Jharkhand High Court
Rupak Singh vs The State Of Jharkhand on 29 November, 2023
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Navneet Kumar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Revision No. 586 of 2022
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1. Rupak Singh, aged about 53 years, son of Late Sadanand Prasad
Singh
2. Nand Kishore Mehta, aged about 40 years, son of Sri Tulsi Mehta
Both are resident of village-Masnodih, P.O. Masnodih, P.S.
Domchanch, District-Koderma.
....... Petitioners
Versus
The State of Jharkhand ....... Respondent
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE NAVNEET KUMAR
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For the Petitioner : Mr. R.S. Mazumdar, Sr. Advocate
For the Resp.-State : Mr. Shiv Shankar Kumar, A.P.P.
-----------
th
12/Dated: 29 November, 2023
1. The instant application has been filed under Section 397 read with
Section 401 of the Code of Criminal Procedure assailing the order dated
18.04.2022 passed by the learned Additional Sessions Judge-I, Dumka in
connection with Sessions Trial No. 163 of 2019 arising out of
Shikaripara P.S. Case No. 45 of 2014, whereby and whereunder, the
petition filed under Section 227 of the Code of Criminal Procedure for
discharge of the petitioners from the criminal liability has been rejected
by holding therein that there is ground for presuming that both the
petitioners have committed offences punishable under Sections 4,5 and
Section 6 of the Explosive Substances Act.
2. The aforesaid case was listed before the learned single Judge of this
Court but later on vide order dated 19.05.2023 the learned Single Judge
in the light of judgment as rendered by the Full Bench of this Court in
the case of Rakesh Saw @ Sahu Vs. State of Jharkhand reported in
2023(1) JBCJ 88(F.B), had directed the office to place this matter
before the division bench with the permission of Hon'ble the Chief
Justice and accordingly, the instant case has been assigned to this bench.
3. Although the case has been filed under Section 397 read with Section
401 of the Code of Criminal Procedure by way of revision but the
learned Single Judge while dealing with the application by taking into
consideration the judgment rendered in the Rakesh Saw @ Sahu Vs.
State of Jharkhand (supra) has referred the matter to be listed before the
Division Bench. Although the nomenclature of this case is Criminal
Revision but it is being treated as Criminal Appeal in the light of the
aforesaid judgment, as such, this Court is looking into the impugned
order under the appellate jurisdiction.
4. The factual matrix leading to filing of the instant case in brief reads as
under:
On the basis of secret information, a pick-up van bearing registration
no. JH-12B-9369 was intercepted and driver disclosed his name as Nand
Kishore Mehta and failed to produce any document and told that
documents were in possession of vehicle owner namely Rupak Singh
and disclosed that loading was made at Koderma. It is further alleged
that for the purpose of safety and verification vehicle was brought and
kept at police station and till 4:00 PM of 13.05.2014 when owner of
vehicle did not turn up along with paper search was made after getting
the lock of pick-up van opened by the driver in presence of two
independent witnesses and allegedly 100 cartoons on which
EMULDYME explosives written each containing 200 pieces of Gelatin
were recovered and thereafter they were seized and seizure list was
prepared accordingly and the case has been registered.
5. Mr. R.S. Mazumdar, learned senior counsel appearing for the petitioners
has taken the ground that even if the entire material taken into
consideration on the basis of the case instituted as would be taken from
the FIR and the material collected in course of investigation as referred
in the case diary, no case is made out.
6. It has been contended that the petitioner no.1 is registered owner of the
seized pick-up van bearing registration No. JH-12B- 9369 and possesses
license for carrying explosives up to 2250 kg issued by Joint Chief
Controller of Explosives vide license No. E/EC/JH/25/426 (E69580)
valid till 31.03.2017 and petitioner No.2 is driver of the said pick- up van
and said pick-up van was hired by M/s Jharkhand Explosives Private
Limited, District-Koderma for carrying explosives vide agreement dt.
15.03.2013 and xerox copies of Challans are also filed along with
petition to show that explosives loaded on said vehicle were legal and
valid. It has been contended that based upon the genuine documents, the
petitioner No.2 started to carry the explosives on 12.05.2014 for its
destination but the same was intercepted by Officer-In-Charge of P.S.
Shikaripara and taken to police station. Even though, producing all valid
and genuine documents by petitioner No.2 before the informant, baseless
case was lodged with false allegations.
7. It has further been contended by putting reliance upon a judgment
rendered by the Hon'ble Apex Court in Rajiv Thapar and Ors. vs.
Madan Lal Kapoor, (2013) 3 SCC 330 wherein the Hon'ble Apex Court
has been pleased to lay down the steps to determine the veracity of
prayer for quashment raised by an accused by invoking the power vested
in the High Court under Section 482 Cr.P.C., at para 30.1 that whether
the material relied upon by the accused is sound, reasonable and
indubitable, i.e., the material is of sterling and impeccable quality and
answer to the aforesaid step is in affirmative the High Court should
persuade it to quash the such criminal proceeding under section 482 Cr.
