Mohd Haroon vs State Of U.P. And Another
2023 Latest Caselaw 4124 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 69
 

 
Case :- APPLICATION U/S 482 No. - 1942 of 2023
 
Applicant :- Mohd Haroon
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Deepak Pandey
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Samit Gopal,J.

1. List revised.

2. Heard Shri Deepak Pandey and Sri Somit Shukla, learned counsels for the applicant, Sri B.B. Upadhyay and Ms. Arti Agarwal, learned counsels for the State and perused the material brought on record.

3. The present application under Section 482 Cr.P.C. has been filed by the applicant with the following prayers:-

"It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to quash the impugned charge sheet no.182 dated 8.9.2022 in Case No.10417 of 2022 (State Vs. Mohd. Haroon) arising out of Case Crime No.248 of 2022, u/s 354, 354A, 354D and 509 IPC, P.S. Kotwali, District Hamirpur.

It is further prayed that this Hon'ble Court may graciously be pleased to stay the further proceedings of Case No.10417 of 2022 (State Vs. Mohd. Haroon) arising out of Case Crime No.248 of 2022, u/s 354, 354A, 354D and 509 IPC, P.S. Kotwali, District Hamirpur, pending in the court of Civil Judge (Jr. Division) F.T.C Crime against Women Court, Hamirpur."

4. This Court is not dilating with the facts of the present case for the reasons given below:-

The applicant is an accused in Case Crime No.248 of 2022, under Sections 354, 354-A, 354-D and 509 IPC, Police Station Kotwali, District Hamirpur. The present application under Section 482 Cr.P.C. has been filed by him for quashing of the charge sheet dated 8.9.2022. Previously the applicant had filed an application under Section 482 Cr.P.C. with the prayer to quash/set-aside the order dated 15.11.2022 passed in the said case by which the discharge application of the applicant was rejected. The said application under Section 482 Cr.P.C. which was numbered as Criminal Misc. Application U/S 482 No.1558 of 2023 (Mohd. Haroon Vs. State of U.P. and another) stood rejected by this Court vide order dated 16.1.2023. This Court while dismissing the said application held that prima facie evidence is there against the applicant and as such the order rejecting the discharge application is just and as such refused to interfere in the said petition.

5. Learned counsel for the applicant argued that this Court to secure the ends of justice can interfere in the matter at this stage even after dismissal of the earlier Application U/S 482 Cr.P.C. challenging the order of rejection of discharge application and quash the proceedings against the applicant. It is argued that the allegations against the applicant are totally absurd. No offence is made out against the applicant. It is argued that the fundamental right and liberty of the applicant are even curtailed because of the present criminal case. The same is a harassment to him. He is a practicing lawyer of the district court and as such the proceedings be quashed.

6. Per contra, learned counsel for the state opposed the prayer for quashing and argued that finding a prima facie case being made out against the applicant and a report under Section 173(2) Cr.P.C./Charge Sheet has been submitted against him on which the trial court took cognizance and summoned him vide order dated 13.2.2022. It is argued that application for discharge was rejected by the trial court which has been upheld by this Court which would further go to show that prima facie case is made out against the applicant. The present case is devoid of any merits and deserves to be dismissed.

7. After having heard learned counsel for both the parties and perusing the records, it is evident that previously the applicant had filed Criminal Misc. Application U/S 482 Cr.P.C. No.1558 of 2023 challenging the order of rejection of discharge application dated 15.11.2022 which stood dismissed by this Court vide order dated 16.1.2023. The said order reads as follows:- 

"1. The present application under Section 482 Cr.P.C. has been filed by the applicant- Mohd Haroon with the prayer to quash / set-aside of rejection order of Discharge Application dated 15.11.2022 in Case No. 10417 of 2022 (State Vs. Mohd Haroon) arising out of Case Crime No. 248 of 2022, under Sections 354, 354-A, 354-D and 509 I.P.C., Police Station Kotwali, District Hamirpur with a further prayer to stay the further proceedings of the said case pending in the Court of Civil Judge (Jr. Division), F.T.C. Crime against Women Court, Hamirpur.

