Madhya Pradesh High Court
Ashfaq @ Baba vs The State Of Madhya Pradesh on 9 October, 2023
Author: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 9 th OF OCTOBER, 2023
CRIMINAL REVISION No. 2214 of 2023
BETWEEN:-
1. ASHFAQ @ BABA S/O MUKHTAR KHAN, AGED
ABOUT 32 YEARS, R/O D.D NAGAR, MAKRONIYA
POLICE STATION MAKRONIYA DISTRICT SAGAR
(MADHYA PRADESH)
2. RAJA S/O PARMANAND KORI, AGED ABOUT 22
YEARS, R/O NEAR GOVIND KIRANA,
MOTINAGAR, P.S.MOTINAGAR, DISTRICT SAGAR
(MADHYA PRADESH)
3. LOKESH S/O MUNNALAL AHIRWAR, AGED ABOUT
23 YEARS, R/O AHMED KA BAGEECHA
GOPALGANJ, P.S. GOPALGANJ DISTRICT SAGAR
(MADHYA PRADESH)
.....APPLICANTS
(BY SHRI VISHAL VINCENT DANIEL - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH POLICE
STATION MAKRONIYA, DISTRICT SAGAR (MADHYA
PRADESH)
.....RESPONDENT
(BY SHRI VED PRAKASH TIWARI - GOVT. ADVOCATE)
This revision coming on for admission this day, th e court passed the
following:
ORDER
This criminal revision is filed by the applicants under Section 397 read
with Section 401 of the Code of Criminal Procedure, 1973 being aggrieved of
order dated 03/04/2023 passed by 7th Additional Sessions Judge, Sagar
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Signed by: TULSA SINGH
Signing time: 10-10-2023
18:40:00
framing charges against the applicants under Sections 326/34, 120-B of IPC.
2. It is submitted that as per the FIR, version of the complainant was to the
effect that on 02/03/2022 at about 6.10 p.m. he was travelling towards Rai
hospital on his scooty and in front of Jairam hotel, Makroniya road, a
motorcycle with three boys came. They asked some address. When the
complainant stopped his vehicle, then one of the boys had taken out a knife like
weapon and caused injuries on his face and thereafter those boys ran away.
This incident was seen by Jintendra Sriwas and Mahendra Sahu.
3. It is submitted that these three boys were identified as Lokesh Ahirwar,
Raja Kori and Shailendra Raikwar alias Titu in the TIP.
4. It is submitted that present applicant is made an accused on
memorandum under Section 27 of the Evidence Act on the ground that present
applicant had informed them that Jatin Choukse, resident of Mohan Nagar,
Makroniya had caused accident to the vehicle of the present applicant and had
since beaten him, therefore, had asked the three persons named above to take
revenge. Ashfaq had shown photograph of Jatin Choukse on his mobile phone
and also the house of Jatin Choukse besides giving details of his movement,
therefore, on the basis of the said memorandum, applicant has been made an
accused. It is submitted that no recovery is made on the basis of said
memorandum, therefore, charges could not have been framed against the
present applicant.
5. Reliance is placed on the judgment of Hon'ble Supreme Court in the
case of Dipakbhai Jagdishchandra Patel Vs. State of Gujarat and
another, (2019) 16 SCC 547 wherein it is held that under Sections 25, 24 and
30 of the Evidence Act, 1972, confession before Police Officer, and confession
of co-accused not corroborated by any other material or evidence, being the
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only evidence against the appellant A-4, therefore, trial Court erred in not
discharging appellant and High Court erred in not quashing such proceedings
against A-4.
6. Similarly, reliance is placed on the judgment of Coordinate Bench of this
High Court in Cr.R. No.1789/2020 (Pradeep Sharma Vs. State of M.P.)
dated 14/08/2020 to point that in a case under NDPS Act where charges were
framed against the petitioner for commission of offence under Sections 8/18, 29
of the NDPS Act when a person was implicated only on the basis of
memorandum of co-accused Manish recorded under Section 27 of the
Evidence Act and apart from that there was no other material to implicate the
petitioner, Co-ordinate Bench had discharged the petitioner of the charges so
framed.
7. Shri Ved Prakash Tiwari, learned Govt. Advocate, submits that call
details have been taken out and there are details of communication between the
present applicant and the co-accused persons to the tune of more than 300 calls
in a duration of about one month and about 30 calls during the duration of two
days of the incident taking place. Therefore, there is no ground to quash the
charges and order does not suffer from any infirmity.
8. After hearing learned counsel for the parties and going through the
record, it is evident that charges which have been framed against the present
applicant are under Sections 326/34 and 120-B of IPC.
9. The ratio of the law laid down by Hon'ble Supreme Court in the case of
Dipakbhai Jagdishchandra Patel (supra) is that when there is no material on
the basis of which even a strong suspicion could arise against appellant, then
trial Court erred in not discharging the petitioner and High Court erred in not
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Signed by: TULSA SINGH
Signing time: 10-10-2023
18:40:00
quashing such proceedings. Thus, gist of the judgment is that there should be
some material to corroborate the aspect of conspiracy and to connect the
applicant seeking discharge with the theory of conspiracy.
10. In the present case, there is material in the form of call detail records.
Another material which is brought on record by the learned Govt. Advocate is
the order of conviction of the present applicant along with one of the co-
accused passed on 31/08/2019 in S.T. No.97/2018 by the learned Sessions
Judge, Sagar convicting the present applicant along with co-accused Lokesh
Ahirwar under Section 307/34 of IPC and also under Section 27 of the Arms
Act. Thus, it is evident that there is a close connection between the present
applicant and co-accused on whose memorandum he has been made an
accused.
11. Law in regard to framing of charge is crystal clear and provides that at
the time of framing of the charge, Courts are not required to carry out any
detailed enquiry. One has to examine only one aspect as to whether there is a
prima facie material to frame charge or not. In the case of Soma
Chakravarty Vs. State, 2007 Cri.L.J. 3257, it is held that on the basis of
material on record if the Court could form an opinion that 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
had committed the offence. At the time of framing of 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.
12. In the case of State of Madhya Pradesh Vs. Harivansh and others,
1985 (2) Crimes (HC) 134 and so also in the case of State of Maharashtra
Vs. Priya Sharan Maharaj and others, AIR 1997 SC 2041, it is held that
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meticulous consideration of materials at the stage of framing of charge is
uncalled for. Similarly, in the case of Prasanna Kumar Moharana Vs. State
of Orrisa, 2004 Cri.L.J. (NOC) 129, it is held that defence of the accused
would not be considered at the time of framing charge against the accused. In
the case of State of Bihar Vs. Ramesh Singh, AIR 1977 SC 2018 and
State of Karnataka Vs. L.Muniswamy, AIR 1977 SC 1489 , it is held that
availability of materials on record if unrebutted would result in conviction is the
crucial test for framing of charge. A charge of criminal conspiracy has been
framed against the applicants. Its a matter of evidence and at the stage of
framing of charge, trial Court was only required to see a prima facie case, there
is no illegality in the impugned order and the judgment cited by the learned
counsel for the applicants in the case of Dipakbhai Jagdishchandra Patel
(supra) and Pradeep Sharma (supra) will have no application to the facts
and circumstances of the case.
13. Accordingly, this criminal revision fails and is hereby dismissed.
(VIVEK AGARWAL)
JUDGE
ts
Signature Not Verified
Signed by: TULSA SINGH
Signing time: 10-10-2023
18:40:00
