Brijesh Singh @ Videshi Singh vs State Of U.P. And Another
2023 Latest Caselaw 21889 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:164781
 
Court No. - 86
 

 
Case :- APPLICATION U/S 482 No. - 29664 of 2023
 

 
Applicant :- Brijesh Singh @ Videshi Singh
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Rajesh Kumar Singh,Manoj Kumar Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajiv Gupta,J.

1. Heard learned counsel for the applicant, learned AGA for the State and perused the record.

2. This application under Section 482 CrPC has been filed with the prayer to quash the impugned order dated 31.07.2023 arising out of charge-sheet no. 33 of 2020, dated 03.02.2020 and as well as entire proceedings of Special Sessions Trial No. 12 of 2020 (State Vs. Vijay Raj Singh @ Rahul Singh and Others), arising out of Case Crime No. 793 of 2018, under Section 3(1) of U.P. Gangsters and Anti-Social Activities (Prevention) Act, Police Station Handia, District Prayagraj, pending in the court of Additional Sessions Judge/ Special Judge (Gangsters Act), Court No.2, Allahabad, by which the applicant's application for discharge dated 26.04.2022 has been rejected and the applicant has been directed to appear before the court below on 11.08.2023 for framing of charge.

3. Brief facts giving rise to this application is that on 03.09.2018, a first information report was lodged by opposite party no. 2 against the applicant along with four other accused persons, which was registered vide Case Crime No. 793 of 2018, under Section 3(1) of U.P. Gangsters and Anti-Social Activities (Prevention) Act, Police Station Handia, District Prayagraj.

4. On the basis of said first information report, the police investigated the matter and submitted the charge-sheet against the applicant along with other co-accused persons on 03.02.2020 under Section 3(1) of U.P. Gangsters and Anti-Social Activities (Prevention) Act. On the said charge-sheet, learned trial court has taken the cognizance and has summoned the applicant along with other co-accused persons to face trial vide order dated 14.02.2020.

5. After being released on bail, the applicant filed an application dated 26.04.2022 seeking discharge along with another co-accused, however, learned trial court has rejected the said discharge application vide impugned order dated 31.07.2023 and the applicant has been directed to appear before the court below on 11.08.2023 for framing of charge.

6. Being aggrieved and dissatisfied by the said order, the applicant filed the instant application u/s 482 CrPC and has submitted that the entire proceedings including the rejection of his discharge application is bad in the eye of law and as such, the same is liable to be quashed.

7. Learned counsel for the applicant has submitted that allegations made in the FIR as well as statement of the witnesses recorded during the course of investigation are absolutely false, cooked up and concocted just with an intention to give colour to the whole incident.

8. Learned counsel for the applicant has next submitted that in the gang-chart, annexed with the FIR, only two criminal cases of trivial nature are shown against the applicant. One case is being Case Crime No. 351 of 2016, under Sections 323, 504, 506 IPC, Police Station Handia, District Prayagraj, in which, applicant was granted bail by learned court below vide its order dated 24.09.2018 and another case is being Case Crime No. 120 of 2013, under Sections 147, 148, 323, 504, 452 IPC, Police Station Handia, District Prayagraj, in which also, the applicant has been granted bail by learned court below vide its order dated 03.08.2019.

9. Learned counsel for the applicant has next submitted that the base cases registered against the applicant are trivial in nature and are not covered under the Gangsters Act and the applicant has not been indulging in any anti-social activities causing threat to the public at large and as such, he is liable to be discharged.

10. Per contra, learned AGA has submitted that the applicant is indulging in offences punishable under Chapter XVI, XVII and XXII of IPC and as such, there is terror in public at large, who, out of his terror, do not dare to lodge criminal case against the applicant nor dare to adduce evidence against him.

11. Learned AGA has next submitted that the trial of the base cases has not yet been concluded and is still in progress and prima facie, offence under Section 3(1) of U.P. Gansters and Anti-Social Activities (Prevention) Act, 1986 is clearly made out against the applicant.

12. Learned AGA has further supported the impugned order refusing to discharge the accused-applicant and has submitted that from the allegations made in the FIR as well as the statement of the witnesses recorded under Section 161 Cr.P.C., prima facie offence, complained of, is clearly made out against the applicant.

13. In order to buttress his arguments, learned AGA has relied upon the decision of Hon'ble Apex Court in the case of State of Delhi Vs. Gyan Devi and Others (2008) 8 SCC 239 has held as under :-

"7. .....The legal position is well settled that at the stage of framing of charge the Trial Court is not to examine and assess in detail the material placed on record by the prosecution nor is it for the Court to consider the sufficiency of the materials to establish the offence alleged against the accused persons. At the stage of charge the Court is to examine the materials only with a view to be satisfied that a prima facie case of commission of offence alleged has been made out against the accused persons. It is also well settled that when the petition is filed by the accused under Section 482 Cr.P.C. seeking for the quashing of charge framed against them the Court should not interfere with the order unless there are strong reasons to hold that in the interest of justice and to avoid abuse of the process of the Court a charge framed against the accused needs to be quashed. Such an order can be passed only in exceptional cases and no rare occasions. It is to be kept in mind that once the Trial Court has framed a charge against an accused the trial must proceed without unnecessary interference by a superior court and the entire evidence from the prosecution side should be placed on record. Any attempt by an accused for quashing of a charge before the entire prosecution evidence has come on record should not be entertained sans exceptional cases."

