Dismissed

Awadh Kumar Singh @ Nanhe Singh and 4 Others v. State of U.P. and Another

Allahabad HC12 May 2022A482/8290/2022

Case brief

AI extract

What is this about?

The High Court of Judicature at Allahabad dismissed a petition under Section 482 Cr.P.C. seeking to quash the order framing charges and rejecting a discharge application. The Court held that the trial court's order was not illegal as the material on record disclosed a prima facie case warranting trial, and the High Court correctly declined to conduct a mini-trial.

What did the court decide?

Petition under Section 482 Cr.P.C. was dismissed; orders framing charges and rejecting discharge application were affirmed.

Awadh Kumar Singh @ Nanhe Singh and 4 Others… — Murder and Culpable Homicide | Allahabad HC (2022)

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Court No. - 92

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Case :- APPLICATION U/S 482 No. - 8290 of 2022

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Applicant :- Awadh Kumar Singh @ Nanhe Singh And 4 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Vimlendu Tripathi,Sushil Babu Mishra Counsel for Opposite Party :- G.A.

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Hon'ble Manish Kumar,J.

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(1) Heard learned counsel for the applicants, learned counsel for Respondent No.2 and learned A.G.A. for the State and perused the record.

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(2) Present petition under Section 482 Cr.P.C. has been preferred to quash the impugned order of framing of charge dated 03.03.2022 and also the impugned order rejecting discharge application dated 28.02.2022 passed by the learned Special Court (M.P./M.L.A.), Allahabad as well as entire criminal proceedings in Sessions Trial No. 623 of 2019, arising out of Case Crime No. 70 of 2019, under Sections 302, 304 and 120-B IPC, Police Station- Bara, District - Allahabad.

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(3) The brief facts of the case as given in the application u/s 482 Cr.P.C. are that in the intervening night of 30/31-03-2019 the alleged incident had occurred in the house of the respondent no. 2 in which one Vinamra Singh was killed by unknown persons with an intention to commit robbery or due to some animosity. At the time of incident, deceased Vinamra Singh was at home with his grand-mother and on seeing his dead body, his grand-mother started shouting and weeping, whereby the residents of the village reached there at 5.30 AM, thereafter, the FIR was lodged by the informant Jai Singh on 31.03.2019 at 9.16 AM against unknown persons under Section 394 and 302 IPC.

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(4) Learned counsel for the applicants has submitted that the applicants are not named in the FIR and there is no direct evidence against the applicants to prove the case of grave suspicion against the applicants and for framing of charges against them under Section 302, 404 and 120 B I.P.C.

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(5) Learned counsel for the applicants has further submitted that name of the applicants had come to the light on the information given by the informer to the Police that if one Jeetlal would be interrogated the truth will be revealed. On the information of the informer the police had recorded the statement of Jeetlal on 25.04.2019 i.e after about twenty-four days of the incident. It is further submitted that the statement of one Shri Muneem Singh brother-in-law of Jeetlal was also recorded on 25.04.2019, but subsequently Muneem Singh moved an application before the SSP that he had never ever given any statement to the Police nor he was interrogated by the Police. It is further submitted that Muneem Singh also stated in the application that he is not a resident of the village Osha where the incident had occurred. He resides at Rewa, MP and he was at his home at Rewa at the time of alleged incident, hence, there is no question of recording his statement by the police under Section 161 Cr.P.C.

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(6) In support of his submissions, learned counsel for the applicants has relied upon the following judgments.

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1. Sajjan Kumar Vs. Central Bureau of Investigation reported in (2010) 9 SCC 368.

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2.Rajiv Thapar and others Vs. Madan Lal Kapoor reported in (2013) 3 SCC 330

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3. Yogesh Alias Sachin Jagdish Joshi Vs. State of Maharastra reported in (2008) 10 SCC 394

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(7) The relevant para 21 relied by learned counsel for the applicants in the case of Sajjan Kumar (supra) , is quoted hereinbelow :-

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21. On consideration of the authorities about the scope of Section 227 and 228 of the Code, the following principles emerge:-

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(i) The Judge while considering the question of framing the charges under Section 227 of the Cr.P.C. has the undoubted power to sift and weigh the evidence for the

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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.

