Mandhani