Delhi High Court
Ashok Bhadauria vs State on 15 December, 2016
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision : December 15th, 2016
+ CRL.REV.P. 274/2007
ASHOK BHADAURIA ..... Petitioner
Through Mr.Kirti Uppal, Sr.Adv. with
Mr.S.P.S. Chaudhary and
Mr.Harsh Kumar, Advs.
versus
STATE ..... Respondent
Through Mr.Panna Lal Sharma, APP with
SI Bhanwar Singh, Sec-V/EOW.
WITH
+ CRL.REV.P. 347/2007
C.P.YADAV & ANR. ..... Petitioner
Through Mr.Kirti Uppal, Sr.Adv. with
Mr.S.P.S. Chaudhary and
Mr.Harsh Kumar, Advs.
versus
STATE ..... Respondent
Through Mr.Panna Lal Sharma, APP with
SI Bhanwar Singh, Sec-V/EOW.
AND
+ CRL.REV.P. 387/2007
KISHAN LAL NAGPAL & ORS. ..... Petitioner
Through Mr.Kirti Uppal, Sr.Adv. with
Mr.S.P.S. Chaudhary and
Mr.Harsh Kumar, Advs.
versus
STATE ..... Respondent
Through Mr.Panna Lal Sharma, APP with
SI Bhanwar Singh, Sec-V/EOW.
CORAM:
HON'BLE MR. JUSTICE P.S.TEJI
P.S.TEJI, J
1. A common order on charge dated 02.03.2007 and the charge
framed dated 02.03.2007 has been challenged against the
petitioners in these three petitions, therefore, all these petitions are
decided together.
2. Aggrieved by the common order on charge dated 02.03.2007
and the charge framed dated 02.03.2007 under Sections 420/467/
468/448/120-B/109 IPC, the present revision petitions have been
preferred by the petitioners. In the order dated 02.03.2007, it was
observed by the trial court that "At this stage, detail discussion is
not required......"
3. The facts, in brief, are that Mr.Tajun K. Sahgal made a
complaint to the police that he being a partner of M/s Magnum
Corporation took on lease premises bearing No.D-4, Defence
Colony, New Delhi from Major Pavinder Ahluwalia for a period of
two years w.e.f. 25.05.1994. On 25.05.1996, he received a
telephonic call from Mrs.Anila Ahluwalia inquiring as to why the
complainant had illegally handed over the possession of the
premises to a third person. On inquiry, the complainant came to
know that his partner Rakesh Thapar had illegally given the leased
premises to one Manish Jain. On the basis of the said complaint,
FIR No.392/1996, under Sections 406/408/420 IPC, Police Station
Defence Colony was registered.
4. During investigation, the police found the involvement of
the petitioners/accused persons including co-accused Rakesh
Thapar and after completion of investigation, charge sheet was
filed in the Court. The trial court vide impugned order dated
02.03.2007 ordered to frame charge under Sections
420/467/468/448/120-B/109 IPC and framed charges thereunder
against the accused persons to which they pleaded not guilty.
5. Upon hearing the arguments advanced by the learned
counsel for the parties, this Court has gone through the material
available on record.
6. Arguments advanced by the learned Senior Counsel for the
petitioners are that the trial court has not given any reasoning
finding the prima facie guilt of the petitioners which led to the
framing of charge against them. It was further argued that neither
the allegations nor the reasoning having concurrence with the same
have been recorded by the trial court while passing the order on
charge. It was further argued that the order under challenge is a
non-speaking order.
7. Section 227 of the Cr.P.C. provides for discharge of an
accused in a case where if upon consideration of the record of the
case and the documents submitted therewith and after hearing the
submission of the accused and the prosecution, the Judge considers
that there is no sufficient ground for proceeding against the
accused. When no case for discharge of an accused as provided
under Section 227 of the Cr.P.C. is made out, then the court is to
frame the charge as provided in Section 228 of the Cr.P.C.
8. In the case of P. Vijayan v. State of Kerala AIR 2010 SC
663, the Hon'ble Apex Court observed that at the time of framing
charge, the Judge is not a mere Post Office to frame the charge, 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. The sufficiency of ground would take within its fold
the nature of the evidence recorded by the police or documents
produced before the court which prima facie disclosed that there
were suspicious circumstances against the accused.
9. In the case of Sunil Kumar Jha v. State of Bihar (1997) 2
Crimes 131 (Pat), it was observed that the responsibility of framing
the charge is that of the court and it has to judicially consider the
question of doing so. Without fully adverting to the material on the
record it must not blindly adopt the decision of the prosecution.
10. Perusal of the impugned order shows that the learned trial
court did not consider it necessary to discuss the merits of the case.
It has been recorded in the impugned order that as far as the
individual allegations and role played by the accused are being
mentioned in detail in charge, therefore there is no need to repeat
the same in the order. The learned trial court straightway recorded
the conclusion that the accused are liable to be charged under
Sections 420/467/468/448/ 120-B/109 IPC.
11. The learned MM did not discuss the material on record while
deciding to frame charge. The order on charge must atleast contain
the materials on the basis of which prima facie view is made out
that the accused has committed the alleged offence as provided in
Sections 212 and 213 Cr.P.C. in relation to each of the accused.
The non-mentioning of material at the time of passing the order on
charge leads to un-sustainability of the order in the eyes of the law.
12. It is a settled law that the Court at the time of framing the
charge is required to discuss the material on the record to
show its application of mind to reach to the conclusion of
sufficiency of material to frame the charge.
The Court may not write the lengthy order describing
the entire material mentioned in the charge sheet but there
must be something on the face of the order from where it
could be gauged that there is application of mind but the
order is contrary to the above mentioned ratio of law.
13. This Court is of the considered opinion that the learned Trial
Judge need to exercise again jurisdiction to pass the fresh reasoned
order.
14. The non-sustainability of the order on charge culminates into
acceptance of these revision petitions and setting aside the order on
charge and charge framed by the trial court. As a result, the present
revision petitions are allowed with the observation that the trial
court shall pass fresh order, after giving an opportunity of hearing
to both the sides, keeping in view the observations made above.
15. With the above observations, the order on charge as well as
charge framed dated 02.03.2007 is hereby set aside as not
sustainable with the directions to the trial court to pass order afresh.
All the revision petitions are disposed of accordingly.
16. Any pending application is also disposed of.
17. A copy of the order be sent to the trial court concerned.
(P.S.TEJI)
JUDGE
DECEMBER 15, 2016/dd
