M. Nagaraju vs The State Of Telangana
2021 Latest Caselaw 2078 Tel

              HONOURABLE JUSTICE G.SRI DEVI

                      CRL.R.C.No.222 of 2020

O R D E R:

This Criminal Revision Case is directed against the order of

the IV-Additional Chief Metropolitan Magistrate, Hyderabad,

passed in Crl.M.P.No.4589 of 2019 in C.C.No.1598 of 2018, dated

27.01.2020, whereby the learned Magistrate dismissed the petition

filed by the petitioner/A-15, under Section 239 of Cr.P.C., seeking to

discharge him for the alleged offences punishable under Sections

143, 147, 148, 342, 186, 353, 120-B read with Section 149 of the I.P.C.

and Section 7 (1) (a) of the Criminal Law (Amendment) Act, 1932.

Revision Petitioner is accused No.15 in Crime No.526 of 2017

registered for the offences punishable under Sections 143, 147, 148,

342, 186, 353, 120-B read with Section 149 of the I.P.C. and Section 7

(1) (a) of the Criminal Law (Amendment) Act, 1932. Subsequently

the Sub-Inspector of Police, Osmania University Police Station, after

completion of entire investigation, filed charge sheet against the

petitioner and others for the aforesaid offences, which was taken

cognizance as C.C.No.1598 of 2018. It is stated that since the name

of the petitioner is not shown in the First Information Report and no

specific overt acts were attributed against the petitioner in the

charge sheet and also in the statements of the witnesses recorded by

the police under Section 161 of Cr.P.C., the petitioner filed

Crl.M.P.No.4589 of 2019 under Section 239 of Cr.P.C. requesting the

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trial Court to discharge him for the said alleged offences. However,

the trial Court having considered the entire material available on

record, dismissed the said petition by its order, dated 27.01.2020.

Aggrieved by the said order, the petitioner/A-15 filed the present

Criminal Revision Case.

Heard learned Counsel appearing for the petitioner; learned

Assistant Public Prosecutor appearing for respondents 1 and 2,

learned Standing Counsel appearing for the 3rd respondent and

perused the record.

It has been submitted by the learned Counsel appearing for

the petitioner that the order passed by the trial Court is arbitrary,

illegal, weight of evidence and against the facts and probabilities of

the case. It is also submitted that on the basis of documentary

evidence on record and legal submissions made by the learned

Counsel for the petitioner, the learned Magistrate ought to have

allowed the petition filed for discharge of the petitioner for the

charges framed against him. It is further submitted that the trial

Court ought to have seen that the name of the petitioner was not

mentioned in the accused column at Sl.No.15 of the First

Information Report and that there are no specific overt acts

attributed against the petitioner in the charge sheet and also in the

statement of witnesses recorded by the police under Section 161 of

Cr.P.C. It is also submitted that the trial Court ought to have seen

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that the 2nd respondent is none other than the Sub-Inspector of

Police and he has no knowledge about the students, who had

attacked the police officials, and that he filed the complaint only

after obtaining the hostel inmate records from the concerned

authority. It is further submitted that the trial Court ought to have

seen that there is no evidence to show that the petitioner

participated in prosecution of common object of unlawful assembly

by the university students and moreover there are no specific overt

acts against the petitioner. It is further submitted that the trial Court

ought to have seen that the alleged incident occurred in front of new

Maneru Hostel of the university, in which one student committed

suicide, but the petitioner was a resident of another hostel and he

has nothing to do with the alleged offence occurred in front of

Maneru Hostel and that mere presence of the petitioner when the

alleged incident was occurred does not constitute any offence. It is

also submitted that as per admitted facts and documents relied upon

by the prosecution, no case is made out against the petitioner and,

therefore, the trial Court ought to have dropped the criminal

proceedings initiated against the petitioner. It is further submitted

that the trial Court ought to have seen that the petitioner is a Post

Graduate student and he got selected for the post of constable and if

he is not discharged from the case, he will be put to irreparable loss

and injury.

