Madhya Pradesh High Court

Ramprasad Jatav vs The State Of Madhya Pradesh on 25 March, 2022

Author: Gurpal Singh Ahluwalia

                                            1                         CRR-600-2022

               HIGH COURT OF MADHYA PRADESH
                      BENCH GWALIOR


                        SB : Justice G.S. Ahluwalia


                    Criminal Revision No. 600 of 2022

                             Ramprasad Jatav
                                   Vs.
                   State of Madhya Pradesh and another

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Shri Pradeep Katare, Counsel for applicant.
Shri Rajeev Upadhyay, Counsel for respondent No. 1/State.
Shri Purushottam Rai, Counsel for respondent No. 2.
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Date of hearing                              : 21/03/2022
Date of judgment                             : 25/03/2022
Whether approved for reporting               :


                                 ORDER

th 25 - March, 2022

This criminal revision under Sections 397, 401 of CrPC has

been filed against the order dated 08.01.2022 passed by Second

Additional Sessions Judge, Dabra District Gwalior in S.T.

No.104/2021, by which the charges under Sections 420, 467, 471 and

120-B of IPC have been framed.

2. The necessary facts for the disposal of present revision in short

are that an FIR was lodged against the co-accused Dharmendra

Pandey and Smt. Ragini Pandey under Section 307 of IPC. Smt.

Ragini Pandey filed an application for grant of anticipatory bail 2 CRR-600-2022

before the Sessions Court along with the medical certificate to the

effect that at the time of the alleged incident, she was hospitalized in

Civil Hospital, Dabra, District Gwalior. Although the application for

grant of anticipatory bail was rejected by the Sessions Court, but the

co-accused Smt. Ragini Pandey was granted anticipatory bail by this

Court by order dated 10.07.2017 passed in M.Cr.C. No.7358/2017.

Thereafter, an application was filed by respondent No. 2 for

cancellation of anticipatory bail on the ground that the medical

certificate filed by Smt. Ragini Pandey is a forged document and she

has obtained anticipatory bail by playing fraud on the Court. Under

the orders of this Court, an enquiry was conducted by the CMHO,

Gwalior and it was found that the record of the Civil Hospital, Dabra

was manipulated to falsely show that Smt. Ragini Pandey was

hospitalized. Statement of the co-accused Virendra Gaur was also

recorded in the enquiry and in the said statement, it was stated by the

co-accused Virendra Gaur that although the applicant was posted on

the post of Driver, but he was also given the duty to maintain the

OPD register. The anticipatory bail granted to Smt. Ragini Pandey

was cancelled by this Court by order dated 27.03.2018 passed in

M.Cr.C. No.9375/2017. Smt. Ragini Pandey filed a SLP (Crl)

No.4986/2018 before the Supreme Court, which too was dismissed by

order dated 12.06.2018 with liberty to Smt. Ragini Pandey to

surrender before the Trial Court. However, she took as many as three 3 CRR-600-2022

long years to surrender.

3. Be that whatever it may.

4. The police, accordingly, on the basis of enquiry report,

registered Crime No.101/2018 at Police Station Dabra, District

Gwalior for offence under Sections 420, 465, 466, 468, 120-B of IPC

for preparation of false certificate and manipulating the officials

record.

5. The police after completing the investigation filed the charge-

sheet against the applicant and other co-accused persons and the Trial

Court by the impugned order has framed the charges under Sections

120-B, 420 r/w 120-B, 467 r/w 120-B, 468 r/w 120-B and 471 r/w

120-B of IPC.

6. Challenging the order of framing charges, it is submitted by the

counsel for the applicant that statement of the co-accused Virendra

Gaur which he had given in the enquiry conducted by the department,

is not admissible in the light of Sections 25 and 26 of the Evidence

Act. The disputed documents were sent to the Handwriting Expert

and it has been found that those documents are in the handwriting of

Dr. Virendra Gaur and not in the handwriting of present applicant.

The applicant was working as a Driver and it was not his duty to

maintain any OPD register or any other documents and thus, there is

nothing on record to suggest that the applicant might have committed

the offence.

4 CRR-600-2022

7. Per contra, the revision is vehemently opposed by the counsel

for the State as well as complainant. It is submitted that the provisions

of Sections 25 and 26 of the Evidence Act would not be applicable to

the departmental enquiry because the Enquiry Officer who had

conducted the enquiry is neither the police officer nor he was

Investigating Officer.

8. So far as the report of the Handwriting Expert is concerned, it

is submitted that it is too early to say that the documents are not in the

handwriting of the applicant. The opinion of the handwriting expert is

merely an opinion and in spite of the said opinion, the Trial Court can

still exercise its power under Section 73 of the Evidence Act.

