Karnataka High Court

Shri Ranganath vs The State Of Karnataka on 17 October, 2022

Bench: M.Nagaprasanna

                          1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 17TH DAY OF OCTOBER, 2022

                         BEFORE

        THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

            CRIMINAL PETITION No.9165 OF 2022

BETWEEN:

SHRI RANGANATH @ RANGA
S/O LATE VENKATESH
AGED ABOUT 42 YEARS
R/AT NO. 69/1,
1ST CROSS, 10TH MAIN
HRBR LAYOUT
DODDA BANASWADI
1ST BLOCK, KALYAN NAGAR POST
BENGALURU - 560 043.

                                             ... PETITIONER
(BY SRI SANDESH J.CHOUTA, SR.ADVOCATE A/W
    SRI GAURAV N., ADVOCATE)

AND:

1 . THE STATE OF KARNATAKA
    THROUGH HENNUR POLICE STATION
    REPRESENTD BY
    STATE PUBLIC PROSECUTOR
    HIGH COURT BUILDING
    BENGALURU - 560 001.

2 . SMT. SUJATHA
    W/O LATE SRI. S. SREEDHAR
    AGED ABOUT 37 YEARS
                              2



    R/AT NO. 956/B
    CHIKKANANJAPPA LAYOUT
    RAMASWAMYPALYA
    KAMMANAHALLI MAIN ROAD,
    BENGALURU - 560 033.
                                                ... RESPONDENTS

(BY SMT.K.P.YASHODHA, HCGP FOR R1)


     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO A. QUASH THE ORDER DATED 20.07.2022
WHEREIN THE HONBLE LXX ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, SPECIAL JUDGE, WAS PLEASED TO REJECT THE
APPLICATION FILED BY THE ACCUSED NO.3/PETITIONER HEREIN,
UNDER SEC.227 OF CRPC 1973 FOR DISCHARGE IN THE INTERST
OF JUSTICE. A COPY OF THE ORDER DATED 20.07.2022 IS
ANNEXED HERETO AS ANNEXURE A AND ETC.,


     THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 28.09.2022, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-


                            ORDER

The petitioner is before this Court calling in question order

dated 20-07-2022 passed by the LXX Additional City Civil and

Sessions Judge and Special Judge, Bangalore in Special Case

No.217 of 2021 on an application filed by the petitioner/accused

No.3 under Section 227 of the CrPC seeking his discharge from the

array of accused.

2. Heard Sri Sandesh J.Chouta, learned senior counsel

appearing for the petitioner and Smt. K.P.Yashodha, learned High

Court Government Pleader appearing for respondent No.1.

3. Facts succinctly stated are as follows:

The petitioner is accused No.3 in Special Case No.217 of

2021. The 2nd respondent is the complainant. On 13-11-2021 one

Sreedhar leaves his house to meet a friend in Hebbal. On the way

back the said Sreedhar stops his car near Shanthi Sagar Hotel at

Kammanahalli Main Road to go for shopping and later proceeded

towards Nagawara. His car was stopped at Hennur service road to

answer a nature call. The accused spots the said Sreedhar on the

service road when he returned to his car and started driving. The

accused are alleged to have blocked the car by their two wheelers

and when Sreedhar got down from the car and started running to

escape from assailants, 5 to 6 unknown persons chased and

assaulted Sreedhar with dagger and machhu which has resulted in

the death of Sreedhar. Based upon the said incident a complaint

comes to be registered by the wife of the deceased against 5 to 6

unknown persons which becomes a crime in Crime No.217 of 2021

for offences punishable under Section 143, 147, 148, 341, 109,

302, 120B, 201 r/w 149 of the IPC, Section 25 of the Arms Act,

1959 and Sections 3(2)(v) of the Scheduled Castes and Scheduled

Tribes (Prevention of Atrocities) Act, 1989. The petitioner is

arrested on 7-12-2021 and was remanded to judicial custody and

later enlarged on bail on 28-12-2021. On 7-01-2022 the Police

claiming to have completed investigation, filed a charge sheet

before the Special Court wherein the petitioner continues to be

arrayed as accused No.3 for the aforesaid offences.

4. The issue in the case at hand is not with regard to the

merit of the matter. The petitioner files an application under Section

227 of the CrPC seeking his discharge from the array of accused.

The application comes to be rejected on 20-07-2022. It is the said

order that is called in question in the subject petition. All other

contentions that are raised in the petition are given up by the

learned senior counsel appearing for the petitioner and would

restrict his submissions only to the veracity of the order denying

discharge of the petitioner passed by the Special Court.

5. The learned senior counsel would emphasise on the fact

that the Special Court records a finding that the Investigating

Officer had not completed the investigation and further report was

yet to be filed and, therefore, it was an incomplete charge sheet.

