Patna High Court
Rekha Rai And Ors vs The State Of Bihar on 2 May, 2024
Author: Chandra Shekhar Jha
Bench: Chandra Shekhar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.42617 of 2015
Arising Out of PS. Case No.-216 Year-2010 Thana- MOTIHARI MUFASIL District- East
Champaran
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1. Rekha Rai S/o Late Punit Rai
2. Munnilal Rai S/o Shankar Rai
3. Surendra Rai S/o Rama Rai
4. Dipak Rai S/o Rekha Rai
5. Puran Rai S/o Late Shivnandan Rai
6. Bijoy Rai S/o Puran Rai
7. Shankar Rai S/o Late Panchu Rai
8. Mahendra Rai S/o Dwarika Rai
9. Nanhak Rai S/o Rekha Rai
10. Rajesh Rai S/o Rama Rai
All Resident of Village-Hariyan Chapra, P.S.-Motihari, Moffasil, District-
East Champaran.
... ... Petitioners
Versus
1. The State of Bihar
2. Gayatri Devi, W/o Sahdeo Paswan, village-Hariyana Chapra, P.S,.-Motihari
Moffasil, District-East Champaran.
... ... Opposite Parties
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Appearance :
For the Petitioner/s : Mr. Dilip Kumar Tondon, Advocate
For the Opposite Party/s : Ms. Sahin Begum, APP
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CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
ORAL JUDGMENT
Date : 02-05-2024
Heard learned counsel for the petitioners and
learned APP for the State.
2. The present application has been filed by the
petitioners for quashing the order dated 29.06.2015 passed
by the learned 1st Additional Sessions Judge, Motihari in Tr.
Patna High Court CR. MISC. No.42617 of 2015 dt.02-05-2024
No.21 of 2014 arising out of Motihari P.S. Case No.216 of
2010, whereby the learned Sessions Judge has rejected the
petition of the petitioners filed under Section 228 of the
Code of Criminal Procedure (for short 'Cr.P.C.').
3. The case of the prosecution, in brief, is that
the complainant/informant has filed a complaint, bearing
Complaint Case No.2204 of 2010 on 21.09.2010 in the
court of learned Chief Judicial Magistrate, Motihari alleging
therein that on 02.09.2010 the accused persons after
forming an unlawful assembly having variously armed with
lathi, danda and farsa in their hands came to her home and
co-accused Vijay Rai pressed her neck and other accused
persons assaulted her and abused her by calling her
dusaddin/ Harijan. It was further alleged that the accused
persons committed loot-pat and took away the house-hold
articles. The informant further alleged in the complaint that
since police has not instituted the FIR hence, she filed the
complaint case.
4. With aforesaid allegation, the police after
investigation submitted charge-sheet for the offences
Patna High Court CR. MISC. No.42617 of 2015 dt.02-05-2024
punishable under Sections 147, 149, 341, 323, 447, 504 of
the Indian Penal Code (for short 'IPC') and Section 3(1)(x)
of the Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act, 1989 (for short 'SC/ST Act'),
where after perusal of materials as available on record,
learned Special Court took cognizance for the offences.
5. It is submitted by learned counsel appearing for
the petitioners that the prayer of petitioners as to discharge
them for the offences alleged under Section SC/ST Act was
rejected through impugned order without any application of
judicial mind, as from the allegation as available under FIR is
not reflecting prima facie that occurrence took place by
committing atrocities as defined under SC/ST Act. It is
submitted that the allegation is to abuse the
complainant/informant by taking caste name is not
appearing in public view, as same was alleged to be made at
darwaja (out of courtyard). With this limited prayer, the
present petition of quashing was preferred as to quash the
impugned order as mentioned above.
6. On repeated calls, learned counsel appearing
Patna High Court CR. MISC. No.42617 of 2015 dt.02-05-2024
for opposite party no.2 failed to join the present
proceedings.
7. It would be apposite to reproduce Para-17-20
of the legal report of Hon'ble Supreme Court as rendered in
the matter of Sheoraj Singh Ahlawat v. State of U.P.,
[(2013) 11 SCC 476], which run as under:-
"17. So also in Mohanlal case [(2000) 6 SCC
338] this Court referred to several previous
decisions and held that the judicial opinion
regarding the approach to be adopted for framing
of charge is that such charges should be framed
if the court prima facie finds that there is
sufficient ground for proceeding against the
accused. The court is not required to appreciate
evidence as if to determine whether the material
produced was sufficient to convict the accused.
