Ram Nayan Singh vs State Of U.P. And Another
2021 Latest Caselaw 11392 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 85
 

 
Case :- APPLICATION U/S 482 No. - 24164 of 2021
 

 
Applicant :- Ram Nayan Singh
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Vijai Prakash Tiwari
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Dr. Yogendra Kumar Srivastava,J.

1. Heard Sri Vijai Prakash Tiwari, learned counsel for the applicant and Sri Arvind Kumar, learned Additional Government Advocate appearing for the State-opposite party no.1.

2. The present application under Section 482 CrPC has been filed seeking to quash the impugned orders dated 13.11.2019 and 16.11.2019 (annexure nos. 14 and 15) passed by the Additional District and Session Judge, Court No.9, Varanasi in Session Trial No. 300 of 2019 (State Vs. Ram Nayan Singh), Case crime No. 389 of 2018, under Section 3 of Prevention of Damage to Public Property Act, 19841, Police Station Cholapur, District Varanasi.

3. The facts of the case, as pleaded in the application, are to the effect that the criminal proceedings were initiated pursuant to an FIR dated 20.07.2018 lodged under Section 3/4 of the PDPP Act, registered as Case Crime No. 0389 of 2018. The case was investigated and a charge-sheet dated 19.11.2018 was submitted whereupon cognizance was taken on 24.1.2019 and an application seeking discharge was moved. The Magistrate passed an order dated 06.06.2019 rejecting the discharge application and committing the case to the court of session. Thereafter, upon an application under Section 228 (1) (a), the court of session passed an order dated 13.11.2019 wherein upon duly considering the facts of the case it was held that prima facie the offence under Section 3 of the PDPP Act was made out and accordingly 16.11.2019 was fixed for framing of charge and on the said date, charge was framed.

4. The principal submission which is sought to be raised is that the offence under Section 4 is not made out inasmuch as the ingredients of the said section are not satisfied.

5. Counsel for the applicant has also sought to assail the orders by referring to the factual aspects of the matter and the defence which is sought to be set up on behalf of the applicant.

6. Learned Additional Government Advocate submits that in terms of the order dated 16.11.2019, which is sought to be challenged, the applicant has been charged with the offence under Section 3 and not Section 4 of the PDPP Act. It is further pointed out that the allegation in the FIR, which relates to encroachment over public property, would come within the purview of the offence under Section 3 inasmuch as it would relate to a mischief causing damage to public property. In this regard, reliance has been placed upon a recent decision of this Court in Srikant vs. State of U.P.2

7. Learned Additional Government Advocate also submits that the contentions, which are sought to be raised on behalf of the applicant, would relate to disputed questions of fact, and would involve appreciation of evidence. It is submitted that at the stage of consideration of discharge only a prima facie case is to be seen and the court below is not expected to hold a mini trial.

8. In order to appreciate rival contentions, the relevant statutory provisions may be adverted to.

9. The procedure for trial before a court of session is provided under Chapter XVIII of the Cr.P.C. and Sections 227 and 228 which relate to discharge and framing of charges are extracted below.

"227. Discharge.-- If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, 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.

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 sub-section (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."

10. The tests and considerations to be applied by the Court while exercising the powers under Sections 227 and 228 of the Code, fell for consideration in the case of State of Bihar vs. Ramesh Singh3, and it was held that the standard of test and judgement 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 228, and 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. While considering the tests to be applied by the Court for the purposes of discharge, it was held that reading Sections 227 and 228 together in juxtaposition, it would be clear that at the initial stage of the trial, the truth, veracity and effect of evidence, which the prosecutor proposes to adduce are not to be meticulously judged and the standard of test and judgement which is to be finally applied before recording a finding regarding guilt or otherwise of the accused is not required to be applied at this stage; the test would be whether there is sufficient ground for proceeding and/or whether there is sufficient ground for conviction.

11. The ambit and scope of the exercise of powers while passing an order of discharge under Section 227 of the Code was subject matter of consideration in Union of India vs. Prafulla Kumar Samal And Another4, and it was held that the Court while exercising such powers is not to act as a trial judge but should weigh evidence and form opinion only on the limited question of whether a prima facie case is made out.

