Beena Singh And Another vs State Of U.P. And Another
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Allahabad High Court

Beena Singh And Another vs State Of U.P. And Another on 30 May, 2024

Author: Rajeev Misra

Bench: Rajeev Misra

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:99473
 
Court No. - 77
 

 
Case :- CRIMINAL REVISION No. - 1935 of 2024
 

 
Revisionist :- Beena Singh And Another
 
Opposite Party :- State of U.P. and Another
 
Counsel for Revisionist :- Abhinav Gaur,Ankit Shukla,Janardan Yadav,Mohd. Rashid Siddiqui
 
Counsel for Opposite Party :- Chandan Kumar Chaturvedi,G.A.
 

 
Hon'ble Rajeev Misra,J.
 

1. Heard Mr. Anoop Trivedi, the learned Senior Counsel assisted by Mr. Ankit Shukla, the learned counsel for revisionists, the learned A.G.A. for State-opposite party-1 and Mr. Chandan Kumar Chaturvedi, the learned counsel representing first informant/opposite party-2.

2. Perused the record.

3. This criminal revision has been filed challenging the order dated 20.03.2024 passed by Additional District and Sessions Judge, Court No.-1, Azamgarh in Sessions Trial No. 97 of 2020 (State Vs. Ranjeet and Others) arising out of Case Crime No. 22 of 2020, under Sections 363, 364, 302, 201 IPC, Police Station-Raunapar, District-Azamgarh, whereby the discharge application dated 05.12.2023 filed by the revisionist under Section 227 Cr.P.C. seeking discharge in aforementioned Sessions Trial before Court below (Paper No.-91-Kha) has been rejected.

4. Record shows that in respect of an incident which is alleged to have occurred on 06.02.2020, a delayed FIR dated 08.02.2020 was lodged by first informant Kamal Ahmad and was registered as Case Crime No. 0022 of 2020, under Section 363 IPC, Police Station-Raunapar, District-Azamgarh. In the aforesaid FIR, an unknown person has been arraigned as solitary accused.

5. The gravamen of the allegations made in the FIR is to the effect that Noman S/o Belal, aged about 15 years, was on his bed up to 10:00 PM in the night of 06.02.2020. However, in the morning, he was found to be missing and his bicycle was also not present. Thereafter, a search was made regarding the whereabouts of Noman but he could not be located. The missing boy had also taken the mobile phone of Belal, which is bearing Mobile No. 6387448615 but the same is reported to be switched off. The FIR ultimately, concludes with the prayer that a missing report of Noman be registered.

6. After aforementioned FIR was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C. The dead body of deceased was recovered on 22.03.2020. Thereafter, the inquest (Panchayatnama) of the body of deceased was got conducted by the Investigating Officer. This was followed by the post mortem of the body of deceased. During course of investigation, Investigating Officer recorded the statement of first informant/opposite party-2 Kamal Ahmad as well as other witnesses under Section 161 Cr.P.C. On the basis of above and other material collected by Investigating Officer, during course of investigation, as well as the mitigating circumstances that emerged, during course of investigation, Investigating Officer came to the conclusion that complicity of Ranjeet Singh, Beena Singh, Gudiya is established up to this stage. Accordingly, Investigating Officer submitted the police report dated 02.05.2020 in terms of Section 173(2) Cr.P.C., whereby aforementioned not named accused were charge sheeted under Sections 363, 364 IPC. However, investigation in respect of Sanjay Singh, Saurabh Singh, Sakshi Singh and Adarsh Singh was said to be pending. Investigating Officer on the basis of material collected by him up to this stage added Sections 302/201 IPC in the concerned case crime number. Ultimately, Investigating Officer on the basis of other material collected by him, submitted the supplementary police report (charge sheet) dated 14.02.2021, under Section 173(2) Cr.P.C., whereby Sanjay Singh and Ranjeet Singh were charge sheeted under Sections 302, 201 IPC.