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Learned Assistant Public Prosecutor appearing on behalf of

respondents 1 and 2 contended that the statements of the witnesses

namely D.Ashok, Y.Venkata Santa Rao and S.Ranjith Kumar

recorded by the police under Section 161 of Cr.P.C. would clearly

disclose that the petitioner was also one of the members of an

unlawful assembly and he is also involved in committing rioting

with deadly weapons and obstructing the police officers from

entering into the hostel and, therefore, the material on record prima

facie proves the involvement of the petitioner in the commission of

the offence.

Learned Standing Counsel appearing for the 3rd respondent

would submit that a mob of students formed into an unlawful

assembly, protested the suicidal death of a student in the Osmania

University hostel and obstructed the police from entering into the

hostel.

Since the petitioner filed application under Section 239 Cr.P.C.

before the trial Court seeking discharge, it would be appropriate to

refer Section 239 of Cr.P.C. which reds as under:-

"Section 239. When accused shall be discharged : If, upon considering the police report and the documents sent with it under Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and

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the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing."

The Magistrate shall discharge the accused recording reasons,

if after :

1) considering the police report and documents mentioned in Section 173 Cr.P.C.;

2) examining the accused, if necessary;

3) hearing the arguments of both sides he thinks the charge against him to be groundless i.e. either there is no legal evidence or that the facts do not make put any offence at all.

As the Section expressly authorizes the use of statements of

witnesses examined by the police for considering the question of

discharge or of framing a charge, it must be construed as an

exception to Section 162 (1) of Cr.P.C. Section 239 of Cr.P.C. has to be

read along with Section 240 of Cr.P.C. Reading two sections together

it clearly means that if there is no ground for presuming that the

accused has committed an offence, the charge must be considered to

be groundless. The Magistrate is entitled and indeed has a duty to

consider the entire material referred to in Section 239 of Cr.P.C. In

order to hold a charge groundless, there should either be no iota of

evidence or the evidence should centra-indicate the offence or there

should be other fundamental error in assuming cognizance of the

offence. This provision of law is calculated to eliminate further

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harassment to the accused persons when the evidentiary materials

gathered after a prolonged and thorough investigation of the

occurrence falls short of minimum requirement, and therefore, the

provision of law cannot be reduced into a dead letter and the

accused persons made to understand the rigour of the futile trial

where such a trial of materials available is palpably, not warranted

against him.

The function of Magistrate under Section 239 of Cr.P.C. is not

to marshal the evidence and judge the truth, veracity and effect of

such evidence which the prosecution proposes to adduce and what

weight to be attached to the probable defence of the accused. If there

is a strong suspicion which leads the Court to think that there is

ground for presuming that the accused has committed the offence, it

has to pass an order under Section 240 Cr.P.C.

The trial Court under Section 239 Cr.P.C. or the High Court

under Section 482 of Cr.P.C. is not called upon to embark upon an

enquiry as to whether evidence in question is reliable or not or

evidence relied upon is sufficient to proceed further or not.

However, if upon the admitted facts and the documents relied upon

by the complainant or the prosecution and without weighting or

sifting of evidence, no case is made out, the criminal proceedings

instituted against the accused are required to be dropped or

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quashed. In Rajesh Bajaj v. State NCT of Delhi1, the Apex Court

held that the High Court or the Magistrate also not supposed to

adopt a strict hyper-technical approach to sieve the complaint

through a colander of finest gauzes for testing the ingredients of

offence with which the accused is charge. Such an endeavour may

be justified during trial but no during the initial state.

In State v. S. Selvi2, the Apex Court held that if on the basis of

material on record, the Court prima facie forms an opinion that the

accused may have committed the offence, it can frame charges. At

the time of framing of charge, the Court is required to proceed on

presumption that the material produced by the prosecution is true.

