Rajasthan High Court - Jodhpur

Neeraj Kumar vs State Of Rajasthan on 21 April, 2022

Bench: Pushpendra Singh Bhati

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Revision Petition No. 10/2022

Neeraj Kumar S/o Sh. Vijay Kumar, Aged About 38 Years, B/c Regar, R/o New Bus Stand, Sumerpur Road, P.s. Kotwali, Pali (Raj.).

----Petitioner Versus State Of Rajasthan, Through Pp, Pali

----Respondent

For Petitioner(s) : Mr. Yogesh Kumar Sharma Mr. Tejmal For Respondent(s) : Mr. M.S. Bhati PP

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

Reserved on 19/04/2022 Pronounced on 21/04/2022

1. In the wake of instant surge in COVID - 19 cases and spread

of its highly infectious Omicron variant, abundant caution is being

maintained, while hearing the matters in the Court, for the safety

of all concerned.

2. This criminal revision petition under Sections 397 & 401

Cr.P.C. has been preferred against the order dated 01.10.2021

passed by the learned Special Judge, NDPS Act Cases, Pali in

Sessions Case No.101/2021, whereby charges were framed

against the present accused-petitioner for the offences under

Sections 8/21 read with Section 29 of the Narcotic Drugs and

Psychotropic Substance, Act, 1985 (hereinafter referred to as 'Act

of 1985').

3. Brief facts of this case, as noticed by this Court, are that on

the basis of an information received from the informant, on

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10.03.2021 at about 02:40 p.m., Shri Gautam Jain, Inspector of

Police, Police Station Kotwali, Pali, alongwith his team, reached the

residential house of one Binjaram (henceforth also referred to as

'co-accused'), whereafter, the police team, upon search, found the

said Binjaram being in possession of smack weighing 18.46 grams

(contraband in question), for which no satisfactory explanation

was put forth by him.

3.1 Thereupon, an FIR bearing No.100/2021 was registered for

the offences under the Act of 1985. After investigation, it was

found that the contraband in question was purchased by Binjaram

from the present accused-petitioner Neeraj Kumar. Hence, on

16.07.2021, a charge-sheet before the learned court below was

filed against Binjaram for the offence under Section 8/21 of the

Act of 1985, and against the present accused-petitioner-Neeraj

Kumar for the offence under Section 8/21 and Section 29 of the

Act of 1985.

3.2 The learned court below after hearing the parties, proceeded

to frame charges for the aforementioned offences against the

accused persons, vide the impugned order.

4. Learned counsel for the accused-petitioner, at the outset,

submits that despite the concerned investigating officer having

ample time after receiving the alleged information from the

informant, the officer did not obtain the requisite search warrant

from the competent Magistrate before effecting the search in

question, which is a clear violation of the provisions of the Act of

1985.

5. Learned counsel for the accused-petitioner further submits

that the recovery in question was made from the co-accused, and

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not from the present accused-petitioner. However, as per learned

counsel, the accused-petitioner has been implicated in this case

only on the sole testimony of the co-accused, to the effect that the

contraband in question was stated to be purchased by the co-

accused from the present accused-petitioner; the said testimony is

doubtful, for no proof of such transaction alleged to have taken

place between the co-accused and the present accused-petitioner

has been brought on record, nor any detail in regard to telephonic

call between them forms part of the record.

5.1 Learned counsel thus submits that in absence of any cogent

and reliable evidence having been produced on record, the

accusation against the present petitioner, only on the basis of a

non-reliance and unsubstantiated testimony of the co-accused,

cannot be proved beyond all reasonable doubts.

6. Learned counsel for the accused-petitioner also submits that

there are no previous or subsequent criminal antecedents against

the present accused-petitioner for the offences under the Act of

1985; as against this, there are various cases under the Act of

1985 pending against the co-accused. Thus, as per learned

counsel, the sole testimony of a person having such criminal

antecedents cannot become a basis for prosecution of a person,

like the present accused-petitioner. Learned counsel therefore,

submits that such testimony of the co-accused casts a serious

doubt upon the case of the prosecution.

7. Learned counsel for the accused-petitioner however, submits

that the learned court below, without due appreciation of the

aforementioned factual matrix and the material placed before it,

framed charges against the present accused-petitioner, vide the

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impugned order, and thus, the same is not sustainable in the eye

of law.