2. The facts as set out in the case are that a first information report was lodged on 19.08.2022 by the opposite party no.2 for an incident which took place from 25.07.2022 to 18.08.2022 which was lodged as Case Crime No. 248 of 2022, under Sections 354 (Ga), 354 (Gha) I.P.C., Police Station- Kotwali, District Hamirpur against the applicant Mohd. Haroon, Advocate, Hamirpur. The contents of the said first information report which set out the prosecution case are extracted herein below:-

"नकलप्रा०पत्र- To SHO Police Station Kotwall, Hamirpur, From Harshita Sachan, Civil Judge (J.D.)/F.T.C., Hamirpur. Subject: Complaint against Advocate Mohammad Haroon practicing at District Court Hamirpur Sir, This is to inform that I took charge as Civil Judge (J.D.)/F.T.C., Hamirpur on 05.07.2022. In the fourt week of July (18th July - 24 July), saw an advocate (Mohammad Haroon practicing at District Court Hamirpur) ogling at me through the gap between the wall behind my chamber while I was walking out of my chamber. It happened twice that week. It did not know the name of the Advocate at that point of time but I recognised him as he had appeared in my Courtroom before. On 25th of July, around 8:45 pm, after going for my usual walk at the Yamuna walkway, I had sat down at a bench there. I had earphones on and was listening to music. Two minutes later, I saw the same advocate standing right next to the bench saying something. Out of courtesy, I removed my earphones and exchanges greetingsThen the following conversation took place M. Haroon: आप हमीरपुर वापस आ गयी है तो अच्छा लग रहा होगा। I nodded M Haroon: आप सरीला चली गयी थी तो मन नही लग रहा था। I was visibly uncomfortable and as he seemed drunk, so I started to stand up from the bench, when he said - मैने आपको डिस्टर्ब तो नही किया। Where I said काफी लेट हो गया है, मुझे निकलना चाहिये। and then I turned around. As I was leaving, he said, वैसे अच्छी लग रही हो। AS it was already quite late. I ignored that comment and I left. I was disturbed by this incident and I stopped going to the walkway for a couple of days. I mentioned that incident to my friends who urged me to report, but believing that it was a one time transgression, I decided to ignore it. A few days later, I saw M. Haroon staring at me again from the wall behind my chamber while I was walking outside. It made me very uncomfortable and anxious and I walked back into my chamber not knowing what to do. I had been avoiding going to the walkway since the inappropriate conversation as well On 01.08.2022, after I had calmed down, I went for a walk on the Yamuna walkway at 8:18 pm, I even sent my live location to a friend because of the fear of any untoward incident happening. At 8.40 pm, I sat on a bench and within a minute, M. Haroon walked towards the bench. The following conversation took place I asked him straightway. आपका नाम क्या है? M. Haroon: मोहम्मद हारून Then I proceeded to warn him, आपके उस दिन के व्यवहार से में काफी डिस्टर्बड हूँ आप जो यहां मेरे पीछे-पीछे चलते हैं और कोर्ट में दीवार से झांकते हैं. यह दोबारा नही होना चाहिये। आज के बाद मुझसे बात करने की जरूरत नहीं है। अगर दोबारा ऐसा हुआ तो मैं फिर कम्पलेन्ट करुंगी। After listening to this, he walked off without saying anything. After that day, he would walk a few beet behind me every time I would go for a walk on the Yamuna walkway. He would also appear in my Courtroom even when there was no mater listed and would seat himself for hours. As he did not engage with me explicitly, I chose to ignore I have a habit of wearing black sweatpants, blue-black checkered shirts and while shoes when I go for a walk I had the same outfit on when I went for a walk yesterday, 18.08.2022 at around 8:00 pm: The moment I walked up the staircase that lies on the road in front of my house toward the walkway. I saw him walk up the staircase as well. I continued on my usual walk. That day, he walked barely two feet behind me I also noticed that he was wearing the same clothes as me, the exact same outfit down to the white shoes. I was terrified and freaked out by this behaviour and in fear called a fried and decided to sit on a bench so that he would stop following me. The moment I sat on the bench, he also stopped walking and sat on a different bench nearby around 8.55 pm. Deciding that I should go back home as I was feeling unsafe, I stood up and watching me stand up, he stood up as well and started walking I sat back down and started filming him. His steps were faltering and it was clear that he was intoxicated. He walked a few steps ahead of me and then turned around towards me After seeing that I had my phone pointed towards him, he started talking to some people there. After that whenever I would walk, he would follow and where I would stop, he would stop as well He would come towards me and mumble something and try to initiate conversation but I kept walking got a whiff of a foul liquor smell coming off him filmed him again turning towards me and then walking to and fro at the same place, waiting for me to walk again. Terrified by the whole thing, I got down at the staircase near my residence as fast as I could and then around 9:05 pm, called senior Judges to inform about the whole series of incidents. While I was on the call, standing on the road outside Judges Complex, I saw him driving by his car and leaning outside the window staring at me I have been living in fear of further transgressions and misbehaviour on the part of M Haroon Despite my strict warning to back off after his extremely inappropriate comments and his clear intrusion of my privacy, he has resorted to keep stalking and trying to approach me am worried about my safety and well-being in court premises and outside as well. I implore you to take strict action and to ensure my safety. 19.08.2022 Copy forwarded to -1. Superintendent of Police Hamirpur Regards, SD Harshita ( Harshita Sachan) Civil Judge (J.D.)/F.T.C. Hamirpur 8368471367 R/o J-6 Judges Colony District Hamirpur, PIN- 210301 Permanent R/o. 174/W-2, Juhi Damodar Nagar, Kanpur Pin- 208027 मै का०मु० अखिलेश कुमार प्रमाणित करता हूं कि प्रा० पत्र की नकल मुझ का०मु० द्वारा बोलबोलकर अक्षरश अंकित करवाई गयी। - एस०डी० का०मु० अखिलेश कुमार"

