Rajasthan High Court - Jodhpur

Roop Singh vs State on 8 March, 2022

Bench: Pushpendra Singh Bhati

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
           S.B. Criminal Revision Petition No. 368/2020

Roop Singh S/o Shri Deravar Singh Rathore, Aged About 44
Years, By Caste Rajput, R/o Village Khara Rathoran, Tehsil
Ramsar, Police Station Ramsar, District Barmer (Raj.).
                                                                  ----Petitioner
                                   Versus
State, Through P.p.
                                                                ----Respondent


For Petitioner(s)        :     Mr. Dhirendra Singh, Senior Advocate
                               assisted by Ms.Priyanka Borana
For Respondent(s)        :     Mr. Gaurav Singh PP



      HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

                                    Order

08/03/2022
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 Section 397 read with

Section 401 Cr.P.C. has been preferred claiming the following

reliefs:


      "It is, therefore, most humbly and respectfully prayed
      that this Revision Petition may kindly be allowed and
      order dated 07.01.2020 passed by learned Sessions
      Judge, Balotra may kindly be quashed and set aside
      qua the petitioner and the petitioner may kindly be
      discharged from the offences under Sections 489-B,
      489-C, 120-B IPC, Section 8 of Unlawful Activities




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        (Prevention) Act, 1967 and Sections 3/25, 7/25, 29
        read with Section 120-B of the Indian Arms Act."

3.      Mr. Dhirendra Singh, learned Senior Advocate assisted by

Ms.Priyanka Borana, appearing on behalf of the petitioner submits

that earlier the investigation was conducted twice against the

present petitioner, but nothing was found against him by the

concerned investigating authority; however, the third time, after

almost three years of the alleged incident, the petitioner has been

implicated in the offence alleged against him, on count of partial

investigation having been conducted in the case.


3.1     Learned Senior Counsel further submits that the learned trial

court has erred in framing the charges against him vide the

impugned order, as the case remains in the regime of suspicion,

and thus, the same cannot take the place of proof of the guilt of

the petitioner, upon the conclusion of the trial; further, no

sufficient ground is discernible from the record, so as to proceed

against the petitioner in the present case.


3.1.1     In this regard, learned Senior Counsel relied upon the

precedent law laid down by the Hon'ble Supreme Court in Union

of India Vs. Prafulla Kumar Samal & Anr., (1979) 3 SCC 4,

wherein it was held as under:


         "7. Section 227 of the Code runs thus:-


               "If, upon consideration of the record of the case and
         the documents submitted therewith, and after hearing
         the submissions of the accused and the prosecution in
         this behalf, the Judge considers that there is not
         sufficient ground for proceeding against the accused, he
         shall discharge the accused and record his reasons for so
         doing."




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      The words 'not sufficient ground for proceeding
against the accused' clearly show that the Judge is not a
mere post office to frame the charge at the behest of the
prosecution, but has to exercise his judicial mind to the
facts of the case in order to determine whether a case for
trial has been made out by the prosecution. In assessing
this fact, it is not A necessary for the court to enter into
the pros and cons of the matter or into a weighing and
balancing of evidence and probabilities which is really his
function after the trial starts. At the stage of section 227,
the Judge has merely to sift the evidence in order to find
out whether or not there is sufficient ground for
proceeding against the accused. The sufficiency of ground
would take within its fold the nature of the evidence
recorded by the police or the documents produced before
the court which ex facie disclose that there are suspicious
circumstances against the accused so as to frame a
charge against him.:

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(1) 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 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 pro poses to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebut ted 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".

This Court has thus held that whereas strong suspicion may not take the place of the proof at the trial stage, yet it may be sufficient for the satisfaction of ths Sessions Judge in order to frame a charge against the accused. Even under the Code of 1898 this Court has held that a committing Magistrate had ample powers to weigh the evidence for the limited purpose of finding out whether or not a case of commitment to the Sessions Judge has been made out."

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3.2 Learned Senior Counsel, in regard to his submission that the

CDR details of some of the accused or the allegations of tampering

of evidence on the part of one of the accused is an aspect, that

would have to be examined at the stage of trial, relied upon the

judgment rendered by the Hon'ble Supreme Court in State by

(NCB) Bengaluru Vs. Pallulabid Ahmad Arimutta & Anr.

(Petition for Special Leave to Appeal (CRL.) No.242/2022,

decided on 10.01.2022, wherein it was held as under:

"10. It has been held in clear terms in Tofan Singh Vs. State of Tamil Nadu, that a confessional statement recorded under Section 67 of the NDPS Act will remain inadmissible in the trial of an offence under the NDPS Act. In the teeth of the aforesaid decision, the arrests made by the petitioner-NCB, on the basis of the confession/voluntary statements of the respondents or the co-accused under Section 67 of the NDPS Act, cannot form the basis for overturning the impugned orders releasing them on bail. The CDR details of some of the accused or the allegations of tampering of evidence on the part of one of the respondents is an aspect that will be examined at the stage of trial. For the aforesaid reason, this Court is not inclined to interfere in the orders dated 16th September, 2019, 14th January, 2020, 16th January, 2020, 19th December, 2019 and 20th January, 2020 passed in SLP (Crl.) [email protected] Diary No. 22702/2020, SLP (Crl.) No. 1454/2021, SLP (Crl.) No. 1465/2021, SLP (Crl.) No. 1773-74/2021 and SLP (Crl.) No. 2080/2021 respectively. The impugned orders are, accordingly, upheld and the Special Leave Petitions filed by the petitioner-NCB seeking cancellation of bail granted to the respective respondents, are dismissed as meritless."