8. On the other hand, learned Public Prosecutor, while opposing

the aforesaid submissions made on behalf of the accused-

petitioner submits that from the material available on record,

there cannot be any doubt that the contraband in question was

purchased by the co-accused from the present accused-petitioner,

and thus, prima facie case has been rightly found to be made out

against the present petitioner as well as the co-accused. As per

learned Public Prosecutor, since there is nothing on record, which

could be detrimental to the case of the prosecution, therefore, the

learned court below has rightly passed the impugned order, after

having found sufficient material for framing the charges against

the accused persons.

9. Heard learned counsel for the parties as well as perused the

record of the case.

10. This Court is conscious of the decision rendered by the

Hon'ble Apex Court in Union of India (UOI) Vs. Prafulla

Kumar Samal and Ors., (1979) SCC (Cri) 609, relevant

portion of which reads as under:

"8. The scope of Section 227 of the Code was considered by a recent decision of this Court in the case of State of Bihar v. Ramesh Singh :

1977CriLJ1606 where Untwalia, J. speaking for the Court observed as follows :-

Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that

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there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. 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 the offence, then there will be no sufficient ground for proceeding with the trial.

9. In the case of K.P. Raghavan and Anr. v. M.H. Abbas and Anr. : 1967CriLJ653 this Court observed as follows :-

No doubt a Magistrate enquiring into a case under Section 209, Cr.P.C. is not to act as a mere Post Office and has to come to a conclusion whether the case before him is fit for commitment of the accused to the Court of Session."

11. The ratio decidendi laid down by the Hon'ble Apex Court in

Prafulla Kumar (supra), has received the judicial imprimatur of

the Hon'ble Apex Court through multiple subsequent judgments.

12. This Court is also conscious that at the stage of framing of

charge, the learned trial court is not required to conduct a

meticulous appreciation of evidence or a roving inquiry into the

same, as has been laid down by the Hon'ble Apex Court in the

judgments rendered in Ashish Chadha v. Asha Kumari and Ors

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(2012) 1 SCC 680 and State of NCT of Delhi and Ors. vs.

Shiv Charan Bansal and Ors. (2020) 2 SCC 290.

13. This Court, therefore, finds that the judicial precedents laid

down by the Hon'ble Apex Court is clear, and that at the stage of

framing of charge, the scope of interference of the Hon'ble High

Court, as a revisional Court is very limited, so much so that the

Court must be concerned only with the question whether there is

any suspicion against the accused, and not with the proof of the

allegation(s). And, as an exception to this, the Hon'ble Apex

Court, in the case of State of Haryana Vs. Bhajan Lal 1992

Supp (1) SCC 335, observed as follows:

"In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra-ordinary power under Article 226 or the inherent powers Under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima-facie constitute any offence or make out a case against the accused.

2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers Under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

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3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

4 . Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated Under Section 155(2) of the Code.

5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 106. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice.

It may be true, as repeatedly pointed out by Mr. Parasaran, that in a given situation, false and vexatious charges of corruption and venality may be maliciously attributed against any person holding a high office and enjoying a respectable status thereby sullying his character, injuring his reputation and exposing him to social ridicule with a view to spite him on account of some personal rancour, predilections and past prejudices of the complaint. In such a piquant situation, the

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question is what would be the remedy that would redress the grievance of the verily affected party? The answer would be that the person who dishonestly makes such false allegations is liable to be proceeded against under the relevant provisions of the Indian Penal Code-namely Under Sections 182 or 211 or 500 besides becoming liable to be sued for damages."

14. Thus, this Court is of the firm opinion that if a strong

suspicion exists in the mind of the court at the stage concerned,

then the same is sufficient for the court to proceed with the

framing of the charge against the accused person(s). And if a

prayer for discharge has been made before a revisional court, then

the same may only be allowed if the court finds that the materials

on record are wholly insufficient for the purpose of trial.

15. This Court takes into due consideration the fact that the

offence in question is a heinous offence under the Act of 1985,

and the impugned order passed by the learned court below has

been passed, while keeping in mind, the prescription of Section 27

of the Indian Evidence Act, 1872.