P.C.
8. It has been contended basing upon the said proposition of law that there
is no ingredient to put the petitioners to face the rigour of trial. It has
further been contended that although in the case diary as under paragraph
149, which has been taken note by the learned court wherein the
investigating officer has come with the fact that the licence pertaining to
explosive which was being carried in pick-up van No. JH-12D-9369 was
not found to be genuine but the said stipulation made therein cannot be
said to be correct if the averment made in the counter affidavit filed
before this Court in pursuance of the order passed by the learned Single
Judge wherefrom it is evident that the genuineness of the explosive
licence has not been doubted.
9. Learned senior counsel based upon the aforesaid ground has submitted
that the learned court while considering the prayer made in the petition
filed under Section 227 of the Cr.P.C. ought to have taken into
consideration this aspect of the matter but having not done so, since, the
learned court ought to have called upon a report from the concerned
competent authority who has been conferred power to issue explosive
licence then whatever material has been said to be gathered in course of
investigation as has been referred in para 149 of the case diary, the same
would have been verified but the same has not been done, therefore, the
impugned order rejecting the discharge of the accused, the petitioners
herein, suffer from infirmity, hence, not sustainable in the eyes of law.
10. While on the other hand, Mr. Shiv Shankar Kumar, learned Additional
Public Prosecutor appearing for the respondent-State of Jharkhand has
submitted that it is incorrect on the part of the petitioners to take the
ground that no material was available before the learned court for
framing of charge rather ample materials are available before the learned
court as would appear from the material gathered as referred in
paragraphs- 38, 41, 42, 60, 69, 70, 74, 78 and 149 of the case diary.
11. Learned court has taken into consideration the entire material as referred
in the said paragraphs and by making reference thereof, more
particularly, para 149 of the case diary wherein it has been indicated by
the investigating officer on verification of document which was
furnished by the petitioners was not found correct and the learned court
has also considered the admitted position that the petitioner no.1 is the
owner and the petitioner no.2 is the driver of the vehicle from which the
seizure of explosive was made.
12. Learned court after taking into consideration the aforesaid fact has come
to the conclusive finding that at the stage of framing of charge the court
is merely to peruse the material collected during investigation in order to
find whether or not there is sufficient ground and prima facie case is
made out or not for framing of charge in terms of Section 228 of the
Cr.P.C.
13. It has further been observed that at the stage of framing of charge the
court is not required to interfere with the meticulous consideration of the
evidence and other material collected during investigation.
14. Learned APP, in addition to the same, has submitted that the matter
while was being heard by the learned Single Judge, direction was given
to the State vide order dated 18.08.2022 whereby and whereunder, the
learned Single Judge has directed to file counter affidavit and also to
produce neatly typed copy of the case diary and seek instruction on
Annexure-2 and Annexure-3 filed in the instant criminal revision
application on behalf of the petitioners.
15. The counter affidavit, in terms of the aforesaid order, has been filed
wherein averment has been made at para-8, 9, 10 and 11 stating therein
as referred in paragraph 38 of the case diary that some documents viz.
License No. E/HQ/JH/190 (E-6215) in LE-3 FORM issued in favour of
M/S Jharkhand State Explosive Pvt. Ltd. Sahana Road Kodarma by its
issuing authority Ministry of Commerce, Government of India, License
No. License No. E/HQ/JH/21/191(E-18) and E/HQ/JH/22/236 (E-6217)
both issued in favor of Amit Kumar Singh as referred in para-39 of the
case diary and copy of agreement between Amit Kumar Singh,
Jharkhand Explosive Pvt. Ltd with four lease holders namely (1) M/S
Ramjanki Minerals and Constructions Pvt. Ltd, Sialpahari, (2) Rajesh
Hembrom of Chitragariya, (3) AtalimSk and (4) Rajesh Kumar all of
P.S. Shikaripara District Dumka which were made for the purpose of
drilling and blasting.
16. At para-9 of the counter affidavit, it has been stated that the investigating
officer had obtained Form 11 and 12 of Jharkhand Explosive Pvt. Ltd
and on scrutiny of the same the investigating officer found that the
Vehicle License for transportation is E/EC/JH/25/426 (E-69580)
Registration No. of the vehicle JH-12D-9369 (Tata 407 Pickup van) has
been assigned there as referred in para 42 case diary.
17. Reference of para-10 of the counter affidavit has also been made wherein
the investigating officer recorded the statement of the lease holder
namely, Rajesh Hembrom at Para 69 of the case diary in the light of
Agreement with Jharkhand Explosive Pvt. Ltd and Rajesh Hembrom
denied and stated that he has not executed any such agreement with
Jharkhand Explosive Pvt. Ltd. as referred in para 69 of the case diary.
