Madhya Pradesh High Court

Shyamveer Singh vs The State Of Madhya Pradesh on 14 February, 2022

Author: Rajeev Kumar Shrivastava

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         The High Court Of Madhya Pradesh
                           Bench Gwalior
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SB:- Hon'ble Shri Justice Rajeev Kumar Shrivastava

CRR 946 of 2021

Shyamveer Singh Vs. State of MP

============================== Shri Yogesh Chatruvedi, counsel for the applicant. Smt. Abha Mishra, Public Prosecutor for the respondent/ State.

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Reserved on                                  09/02/2022
Whether approved for reporting              ......../........
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                                 ORDE R
                         (Passed 14/02/2022)

Per Rajeev Kumar Shrivastava, J

Applicant Shyamveer Singh has preferred this criminal revision

u/S. 397/401 of CrPC challenging the order dated 18/01/2021 passed

by the Special Judge (Atrocities), Gwalior (MP) in Sessions Trial

No.102/2020, whereby charges have been framed against him for

commission of offence under Section 302 of IPC and under Section 3

(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act [in short '' the SC & ST Act''].

(2) Briefly stated, the facts of the case are that complainant Balram

Khatik lodged a report at Police Station Bahodapur, District Gwalior

on 06/03/2020 at around 11:46 am, alleging therein that on 05/03/2020

at around 11:30 pm, he had gone to attend the marriage ceremony of

the daughter of his friend Mouseen Khan solemnized at Swayanmbar

Marriage Garden. At about 02:00 am, in the marriage ceremony, a

quarrel took place because of using the firecrackers between the niece

of complainant Gaurav and Akash and complainant tried to intervene

in the matter. At that time, applicant who was the guard of said

marriage garden, on saying the owner of the marriage garden, fired a

gunshot to Gaurav as a result of which, Gaurav died on the spot.

Thereafter, applicant fled away from the place of occurrence. On

account of that, Police registered aforesaid Crime No.195 of 2020 at

Police Station Bahodapur for offence under Section 302, 34 of IPC

and Section 3(2)(v) of SC & ST Act. The matter was investigated.

Statements of witnesses were recorded and after completion of

investigation and other formalities, the police filed challan before the

Court on 10/06/2020. Vide impugned order dated 18/01/2021, Special

Judge (Atrocities), Gwalior (MP) in Sessions Trial No.102 of 2020

framed charges against applicant under Section 302 of IPC and

Section 3(2)(v) of SC & ST Act, as mentioned above. Hence, this

revision.

(3) Challenging the impugned order of framing charges, learned

counsel for the applicant submitted that the Court below did not

appreciate the evidence and materials properly and committed grave

error in framing charges against the applicant. It is submitted that a

cross-case bearing Crime No.220 of 2020 has also been registered by

applicant at the same Police Station on 13/03/2020 at around 04:00 pm

against the complainant party stating therein that on the date of

incident i.e. 06/03/2020 applicant was discharging his duty as guard in

marriage garden and in the midnight, he saw a quarrel and noise of

firecrackers. When applicant tried to resist them for not causing any

quarrel, somebody had taken his rifle and caused gunshot fire as a

result of which the deceased Gaurav died on the spot. The applicant

was beaten in the incident by which he had sustained fractures in his

skull and thereafter, he was admitted in the hospital. After discharge

from hospital, he lodged cross-case bearing Crime No.220/2020 on

13/03/2020. The copy of discharge ticket is enclosed herewith as

Annexure P6. Wife of applicant has already submitted an application

to the Superintendent of Police, Gwalior on 16/03/2020 (Annexure P4)

for conducting an impartial investigation in the matter. Applicant has

been falsely implicated in the case. Earlier, a Criminal Appeal No.

5951/2020 filed by the applicant for grant of interim bail was allowed

by this Court and the applicant appeared before the Court below and

moved an application for his release on 18/01/2021 but on the same

day, the Court below framed charges against applicant without giving

any opportunity of hearing, therefore, opportunity to defend framing of

charges ought to have been provided to applicant in order to defend

that in the incident, he was beaten by which he sustained fractures in

his skull and he was admitted for more than five days in the Hospital.

Therefore, the Court below has committed an illegality in framing

charges against applicant. It is further submitted that the author of the

present FIR, namely, Balram Khatik is not the eye-witness of the

incident which reflects from his statement recorded under Section 164

of CrPC. Provision of SC & ST Act can be invoked when there is

essential requirement that the member of SC & ST Community should

have been known by accused but in the present matter, the deceased is

not known to the applicant, therefore, framing of charge under Section

3(2)(v) of SC and ST against the applicant is illegal and prejudicial.

Since incident took place on sudden provocation and heat of exchange

of words and there is no previous enmity or no intention on the part of

applicant to commit murder of the deceased, therefore, the Court

below has committed grave error while framing charge under Section

302 of IPC. In support of his contention, he has relied upon the

judgment of the Hon'ble Supreme Court in the case of Rampal Singh

vs. State of UP reported in (2012) 8 SCC 289. It is further submitted

that there is no sufficient ground for proceeding against accused-

which clearly shows 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 case in order to determine whether a case

for trial has been made out by prosecution. In support of his

contention, he has relied upon the judgment of Hon'ble Supreme Court

in the case of Union of India vs. Prafulla Kumar Samal & Another,

reported in AIR 1979 SC 366.