12. In Niranjan Singh Karam Singh Punjabi, Vs. Jitendra Bhimraj Bijjaya and others5, it was held that at the stage of Sections 227-228, the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence and for this limited purpose, the court may sift the evidence.

13. The prerequisites for framing of charge were subject matter of consideration in Soma Chakravarty vs. State through CBI6, and it was held that the court can frame the charge if on the basis of material on record it can form an opinion that the commission of offence by the accused was possible. The question as to whether the accused committed the offence can only be decided in the trial, and at the stage of framing of charge the probative value of the material on record cannot be gone into and the said material has to be accepted as true.

14. The question as to when discharge of an accused would be warranted in exercise of powers under Section 227 of the Code in the light of its scope and object was considered in P. Vijayan vs. State of Kerala and another7, and it was held that at the stage of Section 227, the Court has merely to sift the elements in order to find out whether or not there is sufficient ground for proceeding against the accused and if the judge comes to a conclusion that there is sufficient ground to proceed, he will frame a charge under Section 228, if not, he will discharge the accused.

15. The scope of exercise of powers under Sections 227 and 228 with regard to framing of charge/discharge again fell for consideration in Sajjan Kumar Vs. Central Bureau of Investigation8, and it was held that at the stage of framing of charge under Section 228 or while considering discharge petition filed under Section 227, it is not for the Magistrate or a Judge concerned to analyse all the materials including pros and cons, reliability or acceptability thereof, and it is at the trial that the Judge concerned has to appreciate evidentiary value, credibility or otherwise of the material and veracity of various documents.

16. The relative scope and distinction between Sections 227 and 228 with regard to discharge of accused and framing of charge was discussed and explained in detail in Amit Kapoor vs. Ramesh Chander and another9 and it was held that at the stage of Section 228, the Court is not concerned with proof, but with a strong suspicion that the accused has committed an offence and the final test of guilt is not to be applied at the stage of framing of charge.

17. In State of Tamil Nadu vs. N. Suresh Rajan and others10, while considering the scope of exercise of jurisdiction and power by Court at the stage of framing of charges or discharge of accused under Sections 227 and 228, it was restated that no mini trial is contemplated at the stage of considering the discharge application and only probative value of materials has to be gone into to see if there is a prima facie case for proceeding against the accused without any requirement of going deep into the matter.

18. The exercise of powers under Section 227 of the Code and the matters to be considered and the extent of inquiry permissible on part of Court was again subject matter of consideration in Asim Shariff vs. National Investigation Agency11, and it was reiterated that the judge while considering the question of framing of charge under Section 227 is 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 and the Court, at this stage, is not supposed to hold a mini trial by marshalling the evidence on record.

19. The relevant considerations to be made by the Court at the stage of Section 227 of the Code were discussed in M.E. Shivalingamurthy vs. Central Bureau of Investigation, Bengaluru12 and it was reiterated that the Court at this stage, without making a roving inquiry into the pros and cons, is only required to consider the broad probabilities and the probative value of material on record is not to be gone into.

20. The ambit and scope of exercise of power under Sections 227 and 228 of the Code, are fairly well settled. It has been consistently held that the standard of test and judgment which is to be finally applied before recording of finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of framing of charge. The test to be applied at this stage would be whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. The Court has clearly to sift the elements in order to find out whether or not there is sufficient ground for proceeding against the accused and if the Judge comes to a conclusion that there is sufficient ground to proceed, he will frame a charge under Section 228 of the Code, if not, he will discharge the accused. At the stage of framing of charge or considering discharge of the accused, no mini trial is contemplated and only probative value of material has to be gone into, to see if there is a prima facie case for proceeding against the accused.

21. In the case at hand, the court below has duly considered the FIR version and also the police report along with the other material to record its prima facie satisfaction with regard to the offence under Section 3 of the PDPP Act having been made out, in its order dated 13.11.2019, and accordingly 16.11.2019 was fixed for framing of charges, and in terms of the order passed on 16.11.2019, the charge was framed.

22. Counsel for the applicant has not been able to point out any material error, illegality or perversity in the orders passed by the court below so as to persuade this Court to exercise its inherent jurisdiction under Section 482 CrPC.

23. The application stands dismissed accordingly.

Order Date :- 27.11.2021

Pratima

(Dr.Y.K.Srivastava,J.)