9. Heard the learned counsel for the parties.

10. Before considering the submissions made by the counsel for the

parties, this Court thinks it apposite to consider the scope of

interference at the stage of framing of charges.

11. The Supreme Court in the case of M.E. Shivalingamurthy v.

Central Bureau of Investigation, Bengaluru reported in (2020) 2

SCC 768 has held as under:-

"17. This is an area covered by a large body of case law. We refer to a recent judgment which has referred to the earlier decisions viz. P. Vijayan v. State of Kerala [P. Vijayan v. State of Kerala, (2010) 2 SCC 398 : (2010) 1 SCC (Cri) 1488] and discern the following principles:

17.1. If two views are possible and one of them gives rise to suspicion only as distinguished from grave suspicion, the trial Judge would be empowered to discharge the accused.

5 CRR-600-2022

17.2. The trial Judge is not a mere post office to frame the charge at the instance of the prosecution.

17.3. The Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding. Evidence would consist of the statements recorded by the police or the documents produced before the Court.

17.4. 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 offence, then, there will be no sufficient ground for proceeding with the trial".

17.5. It is open to the accused to explain away the materials giving rise to the grave suspicion.

17.6. The court has to consider the broad probabilities, 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, would not entitle the court to make a roving inquiry into the pros and cons.

17.7. At the time of framing of the charges, the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution, has to be accepted as true.

17.8. There must exist some materials for entertaining the strong suspicion which can form the basis for drawing up a charge and refusing to discharge the accused.

18. The defence of the accused is not to be looked into at the stage when the accused seeks to be discharged under Section 227 CrPC (see State of J&K v. Sudershan Chakkar [State of J&K v. Sudershan Chakkar, (1995) 4 SCC 181 : 1995 SCC (Cri) 664 : AIR 1995 SC 1954] ). The expression, "the record of the case", used in Section 227 CrPC, is to be understood as the documents and the articles, if any, produced by the prosecution. The Code does not give any right to the accused to produce any document at 6 CRR-600-2022

the stage of framing of the charge. At the stage of framing of the charge, the submission of the accused is to be confined to the material produced by the police (see State of Orissa v. Debendra Nath Padhi [State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568 : 2005 SCC (Cri) 415 : AIR 2005 SC 359] ).

The Supreme Court in the case of Soma Chakravarty v.

State through CBI reported in (2007) 5 SCC 403, has held as

under:-

"10. It may be mentioned that the settled legal position, as mentioned in the above decisions, is that if on the basis of 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. At the time of framing of the charges the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution has to be accepted as true at that stage. Before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commitment of offence by the accused was possible. Whether, in fact, the accused committed the offence, can only be decided in the trial.

19. Some of the questions, however, which have been raised by the appellant are of some importance and it may be necessary to deal therewith. The learned trial Judge, it appears, did not properly apply its mind in regard to the different categories of the accused while framing charges. It ought to have been done. Charge may although be directed to be framed when there exists a strong suspicion but it is also trite that the court must come to a prima facie finding that there exist some materials therefor. Suspicion cannot alone, without anything more, it is trite, form the basis therefor or held to be sufficient for framing charge."

7 CRR-600-2022

The Supreme Court in the case of State (NCT of Delhi)

v. Shiv Charan Bansal and others reported in (2020) 2 SCC 290,

has held as under:-

"39. The court while considering the question of framing charges under Section 227 CrPC has the power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case has been made out against the accused. The test to determine prima facie case would depend upon the facts of each case. If 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 charges and proceeding with the trial. The probative value of the evidence brought on record cannot be gone into at the stage of framing charges. 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 ingredients constituting the alleged offence. At this stage, there cannot be a roving enquiry into the pros and cons of the matter, the evidence is not to be weighed as if a trial is being conducted. Reliance is placed on the judgment of this Court in State of Bihar v. Ramesh Singh [State of Bihar v. Ramesh Singh, (1977) 4 SCC 39 : 1977 SCC (Cri) 533] where it has been held that at the stage of framing charges under Sections 227 or 228 CrPC, if there is a strong suspicion which leads the court to think that there is ground for presuming that the accused had committed the offence, then the court should proceed with the trial.

40. In a recent judgment delivered in Dipakbhai Jagdishchandra Patel v. State of Gujarat [Dipakbhai Jagdishchandra Patel v. State of Gujarat, (2019) 16 SCC 547] decided on 24-4-2019, this Court has laid down the law relating to framing of charges and discharge, and held that all that is required is that the court must be satisfied with the material available, that a case is made out for the accused to stand trial. A strong suspicion is sufficient for framing charges, which must be founded on some material. The material must be such which can be translated into evidence at 8 CRR-600-2022

the stage of trial. The veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged at this stage, nor is any weight to be attached to the probable defence of the accused at the stage of framing charges. The court is not to consider whether there is sufficient ground for conviction of the accused, or whether the trial is sure to end in the conviction."

