Jharkhand High Court
Brajesh Dwivedi @ vs State Of Jharkhand on 19 September, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(Cr.) No. 431 of 2022
Brajesh Dwivedi @
Brajesh Dubey @
Brajesh Kumar Dwivedi ..... ... Petitioner
Versus
1. State of Jharkhand.
2. Upadhya Bhuinya ..... ... Respondents.
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CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. Vishal Kumar Tiwary, Advocate.
For the State : Mr. Gaurang Jojodia, A.C. to G.P.-II.
For the Resp. No. 2 : Mr. Aashish Kumar, Advocate
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10/ 19.09.2023 Heard Mr. Vishal Kumar Tiwary, learned counsel appearing
for the petitioner, Mr. Gaurang Jajodia, learned A.C. to G.P.-II
appearing for the State and Mr. Aashish Kumar, learned counsel
appearing for the respondent No. 2.
2. This petition has been filed for setting aside the order dated
08.07.2022, passed in Criminal Revision No. 20 of 2022 by the learned
Sessions Judge, Garhwa, whereby the order passed by the learned trial
court dated 06.12.2021, in connection with Complaint Case No. 656 of
2015, by which the discharge petition filed by the petitioner under
Section 245 Cr.P.C. was dismissed, was affirmed. Further prayer has
been made for discharge the petitioner from the case.
3. In para-5 of the petition, it has been stated that one of the
petitioner namely Murari Dwivedi has expired after the order passed by
the learned revisional court on 08.07.2022, that's why the present
petition has been filed by the petitioner only.
4. The protest petition was filed alleging therein that the
accused persons had entered the house of the respondent No. 2 when he
was present in the house and started abusing and assaulting the
complainant and they were saying for vacating the house, they also
threw away the household articles of the complainant and they also
looted Rs. 1,000/- from the complainant.
It is further alleged that the complainant is a poor and
illiterate man and he does not have any other land or house and the
complainant are residing over the said land from a very long time.
It is also alleged that the accused persons are muscle men of
the area and they want to get the house vacated of the complainant
by their muscle power.
It is further stated that as the police has submitted the final
form on the pretext of land dispute and such, as the present protest
petition is being filed. It is pertinent to mention here that
complainant has also given statement before the learned court
wherein, the same allegations have been made.
5. Mr. Vishal Kumar Tiwary, learned counsel appearing for the
petitioner submits that the entire allegations relate to civil dispute, as
the petitioner has preferred a title suit before the learned Sub-Judge-I,
Garhwa, which was numbered as Title Suit No. 105 of 2010. He
submits that the complainant was one of the defendant in said suit and
the said suit was decreed in favour of the petitioner. He further submits
that the learned trial court has rejected the discharge petition filed by
the petitioner, which was affirmed by the learned revisional court
without appreciating these aspects of the matter. He also submits that
since the title suit was in favour of the petitioner, as a counterblast of
the said suit, the complaint case has been filed. He further submits that
the police has investigated the matter and after investigation, final form
has been submitted stating that the allegations are civil in nature. He
further submits that on the protest petition, the learned court has taken
the cognizance. He further submits that prima facie materials against
the petitioner are not disclosed in the order and thereafter the petitioner
has filed the discharge petition, which was dismissed by the learned
trial court by order dated 06.12.2021 and in view of that he further
submits that the learned revisional court has also rejected the discharge
petition by way of affirming the order of learned trial court.
6. In the above backgrounds the learned trial court as well as
the learned revisional court has failed to consider the case with due care
and circumspection as they have not tried to read in between the lines.
He submits that this aspect of the matter has been recently considered
in the case of Haji Iqbal @ Bala through S.P.O.A. versus State of U.P.
& Ors., reported in (2023) SCC Online SC 946. On these grounds, he
submits that the impugned orders may kindly be set aside and the
petitioner may kindly be discharged from the case.
7. On the other hand, Mr. Gaurang Jajodia, learned counsel
appearing for the State submits that on the protest petition, the learned
court has taken the cognizance. He submits that the case under Sections
323 and 504 of the Indian Penal Code is made out.