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3.3 Learned Senior Counsel also relied upon the precedent law

laid down by the Hon'ble Supreme Court in P.Vijayan Vs. State

of Kerala & Anr., (2010) 2 SCC 398, wherein it was held thus:

"10) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the Trial Judge will be empowered to discharge the accused and at this stage he is not to see whether the trial will end in conviction or acquittal. Further, the words "not sufficient ground for proceeding against the accused" clearly show that the Judge is not a mere Post Office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the Court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the Court, after the trial starts. At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In other words, the sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the Court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him."

3.4 Learned Senior Counsel further relied upon the precedent

law laid down by the Hon'ble Supreme Court in Dipakbhai

Jagdishchandra Patel Vs. State of Gujarat & Anr., 2019 0

Supreme (SC) 485, wherein it was held as under:

"6. The learned Senior Counsel for the appellant emphasized that the High Court has fallen into error in holding that recovery of counterfeit currency was effected from the residence of the appellant. It was pointed out that counterfeit currency was recovered not from the residence of the appellant but from near a public road. Therefore, the basis for continuing the

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case for proceeding against the appellant does not exist. Secondly, it was contended that a person cannot be proceeded against on the basis of the statement made by the co-accused, when there is no material other than statement of the co-accused. The High Court ought to have exercised the jurisdiction available under Section 482 of the Cr.PC and allowed the plea for discharge. Learned Senior Counsel for the appellant would contend that the co-accused were absconding.

He sought support from the judgment of this Court in Suresh Budharmal Kalani Alias Pappu Kalani v. State of Maharashtra1. He has drawn our attention to paragraphs 6 and 7, which read as follows:

"6. Thus said, we may turn our attention to the confession made by Dr Bansal and Jayawant Suryarao. Under Section 30 of the Evidence Act, 1872, a confession of an accused is relevant and admissible against a co- accused if both are jointly facing trial for the same offence. Since, admittedly, Dr Bansal has been discharged from the case and would not be facing trial with Kalani, his confession cannot be used against Kalani. The impugned order shows that the Designated Court was fully aware of the above legal position but, surprisingly enough, it still decided to rely upon the confession on the specious ground that the prosecution was not in any way precluded from examining Dr Bansal as a witness in the trial for establishing the facts disclosed in his confession. This again was a perverse approach of the Designated Court while dealing with the question of framing charges. At that stage, the court is required to confine its attention to only those materials collected during investigation which can be legally translated into evidence and not upon further evidence (dehors those materials) that the prosecution may adduce in the trial which would commence only after the charges are framed and the accused denies the charges. The Designated Court was, therefore, not at all justified in taking into

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consideration the confessional statement of Dr Bansal for framing charges against Kalani.

13. We may profitably, in this regard, refer to the judgment of this Court in State of Bihar v. Ramesh Singh5 wherein this Court has laid down the principles relating to framing of charge and discharge as follows:

"Reading SS. 227 and 228 together in juxtaposition, as they have got to be, it would be clear that 5 AIR 1977 SC 2018 at the beginning and initial stage of the trial the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under S.227 or S.228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction.

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 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

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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. If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under S.227 or S.228, then in such a situation ordinarily and generally the order which will have to be made will be one under S.228 and not under S.227."

21. At the stage of framing the charge in accordance with the principles which have been laid down by this Court, what the Court is expected to do is, it does not act as a mere post office. The Court must indeed sift the material before it. The material to be sifted would be the material which is produced and relied upon by the prosecution. The sifting is not to be meticulous in the sense that the Court dons the mantle of the Trial Judge hearing arguments after the entire evidence has been adduced after a full-fledged trial and the question is not whether the prosecution has made out the case for the conviction of the accused. All that is required is, the Court must be satisfied that with the materials available, a case is made out for the accused to stand trial. A strong suspicion suffices. However, a strong suspicion must be founded on some material. The material must be such as can be translated into evidence at the stage of trial. The strong suspicion cannot be the pure subjective satisfaction based on the moral notions of the Judge that here is a case where it is possible that accused has committed the offence. Strong suspicion must be the suspicion which is

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premised on some material which commends itself to the court as sufficient to entertain the prima facie view that the accused has committed the offence.

25. Section 25 of the Indian Evidence Act, 1872 (hereinafter referred to as 'the Evidence Act' for short) renders inadmissible a confession made to a Police Officer. It declares in fact that no confession made to a Police Officer shall be proved as against a person accused of any offence. Section 26 of the Evidence Act on the other hand reads as follows:

"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 Magistrate, 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 or elsewhere, unless such headman is a Magistrate exercising the powers of a Magistrate under the Code of Criminal Procedure, 1882 (10 of 1882)."