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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.

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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.

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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.

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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.

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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 discloses 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.

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

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(8) The relevant paras i.e. para nos. 28 and 30 of the judgment of Hon'ble Supreme Court in the case of Rajiv Thapar (supra), relied by learned counsel for the applicnt is quoted hereinbelow:-

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28. The High Court, in exercise of its jurisdiction under Section 482 of the Cr.P.C., must make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of allegations levelled by the prosecution/complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused is. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so, because it would result in giving finality to the accusations levelled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in a position to succeed, by establishing his defences by producing evidence in accordance with law. There is an endless list of judgments rendered by this Court declaring the legal position, that in a case where the prosecution/complainant has levelled allegations bringing out all ingredients of the charge(s) levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations levelled, trial must be held. "

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30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Cr.P.C.:-

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30.1 Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality?

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30.2 Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false.

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30.3 Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant?

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30.4 Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?

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30.5 If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal proceedings, in exercise of power vested in it under Section 482 of the Cr.P.C. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused. "

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(9) The relevant para i.e. para no. 15 of the judgment of Hon'ble Supreme Court in the case of Yogesh Alias Sachin Jagdish Joshi (supra). relied by the learned counsel for the applicant is quoted hereinbelow :-

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15. It is trite that the words "not sufficient ground for proceeding against the accused" appearing in the Section postulate exercise of judicial mind on the part of the Judge to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. However, in assessing this fact, the Judge has the power to sift and weigh the material 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 a prima facie case depends upon the facts of each case and in this regard it is neither feasible nor desirable to lay down a rule of universal application. By and large, however, if two views are equally possible and the Judge is satisfied that the evidence produced before him gives rise to suspicion only as distinguished from grave suspicion, he will be fully within his right to discharge the accused. At this stage, he is not to see as to whether the trial will end in conviction or not. The broad test to be applied is whether the materials on record, if unrebutted, makes a conviction reasonably possible. [See: State of Bihar Vs. Ramesh Singh and Prafulla Kumar Samal"

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(10) On the other hand, learned AGA and learned counsel for the Respondent No.2 have submitted that while deciding the application for discharge under Section 227 Cr.P.C. and framing of charge under Section 228 Cr.P.C. the court has to see whether prima-facie the offence is made out against the accused persons or not.

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(11) Learned AGA has further submitted that this Court under Section 482 Cr.P.C. cannot conduct a mini trial and relied upon the judgment of Hon'ble Supreme Court in the case of State of Rajasthan

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Vs. Ashok Kumar Kashyap reported in 2021 0 Supreme (SC) 198 and also submitted that there is no illegality in the order passed by the trial court while rejecting the discharge application and the application for framing charges against the applicant, the relevant paras 9 & 11of the judgment in the case of State of Rajasthan (Supra) are quoted hereunder :-

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9. While considering the legality of the impugned judgment and order passed by the High Court, the law on the subject and few decisions of this Court are required to be referred to.

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9.1 In the case of P.Vijayan (supra), this Court had an occasion to consider Section 227 of the Cr.P.C. What is required to be considered at the time of framing of the charge and/or considering the discharge application has been considered elaborately in the said decision. It is observed and held that 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. It is observed that in other words, the sufficiency of grounds 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. It is further observed that if the Judge comes to a conclusion that there is sufficient ground to proceed, he will frame a charge under Section 228 Cr.P.C., if not, he will discharge the accused. It is further observed that while exercising its judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution, 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.

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9.2 In the recent decision of this Court in the case of M.R. Hiremath (supra), one of us (Justice D.Y.

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Chandrachud) speaking for the Bench has observed and held in paragraph 25 as under:

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25. The High Court ought to have been cognizant of the fact that the trial court was dealing with an application for discharge under the provisions of Section 239 CrPC. The parameters which govern the exercise of this jurisdiction have found expression in several decisions of this Court. It is a settled principle of law that at the stage of considering an application for discharge the court must proceed on the assumption that the material which has been brought on the record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary to constitute the offence. In State of T.N. v. N. Suresh Rajan [State of T.N. v. N. Suresh Rajan, (2014) 11 SCC 709, adverting to the earlier decisions on the subject, this Court held: (SCC pp. 721-22, para 29) “29. … At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage.”