3. A complaint dated 20.08.2022 was sent by the opposite party no.2 to the Chairman, Internal Complaints Committee (POSH Act), District Court, Hamirpur against the accused. On the said complaint notice was issued by the Chairman of the said committee to the accused.

4. The investigation took place in which the statement of the complainant who was the victim was recorded under Section 161 Cr.P.C. and under Section 164 Cr.P.C. Subsequently a charge-sheet dated 08.09.2022 bearing No. 182 of 2022 was submitted against the applicant under Sections 354, 354 (Ka), 354 (Gha), 509 I.P.C.

5. On the said charge-sheet the accused was summoned vide order dated 13.09.2022 passed by Civil Judge (Jr. Div)/F.T.C. (Crime Against Women), Hamirpur.

6. An application dated 12.10.2022 for discharge was moved by the applicant under Section 227 read with Section 239 Cr.P.C. The said application for discharge dated 12.10.2022 was rejected by the trial court vide order dated 15.11.2022. The present petition has thus been filed with the prayers as quoted above.

7. Heard Sri Deepak Pandey, learned counsel for the applicant and Sri B.B. Upadhyay, learned A.G.A. for the State and perused the records.

8. Learned counsel for the applicant argued that the rejection of the application for discharge dated 12.10.2022 of the applicant vide order dated 15.11.2022 is totally illegal. It is argued that the trial court has wrongly rejected the said application for discharge. It is argued that the trial court did not consider the fact that the applicant should be tried only for the offences which are made out but not for all the offences as stated in the charge-sheet. It is argued that there is no allegation of any offence under Sections 354, 354-A I.P.C. and as such the said offences are not made out at all. It is further argued that the entire prosecution case is based on the sole uncorroborated version of the opposite party no.2 / first informant / victim which is without any evidence and there is no independent witness to corroborate the same. The version as given by her in her statement under Section 161 Cr.P.C. is totally vague, baseless and contrary which cannot be relied upon. It is argued that the applicant is a practising Advocate and he has not committed any offence. It is argued that the charge-sheet as against the applicant is groundless and no case is made out against him and he deserves to be discharged. The present application thus deserves to be allowed and the order impugned dated 15.11.2022 rejecting the application for discharge dated 12.10.2022 be set-aside and the applicant be discharged.

