Ram Swarath And 6 Others vs State Of U.P. And Another
2023 Latest Caselaw 17231 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:138857
 
Court No. - 86
 

 
Case :- APPLICATION U/S 482 No. - 24677 of 2023
 

 
Applicant :- Ram Swarath And 6 Others
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- Chandra Kant Tripathi
 
Counsel for Opposite Party :- G.A.,Surendra Kumar Tiwari
 

 
Hon'ble Rajiv Gupta,J.

1. Heard learned counsel for the applicants, learned AGA for the State, Shri Surendra Kumar Tiwari, learned counsel for the opposite party No.2 and perused the record.

2. The instant application under Section 482 Cr.P.C. has been filed with the prayer to quash the impugned order dated 17.05.2023 passed by learned Sessions Judge, Basti in S.T. No. 760 of 2022 (State Vs. Ram Swarath and Others), arising out of Case Crime No. 0082 of 2022, under Sections 147, 148, 149, 302, 323, 325, 504, 506, 34 IPC, Police Station Harraiya, District Basti, whereby the application filed by the applicant under Section 227 Cr.P.C. has been rejected.

3. Learned counsel for the applicants 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.

4. Learned counsel for the applicants has further submitted that to frame charges in appropriate penal sections, it is necessary that the ingredients of those penal sections should be present, however, in the instant case, taking into consideration the entire allegations made in the FIR and the statement of the witnesses on its face value, no offence, charged of, would be made out.

5. Learned counsel for the applicants has next submitted that the applicants have absolutely no role to play in the said incident and they have falsely been implicated in the present case. He has next submitted that no independent witness has been examined and all the witnesses are the interested witnesses.

6. Learned counsel for the applicant has next submitted that taking into consideration the entire allegations made in the FIR and all the material and evidence available on record, no offence under Section 302 IPC is made out against the applicants and the entire prosecution story has been cooked up and concocted, which is not worth credence, yet the trial court, without application of judicial mind and without considering the entire evidence and material on record, in a most cursory and routine manner, has passed the impugned order dated 17.05.2023 and as such, the impugned order is liable to be set aside.

7. Per contra, learned AGA has vehemently opposed the said prayer and has supported the impugned order refusing to discharge the accused-applicants 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 applicants.

8. Learned AGA has further submitted that from the allegations made in the FIR, specific allegation of assault by dangerous weapons, like Farsa, Irod Rod, Kudal and Lathi, has been assigned to the applicants, who hit the victim by the said weapons, causing death of Amar Nath, whereas Rama Nand and Vinod Verma have suffered injuries on their person including fracture injury. Thus, specific role has been assigned to the applicants showing their participation in the said incident.

9. Learned AGA has further submitted that post-mortem report of the deceased as well as injury report of the victims completely corroborates the prosecution story.

10. Learned AGA has further submitted that at the stage of discharge under Section 227 Cr.P.C., the trial court is required to discharge the accused, if upon consideration of record of the case and documents submitted therewith and after hearing the accused and prosecution in this behalf, it is considered that there is no sufficient ground for proceeding against the accused, he can be discharged.

11. Learned AGA has further submitted that at the stage of discharge, the court is not required to make a roving enquiry and if, prima facie, offence is disclosed against the applicants and there is sufficient ground for proceeding against the accused, the court shall not discharge the accused.

12. In order to buttress his arguments, learned AGA has relied upon the decision reported in State of Bihar Vs. Ramesh Singh : 1197 CriLJ 1060, considering the scope of Sections 227 and 228 CrPC, it was held that at the stage of framing of charge, it is not obligatory for the Hon'ble Judge 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. 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, at the initial stage of framing of charge, is sufficient to frame the charge and in that event it is not open to say that there is no sufficient ground for proceeding against the accused.

13. 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 Supreme Court in the case of Sajjan Kumar Vs. Central Bureau of Investigation (2010) 9 SCC 368 has held that in excising jurisdiction under Section 227 CrPC, the court should not make roving enquiry into the pros and cons of the matter and weigh the evidence, as if he was conducting a trial.

15. Hon'ble Supreme Court in the case of State of Supt. And Remembrancer of Legal Affairs, West Bengal Vs. Anil Kumar Bhunja and Others (1979) 4 SCC 274, has held that at the stage of under Section 227 CrPC, 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 227 CrPC. At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as 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 the offence.

16. 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."

17. 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."

18. 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 Vs. 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, which is 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."

19. Thus, from the above mentioned cases, it is evident that the duty of the trial court at the stage of Section 227 CrPC 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.

20. 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, complained of, is made out against the applicants. The veracity of such statement can be appreciated and analyzed only by the trial court at the stage of trial.

21. In view of the above discussions, I do not find any good ground to interfere in the impugned order dated 17.05.2023 passed by the court below. The instant application under Section 482 Cr.P.C. is devoid of merits and is accordingly dismissed.

Order Date :- 13.7.2023

Nadim