At that stage, the Court is not expected to go deep into the matter

and hold that the material produced does not warrant conviction. In

paragraph Nos.6 and 7 the Apex Court held as under:-

"6. It is well settled by this Court in a catena of judgments including Union of India v. Prafulla Kumar Samal (1979) 3 SCC 4, Dilawar Balu Kurane v. State of Maharashtra (2002) 2 SCC 135 : Sajjan Kumar v. CBI (2010) 9 SCC 368, State v. A. Arun Kumar (2015) 2 SCC 417, Sonu Gupta v. Deepak Gupta (2015) 3 SCC 424, State of Orissa v. Debendra Nath Padhi (2003) 2 SCC 711, Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya (1990) 4 SCC 76 and Superintendent & Remembrancer of Legal Affairs v. Anil Kumar Bhunja (1979) 4 SCC 274 that the Judge while considering the question of framing charge under Section 227 of the Code in sessions cases (which is akin to Section 239

AIR 1999 SC 1216

(2018) 13 SCC 455

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CrPC pertaining to warrant cases) 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; where the material placed before the court discloses grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing the charge; by and large 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 rights to discharge the accused. The 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 statements 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 materials as if he was conducting a trial."

In Sajjan Kumar v. CBI3, the Supreme Court on consideration

of the various decisions about the scope of Sections 227 and 228 of

the Code, laid down the following principles:

"(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

(2010) 9 SCC 368

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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 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 stage of Sections 227 and 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 all 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 and

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

The Supreme Court further in the case of Asim Shariff v.

NIA4, has dealt with the scope of Section 227 of the Cr.P.C. for

discharge of an accused. In the aforesaid judgment, it has been held

that "in exercise of power under Sections 227 and 228 Cr.P.C., in the

Sessions Court (Section 239 Cr.P.C. pertaining to warrant cases), the

trial Court has 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. If the material placed before the Court

discloses grave suspicion against the accused which has not been

properly explained, the Court is justified in framing the charge. It

has also been held that if two views are possible and one of them

gives rise to suspicion only, as distinguished from grave suspension,

the trial Judge would be empowered to discharge the accused."

In view of the legal position, as enunciated above, it has to be

seen whether the F.I.R. and the documents accompanying the final

report under Section 173 of Cr.P.C. including the statements

recorded by the prosecution under Section 161 of Cr.P.C., disclose

the commission of any offence against the petitioner. In the instant

case, the police during the investigation examined as many as

fourteen witnesses and out of them L.Ws.1 to 6 are police officials.

Admittedly the accusation is against mob of students. A perusal of

(2019) 7 SCC 148

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the statements of the witnesses would disclose that one B.Murali,

student of M.Sc. (Physics), who was staying in Room No.159,

Maneru Hostel, OU Camps, has committed suicide on 03.12.2017 in

common bathroom of the hostel building and when the local police

went there for enquiry, some of the students gathered and protested

in various manners and prevented the police from reaching the dead

body and also rioted in the hostel and they also started stone pelting

and dropping iron rods, chairs and cots from the terrace. L.Ws.1 to

6, who were present at the place of occurrence, have categorically

stated in their 161 Cr.P.C. statements that some of the named

students and several others have obstructed the public servants

while discharging their legitimate duties, by wrongfully confining

and assaulted on the police. There is no material to substantiate that

the petitioner had assaulted the police by pushing them with fist

blows and also obstructed them. There are no specific overt acts

against the petitioner and the allegation is general and omnibus.

Therefore, without there being any evidence about the specific overt

act against the petitioner towards the occurrence, his mere presence

at the place of occurrence is not enough to fasten him with any

criminal liability. On considering the material on record, this Court

is of the view that no prima facie case is made out against the

petitioner.

For the aforesaid reasons and having regard to the law laid

down by the Apex Court in the aforesaid decisions, the Criminal

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Revision Case is allowed and the order, dated 27.01.2020, passed in

Crl.M.P.No.4589 of 2019 in C.C.No.1598 of 2018 on the file of the IV-

Additional Chief Metropolitan Magistrate, Hyderabad, is hereby set

aside and consequently, the petitioner is discharged for the offences

punishable under Sections 143, 147, 148, 342, 186, 353 and 120-B read

with Section 149 of I.P.C. and Section 7 (1) (a) of the Criminal Law

(Amendment) Act, 1932.

Miscellaneous petitions, if any, pending, shall stand closed.

____________________ JUSTICE G.SRI DEVI

13-07-2021 gkv/Gsn