9. Per contra learned A.G.A. for the State opposed the prayer for quashing and argued that the applicant is named in the first information report and there are allegations against him. The first informant who is the victim of the present case has corroborated the version of the first information report in her statement given under Section 161 Cr.P.C. and under Section 164 Cr.P.C. The Investigating Officer after investigation has submitted a charge-sheet against the applicant on which he has been summoned to face trial vide order dated 13.09.2022. It is further argued that in so far as the application for discharge of the applicant is concerned, the court at the stage of discharge has to see only the prima facie case against the accused and cannot judge the truthfulness of the allegations made therein. It is argued that the first information report and the version of the first informant / victim during investigation implicates the applicant in the present case and there are prima facie allegations against him. The trial court has by a detailed order on merits rejected the application for discharge of the applicant vide order dated 15.11.2022. The said order takes into account the relevant facts and circumstances of the case and keeping in view of the law as is consistent till date rejected the same.

10. Heard learned counsel for the parties and perused the records.

11. The law with regards to discharge of accused and framing of charge is well settled.

12. An accused can also be discharged as per Section 227, 239 Cr.P.C. They reads as under:

"Section 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."

"Section 239 Cr.P.C. Discharge - If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for doing so."

13. The Apex Court, in the case of Sajjan Kumar Vs. C.B.I.: (2010) 9 SCC 368, held that at the time of framing of charge, the Court has to look at all the material placed before it and determine whether a prima faciecase is made out or not, and the court is not required to consider the evidentiary value of the evidence as any question of admissibility or reliability of evidence is a matter of trial. The relevant portion of the judgment is reproduced below:

"21. On consideration of the authorities about scope of Sections 227 and 228 of the Code, the following principles emerge:

(i) The Judge while considering the question of framing the charges under Section 227 of the Cr.P.C. has the undoubted power 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. The test to determine prima facie case would depend upon the facts of each case.

(ii) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial.

(iii) The Court cannot act merely as a Post Office or a mouthpiece of the prose(i) The Judge while considering the question of framing the charges under Section 227 of the Cr.P.C. has the undoubted power to s(i) The Judge while considering the question of framing the charges under Section 227 of the Cr.P.C. has the undoubted power 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. The test to determine prima facie case would depend upon the facts of each case.

(iv) If on the basis of the material on record, the Court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.

(v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the Court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.

(vi) At the stage of Sections 227 and 228, the Court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value discloses the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.

(vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal."

14. In Amit Kapoor Vs. Ramesh Chander : (2012) 9 SCC 460, the Apex Court enlisted certain principles with reference to exercise of power under Section 397 and Section 482 of Cr.P.C. by the Courts while deciding as to whether the charges framed against an accused be quashed or not. The principles listed are as under:

"27. Having discussed the scope of jurisdiction under these two provisions, i.e., Section 397 and Section 482 of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but is inherently impossible to state with precision such principles. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be:

27.1. Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.

27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.

27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.

27.4. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loathe to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers.

27.5. Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused.

27.6. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender.

27.7. The process of the Court cannot be permitted to be used for an oblique or ultimate/ulterior purpose.

27.8. Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a ''civil wrong' with no ''element of criminality' and does not satisfy the basic ingredients of a criminal offence, the Court may be justified in quashing the charge. Even in such cases, the Court would not embark upon the critical analysis of the evidence.

27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction, the Court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.

27.10. It is neither necessary nor is the court called upon to hold a full-fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction.

27.11. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained.

27.12. In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed with by the prosecution.

27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie.

27.14. Where the charge-sheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge.

27.15. Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae, i.e. to do real and substantial justice for administration of which alone, the courts exist.

