Dismissed

Devendra Kumar and Another v. State of U.P. and Another

Allahabad HC12 Dec 2019A227/9068/2019

Case brief

AI extract

What is this about?

The High Court dealt with a writ petition under Article 227 to quash an order framing charges against petitioners. The Court upheld the trial court's decision, citing precedents that strong suspicion is sufficient for framing charges at the initial stage without meticulous appreciation of evidence.

What did the court decide?

The writ petition under Article 227 was dismissed.

Devendra Kumar and Another Vs State… — Constitutional and Fundamental Rights | Allahabad HC (2019)

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Court No. - 76

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Case :- MATTERS UNDER ARTICLE 227 No. - 9068 of 2019

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Petitioner :- Devendra Kumar And Another Respondent :- State of U.P. and Another Counsel for Petitioner :- Ajay Sengar Counsel for Respondent :- G.A.,Avdhesh Narayan Tiwari

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Hon'ble Mrs. Manju Rani Chauhan,J.

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Heard Mr. Ajay Sengar, learned counsel for the petitioners and learned A.G.A. for the State.

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The present matter under Aticle 227 has been filed to quash the impugned order dated 09.10.2018 & 30.10.2019 passed by the learned Additional District & Sessions Judge I, Jalaun at Orai in Sessions Trial No. 48 of 2017 (State of U.P. Vs. Mayank Pandey & others), under Sections 147, 148, 149, 323, 324, 325, 326, 504, 506, 308 I.P.C., Police Station- Rampura, DistrictJalaun, whereby the concerned Magistrate has framed charges against the petitioners.

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Learned counsel for the petitioners submits that order impugned passed by the court below framing charge against the petitioners is illegal, as the first information report is based on false and frivolous allegations against the petitioners. It is next submitted that for the alleged incident dated 21.07.2016, the first information report has been lodged after eight days from the date of the alleged incident for which no plausible explanation has been given, which makes the prosecution case doubtful. It is next submitted that the investigation has not been completed in accordance with Chapter XII Cr.P.C. and the charge-sheet has been submitted without proper investigation. After submission of the charge-sheet, the concerned Magistrate has, without applying his judicial mind, taken cognizance. Without sufficient evidence and material on record, the petitioners has been summoned and vide impugned order charges have been framed against them, which is illegal.

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Learned A.G.A. for the State submits that all the contentions raised by the petitioners' counsel relate to disputed questions of fact. He further submits that at the time of summoning the petitioners for framing of charge, the Court is duty bound to record finding about the 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

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Court to say that there is no sufficient ground for proceeding against the accused. He, therefore, submits that there is no illegality or infirmity in the order framing charge against the petitioners. The present application is liable to be rejected. I have considered the submissions made by the learned counsel for the petitioners and have gone through the material available on record. In various judgments, the Apex Court discussed the implication and scope of section 226, 227 and 228 and observed that at the initial stage, the duty of the Court is to consider the record of the case and the documents submitted therewith and to hear the submissions of the accused and the prosecution in that behalf. The Judge has to pass thereafter an order either u/s. 227 or u/s. 228 of the Code (Reference- State of Bihar vs. Ramesh Singh reported in 1977 (4) SCC 39 ).

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The Apex Court has already noticed that the legislature in its wisdom has used the expression "there is ground for presuming that the accused has committed an offence". This has an inbuilt element of presumption once the ingredients of an offence with reference to the allegations made are satisfied, the Court would not doubt the case of the prosecution unduly and extend its jurisdiction to quash the charge in haste. A Bench of this Court in State of Maharashtra v. Som Nath Thapa (1996) 4 SCC 659 referred to the meaning of the word "presume" while relying upon Black's Law Dictionary. It was defined to mean "to believe or accept upon probable evidence"; "to take as proved until evidence to the contrary is forthcoming". In other words, the truth of the matter has to come out when the prosecution evidence is led, the witnesses are cross- examined by the defence, the incriminating material and evidence is put to the accused in terms of Section 313 of the Code and then the accused is provided an opportunity to lead defence, if any. It is only upon completion of such steps that the trial concludes with the court forming its final opinion and delivering its judgment. Merely because there was a civil transaction between the parties would not by itself alter the status of the allegations constituting the criminal offence." It is well established principle of law that at the time of framing of charges, meticulous appreciation of evidence is not required and even a strong suspicion is sufficient to frame the charges, even the roving enquiry at the stage of framing of charges is not permissible. Whether the statement of a witness is reliable or not cannot be considered at the stage of framing of the charges.

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The Supreme Court in the case of Ajay Kumar Parmar vs. State of Rajasthan reported in AIR 2013 SC 633 has held as under:-

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"14. The Magistrate, in exercise of its power under Section 190

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Cr.P.C., can refuse to take cognizance if the material on record warrants so. The Magistrate must, in such a case, be satisfied that the complaint, case diary, statements of the witnesses recorded under Sections 161 and 164 Cr.P.C., if any, do not make out any offence. At this stage, the Magistrate performs a judicial function. However, he cannot appreciate the evidence on record and reach a conclusion as to which evidence is acceptable, or can be relied upon. Thus, at this stage appreciation of evidence is impermissible. The Magistrate is not competent to weigh the evidence and the balance of probability in the case."

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The Supreme Court in the case of Soma Chakravarty vs. State (Th. CBI) reported in 2007 AIR SCW 3683 has held as under:-

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"20. It may be mentioned that the settled legal position, as mentioned in the above decisions, is that if on the basis of 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. At the time of framing of the charges the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution has to be accepted as true at that stage. Before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commitment of offence by the accused was possible. Whether, in fact, the accused committed the offence, can only be decided in the trial."

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The Supreme Court in the case of P. Vijayan vs. State of Kerala and Anr. reported in 2010 CRI. L.J. 1427 has held as under:-

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"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

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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." The Supreme Court in the case of State of Bihar vs. Ramesh Singh reported in AIR 1977 SC 2018 has held as under:-

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"... ...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 proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in crossexamination 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. .... "

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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 the trial Judge in order to frame a charge against the accused."

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Since, the petitioners has not challenged the summoning order, where the court below is required to record prima facie satisfaction as to whether strong suspicion may take place against the petitioners, the impugned order framing charge only against the petitioners on the basis of materials available on record at that time cannot be examined by this Court.

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In view of the aforesaid law laid down by the Apex Court, this Court finds no illegality or infirmity in the order impugned passed by the court below framing charge against the petitioners. The present petition is accordingly dismissed.

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Order Date :- 12.12.2019 Priya

Devendra Kumar and Another v. State of U.P. and Another

Case brief

What is this about?

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Devendra Kumar and Another v. State of U.P. and Another

Case brief

What is this about?

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