18. It has further been stated at para-11 which contains statement of Ashok
Kumar Choudhary authorized signatory of Rajesh Kumar and he has also
denied in writing by stating that they have not made any agreement with
Jharkhand Explosive Pvt. Ltd. as referred in para-70 of the case diary.
19. Reference of para-16 of the counter affidavit has also been made wherein
the genuineness of License No. E/EC/JH/25/426 (E-69580) from the
Office of the Joint Chief Controller of Explosive, East Centre, Kolkata
and the Joint Chief Controller of Explosive vide Letter No. E.3(6) Misc.
Vol- II/2900 dt. 01.09.2022 verified that the License No.
E/EC/JH/25/426 (E-69580) issued in favour of Rupak Singh from his
Office on 17.10.2012 and further renewed on 10.04.2017 which was
effective till was 31.03.2022.
20. Learned APP has submitted that although on verification it has come that
the licence was renewed up to 31.03.2022 but that cannot be a ground for
discharge of the petitioners from criminal liability since it is the admitted
case that at the time when the document was produced by the driver of
the vehicle, the document was not found to be genuine. Further, the court
has not rejected the discharge application merely on the ground that the
licence was valid rather the agreement enriched in between Jharkhand
Explosive Pvt. Ltd and Rajesh Hembrom has been found to be forged
since the executant of the said agreement has been disputed to have
entered with any agreement with the petitioner, as such, the learned court
after taking into consideration the materials available on record in
various paragraphs as referred hereinabove and taking into consideration
the jurisdiction to look into the material available while exercising the
power under Section 227 of the Cr.P.C., the learned court has prima
facie found the material collected during investigation sufficient ground
to proceed for framing charge in terms of Section 228 of Cr.P.C.
21. The learned court if on the basis of the aforesaid material available
before it has declined to allow the petition filed under Section 227 of the
Cr.P.C., the same cannot be said to suffer from error.
22. We have heard the learned counsel for the parties, perused the
documents available on record as also the contents of the case diary and
the counter affidavit.
23. This Court at this juncture thinks fit to discuss the principle of discharge
as contained under Section 227 of the Code of Criminal Procedure.
24. There are two important components in Section 227 Cr.P.C - (a). after
hearing the submissions of the accused and (b). not sufficient ground for
proceeding against the accused.
25. The Hon'ble Apex Court while hearing the issue of 'hearing the
submissions of the accused' has dealt with the same in the case of State
of Orissa Vs. Debendra Nath Padhi [AIR 2005 SC 359 : (2005) 1 SCC
568], wherein at paragraph 18 it has been held as under:
"18. We are unable to accept the aforesaid contention. The reliance on
Articles 14 and 21 is misplaced. The scheme of the Code and object
with which Section 227 was incorporated and Sections 207 and 207-A
omitted have already been noticed. Further, at the stage of framing of
charge roving and fishing inquiry is impermissible. If the contention of
the accused is accepted, there would be a mini-trial at the stage of
framing of charge. That would defeat the object of the Code. It is well
settled that at the stage of framing of charge the defence of the accused
cannot be put forth. The acceptance of the contention of the learned
counsel for the accused would mean permitting the accused to adduce
his defence at the stage of framing of charge and for examination
thereof at that stage which is against the criminal jurisprudence. By
way of illustration, it may be noted that the plea of alibi taken by the
accused may have to be examined at the stage of framing of charge if
the contention of the accused is accepted despite the well-settled
proposition that it is for the accused to lead evidence at the trial to
sustain such a plea. The accused would be entitled to produce materials
and documents in proof of such a plea at the stage of framing of the
charge, in case we accept the contention put forth on behalf of the
accused. That has never been the intention of the law well settled for
over one hundred years now. It is in this light that the provision about
hearing the submissions of the accused as postulated by Section 227 is
to be understood. It only means hearing the submissions of the accused
on the record of the case as filed by the prosecution and documents
submitted therewith and nothing more. The expression "hearing the
submissions of the accused" cannot mean opportunity to file material
to be granted to the accused and thereby changing the settled law. At
the stage of framing of charge hearing the submissions of the accused
has to be confined to the material produced by the police."
[Emphasis supplied]
The second component i.e., 'not sufficient ground for proceeding
against the accused', has been dealt with by Hon'ble Apex Court in the
case of Union of India Vs. Prafulla Kumar Samal & Anr. [(1979) 3
SCC 4], wherein at paragraphs 7 it has been held as under:
"7. Section 227 of the Code runs thus:
"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."
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 his function 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. 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."