The Supreme Court in the case of State of Rajasthan v.

Fatehkaran Mehdu reported in (2017) 3 SCC 198, has held as

under:-

"26. The scope of interference and exercise of jurisdiction under Section 397 CrPC has been time and again explained by this Court. Further, the scope of interference under Section 397 CrPC at a stage, when charge had been framed, is also well settled. At the stage of framing of a charge, the court is concerned not with the proof of the allegation rather it has to focus on the material and form an opinion whether there is strong suspicion that the accused has committed an offence, which if put to trial, could prove his guilt. The framing of charge is not a stage, at which stage final test of guilt is to be applied. Thus, to hold that at the stage of framing the charge, the court should form an opinion that the accused is certainly guilty of committing an offence, is to hold something which is neither permissible nor is in consonance with the scheme of the Code of Criminal Procedure."

12. So far as the contention of the counsel for the applicant that the

statement of co-accused Virendra Gaur given by him in the

departmental enquiry is not admissible in the light of Sections 25 and

26 of the Evidence Act is concerned, the same cannot be accepted.

Sections 25 and 26 of the Evidence Act read as under:-

"25. Confession to police officer not to be proved.--No confession made to a police officer, shall be proved as against a person accused of any 9 CRR-600-2022

offence.

26. Confession by accused while in custody of police not to be proved against him.--No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate1, shall be proved as against such person.

[Explanation.--In this section "Magistrate" does not include the head of a village discharging magisterial functions in the Presidency of Fort St. George 3[***] or elsewhere, unless such headman is a Magistrate exercising the powers of a Magistrate under the Code of Criminal Procedure, 1882 (10 of 1882)4]."

13. It is clear from the provisions of Sections 25 and 26 of the

Evidence Act that any confession made to a police officer shall not be

proved as against a person accused of any offence and no confession

made by any person whilst he is in the custody of a police officer,

unless and until it is made in the immediate presence of a Magistrate,

shall be proved as against such person. Thus, the basic requirement to

attract the provisions of Sections 25 and 26 of the Evidence Act is

that the confessional statement should be made to the police officer or

any confessional statement while in the custody of the police officer.

From the enquiry report, which is a part of the case diary, it is clear

that the District Leprosy Officer and D.H.O.-2 had conducted an

enquiry and submitted his report to the CMHO, Gwalior. A finding

was given that it was the duty of the present applicant to write the

names of patients in the OPD register. Although the applicant might

be working on the post of Driver, but it is equally true that due to

shortage of staff, the Drivers who are otherwise free for the entire day, 10 CRR-600-2022

can also be given additional work by way of time gap arrangement.

14. Be that whatever it may.

15. Since the enquiry officer was neither the police officer nor co-

accused Virendra Gaur was in his custody, therefore, the provisions

of Sections 25 and 26 of Evidence Act would not be applicable and

any statement made by the co-accused Virendra Gaur can be read for

the limited purpose of enquiry report. However, it is equally true that

the enquiry report by itself cannot be treated as an evidence and it

would be for the prosecution to prove the findings recorded in the

enquiry report, but for the purposes of framing of charges, the said

fact can always be taken into consideration.

16. So far as the contention of the counsel for the applicant that as

per the report of Handwriting Expert, the OPD register is not in the

handwriting of the applicant but it is in the handwriting of the co-

accused Virendra Gaur, is concerned, it is sufficient to mention that it

is merely an opinion.

17. The Supreme Court in the case of Manorama Naik Vs. The

State of Odisha and another by order dated 14.03.2022 passed in

Cr.A. No.423/2022 has held as under:-

"It is pointed out that the opinion of the handwriting expert was filed for the first time before the High Court and was not available with the Trial Court at the time when cognizance was taken. That apart, the signatures and handwriting of the person can also be proved under Sections 45, 47 and 73 of the Indian Evidence Act, 1872. Therefore, opinion of the handwriting expert is not the only way or mode of 11 CRR-600-2022

providing the signature and handwriting of a person."

18. Thus, it is clear that in spite of report of Handwriting Expert,

the signatures and handwriting of a person can also be proved under

Sections 45, 47 and 73 of the Evidence Act. Furthermore, the report

of Handwriting Expert was not before the Trial Court at the time of

framing of charges.

19. Under these circumstances, this Court is of the considered

opinion that at present, there is sufficient material against the

applicant requiring framing of charges.

20. However, it is made clear that any observations made by this

Court in this order should not be treated as a finding on the merits of

the case. The observations have been made in the light of the limited

scope of interference at the stage of framing of charges. It will be

open to the applicant to raise all defences before the Trial Court in

accordance with law.