Notwithstanding incomplete charge sheet, the Special Court

declines to discharge the petitioner from the array of accused as he

was charged on incomplete investigation.

6. On the other hand, the learned High Court Government

Pleader would submit that further report of investigation under

Section 173(8) of CrPC was awaited at the hands of the concerned

Court. In the meantime since charge sheet was substantially ready,

it was filed. It is always open to the Court to direct further

investigation and filing of additional charge sheet. Therefore, no

prejudice is caused to the petitioner to contend that the order on

that ground becomes erroneous.

7. I have given my anxious consideration to the submissions

made by the respective learned counsel and perused the material

on record.

8. Since the only issue is with regard to the veracity of the

order passed by the Special Court rejecting the discharge

application of the petitioner, the consideration in the case at hand is

also restricted to examine the order passed by the learned Special

Judge on 20-07-2022.

9. Before embarking upon consideration of the order passed

by the learned Special Judge, I deem it appropriate to notice the

law with regard to consideration of an application under Section 227

of the CrPC. The Apex Court in the case of ASIM SHARIFF v.

NATIONAL INVESTIGATION AGENCY1 has held as follows:

"18. Taking note of the exposition of law on the subject laid down by this Court, it is settled that the Judge while considering the question of framing charge under Section 227 CrPC in sessions cases (which is akin to Section 239 CrPC pertaining to warrant cases) 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; where the material placed before the court discloses grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing the charge; by and large if two views are possible and one of them giving rise to suspicion only, as distinguished from grave suspicion against the accused, the trial Judge will be justified in discharging him. It is thus clear that while examining the discharge application filed under Section 227 CrPC, it is expected from the trial Judge to exercise its judicial mind to determine as to whether a case for

(2019)7 SCC 148

trial has been made out or not. It is true that in such proceedings, the court is not supposed to hold a mini trial by marshalling the evidence on record."

The afore-quoted judgment in the case of ASIM SHARIFF is again

reiterated by the Apex Court in the case of GHULAM HASSAN

BEIGH v. MOHAMMAD MAQBOOL MAGREY AND OTHERS2 and

it reads as under:

"27. In the case of Asim Shariff v. National Investigation Agency, (2019) 7 SCC 148, this Court, to which one of us (A.M. Khanwilkar,J.) was a party, in so many words has expressed that the trial court is not expected or supposed to hold a mini trial for the purpose of marshalling the evidence on record. We quote the relevant observations as under:--

"18. Taking note of the exposition of law on the subject laid down by this Court, it is settled that the Judge while considering the question of framing charge under Section 227 CrPC in sessions cases (which is akin to Section 239 CrPC pertaining to warrant cases) 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; where the material placed before the Court discloses grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing the charge; by and large if two views are possible and one of them giving rise to suspicion only, as distinguished from grave suspicion against the accused, 3 (2018) 13 SCC 455 4 (2019) 14 SCC 207 : (2019) 6 Scale 794 the trial Judge will be justified in discharging him. It is thus clear that while examining the discharge application filed under Section 227 CrPC, it is expected from the trial Judge to exercise its judicial mind to determine as to whether a case for trial has been made out or not. It is true that in such proceedings, the Court is not

2022 SCC OnLine SC 913

supposed to hold a mini trial by marshalling the evidence on record."

(emphasis supplied)

28. In the case of State of Karnataka v. M.R. Hiremath, reported in (2019) 7 SCC 515, this Court held as under:--

"25. The High Court ought to have been cognizant of the fact that the trial court was dealing with an application for discharge under the provisions of Section 239 CrPC. The parameters which govern the exercise of this jurisdiction have found expression in several decisions of this Court. It is a settled principle of law 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 the 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. In State of T.N. v. N. Suresh Rajan, (2014) 11 SCC 709, adverting to the earlier decisions on the subject, this Court held : (SCC pp. 721- 22, para 29)

"29. ... At this stage, probative value of the materials 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, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage."

29. 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 173 of CrPC, 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.(See: Bhawna Bai v. Ghanshyam, (2020) 2 SCC

217).

30. In Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460, this Court observed in paragraph 30 that the Legislature in its wisdom has used the expression "there is ground for presuming that the accused has committed an offence". There is an inbuilt element of presumption. It referred to its judgment rendered in the case of State of Maharashtra v. Som Nath Thapa, (1996) 4 SCC 659, and to the meaning of the word "presume", placing reliance upon Blacks' Law Dictionary, where it was defined to mean "to believe or accept upon probable evidence"; "to take as true until evidence to the contrary is forthcoming". In other words, the truth of the matter has to come out when the prosecution evidence is led, the witnesses are cross-examined by the defence, incriminating material and evidences put to the accused in terms of Section 313 of the Code, and then the accused is provided an opportunity to lead defence, if any. It is only upon completion of such steps that the trial concludes with the Court forming its final opinion and delivering its judgment....."