The Hon'ble Apex Court has further dealt with the proper basis for
framing of charge in the case of Onkar Nath Mishra & Ors Vs. State
(NCT of Delhi) and Anr. [(2008) 2 SCC 561] wherein at paragraphs 11,
12 and 14 it has been held as under:
"11. It is trite that at the stage of framing of charge the court is
required to evaluate the material and documents on record with a view
to finding out if the facts emerging therefrom, taken at their face value,
disclosed the existence of all the ingredients constituting the alleged
offence. At that stage, the court is not expected to go deep into the
probative value of the material on record. What needs to be considered
is whether there is a ground for presuming that the offence has been
committed and not a ground for convicting the accused has been made
out. At that stage, even strong suspicion founded on material which
leads the court to form a presumptive opinion as to the existence of the
factual ingredients constituting the offence alleged would justify the
framing of charge against the accused in respect of the commission of
that offence.
12. In State of Karnataka v. L.Muniswamy [(1977) 2 SCC 699 : 1977
SCC (Cri) 404] , a three-Judge Bench of this Court had observed that
at the stage of framing the charge, the Court has to apply its mind to
the question whether or not there is any ground for presuming the
commission of the offence by the accused. As framing of charge affects
a person's liberty substantially, need for proper consideration of
material warranting such order was emphasised.
14. In a later decision in State of M.P. v. Mohanlal Soni [(2000) 6 SCC
338 : 2000 SCC (Cri) 1110] this Court, referring to several previous
decisions held that: (SCC p. 342, para 7)
"7. The crystallised judicial view is that at the stage of framing
charge, the court has to prima facie consider whether there is sufficient
ground for proceeding against the accused. The court is not required to
appreciate evidence to conclude whether the materials produced are
sufficient or not for convicting the accused."
The Hon'ble Apex Court in the case of Vijayan Vs. State of Kerela &
Anr. [(2010) SCC 398 SC] and in Union of India Vs. Prafulla Kumar
Samal & Anr. [(1979) 3 SCC 4] has formulated guidelines.
Likewise, the Hon'ble Apex Court in the case of Sajjan Kumar Vs.
Central Bureau of Investigation [(2010) 9 SCC 368] at paragraph 21
has also formulated such guidelines, which reads as under:
"21. On consideration of the authorities about the scope of Sections
227 and 228 of the Code, the following principles emerge:
(i) The Judge while considering the question of framing the charges
under Section 227 CrPC has the undoubted power to sift and weigh the
evidence for the limited purpose of finding out whether or not a prima
facie case against the accused has been made out. The test to determine
prima facie case would depend upon the facts of each case.
(ii) Where the materials placed before the court disclose grave
suspicion against the accused which has not been properly explained,
the court will be fully justified in framing a charge and proceeding with
the trial.
(iii) The court cannot act merely as a post office or a mouthpiece of the
prosecution but has to consider the broad probabilities of the case, the
total effect of the evidence and the documents produced before the
court, any basic infirmities, etc. However, at this stage, there cannot be
a roving enquiry into the pros and cons of the matter and weigh the
evidence as if he was conducting a trial.
(iv) If on the basis of the material on record, the court could form an
opinion that the accused might have committed offence, it can frame the
charge, though for conviction the conclusion is required to be proved
beyond reasonable doubt that the accused has committed the offence.
(v) At the time of framing of the charges, the probative value of the
material on record cannot be gone into but before framing a charge the
court must apply its judicial mind on the material placed on record and
must be satisfied that the commission of offence by the accused was
possible.
(vi) At the stage of Sections 227 and 228, the court is required to
evaluate the material and documents on record with a view to find out if
the facts emerging therefrom taken at their face value disclose the
existence of all the ingredients constituting the alleged offence. For this
limited purpose, sift the evidence as it cannot be expected even at that
initial stage to accept all that the prosecution states as gospel truth
even if it is opposed to common sense or the broad probabilities of the
case.
(vii) 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."
In the case of State of Tamil Nadu represented by Inspector of Police
Vigilance and Anti-corruption Vs. N. Suresh Rajan and others [(2014)
11 SCC 709, it has been held 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 existence of all the ingredients constituting the alleged offence.
In the case of State of Karnataka Lokayukta, Police Station,
Bengaluru Vs. M.R. Hiremath (2019) 7 SCC 515, the Hon'ble Apex
Court has been pleased to hold that at the stage of considering an
application for discharge the Court must proceed on the assumption that
the material which has been brought on record by the prosecution is true
and evaluate the material in order to determine whether the facts
emerging from the material taken on its face value, disclose the existence
of the ingredients necessary to constitute the offence.