(4) On the other hand, learned Counsel for the State supported the

impugned order of framing charges and submitted that prima facie

offence is made out against applicant. It is further submitted that in the

incident, deceased Gaurav died by means of gunshot fire caused by

applicant. Therefore, considering overall documentary evidence as

well as statements of witnesses recorded u/S. 161 and 164 of CrPC ,

prima facie, offence is made out against him. Hence, prayed for

dismissal of present revision.

(5) I have considered rival contentions of the parties and perused

the documents available on record.

(6) As regards framing of charges and quashing the charges, the law

is well-settled.

(7) In the case of Union of India Vs. Prafulla Kumar Samal and

another [(1979) 3 SCC 4], it is held by the Apex Court as under:-

"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."

(8) In the case of Dilawar Balu Kurane Vs. State of Maharashtra

[(2002) 2 SCC 135], it is held by the Apex Court as under:-

"12. Now the next question is whether a prima facie case has been made out against the appellant. In exercising powers under Section 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section 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 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; by and large 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 justified to discharge the accused, and in exercising jurisdiction under Section 227 of the Code of Criminal Procedure, the Judge 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 but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was

conducting a trial [See Prafulla Kumar Samal (supra)].

14. We have perused the records and we agree with the above views expressed by the High Court. We find that in the alleged trap no police agency was involved; the FIR was lodged after seven days; no incriminating articles were found in the possession of the accused and statements of witnesses were recorded by the police after ten months of the occurrence. We are, therefore, of the opinion that not to speak of grave suspicion against the accused, in fact the prosecution has not been able to throw any suspicion. We, therefore, hold that no prima facie case was made against the appellant.

(9) In the case of Sajjan Kumar Vs. Central Bureau of

Investigation [(2010) 9 SCC 368], it is held by the Apex Court 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 Cr.P.C. 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 discloses 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."

(10) In the case of State through Central Bureau of Investigation

Vs. Dr. Anup Kumar Srivastava [AIR 2017 SC 3698], it is held by

the Apex Court as under:-

"23.... 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 also well settled that when the petition is filed by the accused under Section 482 of the Code seeking for the quashing of charge framed against him the court should not interfere with the order unless there are strong

reasons to hold that in the interest of justice and to avoid abuse of the process of the court a charge framed against the accused needs to be quashed. Such an order can be passed only in exceptional cases and on rare occasions. The court is required to consider the "record of the case" and documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. Once the facts and ingredients of the section exists, then the court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. This presumption is not a presumption of law as such. The satisfaction of the court in relation to the existence of constituents of an offence and the facts leading to that offence is a sine qua non for exercise of such jurisdiction. It may even be weaker than a prima facie case."

(11) Similarly, in the case of Soma Chakravarti Vs. State, reported

in (2007) 5 SCC 403], it is held by the Hon'ble Apex Court that at the

time of framing of charges the probative value of material on record

cannot be gone into, and the material brought on record by the

prosecution has to be accepted as true. 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. Whether the accused committed the offence or not, can

only be decided in the trial. The charge may although be directed to

frame when there exists the strong suspicion but it is also trite that the

Court must come to a prima facie finding that there exists some

material therefor.

(12) Further, this Court in the case of Colgate Palmolive India Ltd.

vs. Satish Rohra, [2005 (4) MPLJ 380], has held in the following

manner:-

"6. I have heard the learned Counsel of both the parties and carefully perused the evidence and the material on record. Before considering the evidence and the material on record for the limited purpose of finding out whether a prima facie case for issuance of process has been made out or not, it may be mentioned at the very outset that the various documents and the reports filed by the petitioners/Company along with the petition can not be looked into at the stage of taking cognizance or at the stage of framing of the charge. The question whether prima facie case is made out or not has to be decided purely from the point of view of the complainant without at all adverting to any defence that the accused may have. No provision in the Code of Criminal Procedure grants to the accused any right to file any material or document at the stage of taking cognizance or even at the stage of framing of the charge in order to thwart it. That right is granted only at the stage of trial. At this preliminary stage the material produced by the complainant alone is to be considered."

(13) If the allegations made against the applicant are considered in

the light of the judgments passed by the Hon'ble Apex Court, then it

is clear as noon-day that there is sufficient material on record to

presume that applicant has committed offence. The Court below has

considered all the materials with a view to find out if there is ground

for presuming that accused has committed offence. The Court below

has analyzed the materials for the purpose of finding out whether or

not prima facie case against accused has been made out. Truthfulness

of statements or circumstances or documents of prosecution cannot be

questioned at this stage by the defence. On the basis of materials on

record, the Court could form an opinion that the accused might have

committed an offence. It is established principle of law that at the time