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11. Having considered the reasoning given by the High Court and the grounds which are weighed with the High Court while discharging the accused, we are of the opinion that the High Court has exceeded in its jurisdiction in exercise of the revisional jurisdiction and has acted beyond the scope of Section 227/239 Cr.P.C. While discharging the accused, the High Court has gone into the merits of the case and has considered whether on the basis of the material on record, the accused is likely to be convicted or not. For the aforesaid, the High Court has considered in detail the transcript of the conversation between the

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complainant and the accused which exercise at this stage to consider the discharge application and/or framing of the charge is not permissible at all. As rightly observed and held by the learned Special Judge at the stage of framing of the charge, it has to be seen whether or not a prima facie case is made out and the defence of the accused is not to be considered. After considering the material on record including the transcript of the conversation between the complainant and the accused, the learned Special Judge having found that there is a prima facie case of the alleged offence under Section 7 of the PC Act, framed the charge against the accused for the said offence. The High Court materially erred in negating the exercise of considering the transcript in detail and in considering whether on the basis of the material on record the accused is likely to be convicted for the offence under Section 7 of the PC Act or not. As observed hereinabove, the High Court was required to consider whether a prima facie case has been made out or not and whether the accused is required to be further tried or not. At the stage of framing of the charge and/or considering the discharge application, the mini trial is not permissible. At this stage, it is to be noted that even as per Section 7 of the PC Act, even an attempt constitutes an offence. Therefore, the High Court has erred and/or exceeded in virtually holding a mini trial at the stage of discharge application."

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(12) Learned counsel for the Respondent No. 2 has relied upon Para 24 of the case of Sajjan Kumar (supra). For convenience, the relevant para i.e. para no. 24 is quoted hereinbelow:-

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“24. At the stage of framing of charge under Section 228 of the Cr.P.C. or while considering the discharge petition filed under Section 227, it is not for the Magistrate or a Judge concerned to analyse all the materials including pros and cons, reliability or acceptability etc. It is at the trial, the Judge concerned has to appreciate their evidentiary value, credibility or otherwise of the statement, veracity of various documents and free to take a decision one way or the other."

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(13) Learned A.G.A. has further submitted that the judgments relied by the learned counsel for the Applicant are of no help to the applicants as in the said judgments, it has been held that broad test to be applied is whether the material on record if unrebutted, make a conviction reasonably possible and the test to determine a prima-facie case depends upon the facts of each case and no principle of universal application can be laid down.

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(14) After hearing learned counsel for the parties and going through the record and the judgment cited by the learned counsel for the respective parties, it is found that the submission of learned counsel for the applicants regarding the statement of Jeetlal was recorded after twenty days and the statement of Muneem Singh, who subsequently made an application before the Senior Superintendent of Police after two months, which is sufficient to take out the applicants from the purview of grave suspicion and the rejection of discharge application and order for framing of charges are bad in the eyes of law. The aforesaid submission on behalf of applicants is not acceptable as the Court below while rejecting the discharge application and order for framing of charges has not taken into consideration the statement of Jeetlal and Muneem Singh.

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(15) The trial court on the basis of statements of Rampal Singh, Shailendra Singh, Ravikiran and Pankaj Singh recorded under Section 161 Cr.P.C., wherein Rampal Singh has specifically stated that the murder was committed by Awadh Kumar Singh; Shailendra Singh in his statement has stated about the role of the accused Samarjeet Singh alias Samar Singh- Applicant no. 5 and also statement of a witness about the motive of the applicants for committing the offence and after considering all these aspect the discharge application has been rejected.