7. Upon submission of aforesaid police report, cognizance was taken upon same by concerned Magistrate in exercise of jurisdiction under Section 190(1)(b) Cr.P.C. However, as offence complained off is exclusively triable by the Court of Sessions, therefore, concerned Magistrate in line with the provisions contained in Section 209 Cr.P.C., committed the case to the Court of Sessions. As a consequence of above, Sessions Trial No. 97 of 2020 (State Vs. Ranjeet and Others) arising out of Case Crime No. 22 of 2020, under Sections 363, 364, 302, 201 IPC, Police Station-Raunapar, District-Azamgarh came to be registered and is now said to be pending in the court of Additional District and Sessions Judge, Court No.-1, Azamgarh.

8. During pendency of above mentioned Sessions Trial, the revisionists, who are ladies, filed a discharge application dated 05.12.2023 in terms of Section 227 Cr.P.C. seeking their discharge in aforementioned Sessions Trial. This application came to be registered as Paper No.-91-Kha. Court below considered the discharge application filed by the revisionists but ultimately, rejected the same by means of an order dated 20.03.2024.

9.Thus feeling aggrieved by the above order dated 20.03.2024 passed by Court below, the revisionists, who are charge sheeted accused in aforementioned Sessions Trial have now approached this Court by means of present criminal revision.

10. Mr. Anoop Trivedi, the learned Senior Counsel for revisionists submits that the order impugned in present criminal revision is manifestly illegal and without jurisdiction. Consequently, the same is liable to be set aside by this Court. In furtherance of aforesaid submission, he has invited the attention of Court to the discharge application dated 05.12.2023 filed by the revisionists along with other co-accused before Court below, copy of which is on record as Annexure-20 to the affidavit filed in support of present criminal revision. With reference to above, he submits that it was specifically pleaded by the revisionist before Court below that there is no evidence against the present revisionists in the entire case diary. However, Court below, without dealing with the said issue with reference to the case diary, has rejected the discharge application filed by the revisionists, which is illegal.

11. Learned Senior Counsel for revisionists has then submitted that Court below has not adverted to the facts and circumstances of the case and therefore, negated the claim for discharge prayed for by the revisionists by a cryptic order. Referring to the order impugned in present criminal revision, he submits that Court below has simply noted the contentions urged by the learned counsel on behalf of revisionists, the judgment of Supreme Court in P. Vijayan Vs. State of Kerala and Another, 2010 SCC OnLine SC 225 and Vikramjit Kakati Vs. State of Assam, 2022 SCC OnLine SC 967, relied upon by the revisionists before Court below, thereafter, the Court below has just made a vague observation that as per the material on record, the charge sheet has been submitted and in the penultimate part of the last paragraph of the impugned order, the Court below referring to the judgment of Supreme Court in Bharat Parikh Vs. C.B.I. and Another, (2008) 10 SCC 109 has drawn a bald conclusion that no case for discharge of the accused is made out.

12. On the above conspectus, it is thus urged by the learned Senior Counsel that Court below has rejected the discharge application filed by the revisionists in a very casual and cavalier exercise of jurisdiction and not diligently. Court below has not adverted to the material accompanying the police report to find out as to whether the offence under Sections 363/366 IPC is made out against the present revisionists. He, therefore, contends that since Court below has failed to exercise the jurisdiction vested in it in a judicious manner, the order impugned is not only illegal but also arbitrary. Consequently, the same is liable to be set aside by this Court.

13. In support of his aforesaid submission, the learned Senior Counsel for revisionists has invited the attention of Court to the judgment of Supreme Court in Sanjay Kumar Rai Vs. State of Uttar Pradesh and Another (2022) 15 SCC 720, wherein, it has been held that Court while deciding the discharge application filed by an accused is not to act merely as a post office but has to delve into the papers accompanying the police report and thereafter record its conclusion. For ready reference, paragraphs 14, 15, 16 and 17 of the aforesaid report, which are relevant for the controversy in hand, are reproduced herein under:-

"14. The correct position of law as laid down in Madhu Limaye [Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551 : 1978 SCC (Cri) 10] , thus, is that orders framing charges or refusing discharge are neither interlocutory nor final in nature and are, therefore, not affected by the bar of Section 397(2)CrPC. That apart, this Court in the abovecited cases has unequivocally acknowledged that the High Court is imbued with inherent jurisdiction to prevent abuse of process or to secure ends of justice having regard to the facts and circumstance of individual cases. As a caveat it may be stated that the High Court, while exercising its aforestated jurisdiction ought to be circumspect. The discretion vested in the High Court is to be invoked carefully and judiciously for effective and timely administration of criminal justice system. This Court, nonetheless, does not recommend a complete hands off approach. Albeit, there should be interference, may be, in exceptional cases, failing which there is likelihood of serious prejudice to the rights of a citizen. For example, when the contents of a complaint or the other purported material on record is a brazen attempt to persecute an innocent person, it becomes imperative upon the Court to prevent the abuse of process of law.