8. Mr. Ashish Kumar, learned counsel appearing for the
respondent No. 2 submits that at this stage, this court is not required to
rove into and come to the conclusion that the case of interference is
made out. He submits that the learned trial court as well as the learned
revisional court has justified in rejecting the discharge petition, as the
witnesses have supported the case. In view of that, he submits that this
case is fit to be dismissed.
9. In view of the above, the court has gone through the
materials available on record as well as the solemn affirmation and the
evidence of the inquiry witness. It is an admitted fact that the title suit
was going on between the parties, being Title Suit No. 105 of 2010,
which was decreed in favour of the petitioner by the judgment dated
09.12.2013. The judgment has been annexed with the petition and the
court finds that the complainant has been made defendant No. 3 in the
said suit, thus, it is crystal clear that there is civil dispute between the
parties and the police has investigated the matter and submitted the
final form saying that the case is civil in nature. The learned court has
taken the cognizance on the protest petition. The discharge petition filed
by the petitioner before the learned trial court has been dismissed,
which was affirmed by the learned revisional court by the judgment
dated 08.07.2022.
10. In the aforesaid background, it appears that there were civil
disputes between the parties and this aspect of the matter has also been
admitted by all the inquiry witnesses and also in the solemn affirmation
of the complainant that the civil case was going on between the parties.
Further the learned court has taken the cognizance only on the basis of
protest petition and prima facie materials, brought on the record, has
not been taken care of while taking the cognizance. There is no doubt
that at the time of deciding the discharge petition, the court is not
required to rove into and come to the conclusion that the case is made
out or not. Learned court is only required to consider the prima facie
materials, however, at the same time, learned court is not act as a post-
office and in such a situation the materials have been brought on record,
where the strong suspicion is there, the court is required to evaluate the
prima facie materials against the petitioner for framing of charge.
11. It is further well settled that the learned court has come to
the prima facie conclusion of charge against the petitioner without
weighing the circumstances as well as the evidences and if such a
situation is there, the Court can entertain the petition. Reference may be
made to the case of "Union of India Vs. Prafulla Kumar Samal and
Another" reported in (1979) 3 SCC 4, where in paras-3, 5, 8 and 10 it
has been held as under:-
"3. The short point which arises for
determination in this case is the scope and
ambit of an order of discharge to be passed by a
Special Judge under Section 227 of the Code.
The appeal does not raise any new question of
law and there have been several authorities of
the High Courts as also of this Court on the
various aspects and grounds on which an
accused person can be discharged, but as
Section 227 of the Code is a new section and at
the time when the application for special leave
was filed, there was no direct decision of this
Court on the interpretation of Section 227 of the
Code, the matter was thought fit to be given due
consideration by this Court.
5. Before interpreting and analysing the
provisions of Section 227 of the Code so far as
pure sessions trials are concerned, two
important facts may be mentioned. In the first
place, the Code has introduced substantial and
far-reaching changes in the Code of 1898 as
amended in 1955 in order to cut out delays and
simplify the procedure, has dispensed with the
procedure for commitment enquiries referred to
in Sections 206 to 213 of the Code of 1898 and
has made commitment more or less a legal
formality. Under the previous Code of 1898 the
Magistrate was enjoined to take evidence of the
prosecution witnesses after giving opportunity
to the accused to cross-examine the witnesses
and was then required to hear the parties and to
commit the accused to the Court of Session
unless he chose to act under Section 209 and
found that there was no sufficient ground for
committing the accused person for trial. Under
the Code the Committing Magistrate has been
authorised to peruse the evidence and the
documents produced by the police and commit
the case straightaway to the Sessions Court if
the case is one which is exclusively triable by
the Sessions Court. Thus, it would appear that
the legislature while dispensing with the
procedure for commitment enquiry under the
Code of 1898 has conferred a dual
responsibility on the trial Judge who has first to
examine the case on the basis of the statement
of witnesses recorded by the police and the
documents filed with a view to find out whether
a prima facie case for trial has been made out
and, then if such a case is made out to proceed
to try the same. In our view the legislature has
adopted this course in order to avoid frivolous
prosecutions and prevent the accused from
being tried of an offence on materials which do
not furnish a reasonable probability of
conviction. In the instant case, as the offences
alleged to have been committed by the
respondents fall within the provisions of the Act,
the Special Judge has been substituted for the
Sessions Judge, the procedure of the Sessions
Court having been applied fully to the trial of
such cases. Thus, it is manifest that the accused
has got only one opportunity and that too before
the Sessions Judge for showing that no case for
trial had been made out. This was obviously
done to expedite the disposal of the criminal
cases.