The Hon'ble Apex Court in the case of Sheoraj Singh Ahlawat & Ors
Vs. State of Uttar Pradesh & Anr. [(2013) 11 SCC 476], has held that at
the time of framing of charge the Court is required to evaluate the
material and documents on record to decide whether there is a ground for
presuming that the accused had committed the offence. There is no need
to evaluate the sufficiency of evidence to convict the accused. Materials
brought on record by the prosecution can be believed to be true, but their
probative value cannot be decided at that stage. The accused is entitled to
urge his contentions while entertaining the discharge application only on
the material submitted by the prosecution, but he is not entitled to
produce any material at that stage and the Court is not required to
consider any such material. If two views are possible and one of them
gives rise to suspicion only as distinguished from grave suspicion, the
trial judge is empowered to discharge the accused, irrespective of the
result of the trial.
26. At this juncture before examining the legality and reasonability of the
order dated 18.04.2022, it will be purposeful to discuss the scope and
applicability of section 228 of Criminal Procedure Code also. For ready
reference the section 228 of Cr.P.C. is being quoted herein under:
"(1) If, after such consideration and hearing as aforesaid, the Judge is
of opinion that there is ground for presuming that the accused has
committed an offence which-
(a) is not exclusively triable by the Court of Session, he may, frame a
charge against the accused and, by order, transfer the case for trial to
the Chief Judicial Magistrate, and thereupon the Chief Judicial
Magistrate shall try the offence in accordance with the procedure for
the trial of warrant- cases instituted on a police report;
(b) is exclusively triable by the Court, he shall frame in writing a
charge against the accused.
(2) Where the Judge frames any charge under clause (b) of sub- section
(1), the charge shall be read and explained to the accused and the
accused shall be asked whether he pleads guilty of the offence charged
or claims to be tried."
From perusal of the aforesaid provision it is evident that the question
of framing charge arises only when the court finds that the accused is not
entitled to discharge in Sessions Cases and the provisions relating to
discharge of the accused are very important and the Judge must consider
first whether there are any sufficient grounds for proceeding against the
accused.
The Hon'ble Apex Court in the case of Palwinder Singh Vs.
Balvinder Singh & others (2009) 3 SCC(Cri) 850 has been pleased to
hold that charges can also be framed on the basis of strong suspicion.
Marshaling and appreciation of the evidence is not in the domain of the
court at that point of time.
The Hon'ble Apex Court in the case of Sajjan Kumar Vs. Central
Bureau of Investigation [(2010) 9 SCC 368] has been pleased to hold
that at the stage of framing of charge under Section 228 Cr.P.C. it is not
for the judge concerned to analyze all materials including pros and cons,
reliability and acceptability etc.; the evidentiary value and its credibility
and veracity has to be considered at the stage of trial.
The Hon'ble Apex Court in the case of State by the Inspector of
Police, Chennai v. S. Selvi & Another, reported in (2018) 13 SCC 455
has categorically held that at the stage of Sections 228, the court is
required to evaluate the material and documents on record with a view to
find out if the facts emerging therefrom taken at their face value disclose
the existence of all the ingredients constituting the alleged offence. For
this limited purpose, sift the evidence as it cannot be expected even at
that initial stage to accept all that the prosecution states as gospel truth
even if it is opposed to common sense or the broad probabilities of the
case.
The Hon'ble Apex Court in the case of State through CBI Vs. Dr.
Anup Kumar Srivastava (supra) has emphatically held that the legal
position is well settled that at the stage of framing of charge the trial
Court is not to examine and assess in detail the materials placed on
record by the prosecution nor is it for the Court to consider the
sufficiency of the materials to establish the offence alleged against the
accused persons. At the stage of charge the Court is to examine the
materials only with a view to be satisfied that a prima facie case of
commission of offence alleged has been made out against the accused
persons.
It is further held by the Hon'ble Apex Court framing of charge is the
first major step in a criminal trial where the Court is expected to apply its
mind to the entire record and documents placed therewith before the
court. Taking cognizance of an offence has been stated to necessitate an
application of mind by the court but framing of charge is a major event
where the court considers the possibility of discharging the accused of
the offence with which he is charged or requiring the accused to face
trial.
The Hon'ble Apex Court delineating the scope of Court's powers in
respect of framing of charges in a criminal cases one of those being
Dipakbhai Jagdishchndra Patel v. State of Gujarat, (2019) 16 SCC
547, wherein the law relating to the framing of charge and discharge is
discussed elaborately in paragraphs 15 and 23 and same are reproduced
as under :
"15. We may profitably, in this regard, refer to the judgment of this
Court in State of Bihar v. Ramesh Singh [State of Bihar v. Ramesh
Singh, (1977) 4 SCC 39] wherein this Court has laid down the principles
relating to framing of charge and discharge as follows: (SCC pp. 41-42,
para 4)
"4. ... Reading Sections 227 and 228 together in juxtaposition, 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 defence 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 the 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 defence evidence, if any, cannot show
that the accused committed the offence, then there will be no sufficient
ground for proceeding with the trial. ... 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." 23.
