Rajasthan High Court - Jodhpur

Gajendra Singh vs State Of Rajasthan on 1 April, 2021

Bench: Manoj Kumar Garg

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Revision Petition No. 272/2021

1. Gajendra Singh S/o Sh. Karni Singh, Aged About 43 Years, B/c Rajput, R/o Village Ghanerao, P.s. And Tehsil Desuri, Dist. Pali (Raj.).

2. Mager Singh S/o Sh. Govind Singh, Aged About 39 Years, B/c Rajput, R/o Khudala-Falna, P.s. Falna, Teh. Bali, Dist. Pali (Raj.).

3. Jethu Singh S/o Sh. Vijay Singh, Aged About 47 Years, B/c Rajput, R/o Village Dhani, P.s. Falna, Tehsil Bali, Dist. Pali (Raj.).

4. Karan Singh S/o Sh. Jabar Singh, Aged About 37 Years, B/c Rajput, R/o Village Sambhadiya, P.s. And Tehsil Bilara, Dist. Jodhpur (Raj.).

----Petitioners Versus

1. State Of Rajasthan, Through Pp

2. Pushpendra Mali S/o Sh. Daula Ram, B/c Mali, R/o Village Ghanerao, Teh. And P.s. Desuri, Dist. Pali (Raj.).

----Respondents

For Petitioner(s) : Mr. Pradeep Kumar Shah For Respondent(s) : Mr. Mukhtiyar Khan, PP

HON'BLE MR. JUSTICE MANOJ KUMAR GARG

Order

01/04/2021

Instant revision petition under Section 397/401 Cr.P.C. has

been filed by the petitioner against the orders dated 22.02.2021 &

23.02.2021, passed by the learned Addl. Sessions Judge Desuri,

District Pali, in Criminal Case No.15/2016 whereby the learned

Judge framed the charges against the petitioners for offences

under Sections 452, 323 in the alternative 323/34, 325 in the

alternative 325/34, 308 in the alternative 308/34 of IPC.

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Learned counsel for the petitioners submit that none of the

injured received by the injured are on any vital part of body and in

this view of the matter, the act of the petitioners will not be prima

facie covered by the provisions of Section 308 IPC so as to fasten

criminal liability against them for attempting to commit culpable

homicide of respondent No.2. Counsel further submits that as per

the definition of Section 308 IPC, if any act is committed by any

accused with an intention or knowledge that he by his act would

cause death amounting to culpable homicide not amounting to

murder whereas in the present case there is nothing on record

which suggest that the petitioners or any of the petitioner caused

any injury on any vital part of the body of any of the injured. In

these circumstances, charges framed against the petitioners may

be quashed and set aside.

Learned Public Prosecutor vehemently oppose the prayer

made by the counsel for the petitioner.

I have considered the arguments advanced before me and

perused the material available on record. According to the injury

report of respondent No.2-Pushpendra Mali, he received five

injuries in all and according to the X-Ray reports multiple fractures

were inflicted on right lower limb including Tibia-Fibula as well as

ankle joint and the injuries were found to be grievous in nature.

Likewise as per injury report of Vimalchand he received one injury

and fracture of ulna (left side).

In the case of Amit Kapoor v. Ramesh Chander & Anr.

reported in (2012) 9 SCC 460, Hon'ble Supreme Court has held

that at the initial stage of framing of a charge, the Court is

concerned not with the proof but with a strong suspicion that the

accused has committed an offence, which, if put to trial, could

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prove him guilty. All that the Court has to see is that the material

on record and the facts would be compatible with the innocence of

the accused or not. The final test of guilt is not to be applied at

that stage.

In the case of Sheoraj Singh Ahlawat & Ors. v. State of Uttar

Pradesh & Anr. reported in (2013) 11 SCC 476, the Hon'ble Apex

Court has held as below :

"While framing charges, court is required to evaluate materials and documents on record to decide whether facts emerging therefrom taken at their face value would disclose existence of ingredients constituting the alleged offence. At this stage, the court is not required to go deep into the probative value of materials on record. It needs to evaluate whether there is a ground for presuming that accused had committed offence. But it should not evaluate sufficiency of evidence to convict accused. Even if there is a grave suspicion against the accused and it is not properly explained or court feels that accused might have committed offence, then framing of charges against the accused is justified. It is only for conviction of accused that materials must indicate that accused had committed offence but for framing of charges if materials indicate that accused might have committed offence, then framing of charge is proper. Materials brought on by prosecution must be believed to be true and their probative value cannot be decided at this stage. The accused entitled to urge his contentions only on materials submitted by prosecution. He is not entitled to produce any material at this stage and the court is not required to consider any such material, if submitted. Whether the prima facie case made out depends upon facts and circumstances of each case. If two views are possible and materials indicate mere suspicion, not being grave suspicion, against accused then he may be discharged. The court has to consider broad probabilities of case, total effect of evidence and documents produced before it. The court should not act as mouthpiece of prosecution and it is impermissible to have roving enquiry at the stage of framing of charge."

