Amarjeet Tiwari And 2 Others vs State Of U.P. And Another
2023 Latest Caselaw 4587 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 52
 

 
Case :- APPLICATION U/S 482 No. - 5171 of 2023
 

 
Applicant :- Amarjeet Tiwari And 2 Others
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Maheshwari Prasad Pandey
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Shiv Shanker Prasad,J.

1. This application u/s 482 Cr.P.C. has been filed against the order dated 1st November, 2022 passed by the Civil Judge (Senior Division) Fast Track Court, Jaunur in Case No. 1384 of 2018 (State Vs. Amarjeet Tiwari), arising out of Case Crime No. 08 of 2015, under Sections 323, 504, 506, 427, and 452 I.P.C., Police Station-Barsathi, District-Jaunpur, pending in the Court of Civil Judge (Senior Division) Fast Track Court, Jaunur in Case No. 1384 of 2018 (State Vs. Amarjeet Tiwari), whereby the discharge application of the applicants has been rejected.

2. Heard Mr. Maheshwari Prasad Pandey, learned counsel for the applicants, learned A.G.A. for the State as well as perused the entire material available on record.

3. Brief facts of the present case are that a non-cognizable report has been lodged by opposite party no.2 against the applicants and one other person on 10th November, 2014, which has been registered as Case Crime No. 232 of 2014 under Sections 323, 504 and 427 I.P.C., Police Station-Barsathi, District-Jaunpur. After conducting statutory investigation under Chapter XII Cr.P.C., charge-sheet came to be submitted on 5th January, 2015 under Sections 323, 504, 506, 427 and 452 I.P.C. on which the concerned court took cognizance vide order dated 24th February, 2015 and the case has been numbered as Case No. 1384 of 2018 (State Vs. Amarjeet Tiwari). On 27th March, 2018, the applicants have filed discharge application, which has been rejected under the order impugned.

4. Challenging the order impugned, learned counsel for the applicants submits that on Ram Achchaibar has filed Civil Suit No. 1353 of 2019 (Ram Achchaibar Vs. Balendra Kumar & Others) in which father of the applicant is opposite party no.4 and because of the dispute giving rise to the said suit, the opposite party no.2 is trying to accused him in the non-cognizable report. It is further submitted that as per the allegations made in the first information report, the offence under Sections 323, 504, 506, 427, 452 I.P.C. I.P.C. are not made out against the applicants and the present N.C.R. has been registered against the applicants with malicious intention only or the purposes of harassing them. It is then submitted that the Investigating Officer without collecting documentary evidence against applicants, only on the basis of the statement of informant Devendra Kumar Dwivedi has submitted the charge-sheet against the applicants under Sections 323, 504, 506, 427, 452 I.P.C. in illegal and arbitrary manner. From perusal of the contents of FIR and the statement of the informant under Section 161 Cr.P.C. no prima facie offence under Sections 323, 504, 506, 427, 452 I.P.C. is made out against the applicants. It is lastly submitted that the learned court below has rejected the discharge application of the applicants in routine manner, which is illegal, arbitrary, improper, unjust and against the principle of natural justice. On the cumulative strength of the aforesaid, the order impugned cannot be legally sustained and is liable to be quashed.

5. On the other-hand, learned A.G.A. for the State submits that all the contentions raised by the learned counsel for the applicants relate to disputed questions of fact and the veracity and credibility of material furnished on behalf of the prosecution cannot be examined at this stage. As such there is no illegality or infirmity in the order impugned so as to warrant any interference by this Court.

6. We have considered the submissions made by the learned counsel for the parties and gone through the records of the present application.

7. Before proceeding to adjudge the validity of the impugned order it may be useful to cast a fleeting glance to some of the representative cases decided by the Hon'ble Supreme Court which have expatiated upon the legal approach to be adopted at the time of framing of the charge or at the time of deciding whether the accused ought to be discharged. It shall be advantageous to refer to the observations made by the Hon'ble Apex Court in the case of State of Bihar vs. Ramesh Singh reported in 1977 (4) SCC 39 which are as follows :-

"4. Under S. 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 u/s. 227 or u/s. 228 of the Code. If "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", so enjoined by s. 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) in exclusively triable by the court, he shall frame in writing a charge against the accused," as provided in S. 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 this stage of deciding the matter under s. 227 and 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. 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, if any, cannot show that the accused committed the offence, 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 S. 227 or S. 228, then in such a situation ordinarily and generally the order which will have to be made will be one under S. 228 and not under S. 227."

Aforesaid case was again referred to in another Apex Court's decision Superintendent and Remembrancer of Legal Affairs, West Bengal Versus Anil Kumar Bhunja reported in AIR 1980 (SC) 52 and the Apex Court proceeded to observe as follows:

"18. It may be remembered that the case was at the stage of framing charges; the prosecution evidence had not yet commenced. The Magistrate had, therefore, to consider the above question on a general consideration of the materials placed before him by the investigating police officer. At this stage, as was pointed out by this Court in State of Bihar v. Ramesh Singh, AIR 1977 SC 2018, the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of Section 227 or 228 of the Code of Criminal Procedure, 1973. At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged; may justify the framing of charge against the accused in respect of the commission of that offence."

