Nitin Panwar vs State Of U.P. And Another
2023 Latest Caselaw 16266 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Neutral Citation No. - 2023:AHC:117567
 
Court No. - 71
 
Case :- APPLICATION U/S 482 No. - 19022 of 2023
 
Applicant :- Nitin Panwar
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- A.C.Tiwari(Ac),Shyam Kishore Tripathi
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Samit Gopal,J.

1. List revised.

2. Heard Sri A.C.Tiwari, learned counsel for the applicant, Sri Ankit Srivastava, learned counsel for the State and perused the record.

3. The present Criminal Misc. Application U/S 482 Cr.P.C. has been filed by the applicant Nitin Panwar with the prayer to prevent the abuse and process of court and just to save the interest of justice between parties quash the order dated 13.04.2023 passed by the Additional Session Judge, Room No. 5, Ghaziabad in Session Trial No. 888/2022 (State Vs. Nitin Panwar), under Section 302/34 IPC arising out of Case Crime No. 506/2021, P.S. Newari, District Ghaziabad and with a further prayer to quash the entire further proceedings and prosecution of applicant under Section 302/34 IPC in pursuance of Charge Sheet No. 02 of 2022 dated 26.05.2022, pending in the Court of Additional Session Judge, Room No.5, Ghaziabad.

4. The facts of the present case are that a First Information Report was lodged on 09.11.2021 under Section 302 IPC by the opposite party no.2/Amit against unknown persons alleging therein that Anupal Giri his father is a resident of Ghaziabad aged about 60 years who as a routine used to sleep in the covered area to look after the animals. On 08.11.2021 his father was sleeping alone there. On 09.11.2021 in the morning Smt. Sonika the wife of his brother Vikas went to milk the animals in the area, she called his father to which he did not reply and then Smt. Sonika went to him and took of the clothes and found him to be lying in a pool of blood on the bed on the cot. Some unknown person has shot him and murdered him. His dead body is lying in the courtyard of the house on the cot. A First Information Report be lodged and matter be investigated.

5. On the said First Information Report, the matter was taken up for investigation. The postmortem examination of the deceased Anupal Giri was conducted. The doctor found two gun shot injuries on his body, one being the wound of entry and the other is the exit. The cause of death was opined as shock and hemorrhage due to firearm injury. The matter was under investigation and an application dated 12.11.2021 is alleged to have been given by the applicant to the Chief Minister and the S.S.P., Ghaziabad stating therein that his father was required to be interrogated by the police. There has been some dispute with the police with him. His father went to the police station on 09.11.2021 and upto 12.11.2021 he has been detained at the police station.

6. The investigation concluded by filing a charge sheet against Ramveer and Nitin under Sections 302/34 IPC. The trial court took cognizance upon the same vide order dated 11.07.2022 and summoned the applicant and co-accused Ramveer to face trial. The accused persons filed an application for discharge titled as objection against charge sheet dated 24.02.2023 which was Paper No. 5-Kha with the prayer that the accused persons be discharged in the case. The said application stood rejected vide order dated 13.04.2023 passed by the trial court. The applicant is thus before this Court with the aforesaid prayers. The applicant was granted bail vide order dated 28.06.2022 passed in Criminal Misc. Bail Application No. 25029 of 2022 (Nitin Panwar Vs. State of U.P.) by this Court.

7. Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that there is no credible evidence against the applicant. It is argued that the First Information Report was lodged against unknown persons. It is submitted that the deceased was found to have received a single gun shot injury. The charge sheet has been submitted against the applicant and his father. The medical evidence does not corroborate with the prosecution case. It is argued that the applicant had made a complaint against the police through application, IGRS and also through a proper channel as he is employed in the Indian Army which was the reason for his implication with malafide intentions. It is submitted that after the arrest of Ramveer the father of the applicant on 19.01.2022, the police has shown the recovery of a country made pistol from a room situated in the courtyard on his pointing out. It is submitted that the same is a false and fabricated recovery. There is no public witness to the same. It is argued that the present application be thus allowed and the proceedings against the applicant be quashed and the prayers as prayed be allowed.

8. Further learned counsel for the applicant has relied upon the judgments of the Apex Court in the case of Bhawna Bai Vs. Ghanshyam and others : 2020 (2) SCC 217 and Soma Chakravarty Vs. State (Th. CBI) : 2007 (5) SCC 403 to buttress his argument and has argued that the law with regards to the framing of charge is that there has to be sufficient ground for proceedings against the applicant and in the present case there is no such sufficient ground for proceedings against the applicant and as such the proceedings be quashed.

9. Per contra, learned counsel for the State vehemently opposed the prayer for quashing. It is argued that the implication of the applicant has surfaced during investigation. The alleged weapon of assault has been recovered on the pointing out of Ramveer co-accused. After investigation, charge sheet has been submitted against the applicant on which the trial court has taken cognizance upon the same and summoned him. The application for discharge has been rejected by the trial court. The charge against the applicant has been framed with aid of Section 34 IPC. It is argued that there is prima facie evidence against the applicant in the present case. It is submitted that at the stage of discharge only prima facie material is to be seen. It is further argued that whether the implication of the applicant is beyond reasonable doubt, cannot be seen at this stage. It is submitted that as such the present petition is devoid of any merit and be dismissed.

10. After having heard learned counsels for the parties and perusing the records, it is evident that the implication of the applicant has surfaced in the matter during investigation. The charge sheet has been submitted against him on which the trial court found prima facie evidence against him, has taken cognizance on the charge sheet and summoned the applicant. The application for discharge of the applicant has been rejected by the trial court. The Apex Court in the latest judgment of Captain Manjit Singh Virdi (Retd.) Vs. Hussain Mohammed Shattaf and others : Criminal Appeal No. 1399 of 2023, decided on 18.05.2023 has discussed the scope of discharge of an accused in a matter. Para 11 and 12 of the same reads as under:

"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 chargesheet, 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 reasons to hold that in case the trial is allowed to proceed, the same would amount to abuse of process of the Court.

12. The law on the point has been summarised in a recent judgment of this Court in State of Rajasthan v. Ashok Kumar Kashyap : (2021) 11 SCC 191. 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."

11. The law as has been laid down by the Apex Court and even in the cases relied by learned counsel for the applicant is no different. The investigation concluded in which the Investigating Officer interrogated five eye witnesses being Anuj Kumar, Rajneesh, Hasan Singh, Smt. Savitri and Brijpal @ Sheru. There has been allegations against the applicant, the present application 482 Cr.P.C. is dismissed.

Order Date :- 23.5.2023

M. ARIF

(Samit Gopal, J.)