Court No. - 49
Case :- APPLICATION U/S 482 No. - 29106 of 2018 Applicant :- Ankit Tripathi And 5 Ors Opposite Party :- State Of U.P. And Anr Counsel for Applicant :- Prakash Veer Tripathi Counsel for Opposite Party :- G.A.
Hon'ble Saumitra Dayal Singh,J.
Heard learned counsel for the applicants and learned A.G.A. for the State.
The present 482 Cr.P.C. application has been filed to quash the impugned order dated 21.07.2018 passed by the Addl. Sessions Judge, Court No. 4, Basti as well as the entire proceedings of Session Trial No. 225 of 2017 (State Vs. Narayan Dutt Tripathi and Others), arising out of Case Crime No. 783 of 2015, under Sections- 147, 323, 504, 506, 325, 308 I.P.C., Police Station- Sonha, District- Basti, pending in the court of 4th Addl. Sessions Judge, Basti by which the learned Court below has rejected the discharge application filed by the applicants.
Admittedly, the applicants have been summoned under Sections- 147, 323, 504, 506, 325 and 308 IPC.
While perusal of the material that has been filed along with the present application and upon hearing learned counsel for the applicants, it cannot be disputed that at present, there is material to justify the continuation of trial proceedings under Sections 323 and 325 IPC, a strong objection has been raised to the rejection of the discharge application qua offence alleged under Section 308 IPC. In that regard, it is submitted, perusal of the injury report read with the FIR does not make out ingredients of offence alleged under Section 308 IPC.
Further, reliance has been placed on such case diary material to submit that if all of it had been considered in entirety, the learned Court below would perhaps have reached to a conclusion that ingredients of offence under Section 308 are not mad out. However, the learned court below has rejected the application of the applicants on the observation that at this stage, the detailed examination of the case diary material is not required.
In this context, further reliance has been placed on a judgment of this Court in the case of Pooja Vs. State of U.P. reported in 2012 (1) ADJ 478 wherein this Court has observed as under:
"11. In case of Yogesh alias Sachin Jagdish Joshi (supra), the Apex court held that it is trite that the words "not sufficient ground for proceeding against the accused" appearing in section 227 Cr.P.C., 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 face 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, make a conviction reasonably possible.
14. In the case of Sajjan Kumar (Supra) the Apex Court has formulated the following guidelines with regard to the question as to how a matter for framing a charge against the accused is to be dealt with:
"(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 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 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 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.
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.
15. A survey of the aforesaid decisions reveals that the accused has no right to adduce any evidence or material at the stage of charge nor the court is required to consider any defence evidence. At that stage the materials collected during the investigation and placed before the court in support of the police report submitted under section 173 of the Code are the only relevant materials. While considering the question to frame a charge against the accused or to discharge him, the court cannot act merely as a post office or a mouthpiece of the prosecution but has to see whether the ingredients of the offence to be charged, are made out from such materials. If any ingredient is missing in the material, the charge cannot be framed. Moreso, the materials produced by the prosecution have to be taken at their face value and at that stage the court is not required to consider pros and cons of the case and to hold an enquiry to find out truth. Marshalling and appreciation of evidence is not in the domain of the court at that point of time. What is required from the court is to sift and weigh the materials for the limited purpose of finding out whether or not a prima facie case for framing a charge against the accused has been made out. Even in a case of grave or strong suspicion charge can be framed. The court has to consider broad probabilities of the case, total effect of the evidence and the documents produced including basic infirmities, if any. 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, but the court should not weigh the evidence as if it were holding trial. Accused can be discharged only when the charge is groundless."
(emphasis supplied) Learned AGA on the other hand submits that insofar as prima facie offence appears to have been made out against the applicants, the learned Court below has not erred in rejecting the discharge application.
Having considered the arguments so advanced by learned counsel for the parties, while no interference is warranted in the impugned order in so far as the discharge application of the applicant has been rejected qua offence alleged under Sections 147, 323, 504, 506 and 325 IPC, at the same time, insofar as the said application has been rejected qua offence alleged under Section 308 IPC, the impugned order does not appear to satisfy the above noted test and that the learned Court below does not appear to have actually sifted through the entire case diary material before reaching any conclusion that the applicants were liable to be proceeded against under Section 308 IPC.
Without making any observation that may affect the merits of the case, the order dated 21.07.2018 passed by the Addl. Sessions Judge, Court No. 4, Basti is set aside and the matter is remitted to the learned Court below to pass a fresh order, in accordance with law, insofar as the applicants' discharge application has been rejected with respect to offence alleged under Section 308 IPC.
The aforesaid exercise may be concluded as expeditiously as possible, preferably within a period of two months from the date of production of a certified copy of this order.
With the aforesaid observation, the present application is
disposed of.
Order Date :- 23.8.2018 Abhilash