14. Hon'ble Apex Court in the case of State of Madhya Pradesh Vs. Deepak reported in AIR 2019 SC 5604 has held that :-

"It is trite that at the stage of framing of charge, 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 or offences. For this limited purpose, the court may sift the evidence as it cannot be expected even at the initial stage to accept as gospel truth all that the prosecution states. At this stage, the court has to consider the material only with a view to find out if there is ground for presuming that the accused has committed an offence and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction."

"Section 227 itself contains enough guidelines as to the scope of enquiry for the purpose of discharging an accused. It provides that the judge shall discharge when he considers that there is no sufficient ground for proceeding against the accused. The ground in the context is not a ground for conviction, but a ground for putting the accused on trial. It is in the trial, the guilt or the innocence of the accused will be determined and not at the time of framing of charge. The court, therefore, need not undertake an elaborate enquiry in sifting and weighing the material. Nor is it necessary to delve deep into various aspects. All that the court has to consider is whether the evidentiary material on record. If generally accepted, would reasonably connect the accused with the crime."

15. The Hon'ble Apex Court in a recent decision in Captain Manjit Singh Virdi (Retd.) Vs. Hussain Mohammed Shattaf and others, Criminal Appeal No. 1399 of 2023 vide order dated 18.05.2023, has categorically stated as follows:-

"11. The law on issue as to what is to be considered at the time of discharge of an accused is well settled. It is a case in which the Trial Court had not yet framed the charges. Immediately after filing of charge-sheet, application for discharge was filed. The settled proposition of law is that at the stage of hearing on the charges entire evidence produced by the prosecution is to be believed. In case no offence is made out then only an accused can be discharged. Truthfulness, sufficiency and acceptability of the material produced can be done only at the stage of trial. At the stage of charge, the Court has to satisfy that a prima facie case is made out against the accused persons. Interference of the Court at that stage is required only if there is strong reason to hold that in case the trial is allowed to proceed, the same would amount to abuse of process of the court."

The law on the point has been summarized in a recent judgment of this Court in State of Rajasthan v. Ashok Kumar Kashyap. Relevant paras are extracted below :-

"11.1. In P. Vijayan v. State of Kerala, (2010) 2 SCC 398, this Court had an occasion to consider Section 227 CrPC What is required to be considered at the time of framing of the charge and/or considering the discharge application has been considered elaborately in the said decision. It is observed and held that at the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. It is observed that in other words, the sufficiency of grounds would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him. It is further observed that if the Judge comes to a conclusion that there is sufficient ground to proceed, he will frame a charge under Section 228 CrPC, if not, he will discharge the accused. It is further observed that while exercising its judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution, it is not necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the court, after the trial starts."

11.2. In the recent decision of this Court in State of Karnataka v. M.R. Hiremath, (2019) 7 SCC 515, one of us (D.Y. Chandrachud, J.) speaking for the Bench has observed and held in para 25 as under:-

"25. The High Court [M.R. Hiremath v. State, 2017 SCC OnLine Kar 4970] ought to have been cognizant of the fact that the trial court was dealing with an application for discharge under the provisions of Section 239 CrPC. The parameters which govern the exercise of this jurisdiction have found expression in several decisions of this Court. It is a settled principle of law that at the stage of considering an application for discharge the court must proceed on the assumption that the material which has been brought on the record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary to constitute the offence."

In State of T.N. v. N. Suresh Rajan, (2014) 11 SCC 709, adverting to the earlier decisions on the subject, this Court held :-

"29. At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage."

16. Thus, from the above mentioned cases, it is evident that the duty of the trial court at the stage of discharge is to assess the sufficiency of the material for the purposes of framing of the charge and sufficient ground exists for proceeding against the accused.

17. Having considered the rival submissions made by learned counsel for the parties and keeping in view the principles laid down by the Hon'ble Apex Court, it is evident that from the allegations made in the FIR as well as statement of the witnesses recorded under Section 161 CrPC, prima facie offence under Section 3(1) of U.P. Gangsters and Anti-Social Activities (Prevention) Act is made out against the applicant. The veracity of such statement can be appreciated and analyzed only by the trial court at the stage of trial.

18. In view of the above discussion, I do not find any good ground to interfere in the impugned order dated 31.07.2023 passed by the court below. The instant application under Section 482 Cr.P.C. is devoid of merits and is accordingly dismissed.

Order Date :- 16.8.2023

Nadim