Anil S/O Sh. Satya Narain And ... vs The State/Govt. Of Nct Of Delhi
2007 Latest Caselaw 1841 Del

JUDGMENT

V.B. Gupta, J.

1. The present petition has been filed under Section 397/401 Cr.P.C. against the order of Shri Rajiv Mehra, Additional Session Judge, Delhi vide which he framed charge under Section 412 IPC against the petitioners.

2. Brief facts of the case are that on 17th May, 2001, all the accused persons except present petitioners and one Pawan, had kidnapped one Chandpal and Goverdhan who were carrying 340 bags of kabuli chana in a truck and committed dacoity of 194 chana bags and sum of Rs. 3,100/- and one wrist watch. One of the accused persons made use of the pistol at the time of commission of offence of dacoity and kidnapping. Some of the accused persons were arrested in another case where disclosure statement was made and at the instance of co-accused Pawan, 12 bags of chana were recovered from the possession of the petitioner Anil and 36 bags of chana were recovered from the possession of petitioner Hemraj. Accordingly, charge under Section 412 IPC was framed against both these petitioners.

3. It has been contended by leraned Counsel for the petitioners that no charge could be framed against the petitioners as no offence is made out against him since nothing has been recovered from him and articles have been falsely planted upon the petitioners.

4. Further, before charge under Section 412 IPC is framed, prosecution has to show that the person who was in possession with a knowledge or reason to believe that the property belonged to a gang of dacoit and the stolen one, here in the present case there is nothing on record to show that the property in question was stolen one as such no charge can be framed against the petitioners.

5. On the other hand, it has been argued by leraned Counsel for the State that in pursuance of the disclosure statement made by the co-accused, recovery has been effected in this case and as per statement of PW5 Chand Pal, the involvement of present petitioners, is fully there in this case.

6. It is well-settled that at the stage of passing the order in terms of Section 227 of Cr.P.C., the Court has merely to peruse the evidence in order to find out whether or not there is a sufficient ground for proceeding against the accused. If upon consideration, the Court is satisfied that a prima facie case is made out against the accused, the Judge must proceed to frame charge in terms of Section 228 of the Code. Only in a case where it is shown that the evidence which the prosecution proposes to adduce to prove the guilty of the accused, even if fully accepted before it is challenged in cross-examination or rebutted by defense evidence cannot show that the accused committed the crime, then and then alone the Court can discharge the accused. The Court is not required to enter into meticulous consideration of evidence and material placed before it at this stage.

7. The Apex Court in Stree Atyachar Virodhi parishad v. Dilip Nathumal Chordia cautioned the High Courts to be loathe in interfering at the stage of framing the charges against the accused. It further laid down that, Self-restraint on the part of the High Court should be the rule unless there is a glaring injustice staring the Court in the face. The opinion on many matters can differ depending upon the person who views it. There may be as many opinions or a particular point, as there are Courts but that would not justify the High Court to interdict the trial. Generally, it would be appropriate for the High Court to allow the trial to proceed.

8. Dealing with the scope of Sections 227 and 288 of Cr.P.C. and the limitations imposed upon the Court at the initial stage of framing the charge, Apex Court in State of Bihar v. Ramesh Singh : held that:

Reading the two provisions together in juxta-position, 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 defense 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 Section 227 or Section 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 defense, 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 Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section 227.

9. At three-Judge Bench of the Supreme Court in Supdt. and Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja , reminded the Courts that at the initial stage of framing of charges, the prosecution evidence does not commence. The Court has, therefore, to consider the question of framing the charges on general considerations of the material placed before it by the investigating agency. At this stage, the truth, veracity and effect of the judgment which the prosecution proposes to adduce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied finally before finding an accused guilty or otherwise is not exactly to be applied at the stage of framing the charge. Even on the basis of a strong suspicion founded on materials before it, the Court can form a presumptive opinion regarding the existence of factual ingredients constituting the offence alleged and in that event be justified in framing the charges against the accused in respect of the commission of the offence alleged to have been committed by them. Relying upon its earlier judgments in Ramesh Singh and Anil Kumar Bhunja's : cases the Apex Court again in Satish Mehra v. Delhi Administration reiterated:

Considerations which should weigh with the Sessions Court at this stage have been well designed by Parliament through Section 227 of the Code of Criminal Procedure (for short 'the Code') which reads thus:

227. Discharge- If upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, 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.

Section 228 contemplates the stage after the case survives the stage envisaged in the former section. When the Court is of opinion that there is ground to presume that the accused has committed as offence the procedure laid down therein has to be adopted. When those two sections are put in juxta- position with each other the test to be adopted becomes discernible : Is there sufficient ground for proceeding against the accused? It is axiomatic that the standard of proof normally adhered to at the final stage is not to be applied at the stage where the scope of consideration is where there is sufficient ground for proceeding.

10. So, in view the above decisions it is to be seen as to whether there are sufficient grounds for framing of charge against the petitioners or not.

11. Section 412 of IPC reads as under:

412- Dishonestly receiving property stolen in the commission of a dacoity-Whoever dishonestly receives or retains any stoles property, the possession whereof he knows or has reason to believe to have been transferred by the commission of dacoity, or dishonestly receives from a person, whom he knows or has reason to believe to belong or to have belonged to a gang of dacoits, punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.

12. PW5 in his statement on oath has stated that 36 bags were recovered from the house of Hemraj and this witness has admitted his signatures and the seizure memo.

13. Further, as per recovery memo placed on record, from the possession of petitioner Anil Kumar, 12 bags of chana as well as the sale proceeds of these chana bags were recovered.

14. So, prima-facie, the involvement of both the petitioners is there, since the stolen property i.e. chana bags which were looted by the dacoits have been recovered at the instance as well as from the possession of both the petitioners.

15. Under these circumstances, I do not find any infirmity or illegality in the impugned order.

16. Hence, the present petition is dismissed.

17. Trial court record be sent back forthwith.