At the stage of framing the charge in accordance with the principles
which have been laid down by this Court, what the court is expected to
do is, it does not act as a mere post office. The court must indeed sift the
material before it. The material to be sifted would be the material which
is produced and relied upon by the prosecution. The sifting is not to be
meticulous in the sense that the court dons the mantle of the trial Judge
hearing arguments after the entire evidence has been adduced after a
full-fledged trial and the question is not whether the prosecution has
made out the case for the conviction of the accused. All that is required
is, the court must be satisfied that with the materials available, a case is
made out for the accused to stand trial. A strong suspicion suffices.
However, a strong suspicion must be founded on some material. The
material must be such as can be translated into evidence at the stage of
trial. The strong suspicion cannot be the pure subjective satisfaction
based on the moral notions of the Judge that here is a case where it is
possible that the accused has committed the offence. Strong suspicion
must be the suspicion which is premised on some material which
commends itself to the court as sufficient to entertain the prima facie
view that the accused has committed the offence."
Recently, the Full Bench of the Hon'ble Apex Court in the case of
Ghulam Hassan Beigh v. Mohd. Maqbool Magrey, (2022) 12 SCC 657
has elaborately discussed the issue of framing of charge and has held in
paragraph 27 which reads as under:
"27. Thus from the aforesaid, it is evident that the trial court is
enjoined with the duty to apply its mind at the time of framing of charge
and should not act as a mere post office. The endorsement on the
charge-sheet presented by the police as it is without applying its mind
and without recording brief reasons in support of its opinion is not
countenanced by law. However, the material which is required to be
evaluated by the court at the time of framing charge should be the
material which is produced and relied upon by the prosecution. The
sifting of such material is not to be so meticulous as would render the
exercise a mini trial to find out the guilt or otherwise of the accused. All
that is required at this stage is that the court must be satisfied that the
evidence collected by the prosecution is sufficient to presume that the
accused has committed an offence. Even a strong suspicion would
suffice. Undoubtedly, apart from the material that is placed before the
court by the prosecution in the shape of final report in terms of Section
173CrPC, the court may also rely upon any other evidence or material
which is of sterling quality and has direct bearing on the charge laid
before it by the prosecution."
27. Thus from aforesaid legal propositions it can be safely infer that as per
mandate of Section 227 Cr. P.C., 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 doing
so.
Further as per Section 228 Cr. P.C. only thereafter and if, after such
consideration and hearing as aforesaid, the judge is of the opinion that
there is ground for presuming that the accused has committed an offence,
the trial Court shall frame the charge.
Therefore, the stage of discharge under Section 227 Cr. P.C. is a stage
prior to framing of the charge (under Section 228 Cr. P.C.) and once the
Court rejects the discharge application, it would proceed for framing of
charge under Section 228 Cr. P.C.
28. At the stage of Section 227, the judge has merely to sift and weigh the
evidence in order to find out whether or not there is sufficient ground for
proceeding against the accused and in other words, the sufficiency of
grounds 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 the charge against him and after that if the judge comes to a
conclusion that there is sufficient ground to proceed, he will frame a
charge under Section 228 Cr.P.C, if not, he will discharge the accused.
While exercising its judicial mind to the facts of the case in order to
determine whether a case for trial has been made out by the prosecution,
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.
It is our considered view that at this stage of the instant case, the
Court was only required to consider whether a prima facie case has been
made out or not and whether the accused is required to be further tried or
not because at the stage of framing of the charge and/or considering the
discharge application, the mini trial is not permissible.
29. In the backdrop of aforesaid case laws and judicial deduction, this Court
is now proceeding to examine the fact so as to come to the conclusion as
to whether the evidence which has been collected in course of
investigation and has been brought on record, as would be available in
the impugned order as also in the counter affidavit, prima facie case is
made out or not?
30. This Court deems it fit and proper to scrutinize the evidence collected in
course of investigation by the investigating officer as has been recorded
in the case diary. The said consideration is necessary since the ground
has been taken referring the judgment rendered by the Hon'ble Apex
Court in Rajiv Thapar and Ors. vs. Madan Lal Kapoor (supra) that even
if the entire document will be taken into consideration, no case is made
out.
31. The law is settled that if no material is available having been collected in
course of investigation by investigating officer as has been held by the
Hon'ble Apex Court, the question will be that why the concerned
accused person will be subjected to face the rigour of trial.
32. This Court, for this purpose, has closely scrutinized the case diary.
Further the scrutiny of the case diary is necessary since the learned
Additional Public Prosecutor has taken the ground that apart from the
explosive licence having said to be not genuine, the agreement based
upon the same the explosive substance was being carried out, has been
found to be forged as per the disclosure made by the executing party,
therefore, the investigating agency has submitted charge sheet on two
grounds, i.e., that the licence of explosive has been found to be not
genuine and the agreement enriched in between Jharkhand Explosive
Pvt. Ltd and Rajesh Hembrom has been found to be forged and
fabricated.
