Himachal Pradesh High Court
Anil Kumar Sharma vs State Of Himachal Pradesh on 5 August, 2024
Neutral Citation No. ( 2024:HHC:6324 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No. 635 of 2022
.
Reserved on: 25.07.2024
Date of Decision: 05.08.2024.
Anil Kumar Sharma ...Petitioner
Versus
State of Himachal Pradesh
Coram
r to ...Respondent
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes
For the Petitioner : Mr. Karan Singh Kanwar,
Advocate.
For the Respondent : Mr. Ajit Sharma, Deputy Advocate
General.
Rakesh Kainthla, Judge
The petitioner has filed the present revision against
the order dated 14.07.2022 passed by learned Judicial Magistrate
First Class, Court No.2, Paonta Sahib, District Sirmaur, H.P.
(learned Trial Court), vide which the learned Trial Court ordered
the framing of charge, for the commission of offences
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
2 Neutral Citation No. ( 2024:HHC:6324 )
punishable under Sections 467, 468, 471 and 120-B of Indian
Penal Code (IPC) (Parties shall hereinafter be referred to in the
.
same manner as they were arrayed before the learned Trial
Court for convenience).
2. Briefly stated, the facts giving rise to the present
petition are that the police presented a challan before the
learned Trial Court against the petitioner/accused for the
commission of offences punishable under Sections 465, 467,
468, 471 and 120B of IPC. It was asserted that the informant filed
an application before the police stating that the informant's
daughter Kamla Devi was married to the petitioner/accused Anil
Kumar on 03.03.1999 as per Hindu rites and customs. The
accused was serving in Ranbaxy and Kamla Devi was posted as a
Science teacher at Kati Maswa School. Both of them resided at
Ponta Sahib. Kamla Devi met with an accident on 01.10.2004.
The informant came to know after the death of Kamla Devi that
the accused had taken two insurance policies in her name for
₹5,00,000/- and ₹2,00,000/-, respectively on 28.09.2003. Only
one installment was paid towards the premium. The proposal
forms did not bear the signatures of Kamla Devi. The forged
documents were prepared by the accused to obtain the insurance
3 Neutral Citation No. ( 2024:HHC:6324 )
money. The police registered the FIR and conducted the
investigation. The police obtained the admitted signatures of
.
Kamla Devi, petitioner and the agent. The report from
SFSL,Junga was received that the proposal forms did not bear
the signatures of Kamla Devi, the petitioner and the agents
Vinay Kumar and Development Officer Ashish Kapil. The police
earlier prepared a cancellation report but ultimately prepared
the charge sheet.r
3. The learned Trial Court took cognizance and framed
the charge for the commission of offences punishable under
Sections 467, 468, 471 and 120B of IPC.
4. Being aggrieved from the order of framing the
charge, the petitioner filed the present petition asserting that
the FIR did not disclose the commission of any cognizable
offence. The complaint filed by the informant was an abuse of
the process of the Court. No case was made out against the
petitioner showing that he had committed a cognizable offense.
The police had earlier filed untraced reports and subsequently
prepared a charge sheet. There was no material to suggest that
the signature of Kamla Devi was forged by the petitioner. The
4 Neutral Citation No. ( 2024:HHC:6324 )
signatures of the petitioner did not match with the disputed
signatures on the proposal form. The deceased Kamla Devi had
.
signed the policies and appeared before the Medical Officer for
her medical examination. The informant had earlier filed a
complaint against the petitioner for killing his wife. The
petitioner was acquitted by the Court; therefore, it was prayed
that the present petition be allowed and the order passed by the
learned Trial Court be set aside.
5. I have heard Mr. Karan Singh Kanwar, learned
counsel for the petitioner and Mr. Ajit Sharma, learned Deputy
Advocate General for the respondent/State.
6. Mr. Karan Singh Kanwar, learned counsel for the
petitioner submitted that the present FIR was lodged as a result
of personal vengeance of the informant, who had earlier filed a
complaint against the petitioner for killing his wife. The reports
of the SFSL, Junga do not show that the proposal forms were
signed by the petitioner and no offences are made out against
the petitioner. The original documents have been lost and the
comparison of the signatures by the SFSL is not proper. The
affidavits annexed to the petition showed that the signatures
5 Neutral Citation No. ( 2024:HHC:6324 )
were put by the deceased. Therefore, he prayed that the present
petition be allowed and the order passed by the learned Trial
.