27.16. These are the principles which individually and preferably cumulatively (one or more) be taken into consideration as precepts to exercise of extraordinary and wide plenitude and jurisdiction under Section 482 of the Code by the High Court. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance to the requirements of the offence."

15. In the case of Asim Shariff v. National Investigation Agency : (2019) 7 SCC 148, it was reiterated by the Apex Court that the trial court is not supposed to divulge the evidence on the record to determine whether the accused would get acquitted or convicted if a particular charge is framed against an accused. The relevant portion of the observation of the court in the case is as under:

"18. Taking note of the exposition of law on the subject laid down by this Court, it is settled that the Judge while considering the question of framing charge under Section 227 CrPC in sessions cases (which is akin to Section 239 CrPC pertaining to warrant cases) has the undoubted power 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; where the material placed before the court discloses grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing the charge; by and large if two views are possible and one of them giving rise to suspicion only, as distinguished from grave suspicion against the accused, the trial Judge will be justified in discharging him. It is thus clear that while examining the discharge application filed under Section 227 CrPC, it is expected from the trial Judge to exercise its judicial mind to determine as to whether a case for trial has been made out or not. It is true that in such proceedings, the court is not supposed to hold a mini trial by marshalling the evidence on record."

16. Further, in the case of Vikram Johar v. State of Uttar Pradesh : 2019 SCC OnLine SC 609 the Apex Court has reiterated that during the stage of charge, the court must not conduct a mini-trial and the decision should be based on the prima facie appreciation of the materials placed on record. The relevant portion of the said judgment is as under:

"19. It is, thus, clear that while considering the discharge application, the Court is to exercise its judicial mind to determine whether a case for trial has been made out or not. It is true that in such proceedings, the Court is not to hold the mini trial by marshalling the evidence."

17. The Apex Court in Bhawna Bai Vs. Ghanshyam : (2020) 2 SCC 217, has observed as under:-

"13. ...At the time of framing the charges, only prima facie case is to be seen; whether case is beyond reasonable doubt, is not to be seen at this stage. At the stage of framing the charge, the court has to see if there is sufficient ground for proceeding against the accused. While evaluating the materials, strict standard of proof is not required; only prima facie case against the accused is to be seen."

18. In M.E. Shivalingamurthy Vs. CBI : (2020) 2 SCC 768, the Hon'ble Apex Court, while discussing the principles to be followed while dealing with an application seeking discharge, observed as under:

"i. If two views are possible and one of them gives rise to suspicion only as distinguished from grave suspicion, the Trial Judge would be empowered to discharge the accused.

ii. The Trial Judge is not a mere Post Office to frame the charge at the instance of the prosecution.

iii. The Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding. Evidence would consist of the statements recorded by the Police or the documents produced before the Court.

iv. 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 evidence, if any, "cannot show that the accused committed offence, then, there will be no sufficient ground for proceeding with the trial.

v. It is open to the accused to explain away the materials giving rise to the grave suspicion.

vi. The court has to consider the broad probabilities, the total effect of the evidence and the documents produced before the court, any basic infirmities appearing in the case and so on. This, however, would not entitle the court to make a roving inquiry into the pros and cons.

vii. At the time of framing of the charges, the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution, has to be accepted as true.

viii. There must exist some materials for entertaining the strong suspicion which can form the basis for drawing up a charge and refusing to discharge the accused..."

19. The Apex Court decision in State of Rajasthan Vs. Ashok Kumar Kashyap : 2021 SCC OnLine SC 314, held that the at the stage of framing of the charge and/or considering the discharge application, a mini trial is not permissible. The Court observed that the position of law that emerges is that at the stage of discharge/framing of charge, the Judge is merely required to take note of the material on record in order to find out whether or not there is sufficient ground for proceeding against the accused.