33. This Court has considered paragraph-38 of the case diary wherefrom it is
evident that the licence being licence No. E/HQ/JH/180 (E-6215) was
issued in the name of M/s Jharkhand State Explosive Pvt. Ltd. K.K.
Sahana Campus Sahana Road, Koderma from the Ministry of Commerce
and Industries, Government of India. It was revealed to the investigating
officer that the said licence was issued in the name of the family
members of the accused or the proprietor, accused, the petitioner herein,
namely, Rupak Singh of M/s Jha State Explosive Pvt. Ltd. The renewal
date of the said licence was 31.03.2016. It has further been revealed that
the licence holder is having explosive magazine in village-Raidih, P.S.
Markachho, District-Koderma in which category-ii, sub-division-iii and
the part of detonator can be kept.
34. It is evident from paragraph-41 of the case diary that there is an
agreement between Jharkhand Explosive Pvt. Ltd with four lease holders
namely (1) M/S Ramjanki Minerals and Constructions Pvt. Ltd,
Sialpahari, (2) Rajesh Hembrom of Chitragariya, (3) AtalimSk and (4)
Rajesh Kumar all of P.S. Shikaripara District Dumka of drilling and
blasting.
35. It is evident from paragraph-42 of the case diary that investigating
officer obtained Form 11 and 12 and perused the same. In form 11, the
lease holder demands explosives from Jharkhand State Explosive Pvt.
Ltd. whereas in Form 12, the investigating officer has found that the
vehicle licence for transportation is E/EC/JH/25/426 (E69580) and
registration number of the vehicle, Tata Pick-up Van is JH-12D-9369.
36. It is evident from paragraph-60 of the case diary that the Jharkhand
Explosive Pvt. Ltd., Koderma has also entered into a notary agreement
with N/S-Kadaria Stone Product Atalim sk s/o Belal sk Villae+post+P.S.
Margram, Dist.-Birbhum for drilling and blasting of the mine. In this
agreement the Jharkhand Explosive Pvt. Ltd., Koderma has mentioned
its licence number as E/HQ/JH/22/236 (E6217).
37. It is evident from paragraph-69 of the case diary that on communication
with lease holder Rajesh Hembrom, it was revealed that there is no
agreement relating to drilling and blasting with Jharkhand Explosive Pvt.
Ltd. and thus the accusations against the petitioners on the face of it
holds good.
38. It is evident from paragraph-70 of the case diary that Ashok Kumar
Chaudhary, authorized representative of Rajesh Kumar, informed in
writing that Jharkhand Explosive Pvt. Ltd. is a fraud company.
39. It is evident from paragraph-74 of the case diary that the agreement
entered into by Jharkhand Explosives Limited with (1) Italeem Shaikh
(2) Rajesh Hembram and RSP Wildcon Pvt. Ltd. has been denied by the
above lease holders (mines). In the investigation, it was revealed that
Jharkhand Explosives Pvt. Ltd., Koderma did not submit the documents
pertaining to permission for drilling and blasting in the stone quarry
under Shikaripara area from the present Deputy Commissioner Maho
Dumka and the local police station was also not informed. From this, it
appeared that no document relating to drilling and blasting has been
submitted by the Jharkhand Explosive Padma Ltd. Koderma as to when,
where and in what quantity Jharkhand Explosive Padma Ltd. Koderma
carried a huge amount of explosives.
40. It is evident from paragraph-149 of the case diary that on inspection,
statements of the plaintiff and witnesses and investigation so far have
established the allegation against both the accused persons in the FIR
under Section 4/5/6 Explosive Substance Act. During the course of the
supervision, the allegation was found true against Nandkishore Mehta
and Rupak Singh, the petitioners herein.
It is further evident that during the course of the investigation, the
documents and licenses related to the drilling and blasting have been
verified at the specified points. The statement of the persons has been
recorded by tracing the person who supplied the explosives in the area.
The license relating to explosives submitted by Rupak Singh, owner of
JH-12D-9369, has not been found to be valid. It is further evident that
sanction for the prosecution against the accused persons has already been
granted by the Deputy Commissioner.
41. It is thus evident from the material called in course of investigation by
the investigating officer that the agreement entered in between Jharkhand
Explosive Pvt. Ltd and Rajesh Hembrom has been found to be forged.
42. Further, it has been revealed in course of investigation that the explosive
licence was valid up to 31.03.2016, therefore, we are not impressed with
the argument advanced on behalf of the learned senior counsel that there
is no material available in the case diary being collected in course of
investigation by the investigating agency rather from various paragraphs
of the case diary as referred hereinabove, it is prima facie evident that
ample materials are available against the petitioners to face the trial.