8. The scope of Section 227 of the Code was
considered by a recent decision of this Court in
the case of State of Bihar v. Ramesh Singh
[(1977) 4 SCC 39 : 1977 SCC (Cri) 533 :
(1978) 1 SCR 257] where Untwalia, J.,
speaking for the Court observed as follows:
"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
crossexamination 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."
This Court has thus held that whereas strong
suspicion may not take the place of the proof at
the trial stage, yet it may be sufficient for the
satisfaction of the Sessions Judge in order to
frame a charge against the accused. Even under
the Code of 1898 this Court has held that a
committing Magistrate had ample powers to
weigh the evidence for the limited purpose of
finding out whether or not a case of
commitment to the Sessions Judge has been
made out.
10. Thus, on a consideration of the authorities
mentioned above, the following principles
emerge: (1) That the Judge while considering
the question of framing the charges under
Section 227 of the Code 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. (2) 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. (3) The
test to determine a prima facie case would
naturally depend upon the facts of each case
and it is difficult to lay down a rule of universal
application. By and large however if two views
are equally possible and the Judge is satisfied
that the evidence produced before him while
giving rise to some suspicion but not grave
suspicion against the accused, he will be fully
within his right to discharge the accused. (4)
That in exercising his jurisdiction under Section
227 of the Code the Judge which under the
present Code is a senior and experienced 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
appearing in the case and so on. This however
does not mean that the Judge should make a
roving enquiry into the pros and cons of the
matter and weigh the evidence as if he was
conducting a trial."
12. In the aforesaid background, when final form has already
been submitted stating therein the case is civil in nature and on the
protest petition, the cognizance has been taken and when the discharge
petition has been filed, the court is required to consider essentially on
the ground that such proceedings are manifestly frivolous or vexatious
or not and if the aforesaid facts are there, the case is filed by way of
complaint with an ulterior motive for wreaking vengeance etc. then the
complainant would ensure that the averments made in the FIR /
Complaint is very well drafted with all the necessary pleadings. The
complainant would ensure that the averments made in the FIR/
complaint are such that they disclose the necessary ingredients to
constitute the alleged offence. In view of that, it will not be just enough
for the Court to look into the averments made in the FIR/complaint
alone for the purpose of ascertaining whether the necessary ingredients
to constitute the alleged offence are disclosed or not. In frivolous or
vexatious proceedings, the Court owes a duty to look into many other
attending circumstances emerging from the record of the case over and
above the averments and, if need be, with due care and circumspection
try to read in between the lines.
13. The Court while exercising its jurisdiction under Section
482 of the Cr.P.C. or Article 226 of the Constitution of India need not
restrict itself only to the stage of a case, but is empowered to take into
account the overall circumstances leading to the initiation / registration
of the case as well as the materials collected in course of investigation.
This has been recently observed by Hon'ble Supreme Court in paras-14
and 15 of the judgment relied by the learned counsel appearing for the
petitioner in the case of Haji Iqbal @ Bala (Supra).
14. In view of the above facts, reasons and analysis, the court
comes to the conclusion that the complaint case was filed maliciously.
It is well settled that to make a criminal case on motion by way of
bringing on only two witnesses, is a serious thing, as has been held by
Hon'ble Supreme Court in the case of Pepsi Food Limited and
Another- versus- Special Judicial Magistrate & Others, reported in
(1998) (5) SCC 749.
15. Accordingly, the impugned order dated 08.07.2022, passed
in Criminal Revision No. 20 of 2022 by the learned Sessions Judge,
Garhwa, and the order dated 06.12.2021 passed by the learned trial
court, in connection with Complaint Case No. 656 of 2015, are hereby,
set aside.
16. This petition is allowed and disposed of. The petitioner is
discharged from the case.
17. Interim order, granted earlier, stands vacated.
18. Pending I.A., if any, stands disposed of.
(Sanjay Kumar Dwivedi, J.)
Amitesh/-