Court be set aside.
7. Mr. Ajit Sharma learned Deputy Advocate General
submitted that it was duly proved by the report of the SFSL that
the proposal form did not bear the signatures of Kamla Devi. The
petitioner had taken the benefits under the policy and he is
liable to be prosecuted. A grave suspicion is sufficient to frame
the charges and the documents produced by the accused cannot
be seen while framing the charges. Therefore, he prayed that the
present petition be dismissed.
8. I have given considerable thought to the submissions
at the bar and have gone through the records carefully.
9. It was laid down by the Hon'ble Supreme Court in
State of Gujarat v. Dilipsinh Kishorsinh Rao, 2023 SCC OnLine SC
1294 that the revisional Court cannot look into the material
produced by the accused and has to confine itself to the material
collected by the prosecution. It was observed:
"7. It is trite law that the application of judicial mind is
necessary to determine whether a case has been made out
by the prosecution for proceeding with trial and it would
6 Neutral Citation No. ( 2024:HHC:6324 )
not be necessary to dwell on the pros and cons of the
matter by examining the defence of the accused when an
application for discharge is filed. At that stage, the trial
judge has to merely examine the evidence placed by the
.
prosecution in order to determine whether or not the
grounds are sufficient to proceed against the accused on
the basis of charge sheet material. The nature of the evi-
dence recorded or collected by the investigating agency or
the documents produced in which prima facie it reveals
that there are suspicious circumstances against the ac-
cused, so as to frame a charge would suffice and such ma-
terial would be taken into account for the purposes of
framing the charge. If there is no sufficient ground for
proceeding against the accused necessarily, the accused
would be discharged, but if the Court is of the opinion, af-
ter such consideration of the material there are grounds
for presuming that the accused has committed the of-
fence which is triable, then necessarily charge has to be
framed.
8. At the time of framing of the charge and taking cog-
nizance the accused has no right to produce any material
and call upon the court to examine the same. No provision
in the Code grants any right to the accused to file any ma-
terial or document at the stage of framing of charge. The
trial court has to apply its judicial mind to the facts of the
case as may be necessary to determine whether a case has
been made out by the prosecution for trial on the basis of
charge-sheet material only.
9. If the accused is able to demonstrate from the charge-
sheet material at the stage of framing the charge which
might drastically affect the very sustainability of the case,
it is unfair to suggest that such material should not be
considered or ignored by the court at that stage. The main
intention of granting a chance to the accused of making
submissions as envisaged under Section 227 of the Cr.
P.C. is to assist the court to determine whether it is re-
quired to proceed to conduct the trial. Nothing in the Code
limits the ambit of such hearing, to oral hearing and oral
7 Neutral Citation No. ( 2024:HHC:6324 )
arguments only and therefore, the trial court can consider
the material produced by the accused before the I.O.
10. It is a settled principle of law that at the stage of con-
.
sidering an application for discharge the court must pro-
ceed on an assumption that the material which has been
brought on record by the prosecution is true and evaluate
said material in order to determine whether the facts
emerging from the material taken on its face value, dis-
close the existence of the ingredients necessary of the
offence alleged. This Court in State of Tamil Nadu v. N.
Suresh Rajan, (2014) 11 SCC 709 adverting to the earlier
propositions of law laid down on this subject has held:
"29. We have bestowed our consideration to the rival
submissions and the submissions made by Mr. Ranjit
Kumar commend us. True it is that at the time of con-
sideration of the applications for discharge, the court
cannot act as a mouthpiece of the prosecution or act as
a post office and may sift evidence in order to find out
whether or not the allegations made are groundless so
as to pass an order of discharge. It is trite that at the
stage of consideration of an application for discharge,
the court has to proceed with an assumption that the
materials brought on record by the prosecution are
true and evaluate the said materials and documents
with a view to find out whether the facts emerging
therefrom taken at their face value disclose the exis-
tence of all the ingredients constituting the alleged
offence. At this stage, the probative value of the mate-
rials 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,
8 Neutral Citation No. ( 2024:HHC:6324 )
the court has to come to the conclusion that the ac-
cused has committed the offence. The law does not
permit a mini-trial at this stage."