31. A Full Court of this Court, in the decision in M.P. Sharma and 4 others v. Satish Chandra, Distt. Magistrate, Delhi and 4 others11, considered the scope of the expression contained in Article 20(3) of the Constitution of India which mandates that no person accused of any 9 AIR 1952 SC 354 10 AIR 1976 SC 1167 11 AIR 1954 SC 300 offence shall be compelled to be a witness against himself:

"Broadly stated the guarantee in Art.20(3) is against "testimonial compulsion". But there is no reason to confine it to the oral evidence of a person standing his trial for an offence when called to the witness-stand. The protection afforded to an accused in so far as it is related to the phrase "to be a witness" is not merely in respect of testimonial compulsion in the Court room but may well extend to compelled testimony previously

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obtained from him. It is available, therefore, to a person against whom a formal accusation relating to the commission of an offence has been levelled which is the normal course may result in prosecution.

Considered in this light, the guarantee under Article 20(3) would be available to person against whom A First Information Report has been recorded as accused therein. It would extend to any compulsory process for production of evidentiary documents which ae reasonable likely to support a prosecution against them." (Emphasis supplied)

35. Can a person, who is accused of an offence, be examined under Section 161 of the Cr.PC? As we have seen, when a person is named as an accused in First Information Report, he would stand in the shoes of an accused person. Does not the marginal note of Section 161 of the Cr.PC confine the power to the Police Officer to examine the witnesses and will it be denied to him qua a person who is already named as an accused? These questions are no longer res integra. In Nandini Satpathy v. P.L. Dani and another13, a Bench of three learned Judges was dealing with a case which arose from proceedings initiated against the appellant therein under Section 179 of the IPC. In the course of the judgment, speaking on behalf of the Bench, this is what Justice V.R. Krishna Iyer had to say:

"32. We will now answer the questions suggested at the beginning and advert to the decisions of our Court which set the tone and temper of the "silence" clause and bind us willy-nilly. We have earlier explained why we regard Section 161(2) as a sort of parliamentary commentary on Article 20(3). So, the first point to decide is whether the police have power under Sections 160 and 161 of the CrPC to question a person who, then was or, in the future may incarnate as, an accused person. The Privy Council and this Court have held that the scope of Section 161 does include actual accused and suspects and we deferentially agree

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without repeating the detailed reasons urged before us by counsel." (Emphasis supplied)

37. Thus, quite clearly, a person who stands in the shoes of the accused being named in the First Information Report, can be examined by the Police Officer under Section 161 of the Cr.PC.

The next question however is, as to whether the statement given by a person who stands in the shoes of an accused and who gives a statement, whether the statement is admissible in law? It is here that Section 162 of the Code comes into play:

"162. Statements to police not to be signed: Use of statements in evidence.

(1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made: Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872 (1 of 1872 );

and when any part of such statement is so used, any part thereof may also be used in the re- examination of such witness, but for the purpose only of explaining any matter referred to in his cross- examination.

(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872 (1

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of 1872), or to affect the provisions of section 27 of that Act. Explanation.- An omission to state a fact or circumstance in the statement referred to in sub- section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact."

39. Therefore, the combined effect of these provisions can be summarized as follows:

Unless a person is accused of an offence, he cannot claim the protection of Article 20(3) of the Constitution of India.

40. Such a person, viz., person who is named in the FIR, and therefore, the accused in the eyes of law, can indeed be questioned and the statement is taken by the Police Officer. A confession, which is made to a Police Officer, would be inadmissible having regard to Section 25 of the Evidence Act. A confession, which is vitiated under Section 24 of the Evidence Act would also be inadmissible. A confession unless it fulfills the test laid down in Pakala Narayana Swami (supra) and as accepted by this Court, may still be used as an admission under Section 21 of the Evidence Act. This, however, is subject to the bar of admissibility of a statement under Section 161 of the Cr.PC. Therefore, even if a statement contains admission, the statement being one under Section 161, it would immediately attract the bar under Section 162 of the Cr.PC."

3.5 Thus, as per learned Senior Counsel, in the aforesaid

backdrop, the impugned order passed by the learned trial court

requires interference by this Court.

4. On the other hand, learned Public Prosecutor opposes the

petition.

He relied upon the following judgments:

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(a) Sheoraj Singh Ahlawat and Ors. Vs. State of U.P. and Ors., (2013) 11 SCC 476.

(b) Kranti Associates Pvt. Ltd. and Ors. Vs. Masood Ahmed Khan and Ors., (2010) 9 SCC 496.

(d) Ajay Kumar Ghoshal and Ors. Vs. State of Bihar and Ors., (2017) 12 SCC 699.

(e) Bhawna Bai Vs. Ghanshyam & Ors., (CRIMINAL APPEAL NO. 1820 of 2019, decided by the Hon'ble Supreme Court on 03.12.2019.

(f) Dinesh Tiwari Vs. State of Uttar Pradesh, (2014) 13 SCC 137.