Rajasthan High Court - Jodhpur

Kamal Shah vs State Of Rajasthan ... on 22 March, 2023

Bench: Manoj Kumar Garg

[2023/RJJD/007229]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc(Pet.) No. 122/2023

Kamal Shah S/o Sh. Lahar Chand Shah, Aged About 48 Years, R/o 31, Bhagwan Bhawan, Third Floor, Israyala Mohalla, Maszid Badar Road, Mumbai (Maharashtra).

----Petitioner Versus

1. State Of Rajasthan, Through Pp

2. Jagpal Singh Jhala S/o Sh. Ganpat Singh Jhala, Power Of Attorney Holder Of Mewar High Tech Engineering Ltd. Hawa Magari, Industrial Area, Sukher, Udaipur (Raj.).

                                                                 ----Respondents


For Petitioner(s)          :    Mr. S.S. Rathore
For Respondent(s)          :    Mr. Mukesh Trivedi, PP



          HON'BLE MR. JUSTICE MANOJ KUMAR GARG

                                     Order

22/03/2023

The petitioner has preferred this petition under Section 482

of Cr.P.C. against the order dated 19.11.2022 passed by learned

Additional Sessions Judge No.5, Udaipur in Criminal Revision

No.57/2018 vide which the learned Revisional Court has dismissed

the revision petition of the petitioner and affirmed the order dated

18.07.2018 passed by learned Special Additional Chief Judicial

Magistrate, (PCPNDT Act, Cases) Udaipur in Criminal Regular Case

No.7970/2017 by which the trial Court framed charges against the

petitioner for offence under Section 420 IPC.

Learned counsel for the petitioner submits that both the

learned courts below have not considered the material aspects of

the matter while taking cognizance and framed the charges

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against the petitioner. Furthermore, learned revisional Court has

also dismissed the revision petition of the petitioner vide order

dated 19.11.2022, which is bad in eye of law. Counsel submits

that bill of bearings no.23148 shows that it was genuine. Counsel

further submits that the proceedings for offence under Section

138 of N.I. Act were initiated by the complainant and a

compromise was arrived at between the parties and thereafter a

civil suit was also filed which is still pending. In these

circumstances, order framing charges per se is illegal and

deserves to be set aside.

On the other hand, learned Public Prosecutor opposed the

prayer made by the petitioner and it is submitted that the order of

framing charge passed by the learned Court below does not suffer

from any infirmity. Learned Public Prosecutor submits that feeling

aggrieved by the framing of charges, the petitioner has already

preferred a revision petition before the learned Additional Sessions

Judge No.5, Udaipur which was dismissed by the revisional court

and therefore, at the stage of framing of charge, no interference is

called for in the impugned order.

I have considered the arguments advanced before me and

carefully gone through the material available on record.

Prima facie case of fraudulent entry is made out against the

petitioner. Moreover, the petitioner had already filed a revision

petition against the framing of charge, which has been dismissed

by the court of learned Additional Sessions Judge No.5, Udaipur.

This Court is of the opinion that trial court has not committed

any error in framing charges against the petitioner.

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It is settled law that at the time of framing the charges, the

truth, veracity and the effect of the evidence, which the

prosecution proposes to produce are not to be meticulously

examined. At this stage, the Court has only to see whether the

unrebutted evidence, which the prosecution is to adduce, make

way for conviction and if it is so then the charge can be framed.

The Court, while framing the charges, is required to evaluate the

materials and documents on record with a view to find out if the

facts emerging therefrom disclose the presence of all the

ingredients constituting the alleged offence.

In the case of Sajjan Kumar v. Central Bureau of

Investigation reported in (2010) 9 SCC 368, Hon'ble Supreme

Court in para 21 of the judgment has laid down the principles

which are to be kept in mind by the Court while exercising

jurisdiction under Sections 227 & 228 Cr.P.C., which are as below :

"(i) The Judge while considering the question of framing the charges under Section 227 Cr.P.C. 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. The test to determine prima facie case would depend upon the facts of each case.

(ii) 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.

(iii) The court 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

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infirmities etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

(iv) If on the basis of the material on record, the court could form an opinion that the 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 has committed the offence.

(v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.

(vi) At the state of Sections 227 & 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept al that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.

(vii) 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 at this stage, he is not to see whether the trial will end in conviction or acquittal."

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

[2023/RJJD/007229] (5 of 9) [CRLMP-122/2023]

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

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

[2023/RJJD/007229] (6 of 9) [CRLMP-122/2023]

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."

Recently, the 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 charges 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 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

[2023/RJJD/007229] (7 of 9) [CRLMP-122/2023]

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 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

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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

[2023/RJJD/007229] (9 of 9) [CRLMP-122/2023]

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."

Thus, it is well settled legal position that at the stage of

framing charge for an offence against an accused only prima facie

has to be seen whether sufficient grounds are available on record

to proceed against him and even strong suspicion is enough to

frame charge and at this stage of the proceedings evidence is not

required to be analyzed, as it is required to be done at the final

stage after trial. It is also well settled that at this stage of the

proceedings only the charge-sheet and evidence collected during

investigation which has been produced alongwith the charge-sheet

is required to be considered.

In view of above, this Court is of the opinion that according

to the inspection report no.34 available on record shows that