20. In the case of State of Rajasthan Vs. Ashok Kumar Kashyap : 2021 SCC OnLine SC 314, the Apex Court held that the evaluation of evidence on merits is not permissible at the stage of considering the application for discharge. At the stage of framing of the charge and/or considering the discharge application, a mini trial is not permissible. It has been held as under:

"23. In the case of P. Vijayan (supra), this Court had an occasion to consider Section 227 of the Cr.P.C. 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 Cr.P.C., 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."

21. Further the Apex Court in the case of State of Orissa Vs. Pratima Mohanty : 2021 SCC OnLine SC 1222 decided on 11 December 2021, has comprehensively dealt with the powers exercisable and extent of the jurisdiction of the High Court while deciding a petition under Section 482 of the Cr.P.C. It has been held as under:

"16. It is trite that the power of quashing should be exercised sparingly and with circumspection and in rare cases. As per settled proposition of law while examining an FIR/complaint quashing of which is sought, the court cannot embark upon any enquiry as to the reliability or genuineness of allegations made in the FIR/complaint. Quashing of a complaint/FIR should be an exception rather than any ordinary rule. Normally the criminal proceedings should not be quashed in exercise of powers under Section 482 Cr.P.C. when after a thorough investigation the charge-sheet has been filed. At the stage of discharge and/or considering the application under Section 482 Cr.P.C. the courts are not required to go into the merits of the allegations and/or evidence in detail as if conducing the mini-trial. As held by this Court the powers under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the Court."

22. In the case of Hazrat Deen vs. State of Uttar Pradesh: 2022 SCC Online SC 1781 the Apex Court has in para 6 held as follows:

"6. Discrepancies between the FIR and any subsequent statement under Section 164 of the Cr.P.C. may be a defence. However, the discrepancies cannot be a ground for discharge without initiation of trial."

23. In the case of State Through Deputy Superintendentof Police Vs. R. Soundirarasu : 2022 SCC OnLine SC 1150 the Apex Court has held as under:

"75. The ambit and scope of exercise of power under Sections 239 and 240 of the CrPC, are therefore fairly well settled. The obligation to discharge the accused under Section 239 arises when the Magistrate considers the charge against the accused to be "groundless". The Section mandates that the Magistrate shall discharge the accused recording reasons, if after (i) considering the police report and the documents sent with it under Section 173, (ii) examining the accused, if necessary, and (iii) giving the prosecution and the accused an opportunity of being heard, he considers the charge against the accused to be groundless, i.e., either there is no legal evidence or that the facts are such that no offence is made out at all. No detailed evaluation of the materials or meticulous consideration of the possible defences need be undertaken at this stage nor any exercise of weighing materials in golden scales is to be undertaken at this stage - the only consideration at the stage of Section 239/240 is as to whether the allegation/charge is groundless.

76. This would not be the stage for weighing the pros and cons of all the implications of the materials, nor for sifting the materials placed by the prosecution the exercise at this stage is to be confined to considering the police report and the documents to decide whether the allegations against the accused can be said to be "groundless".

77. The word "ground" according to the Black's Law Dictionary connotes foundation or basis, and in the context of prosecution in a criminal case, it would be held to mean the basis for charging the accused or foundation for the admissibility of evidence. Seen in the context, the word "groundless" would connote no basis or foundation in evidence. The test which may, therefore, be applied for determining whether the charge should be considered groundless is that where the materials are such that even if unrebutted, would make out no case whatsoever."

24. In the case of Manendra Prasad Tiwari Vs. Amit Kumar Tiwari : 2022 SCC OnLine SC 1057, the Apex Court has explained the well-settled law on exercise of powers under Section 397 and 482 Cr.P.C. as under:

"21. The law is well settled that although it is open to a High Court entertaining a petition under Section 482 of the CrPC or a revision application under Section 397 of the CrPC to quash the charges framed by the trial court, yet the same cannot be done by weighing the correctness or sufficiency of the evidence. In a case praying for quashing of the charge, the principle to be adopted by the High Court should be that if the entire evidence produced by the prosecution is to be believed, would it constitute an offence or not. The truthfulness, the sufficiency and acceptability of the material produced at the time of framing of a charge can be done only at the stage of trial. To put it more succinctly, at the stage of charge the Court is to examine the materials only with a view to be satisfied that prima facie case of commission of offence alleged has been made out against the accused person. It is also well settled that when the petition is filed by the accused under Section 482 CrPC or a revision Petition under Section 397 read with Section 401 of the CrPC seeking for the quashing of charge framed against him, 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 on 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.