.
11. The defence of the accused is not to be looked into at
the stage when the accused seeks to be discharged. The
expression "the record of the case" used in Sec-
tion 227 Cr. P.C. is to be understood as the documents and
articles, if any, produced by the prosecution. The Code
does not give any right to the accused to produce any doc-
ument at the stage of framing of the charge. The submis-
sion of the accused is to be confined to the material pro-
duced by the investigating agency.
12. The primary consideration at the stage of framing of
charge is the test of the existence of a prima facie case,
and at this stage, the probative value of materials on
record need not be gone into. This Court by referring to its
earlier decisions in the State of Maharashtra v. Som Nath
Thapa, (1996) 4 SCC 659 and the State of MP v. Mohan Lal
Soni, (2000) 6 SCC 338 has held the nature of evaluation to
be made by the court at the stage of framing of the charge
is to test the existence of the prima-facie case. It is also
held at the stage of framing of charge, the court has to
form a presumptive opinion to the existence of factual in-
gredients constituting the offence alleged and it is not
expected to go deep into the probative value of the mate-
rial on record and to check whether the material on
record would certainly lead to conviction at the conclu-
sion of trial."
10. It is apparent from the judgment of the Hon'ble
Supreme Court that it is not permissible for the Court to look
into the documents not forming part of the record of the learned
Trial Court; therefore the submission that the Court can look
into the documents annexed to the petition cannot be accepted.
9 Neutral Citation No. ( 2024:HHC:6324 )
Learned counsel for the petitioner has relied upon the judgment
of the Hon'ble Supreme Court in Satish Mehra vs Delhi
.
Administration 1996 (9) SCC 766 and State of Madhya Pradesh
versus Mohanlal Soni 2000(6) SCC 338. However, both these
judgments have been overruled in State of Orissa v. Debendra
Nath Padhi, (2005) 1 SCC 568: 2005 SCC (Cri) 415: 2004 SCC OnLine
SC 1491 and will not assist the petitioner.
11. Even otherwise, the veracity of the affidavits is to be
established during the trial. Simply because two persons have
executed the affidavit stating that the signatures were put by the
deceased in their presence will not disprove the prosecution
case, especially when the same is supported by the report of the
SFSL.
12. It was submitted that the report of SFSL is based
upon the photocopies and cannot be used against the petitioner.
It has been specifically stated in the charge sheet that original
documents are missing. Therefore, it is permissible for the
prosecution to prove its case by leading secondary evidence.
Whether the documents were really lost and whether the
secondary evidence could be led is the matter of the trial before
10 Neutral Citation No. ( 2024:HHC:6324 )
the learned Trial Court and cannot be decided in these
proceedings. Hence, the plea that since the original documents
.
have been lost, therefore, the proceedings cannot continue is
not acceptable.
13. The report of the SFSL shows that the signatures
stated to have been put by Kamla Devi on the Proposal Form did
not match with her admitted signatures. Hence, prima facie, it is
established that the Proposal Form contains the signatures of
some person other than Kamla Devi and the signatures were put
on the documents with the intent to show that Kamla Devi had
put her signatures on the Proposal Form. This falls within the
definition of making false documents under Section 464(a) of
the IPC. The Proposal Form was used as genuine to obtain the
insurance policy and the same will fall within the definition of
Section 471 of the IPC. The forgery was of valuable security and
was done with the intent to induce the insurance company to
issue the policy in her favour. Hence, prima facie, the
requirements of Sections 467, 468, 471, 120B of IPC were
satisfied.
11 Neutral Citation No. ( 2024:HHC:6324 )
14. It was submitted that the present case was filed due
to the personal vengeance by the informant and therefore, the
.
FIR is liable to be quashed on this ground alone. This submission
cannot be accepted. It was laid down by the Hon'ble Supreme
Court in Ramveer Upadhyay v. State of U.P., 2022 SCC OnLine SC
484 that the proceedings cannot be quashed because these were
acquainted by malafide or political vendetta. It was observed:
"30. The fact that the complaint may have been initiated
by reason of political vendetta is not in itself grounds for
quashing the criminal proceedings, as observed by
Bhagwati, CJ in Sheonandan Paswan v. State of Bihar
(1987) 1 SCC 2884. It is a well-established proposition of
law that a criminal prosecution if otherwise justified and
based upon adequate evidence, does not become vitiated
on account of mala fides or political vendetta of the first
informant or complainant. Though the view of Bhagwati,
CJ in Sheonandan Paswan (supra) was the minority view,
there was no difference of opinion with regard to this
finding. To quote Krishna Iyer, J., in State of Punjab v.