8. In yet another case of Palwinder Singh Vs. Balvinder Singh reported in AIR 2009 SC 887 the Apex Court had the occasion to reflect upon the scope of adjudication and its ambit at the time of framing of the charge and also about the scope to consider the material produced by the accused at that stage. Following extract may be profitably quoted to clarify the situation :

"12. Having heard learned counsel for the parties, we are of the opinion that the High Court committed a serious error in passing the impugned judgment insofar as it entered into the realm of appreciation of evidence at the stage of the framing of the charges itself. The jurisdiction of the learned Sessions Judge while exercising power under Section 227 of the Code of Criminal Procedure is limited. Charges can be framed also on the basis of strong suspicion. Marshalling and appreciation of evidence is not in the domain of the Court at that point of time. This aspect of the matter has been considered by this Court in state of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568 wherein it was held as under :

"23. As a result of the aforesaid discussion, in our view, clearly the law is that at the time of framing charge or taking cognizance the accused has no right to produce any material. Satish Mehra's Case holding that the trial Court has powers to consider even materials which the accused may produce at the stage of Section 227 of the Code has not been correctly decided."

9. The following observations made by the Hon'ble Supreme Court in the case of Sanghi Brothers (Indore) Pvt. Ltd. v. Sanjay Choudhary reported in AIR 2009 SC 9 also reiterated the same position of law :-

"10. After analyzing the terminology used in the three pairs of sections it was held that despite the differences there is no scope for doubt that at the stage at which the Court is required to consider the question of framing of charge, the test of a prima facie case to be applied.

11. The present case is not one where the High Court ought to have interfered with the order of framing the charge. As rightly submitted by learned counsel for the appellant, even if there is a strong suspicion about the commission of offence and the involvement of the accused, it is sufficient for the Court to frame a charge. At that stage, there is no necessity of formulating the opinion about the prospect of conviction. That being so, the impugned order of the High Court cannot be sustained and is set aside. The appeal is allowed."

10. In fact while exercising the inherent jurisdiction under Section 482 Cr.P.C. or while wielding the powers under Section 226 of the Constitution of India the quashing of the proceedings of complaint/criminal case can be done only if it does not disclose any offence or if there is any legal bar which prohibits the proceedings on its basis. The Apex Court decisions in R.P. Kapur Vs. State of Punjab reported in AIR 1960 SC 866 and State of Haryana Vs. Bhajan Lal reported in 1992 SCC(Cr.) 426 make the position of law in this regard clear recognizing certain categories by way of illustration which may justify the quashing of a complaint or charge sheet.

11. Illumined by the case law referred to herein above, this Court has adverted to the entire record of the case specifically the order impugned rejecting the discharge application of the applicants.

12. On examination of the order impugned, this Court finds that the court below while passing the order impugned has recorded categorical finding of fact that the accused/applicants barged into the house of the informant and assaulted the informant and his mother and threatened to kill them while leaving. The submission of the accused-applicants that applicant no.1 Amarjeet Tiwari was not present at home but in this regard no evidence was produced by the applicants/accused to prove that the accused Amarjeet was not present at the time of the incident. Other facts presented by the accused-applicants are also baseless. The court below has opined that there is no sufficient ground to accept the discharge application of the applicants/accused. On the basis of aforesaid finding, the court has rejected the discharge application filed by the applicants.

13. The submissions made by the learned counsel for the applicants call for adjudication on pure questions of fact which may be adequately adjudicated upon only by the trial court and while doing so even the submissions made on points of law can also be more appropriately gone into by the trial court in this case. This Court does not deem it proper, and therefore cannot be persuaded to have a pre-trial before the actual trial begins. A threadbare discussion of various facts and circumstances, as they emerge from the allegations made against the accused, is being purposely avoided by the Court for the reason, lest the same might cause any prejudice to either side during trial. However, it shall suffice to observe that the perusal of the F.I.R. and the material collected by the Investigating Officer on the basis of which the charge sheet has been submitted makes out a prima facie case against the accused at this stage and this Court does not find any justifiable ground to set aside the impugned order refusing the discharge of the accused. This court has not been able to persuade itself to hold that no case against the accused has been made out or to hold that the charge is groundless.

14. In view of the deliberation and discussions held above, this Court holds that there is no illegality or infirmity in the order passed by the court below so as as to warrant any interference by this Court in exercise of its power under Section 482 Cr.P.C.

15. The present application is accordingly rejected.

(Shiv Shanker Prasad, J.)

Order Date :- 13.2.2023

Sushil/-