The following passage from the decision in
Mohanlal case [(2000) 6 SCC 338] is in this
regard apposite:
"7. The crystallised judicial view is that
at the stage of framing charge, the court
has to prima facie consider whether there
is sufficient ground for proceeding
against the accused. The court is not
required to appreciate evidence to
conclude whether the materials produced
are sufficient or not for convicting the
accused."
Patna High Court CR. MISC. No.42617 of 2015 dt.02-05-2024
18. In State of Orissa v. Debendra Nath Padhi
[(2005) 1 SCC 568] this Court was considering
whether the trial court can at the time of framing
of charges consider material filed by the accused.
The question was answered in the negative by this
Court in the following words:
"18. We are unable to accept the
aforesaid contention. The reliance on
Articles 14 and 21 is misplaced. ...
Further, at the stage of framing of
charge roving and fishing inquiry is
impermissible. If the contention of the
accused is accepted, there would be a
mini-trial at the stage of framing of
charge. That would defeat the object of
the Code. It is well settled that at the
stage of framing of charge the defence
of the accused cannot be put forth. The
acceptance of the contention of the
learned counsel for the accused would
mean permitting the accused to adduce
his defence at the stage of framing of
charge and for examination thereof at
that stage which is against the criminal
jurisprudence. By way of illustration, it
may be noted that the plea of alibi taken
by the accused may have to be examined
at the stage of framing of charge if the
contention of the accused is accepted
despite the well-settled proposition that it
is for the accused to lead evidence at the
trial to sustain such a plea. The accused
would be entitled to produce materials
and documents in proof of such a plea at
the stage of framing of the charge, in
case we accept the contention put forth
Patna High Court CR. MISC. No.42617 of 2015 dt.02-05-2024
on behalf of the accused. That has never
been the intention of the law well settled
for over one hundred years now. It is in
this light that the provision about hearing
the submissions of the accused as
postulated by Section 227 is to be
understood. It only means hearing the
submissions of the accused on the record
of the case as filed by the prosecution
and documents submitted therewith and
nothing more. The expression 'hearing
the submissions of the accused' cannot
mean opportunity to file material to be
granted to the accused and thereby
changing the settled law. At the state of
framing of charge hearing the
submissions of the accused has to be
confined to the material produced by the
police.
***
23. As a result of aforesaid
discussion, in our view, clearly the law
is that at the time of framing charge or
taking cognizance the accused has no
right to produce any material."
19. Even in Rumi Dhar v. State of W.B.
[(2009) 6 SCC 364], reliance whereupon was
placed by the counsel for the appellants, the
tests to be applied at the stage of discharge of
the accused person under Section 239 CrPC
were found to be no different. Far from readily
encouraging discharge, the Court held that even
a strong suspicion in regard to the commission of
the offence would be sufficient to justify framing
Patna High Court CR. MISC. No.42617 of 2015 dt.02-05-2024
of charges. The Court observed:
"17. ... While considering an
application for discharge filed in terms
of Section 239 of the Code, it was for
the learned Judge to go into the details
of the allegations made against each of
the accused persons so as to form an
opinion as to whether any case at all
has been made out or not as a strong
suspicion in regard thereto shall
subserve the requirements of law."
20. To the same effect is the decision of this
Court in Union of India v. Prafulla Kumar Samal
[(1979) 3 SCC 4 : 1979 SCC (Cri) 609] where
this Court was examining a similar question in the
context of Section 227 of the Code of Criminal
Procedure. The legal position was summed up 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.
Patna High Court CR. MISC. No.42617 of 2015 dt.02-05-2024
(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 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, 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. It appears from the perusal of complaint
petition and impugned order that abusing in caste name was
made at darwaja, it is nowhere appeared that said
occurrence took place at lonely place out of public view. The
impugned order also suggest by referring the different
paragraphs of the case diary, where the fact is supported.
Beside that, after investigation, charge-sheet was also
submitted under the SC/ST Act by the investigating agency.
Patna High Court CR. MISC. No.42617 of 2015 dt.02-05-2024
Hence, the materials on record are satisfying the prima facie
requirement as to charge the petitioners for the offence
under Section 3(1)(x) of the SC/ST Act.
9. Accordingly, there is no merit in this
application. The application is dismissed.
(Chandra Shekhar Jha, J.)
Sanjeet/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 06.05.2024
Transmission Date 06.05.2024