Hon'ble Apex Court in the case of 'State of Rajasthan Vs. Fatehkaran Mehdu' reported in AIR 2017 SC 796, while dealing with the scope of interference under Section 397 Cr.P.C when the charge had been framed, has held as under :-

"26. The scope of interference and exercise of jurisdiction Under Section 397 of Code of Criminal Procedure has been time

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and again explained by this Court. Further, the scope of interference Under Section 397 Code of Criminal Procedure 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 scheme of Code of Criminal Procedure.

27. Now, reverting to the limit of the scope of jurisdiction Under Section 397 Code of Criminal Procedure, which vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept in the proceeding.

........

29. The Court in para 27 has recorded its conclusion and laid down principles to be considered for exercise of jurisdiction Under Section 397 particularly in context of quashing of charge framed Under Section 228 Code of Criminal Procedure Para 27, 27(1), (2), (3), (9), (13) are extracted as follows:

"27. Having discussed the scope of jurisdiction under these two provisions, i.e., Section 397 and Section 482 of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but is inherently impossible to state with precision such principles. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction Under Section 397 or Section 482 of the Code or together, as the case may be:

27.1) Though there are no limits of the powers of the Court Under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the

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charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.

27.2) The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.

27.3) The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.

27.9) Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the Court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.

27.13) Quashing of a charge is an exception to the Rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie.

30. Applying the above tests, we are of the considered opinion that High Court erred in quashing the charges framed by the order dated 05.05.2009. In result, both the appeals are allowed. The order of the High Court is set aside and the order dated 05.05.2009 is restored. The learned Special Judge may proceed with the trial in accordance with the law expeditiously."

Recently, Hon'ble Apex Court in the case of 'Bhawna Bai Vs.

Ghanshyam & Ors' reported in 2020 Cr.L.R (SC) 5, while

considering the judgment rendered in the case of Amit Kapoor

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(Supra) dealing with the scope of interference when the charges

had been framed, held as under :-

"16. As discussed above, in the present case, upon hearing the parties and considering the allegations in the charge sheet, the learned Second Additional Sessions Judge was of the opinion that there were sufficient grounds for presuming that the Accused has committed the offence punishable Under Section 302 Indian Penal Code read with Section 34 Indian Penal Code. The order dated 12.12.2018 framing the charges is not a detailed order. For framing the charges Under Section 228 Code of Criminal Procedure, the judge is not required to record detailed reasons. As pointed out earlier, at the stage of framing the charge, the court is not required to hold an elaborate enquiry; only prima facie case is to be seen. As held in Knati Bhadra Shah and Anr. v. State of West Bengal : (2000) 1 SCC 722, while exercising power Under Section 228 Code of Criminal Procedure, the judge is not required record his reasons for framing the charges against the Accused. Upon hearing the parties and based upon the allegations and taking note of the allegations in the charge sheet, the learned Second Additional Sessions Judge was satisfied that there is sufficient ground for proceeding against the Accused and framed the charges against the Accused-Respondent Nos. 1 and 2. While so, the High Court was not right in interfering with the order of the trial court framing the charges against the Accused-Respondent Nos. 1 and 2 Under Section 302 Indian Penal Code read with Section 34 Indian Penal Code and the High Court, in our view, erred in quashing the charges framed against the Accused. The impugned order cannot therefore be sustained and is liable to be set aside.

17. In the result, the impugned judgment dated 25.02.2019 passed by the High Court of Madhya Pradesh at Indore Bench in Criminal Revision No. 402 of 2019 is set aside and this appeal is allowed. Sessions Trial Case No. ST/150/2018 is restored and Second Additional Sessions Judge, Mandleswar, West Nimad, Madhya Pradesh shall proceed with the matter in accordance with law. We make it clear that we have not expressed any opinion on the merits of the matter."

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In view of above, I find no perversity and illegality in the

order impugned or any abuse of process of Court and thus warrant

no interference from this Court.