15. Further, it is well settled that the trial court while considering the discharge application is not to act as a mere post office. The court has to sift through the evidence in order to find out whether there are sufficient grounds to try the suspect. The court has to consider the broad probabilities, total effect of evidence and documents produced and the basic infirmities appearing in the case and so on. [Union of India v. Prafulla Kumar Samal [Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4 : 1979 SCC (Cri) 609] ]. Likewise, the Court has sufficient discretion to order further investigation in appropriate cases, if need be.

16. This brings us to the present case wherein the High Court has not gone into the merits of the case and did not analyse the case in light of the settled law referred to above.

17. The High Court has committed jurisdictional error by not entertaining the revision petition on merits and overlooking the fact that "discharge" is a valuable right provided to the accused. In line with the fact that the High Court and the court below have not examined the fairness of criminal investigation in this case and other related aspects concerning improvement of witness statements, it is necessary for the High Court to reconsider the entire matter and decide the revision petition afresh. Accordingly, we set aside the impugned order dated 28-11-2018 [Sanjay Kumar Rai v. State of U.P., 2018 SCC OnLine All 5995] and remand the case back to the High Court for its reconsideration in accordance with law."

14. Attention of the Court was then invited to the judgment of Supreme Court in P. Vijayan Vs. State of Kerala and Another, 2010 Cri.L.J. 1427, which was also placed before Court below. He submits that Court in aforesaid report has held that simply on the ground of suspicion, no prosecution of an accused can be maintained. Reliance is placed upon paragraph 10 of the report, which is, accordingly, extracted hereinunder:-

"10) 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. Further, the words "not sufficient ground for proceeding against the accused"- clearly show that the Judge is not a mere Post Office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, 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. 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. In other words, the sufficiency of ground 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"

15. It is apposite to mention here that the said view has also been affirmed by a Three Judges Bench judgment of Supreme Court in Tarun Jit Tejpal Vs. State of Goa, (2020) 14 SCC 556, wherein Court has held that the prosecution of an accused can be maintained in the case of grave suspicion and not suspicion. However, according to the learned Senior Counsel for revisionists in the present case, neither from the material on record, an offence under Sections 363, 366 IPC can be said to have been made out against the present revisionists nor an inference of grave suspicion can be drawn against the present revisionists. He, therefore, contends that Court below has erred in law and fact in rejecting the discharge application filed by the revisionist.

16. Learned Senior Counsel for revisionists then submits that as per the material on record, it cannot be said that the ingredients of Sections 363, 366 IPC are satisfied against the revisionists. Since the FIR/the charge sheet has not been submitted under Sections 34, 120-B, 149 IPC, therefore, no common intention, conspiracy or common object can be inferred against the present revisionists. There is nothing in the case diary on the basis of which, motive can be gathered against the present revisionists to commit the crime in question.

17. Attention of the Court was then invited to the judgment of Supreme Court in Vikramjit Kakati Vs. State of Assam, 2022 SCC OnLine SC 967 and on basis thereof, it is urged that Court below was duty bound to examine the material on record to find out, whether in the absence of motive or otherwise, the charge under Sections 363/366 IPC is made out against the revisionists. Reference is made to the paragraphs 11, 12, 13, 15 and 16 of the aforesaid report, which are extracted herein under:-

"11. Taking into consideration the aforesaid legal principles, if we consider the facts of the present case, it reveals from the perusal of chargesheet and other material available on record that the investigating officer has not brought even prima facie material in the chargesheet as to what was the motive on the part of the appellant to commit the alleged offence. The deceased, in the instant case, was a colleague/friend of the appellant working in the same organization. On the fateful morning, the appellant learnt about burn injuries of the deceased through accused no.1 i.e. the wife of the deceased on telephone at about 5.30 a.m. on 22 nd April, 2009. Without any loss of time, the appellant along with his colleague Tariqul Rafique @ Maju went to the house of the deceased by his car and took the deceased along with his wife (A1) to the nearby nursing home at Sivasagar. Since the said nursing home was not having the burn ward, after giving the initial treatment, deceased was referred to the Dibrugarh hospital. The deceased along with his wife and colleague of the appellant went to the Dibrugarh hospital on an ambulance, but unfortunately, the deceased succumbed to the burn injuries in the hospital.