22. The scope of interference and exercise of jurisdiction under Section 397 of CrPC has been time and again explained by this Court. Further, the scope of interference under Section 397 CrPC at a stage, when charge had been framed, is also well settled. At the stage of framing of a charge, the court is concerned not with the proof of the allegation rather it has to focus on the material and form an opinion whether there is strong suspicion that the accused has committed an offence, which if put to trial, could prove his guilt. The framing of charge is not a stage, at which stage the final test of guilt is to be applied. Thus, to hold that at the stage of framing the charge, the court should form an opinion that the accused is certainly guilty of committing an offence, is to hold something which is neither permissible nor is in consonance with the scheme of Code of Criminal Procedure

23. Section 397 CrPC vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept in the proceeding."

25. In the case of Kanchan Kumar Vs. State of Bihar : (2022) 9 SCC 577 the Apex Court while considering the judgement in the case of Dipakbhai Jagdishchandra Patel Vs. State of Gujarat summarised the principles on discharge under Section 227 Cr.P.C. and held as follows:

"15. Summarising the principles on discharge under Section 227 CrPC, in Dipakbhai Jagdishchandra Patel v. State of Gujarat [Dipakbhai Jagdishchandra Patel v. State of Gujarat, (2019) 16 SCC 547 : (2020) 2 SCC (Cri) 361] , this Court recapitulated : (SCC p. 561, para 23)

"23. At the stage of framing the charge in accordance with the principles which have been laid down by this Court, what the court is expected to do is, it does not act as a mere post office. The court must indeed sift the material before it. The material to be sifted would be the material which is produced and relied upon by the prosecution. The sifting is not to be meticulous in the sense that the court dons the mantle of the trial Judge hearing arguments after the entire evidence has been adduced after a full-fledged trial and the question is not whether the prosecution has made out the case for the conviction of the accused. All that is required is, the court must be satisfied that with the materials available, a case is made out for the accused to stand trial. A strong suspicion suffices. However, a strong suspicion must be founded on some material. The material must be such as can be translated into evidence at the stage of trial. The strong suspicion cannot be the pure subjective satisfaction based on the moral notions of the Judge that here is a case where it is possible that the accused has committed the offence. Strong suspicion must be the suspicion which is premised on some material which commends itself to the court as sufficient to entertain the prima facie view that the accused has committed the offence."

(emphasis supplied)"

26. After having heard the learned counsel for the parties, perusing the record and as per the law relating to discharge, it is apparent that the applicant is named in the first information report, the statement of first informant / victim recorded under Section 161 Cr.P.C. and under Section 164 Cr.P.C. There is prima facie evidence against the applicant which only is to be seen. The truthfulness of the allegations cannot be seen and adjudicated at this stage.

27. Thus, the position of law that emerges is that at the stage of discharge/framing of charge, the Court is merely required to shift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused i.e. whether a prima facie case is made out against the accused.

28. Looking to the facts of the case, the prima facie allegation against the applicant and the law as stated above, no case for interference is made out.

29. The present application under Section 482 Cr.P.C. is thus dismissed.

30. A copy of this order be sent to the trial court by the Registrar (Compliance) of this Court within a week."

8. After giving an opinion that prima-facie case is made out against the applicant in the previous application under Section 482 Cr.P.C., this Court in the present application under Section 482 Cr.P.C. thus again comes to the conclusion that a prima-facie case is made out against the applicant. This Court thus is not inclined to interfere in the matter.

9. The present application under Section 482 Cr.P.C. lacks merit and is, accordingly, dismissed.

                                                          (Samit Gopal, J.)

Order Date :- 9.2.2023

Gaurav