Gurdial Singh (1980) 2 SCC 471, "If the use of power is of
the fulfilment of a legitimate object the actuation or
catalysation by malice is not legicidal."
Xxxx
39. In our considered opinion criminal proceedings
cannot be nipped in the bud by exercise of jurisdiction
under Section 482 of the Cr.P.C. only because the
complaint has been lodged by a political rival. It is
possible that a false complaint may have been lodged at
the behest of a political opponent. However, such a
possibility would not justify interference under Section
482 of the Cr.P.C. to quash the criminal proceedings. As
observed above, the possibility of retaliation on the part
12 Neutral Citation No. ( 2024:HHC:6324 )
of the petitioners by the acts alleged, after closure of the
earlier criminal case cannot be ruled out. The allegations
in the complaint constitute an offence under the
Atrocities Act. Whether the allegations are true or untrue,
.
would have to be decided in the trial. In the exercise of
power under Section 482 of the Cr.P.C., the Court does not
examine the correctness of the allegations in a complaint
except in exceptionally rare cases where it is patently
clear that the allegations are frivolous or do not disclose
any offence. The Complaint Case No. 19/2018 is not such a
case which should be quashed at the inception itself
without further Trial. The High Court rightly dismissed
the application under Section 482 of the Cr.P.C."
15. It was further submitted that there is a delay in the
proceedings and the revision should not be accepted on the
ground of delay. Reliance was placed upon the judgment of the
Hon'ble Supreme Court in Vakil Prasad Singh versus State of Bihar
2009 3 SCC 355 and Pankaj Kumar versus State of Maharashtra
2008 16 SCC 117. There can be no dispute with the proposition of
law that the proceedings have to be conducted expeditiously.
However, a perusal of the record shows that the
petitioner/accused appeared before the learned trial Court for
the first time on 21.11.2014. Thereafter, the matter remained
pending for the service of remaining accused. When the service
of the remaining accused was completed on 01.11.2016, one
accused or the other was absent. Time was prayed for
consideration of the charge and ultimately the arguments were
13 Neutral Citation No. ( 2024:HHC:6324 )
addressed on 14.07.2022. Thereafter, the petitioner filed the
present petition and obtained the stay order from this Court.
.
This shows that the matter was kept pending because the
arguments were not being addressed on the charge. A person
cannot take advantage of his own wrong and the FIR cannot be
quashed based on the delay in the present case. The delay is
attributable to the petitioner and he cannot take advantage of
the same. Hence, the submission that FIR is liable to be quashed
due to the delay is rejected.
16. It was laid down by the Hon'ble Supreme Court in
State of Gujarat v. Dilipsinh Kishorsinh Rao, 2023 SCC OnLine SC
1294 that the revisional court does not sit in appeal over the
order sought to be revised and only examines the legality or
regularity of the procedure. It was observed:
"13. The power and jurisdiction of the Higher Court under
Section 397 Cr. P.C. which vests the court with the power
to call for and examine records of an inferior court is for
the purposes of satisfying itself as to the legality and
regularities of any proceeding or order made in a case.
The object of this provision is to set right a patent defect
or an error of jurisdiction or law or the perversity which
has crept into such proceedings. It would be apposite to
refer to the judgment of this court in Amit
Kapoor v. Ramesh Chandra, (2012) 9 SCC 460 where the
scope of Section 397 has been considered and succinctly
explained as under:
14 Neutral Citation No. ( 2024:HHC:6324 )
"12. Section 397 of the Code vests the court with the
power to call for and examine the records of an
inferior court for the purposes of satisfying itself as to
the legality and regularity of any proceedings or order
.
made in a case. The object of this provision is to set
right a patent defect or an error of jurisdiction or law.