12. The only eyewitness in the present case is Hosna Begum, domestic servant present in the house of the deceased. She neither in her statement under Section 161 Cr.P.C. nor under Section 164 Cr.P.C. stated anything about the involvement of the appellant in the commission of the alleged offence, rather she categorically stated in the statement that at the instance of the deceased, the wife of the deceased called the appellant for help and further stated that the appellant took the deceased to the hospital in his car. She is the best witness of the case. Rest of the witnesses whose statements were recorded by the police nowhere implicated the appellant, except the complainant who was not even an eyewitness to the incident.

13. Regarding the allegation of destruction of evidence by the appellant along with the wife of the deceased (A1), no material, oral/documentary, has been placed by the police in the charge sheet, which, in any manner, connect the appellant with the destruction of evidence. To the contrary, as per the statement of the witnesses which are recorded, the fact that reveals is that the appellant accompanied the deceased to the hospital at Sivasagar and from there to Dibrugarh, where the deceased succumbed to the injuries and based on the information given by the appellant, the deceased's relatives, including the complainant, came to the hospital and from there his body was taken to his native place Tezpur for performing the last rites. Here, no other witnesses, whose statements were recorded, stated anything about the appellant visiting the house of the deceased either before or after the alleged destruction of evidence has taken place, except the complainant, who even in the FIR did not make any statement against the appellant, but later made a bald statement of her strong suspicion in her statement under Section 161 Cr.P.C.

15. There is no iota of evidence which, in any manner, connect the present appellant with the commission of crime and neither the trial Court nor the High Court has even taken pains to look into the record as to whether there is any oral/documentary evidence which in any manner connect the appellant with the alleged incident of crime and, in our considered view, in the absence of even a prima facie material, oral/documentary, being placed by the prosecution in the chargesheet, the trial Court as well as the High Court have committed serious error in framing charge against the appellant. Even the complainant also in the complaint has not named the appellant as the perpetrator of the offence, rather she stated that she suspects foul play.

16. In the given facts and circumstances, we are of the view that the appeal deserves to be allowed. The order impugned passed by the High Court of Gauhati dated 3rd December, 2021 as well as the order dated 21st June, 2012 passed by the Additional Sessions Judge (Fast Track Court), Sivasagar, in Sessions Case No.57(SS) of 2012 are quashed and set aside and the appellant stands discharged from the charges framed against him"

18. According to the learned Senior Counsel, present case is a case of circumstantial evidence, therefore, there is no eye witness of the occurrence. The complicity of an accused in a case based on circumstantial evidence can be inferred in accordance with the parameters laid down by the Apex Court in Sharad Birdhichand Sarda Vs. State of Maharashtra AIR 1984 SC 1622, which clearly provies for the parameters, which are required to be satisfied before inferring the guilt of an accused in a case based on circumstantial evidence. Paragraph 152 of the report is relevant for the controversy in hand. Accordingly, paragraph 152 of the said report is extracted herein under:-

"Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. The State of Madhya Pradesh.(1) This case has been uniformly followed and applied by this Court in a large number of later decisions uptodate, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh(2) and Ramgopal v. Stat of Maharashtra(3). It may be useful to extract what Mahajan, J. has laid down in Hanumant's case (supra):

"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground far a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."

19. In the submission of Mr. Anoop Trivedi, the learned Senior Counsel for revisionists, the veracity of an order has to be judged on the basis of reasons contained in the order itself. The same cannot be supplemented by way of an affidavit. To buttress his submission, he has referred to the judgment of Supreme Court in Mohinder Singh Gill Vs. Chief Election Commissioner, AIR 1978 SC 851.