43. The learned senior counsel with much emphasis has argued by making
reference of the statement made by the State in the counter affidavit
which has been filed in pursuance of the direction passed by this Court
wherein on verification of the explosive licence has found that the
licence was valid. But, the question herein will be whether the said
document which was called for by the learned Single Judge of this Court
was at all available before the court at the time of petition filed under
Section 227 of the Cr.P.C. and based upon the said document, can this
Court interfere with the impugned order rejecting the prayer made for
discharge by filing petition under Section 227 of Cr.P.C.
44. The law is well settled as has been discussed hereinabove that while
exercising the power conferred under Section 227 of the Cr.P.C., the
Court while dealing with petition filed therein is to consider the record of
the case and the documents submitted therewith and after hearing the
submission of the accused and the prosecution in this behalf, 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. Meaning thereby, it is not available for the accused person to
come out with the documents at the stage of consideration of petition
filed under Section 227 of the Cr.P.C. reason being that at the stage of
Section 227 of Cr.P.C., 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 and 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 and after that if the Judge comes to the conclusion
that there is sufficient ground to proceed, he will frame charge under
Section 228 of Cr.P.C. and if not, he will discharge the accused.
45. While exercising its judicial mind to the facts of the case in order to
determine whether a case for trial has been made out by the prosecution,
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 trial court, after the trial commences.
46. Therefore, it is apparent that at this stage of the case, the Court was only
required to consider whether a prima facie case has been made out or not
and whether the accused is required to be further tried or not because at
the stage of framing of the charge and/or considering the discharge
application, the mini trial is not permissible.
47. Here, in the instant case, there is prima facie evidence having been
collected by the investigating agency as referred in the various
paragraphs of the case diary.
48. However, in the counter affidavit one document has been appended
showing the genuineness of the said explosive substance but it would be
evident from paragraph-38 of the case diary that the explosive licence
was valid up to 31.03.2016. However, subsequent document has been
brought on record by way of affidavit showing the validity of the said
licence up to 31.03.2022. But, admittedly herein, the fact is that the
explosive licence and other related documents were not produced by the
vehicle owner or the driver at the time when it was demanded or when
the vehicle was intercepted and as such the genuineness and correctness
of the various documents could be appreciated and determined only
during the trial of the case.
49. Further from paragraph-16 of the counter-affidavit it is evident that in
the compliance of the order as passed by the learned Single Judge of this
Court the police further enquired the genuineness of the license
No.E/EC/JH/25/426 (E69580) from the authority concerned and the
photocopy of the letter of concerned authority is appended as annexure-F
to the counter affidavit.
50. However, the law is well settled that the Court is not supposed to look
into a fresh document which was not at all available before the court
while dealing with petition filed under Section 227 of Cr.P.C.
51. Further, the hon'ble Apex Court while rendering the judgment in the
case of Sajjan Kumar V. CBI (supra) has categorically held that at the
stage of framing of charge under section 228 Cr.P.C or while considering
the discharge petition filed under section 227 Cr.P.C it is not for the
Judge concerned to analyses all the material including pros and cons,
reliability or acceptability etc. The evidentiary value and its credibility
and veracity has to be considered at the stage of trial.
52. This Court, on discussion of the facts and circumstances as also the legal
position, is of the view that the argument advanced on behalf of
petitioners based upon the documents, cannot be looked into at this
stage.
53. Further, the allegation has also been surfaced in course of investigation
that the agreement said to be enriched in between Jharkhand Explosive
Pvt. Ltd and Rajesh Hembrom was also found to be forged as per the
version of the executant of the said agreement as has been referred in
paragraph 69 of the case diary.
54. This Court on the basis of discussion made herein above and coming
back to the position of law for showing interference against the order of
framing of charge as per the judgment rendered herein above wherein the
requirement is that at the stage of discharge/framing of charge the Court
is required to evaluate materials and documents on record to decide
whether facts emerging therefrom taken at their face value would
disclose existence of ingredients constituting the alleged offence.
Here, in the instant case, we are of the view that after going through
the material collected as referred in the counter affidavit and considering
it on its face value which according to our prima-facie view discloses the
presence of ingredients to constitute the offence.
55. In consequence thereof and based upon the discussion made
hereinabove, we are of the considered view that the ground so agitated
for interfering with the order passed by the learned trial Court refusing to
discharge the appellant is having no substance and accordingly the same
is hereby dismissed.
56. Resultantly, the instant criminal revision stands dismissed.
57. In consequence of dismissal of the criminal revision, pending
interlocutory application(s), if any, also stands disposed of.
58. Before parting with the order, it is made clear that the findings so
recorded at by this Court are restricted only for the purpose of dealing
with the matter of discharge and as such the trial Court will not be
prejudiced by any of the findings so recorded by this Court or
observations made by this Court, during trial.
(Sujit Narayan Prasad, J.)
(Navneet Kumar, J.)
Saurabh/-
A.F.R.