There has to be a well-founded error and it may not be
appropriate for the court to scrutinise the orders,
which upon the face of it bear a token of careful
consideration and appear to be in accordance with the
law. If one looks into the various judgments of this
Court, it emerges that the revisional jurisdiction can
be invoked where the decisions under challenge are
grossly erroneous, there is no compliance with the
provisions of law, the finding recorded is based on no
evidence, material evidence is ignored or judicial
discretion is exercised arbitrarily or perversely. These
are not exhaustive classes but are merely indicative.
Each case would have to be determined on its own
merits.
13. Another well-accepted norm is that the revisional
jurisdiction of the higher court is a very limited one
and cannot be exercised in a routine manner. One of
the inbuilt restrictions is that it should not be against
an interim or interlocutory order. The Court has to
keep in mind that the exercise of revisional
jurisdiction itself should not lead to injustice ex-facie.
Where the Court is dealing with the question as to
whether the charge has been framed properly and in
accordance with law in a given case, it may be
reluctant to interfere in the exercise of its revisional
jurisdiction unless the case substantially falls within
the categories aforestated. Even framing of charge is a
much-advanced stage in the proceedings under
the CrPC."
14. This Court in the aforesaid judgment has also laid
down principles to be considered for the exercise of
jurisdiction under Section 397 particularly in the context
15 Neutral Citation No. ( 2024:HHC:6324 )
of prayer for quashing of charge framed under
Section 228 Cr. P.C. is sought for as under:
"27. Having discussed the scope of jurisdiction under
.
these two provisions i.e. Section 397 and Section 482
of the Code and the fine line of jurisdictional
distinction, now it will be appropriate for us to enlist
the principles with reference to which the courts
should exercise such jurisdiction. However, it is not
only difficult but is inherently impossible to state with
precision such principles. At best and upon objective
analysis of various judgments of this Court, we are
able to cull out some of the principles to be considered
for the proper exercise of jurisdiction, particularly,
with regard to quashing of charge either in exercise of
jurisdiction under Section 397 or Section 482 of the
Code or together, as the case may be:
27.1. Though there are no limits to the powers of
the Court under Section 482 of the Code but the
more the power, the more due care and caution is to
be exercised in invoking these powers. The power of
quashing criminal proceedings, particularly, the
charge framed in terms of Section 228 of the Code
should be exercised very sparingly and with
circumspection and that too in the rarest of rare
cases.
27.2. The Court should apply the test as to whether
the uncontroverted allegations as made from the
record of the case and the documents submitted
therewith prima facie establish the offence or not.
If the allegations are so patently absurd and
inherently improbable that no prudent person can
ever reach such a conclusion and where the basic
ingredients of a criminal offence are not satisfied
then the Court may interfere.
27.3. The High Court should not unduly interfere.
No meticulous examination of the evidence is
needed for considering whether the case would end
16 Neutral Citation No. ( 2024:HHC:6324 )
in conviction or not at the stage of framing of
charge or quashing of charge.
27.9. Another very significant caution that the
.
courts have to observe is that it cannot examine the
facts, evidence and materials on record to
determine whether there is sufficient material on
the basis of which the case would end in a
conviction; the court is concerned primarily with
the allegations taken as a whole whether they will
constitute an offence and, if so, is it an abuse of the
process of court leading to injustice.
27.13. Quashing of a charge is an exception to the
rule of continuous prosecution. Where the offence
is even broadly satisfied, the Court should be more
inclined to permit the continuation of prosecution
rather than its quashing at that initial stage. The
Court is not expected to marshal the records with a
view to deciding admissibility and reliability of the
documents or records but is an opinion formed
prima facie."
15. The revisional court cannot sit as an appellate court
and start appreciating the evidence by finding
inconsistency in the statement of witnesses and it is not
legally permissible. The High Courts ought to be
cognizant of the fact that trial court was dealing with an
application for discharge."
17. In the present case, there is no infirmity in the order
framing the charge. Hence, the present petition fails and the
same is dismissed.
18. The parties through their respective counsel are
directed to appear before the learned Trial Court on 29.08.2024.
17 Neutral Citation No. ( 2024:HHC:6324 )
19. The observation made herein before shall remain
confined to the disposal of the petition and will have no bearing,
.
whatsoever, on the merits of the case.
20. The record be sent forthwith so as to reach before the
learned Trial Court well in time.
(Rakesh Kainthla)
Judge
05th August, 2024
(Nikita) r