(emphasis supplied)

In a judgment, little later to GHULAM HASSAN BEIGH, delivered

on 14-09-2022 in the case of KANCHAN KUMAR v. STATE OF

BIHAR3 the Apex Court has held as follows:

"11. Issue: The short question arising for consideration is whether the Appellant is entitled to be discharged of the proceedings initiated against him under the PC Act.

12. Legal provision and precedents: Section 227 of the Cr.P.C relating to discharge is as under:

"227. Discharge -- If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing."

13. The threshold of scrutiny required to adjudicate an application under Section 227 of the Cr.P.C., is to consider the broad probabilities of the case and the total effect of the material on record, including examination of any infirmities appearing in the case. In Prafulla Kumar Samal (supra), it was noted that:

"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.

2022 SCC OnLine SC 1222

(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."

(emphasis supplied)

14. In Sajjan Kumar v. Central Bureau of Investigation, the Court cautioned against accepting every document produced by the prosecution on face value, and noted that it was important to sift the evidence produced before the Court. It observed that:

"21. On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge:

...

(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..."

(emphasis supplied)

15. Summarising the principles on discharge under Section 227 of the Cr.P.C, in Dipakbhai Jagdishchandra Patel v. State of Gujarat, this Court recapitulated:

"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."

(emphasis supplied)"

10. On a coalesce of the judgments of the Apex Court as

quoted hereinabove what would unmistakably emerge is, the

Special Court is empowered to sift and weigh the evidence for the

limited purpose of finding out whether or not prima facie case is

made out against the accused. On the touch stone of the principle

so laid down by the Apex Court, if the order rejecting discharge

application is considered, it would not warrant any interference, as

the Special Court has elaborately considered the case of the

petitioner on going through the evidence. The reason so rendered

by the Special Court as could be gathered from the order reads as

follows:

"9. When the matter stood posted for opening of prosecution case, the accused No.3 has come up with instant application praying this Court to discharge him for the above said offences on the ground that, there is no direct evidence against him and no recovery from his possession. The statement of the police that the main accused are followers of the accused No.3 is not substantiated. The Police have not pointed out the role of this accused in offence. There is no business rivalry between him and deceased and also no altercations/fights or past rivalry between them and this accused either before or after the commission of offence. Nothing on record to show that there were calls made by this accused at the time of commission of offence/at relevant point of time and no statement is recorded with regard to his involvement. On the day of crime he was in meeting. The accused No.3 was implicated in this case only due to political vengeance.

... ... ...

11. With the rival contentions urged by both sides, it is just and necessary to go through the materials available on record. Admittedly, Section 227 of Cr.P.C. authorizes this Court to discharge the accused by recording the reasons upon consideration of the record of the case and documents submitted therewith is not sufficient to proceed against the accused.

... ... ...

13. It is well settled that a test to determine prima facie case would depend upon the facts of each case and the Court must apply its judicious mind on the material placed on record with a view to find out if the facts emerging there from taken at their face value disclose the existence of all the ingredients constituting the alleged offence.

14. In the instant case, allegations are that, the accused No.3 in connection with death of one Harish, who is the follower of accused No.3, hatched a plan to commit the murder of deceased along with other accused persons and he was the part of conspiracy to commit the alleged offence by providing financial aid to the accused.

15. ... ... It is important to note that, serious allegations were made against the accused No.3 alleging that, he was the part of conspiracy to kill deceased and providing of financial ai8d to the rest of the accused persons to commit the murder of deceased and the said aspect is to be tested only during the course of trial. The contents of charge sheet further disclosed that the IO has accord permission of this Court to submit further report by conducting further investigation regarding the incident as required under Section 173(8) of the Cr.P.C. This aspect is itself discloses that the IO has not completed investigation and further report is yet to be filed. On this ground also the application filed by the accused No.3 cannot be considered on the basis of incomplete charge sheet."

In terms of what is extracted hereinabove, the allegation against

the petitioner is that he has hatched a plan to commit murder of

the deceased along with other accused persons and he was part of

the conspiracy to commit the alleged offence by providing financial

aid to the accused and the contents of the charge sheet filed would

also indicate that there were about 47 witnesses, statements of

whom the Court considers in elaboration. Accused No.3/petitioner

herein is said to be charge sheeted for the alleged offence of

criminal conspiracy to commit murder of the deceased and at the

stage of considering the application for discharge, the Special Court

has considered more than what is required in tune with the law laid

down by the Apex Court as observed hereinabove and has rejected

the application.