20. It is then contended that a Judicial Authority while passing judicial orders must record reasons in support of the conclusion. Referring to the judgment of Supreme Court in Union of India Vs. Mohan Lal Capoor and Others, (1973) 2 SCC 836, he contends that reasons are link in between subject and the conclusion drawn. When the reason is missing, the order impugned cannot be sustained. On the above premise, he, therefore, submits that Court below while passing the impugned order has simply drawn a bald conclusion, which is devoid of reasons derived from facts of the present case and consequently, Court below has failed to comply with the observations made by the Apex Court in Sanjay Kumar Rai (Supra), inasmuch as, no attempt has been made by Court below to delve into the papers accompanying the police report and on basis thereof, derive its conclusion. On the above conspectus, he, therefore, contends that the order impugned cannot be sustained and is therefore, liable to be set aside by this Court.

21. Per contra, the learned A.G.A. for State-opposite party-1 and Mr. Chandan Kumar Chaturvedi, the learned counsel representing first informant/opposite party-2 have vehemently opposed the present criminal revision. They submit that since prima-facie case is made out against the present revisionists for an offence under Sections 363, 366 IPC, therefore, no interference is warranted by this Court. Admittedly, the police report dated 03.05.2020 (charge sheet) has been submitted against revisionists. As per the case diary, there is some material against the revisionists, therefore, present case is not a case of no evidence, therefore, referring to the judgment of Supreme Court in R.P. Kapur VS. State of Punjab, 1960 SCC OnLine SC 21, they contend that as there is some evidence to support the charge sheet, no interfrence be made by this Court in present criminal revision. The issue as to whether, revisionists are innocent or otherwise can be decided conclusively only during the course of trial and not on the basis of the submissions as urged by the learned Senior Counsel in support of this criminal revision. As such, present criminal revision is liable to be dismissed.

22. Having heard, Mr. Anoop Trivedi, the learned Senior Counsel for revisionists, the learned A.G.A. for State-opposite party-1, Mr. Chandan Kumar Chaturvedi, the learned counsel representing first informant/opposite party-2 and upon perusal of record, this Court finds that Court below while passing the impugned order has not adverted to the material accompanying the police report. As such, the Court below has acted merely as post office and in derogation of the observations made by the Apex Court in Sanjay Kumar Rai (Supra). The Court further find that Court below has just given the narration of the contents of the discharge application. The reference of the judgment of Supreme Court relied upon by the learned Senior Counsel for revisionists before Court below and thereafter, has given bald conclusion that since charge sheet has been submitted against the revisionists and other accused and the documents relied upon by the revisionists cannot be considered by the Court at the stage of considering the discharge application has rejected the discharge application filed by the revisionists. It is thus apparent that the conclusion drawn by Court below has simply a bald conclusion devoid of any reason in view of the law laid down by Apex Court in Mohinder Singh Gill (Supra) and Union of India Vs. Mohan Lal Capoor (Supra), the Court below was duty bound to assign reasons in support of the conclusion so drawn in the impugned order. Since the Court below has failed to do so, it has thus also failed to exercise the jurisdiction vested in it. The order impugned is thus the outcome of exercise of jurisdiction by Court below in a casual and cavalier fashion and not diligently.

23. For all the reasons given above, the present criminal revision succeeds and is liable to be allowed.

24. It is, accordingly, allowed.

25. The impugned order dated 20.03.2024 passed by Additional District and Sessions Judge, Court No.-1, Azamgarh in Sessions Trial No. 97 of 2020 (State Vs. Ranjeet and Others) arising out of Case Crime No. 22 of 2020, under Sections 363, 364, 302, 201 IPC, Police Station-Raunapar, District-Azamgarh is hereby set aside.

26. The matter shall stand remanded to Court below for decision afresh, who shall pass a fresh reasoned and speaking order as per the directions of Apex Court in Sanjay Kumar Rai (Supra).

27. The necessary exercise shall be undertaken by Court below within a period of 3 months. Till the disposal of the discharge application, the Court below shall neither proceed to frame charges against the accused nor shall otherwise adopt any coercive process against accused revisionists.

28. In the facts and circumstances of the case, there shall be no order as to costs.

Order Date :- 30.5.2024

Vinay