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(16) As far as the submission of learned counsel for the applicants regarding suspicion and grave suspicion while deciding the application for discharge and framing of charges depends upon the

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facts and circumstances of the individual case. In the present case, the body of the deceased was lying in the Varanda of the house and cable wire of the fridge was wrapped in one leg and was connected with the power board. The forensic team collected certain material from the place of incident, which includes soil stained by the omitting of the deceased bloodstained bed-sheet, one Raxene belt, one cable of fridge, soil stained by saliva from the street at a distance of about 20 meters. In the post mortem report, two ante mortem injuries were mentioned. The forensic report is still awaited. All these materials collected from the place of incident, makes it certain that deceased was killed / murdered and truth of heinous crime would only come out during trial by adducing of evidence. The Investigating Officer has claimed that on being asked the villagers, who disclosed in guarded language that a dispute of committee of management of Maharaj Prasad Junior High School, Osa is going on between the Applicant No.1 and Jail Singhfather of the deceased. From the statement of witnesses in which applicants are named and motive to commit the offence by applicants has also been stated. All these materials take the applicants in dark clouds of grave suspicion and these can only be cleared during the trial by adducing the evidence.

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(17) At the stage of framing of charge, the Court concerned is not supposed to analyse all the materials including pros and cons, reliability or acceptability of evidence, etc. It is at the trial, the judge concerned has to appreciate their evidentiary value, credibility or otherwise of the statements, veracity of various documents and is free to take a decision one way or the other. In the present case, the order for rejecting the discharge application and for framing the charges has been passed after considering the evidence available on the record that a prima facie case is made out against the accused persons i.e. the present applicants.

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(18) The Para 21 of the Case of Sajjan Kumar (Supra) relied upon by the learned counsel for the applicants is not of any help to the present applicants as in the said judgement in view of what has been held as contained in Para 24 of the same judgement in the case of Sajjan Kumar (Supra), where it is clearly held that it is at the trial that the judge concerned has to appreciate the evidentiary value and credibility of the witnesses or otherwise of the statement, veracity of various documents and it would be free to take decision in any way or the other.

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(19) The judgment of Hon'ble Supreme Court in the case of Rajiv Thapar (supra), relied upon by the learned counsel for the applicant is of no help to the applicant as in this case, it has been held that even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before the trial, otherwise, it would result in giving finality to the accusation levelled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The broad test to be applied is whether the materials on record, if unrebutted, makes a conviction reasonably possible.

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(20) The judgement relied upon by learned A.G.A. in the case of State of Rajasthan Vs. Ashok Kumar Kashyap reported in (2021) 11 SCC 191, wherein it has been held that under Section 482 Cr.P.C. this Court cannot take a mini trial. It has further been held that the High Court cannot go into the merits of the case and shall not go into detail, the only thing which is to be seen whether or not a prima facie case is made out and defence of the accused is not to be considered.

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(21) At the stage of framing of charge, the Court concerned is not suppose to analyse all the materials including pros and cons, reliability or acceptability, etc. It is at the trial, the judge concerned has

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to appreciate their evidentiary value, credibility or otherwise of the statements, veracity of various documents and is free to take a decision one way or the other. This court cannot take a mini trial and cannot go into the merits of the case. There was no material before the trial court to disbelieve the reliability or acceptability etc. of the material relied upon while rejecting the discharge application and framing of the charges against the applicants. The applicants have neither pleaded nor enclosed any document nor argued regarding the veracity or to disbelieve the statements of Rampal Singh, Shailendra Singh, Ravikiran and Pankaj, which have been taken into consideration while passing the order dated 28.02.2022 rejecting the discharge application and order dated 03.03.2022 for framing the charge.

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(22) As per the law laid down by the Hon’ble Supreme Court wherein it has been held that it is a settled principle of law that at the stage of considering an application for discharge the court must proceed on the assumption that the material which has been brought on the record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, prima facie, disclose the existence of the ingredients necessary to constitute the offence. It also emerges out that the High Court is not supposed to go into the merits of the case and the mini trial is not permissible at the state of framing of charge and considering the discharge application.

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(23) In view of the discussions made hereinabove, there is no illegality in the orders of framing of charge dated 03.03.2022 and also the impugned order rejecting discharge application dated 28.02.2022 and hence, no interference is required in the present case.

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(24) Petition is devoid of merit and is accordingly, dismissed .

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Order Date :- 12.5.2022 S. Kumar

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Digitally signed by SANTOSH KUMAR Date: 2022.05.24 09:54:39 IST Reason: Location: High Court of Judicature at Allahabad

Awadh Kumar Singh @ Nanhe Singh and 4 Others v. State of U.P. and Another

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Awadh Kumar Singh @ Nanhe Singh and 4 Others v. State of U.P. and Another

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