H.K.L. Bhagat vs State
1996 Latest Caselaw 707 Del

JUDGMENT

N.G. Nandi, J.

(1) By this criminal revision application under Section 397(1) read with Sections 401 and Section 482 of the Code of Criminal Procedure (hereinafter referred to as "the Code") the petitioner prays for the revision/setting aside of the order framing charge under Section 228 of the Code against the petitioner-accused for Sections 148/188/302 read with Section 149, Indian Penal Code and also quashing of the proceedings.

(2) It is mainly submitted by Mr. D.D. Thakur, learned Senior Advocate for the petitioner that the statement of 15.1.1996 of witness Satnami Bai before the Court as prosecution witness alleging that the petitioner had abetted the commission of looting, arson, murders, etc. is a cryptic statement and there is no evidence, direct or indirect, before the Court with regard to the presence of the petitioner in the area of incident; that the statement of said witness is not admissible except for the purpose of summoning of the accused u/Section 319 of the Code; that under Clause (a) of Sub-section (4) of Section 319 of the Code, the proceedings have to start afresh and that there is no legal and admissible evidence; that the petitioner did not have the opportunity to cross-examine the witness before framing of charge; that even if the statement is accepted for the present purpose, the same is not sufficient and does not disclose the prima-facie grounds to proceed against the accused as required under the law; that in none of the six other statements / affidavits recorded prior to the statement on 15.1.1996 before the Court, the petitioner is involved and there is no explanation as to why the petitioner is not named in any of previous statements/affidavits; that Fir and the statements u/Section 161 of the Code have its own importance and that the documents filed by the accused are required to be considered for the purpose of discharge u/Section 227 of the Code; that no conviction could be recorded after eleven years and therefore no legal grounds to proceed against the accused. As against this, it is submitted by Mr. K.K. Sud, learned Counsel for the respondent that these cases form class by themselves; that despite instances of looting, arson and filing of the FIRs at the relevant time, there was no investigation; that the psychic condition of the affected be considered. That the people were let loose with weapons, material etc. who committed looting, arson, murders etc. and what action was taken by the Administration at the relevant time? That the report of the Commission is no evidence; that the readymade affidavits were got signed and not a substantive piece of evidence; that the affidavits filed before the Commission and the Committee can not be seen at this stage; that the same can be used at the most for the purpose of contradiction at the trial; that the affected areas are the Jhuggis and the class of people are the migrants and considering the mental standard, peculiar facts and circumstances, delay would be no bar; that the statements recorded u/Section 161 of the Code do not suggest eliciting of the information relating to the incident; that the door of the witness can not be closed; that this is not a case of ordinary nature; that the statement u/Section 161 of the Code is not an end of everything.

(3) It is the settled position of law that at the stage of framing of charge u/Section 228 of the Code, the Court has not to meticulously evaluate the evidence proposed to be adduced by the prosecution. The standard of test, proof and judgment which is to be finally applied before finding the accused guilty or otherwise is not to be applied at the stage of deciding the matter under Secs. 227 and 228 of the Code. At this stage, even a very strong suspicion founded upon materials leading the Court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, may justify the framing of charges. What is relevant at this stage is only the sufficiency of the grounds for proceeding against the accused and not whether the materials on record are sufficient for conviction or not. The purpose of Section 228 is to ensure that the Court should be satisfied that the accusation made against the accused is not frivolous and there is some material for proceeding against him.

(4) That under Clause (a) of Sub-section (4) of Section 319 of the Code, the proceedings in respect of person served with process under Sub-section (1) shall commence afresh and the evidence of witnesses re-heard. It may be appreciated that the question of recording the evidence of the witnesses afresh would arise in cases where the evidence of witnesses has been recorded before issue of process under Sub-section (1) of Section 319 of the Code. In the instant case, on the statement of witness Satnami Bai process was issued under Sub-section (1) and the petitioner appeared before the Court. The stage of recording evidence for the purpose of passing order under Section 227 or 228 of the Code, in such cases, is not contemplated under the law. If the submission of the Counsel for the petitioner is accepted in this behalf, then it would amount to recording of the evidence of the prosecution witnesses before the stage of trial. It may be appreciated that charge u/Section 228 of the Code is to be framed on the basis of the police report filed u/Section 173 of the Code, considering the statements recorded u/Section 161 of the Code and the documents filed.

(5) While exercising revisional jurisdiction u/Section 397(1) read with Sections 401 and 482 of the Code, the Court has only to consider the correctness, legality or propriety of any finding, sentence or order. Now, simply because the charge has been framed considering the statements recorded after 11 years of the incident, looking to the facts and circumstances of the case, the same can not be regarded as illegality committed by the Court below. The delay in recording the statement, per se, can not disentitle the witness to come before the Court and state the incident. Whether such a statement should ultimately be accepted or not, could be decided in accordance with law in light of other evidence on record at the stage of appreciation of evidence for the purpose of arriving at a conclusion one way or the other. As far as the affidavits and the other statements referred to by the petitioner are concerned, the same would be a matter of defense which could be proved in accordance with law and brought on record during the trial in order to enable the Court to reach a just conclusion. The above referred principles of law, which would be applicable for the purpose of Sections 227 and 228 of the Code, provide answer to the submission advanced on behalf of the petitioner. The delay of 11 years in naming and non-mentioning of the petitioner, at the same time, would not warrant the ignoring of the statement dated 15.1.1996 before the Court, at this stage of the matter. In my opinion, it would not be open to the Court to do so at this stage of the matter. Taking the statement dated 15.1.1996 of Satnami Bai for the present limited purpose, it can not be said that there is no sufficient ground prima-facie requiring the accused to be proceeded against.

(6) It is suggested from the record and proceedings that the incident of looting, arson, murder, burning people alive continued from 31.10.84 to 2.11.84 and that numerous Sikh persons lost their lives and properties during these days. Keeping in view the spirit and object of Section 319 of the Code it is the duty of the Court to call persons who appear to be involved in the incident and make them face the trial irrespective of the fact whether names of such persons appeared in the statement u/ Section 16.1 of the Code or not. Since the petitioner has appeared before the Court in response to the process issued u/Section 319(1) of the Code, for the purpose of passing orders u/Section 227 or 228 of the Code, the statement recorded before the Court, namely, on 15.1.1996, can not be ignored since despite the investigation u/Section 157 of the Code and recording of statements u/Section 161 of the Code, the name of the person issued process u/Section 319(1) of the Code did not appear and for this reason it can not be said that the lower Court committed any illegality in accepting the statement of witness Satnami Bai for the purpose of framing charge u/Section 228 of the Code.

(7) On behalf of the petitioner, reliance is placed on the observations made by the Hon'ble Supreme Court in the case of Satish Mehra v. Delhi Administration & Another, in Crl..A-1385 of 1995. In my opinion, the observations made by the Supreme Court would be of no assistance to the petitioner because of the peculiar facts that there was a matrimonial dispute between the complainant (wife) and the accused (husband); the offence u/Section 376 Indian Penal Code was alleged against the father of a minor daughter, who was charged with similar offence on the complaint made by the mother of the minor daughter with New York police. The same was investigated by the New York police and found the complaint bereft of truth-hook, lying and sinker and thereafter, the father was again charged of such offences against the same child at East of Kailash, New Delhi, some time during March and July, 1991. The Supreme Court observed that the attitude of the mother to the petitioner even dehors the allegations involving 18 months old child was vengeful.

(8) The petitioner as well as the respondent have cited number of decisions on the passing of the order under Sections 227 and 228 of the Code. I do not propose to reproduce the same as these principles govern the discharge or framing of charge u/Section 227 or 228 respectively. It need hardly be said that if the view taken by the Court below is legally possible, then the Revisional Court would not interfere with the order passed by the lower Court in the revisional jurisdiction and substitute its own view. Suffice it to say/or the present purpose that appreciating the statement of Pw Satnami Bai recorded on 15.1.96 in light of facts and circumstances of the case, the order framing charge u/Section 228 of the Code against the petitioner does not appear to be incorrect, illegal or against the propriety so as to call for interference by this Court u/Section 397 of the Code and as the powers u/Section 482 of the Code have to be exercised very sparingly.

(9) The above discussion would reveal that the present revision petition being devoid of merits, is liable to be dismissed.

(10) In the result, the petition fails. Interim order stands vacated. Record of the trial Court be returned forthwith.