Heard Sri Angrej Nath Shukla, learned counsel for applicants, Sri Rupendra Kumar Singh, learned counsel representing the State and perused the record.
The instant application has been filed by the applicants for quashing the order dated 30.7.2021, passed by the learned Chief Judicial Magistrate, Gonda in Criminal Misc.Case No.171 of 2017, arising out of Case Crime No.148 of 2015, under Sections 332,427,504,506 I.P.C. & Section 151 Railway Act, P.S.Karnailganj, District Gonda, whereby an application of the applicants for discharge has been rejected as well as all the proceedings of the above mentioned case pending before the court below.
Learned counsel for applicants has submitted that the trial court has committed manifest illegality in opining that the points which have been raised by the applicants for the purpose of their discharge shall be considered at the time of trial subject to the evidence led by the parties. Highlighting the order of the trial court it is vehemently submitted that the trial court has committed material illegality in the light of the settled law laid down in the catena of judgments propounded by the Hon'ble Supreme Court.
It is further submitted that the trial court has not considered the points raised by the applicants in the application in right perspective and has passed whimsical order, therefore, the order of the subordinate court is illegal and the same may be quashed.
Learned Additional Government Advocate submits that the law with regard to the framing of charge and discharge is well settled by catena of judgments of Hon'ble Supreme Court and the same is now res integra and at the stage of framing of charge, the Magistrate is only required to see a prima facie case only for the purpose of proceeding further and the quality of evidence is not required as desired for the conviction, therefore, no illegality or to say any irregularity has been committed by the trial court.
Having heard learned counsel for parties and having perused the record it is evident that the FIR in the instant case was lodged by the opposite party no.2 against the applicants on 4.5.2015 pertaining to an incident occurred on 4.5.2015 wherein the informant was allegedly assaulted by the accused persons and his phone was also destroyed by the accused persons. After investigation of the same, the charge sheet has been filed against the applicants under Sections 332,427, 504,506 I.P.C. and Section 151 of Railway Act. The applicants have earlier approached this Court by filing a Petition (u/s.482) 1982 of 2021 praying therein to quash the charge sheet as well as the summoning order and all the proceedings of the case pending before the court below and this Court vide its order dated 7.6.2021 disposed of the same by directing that the applicants may move a discharge application through counsel before the trial court and the trial court shall after providing an opportunity of being heard to the parties, decide the same expeditiously.
Before adverting to the conclusions drawn by the court below while rejecting the application of the applicants for discharge it will be fruitful to discuss the law pertaining to the discharge of an accused person in a criminal trial.
In State of Bihar v. Ramesh Singh MANU/SC/0139/1977 : 1977 CriLJ 1606 , considering the scope of Sections 227 and 228 of the Code, it was held that at the stage of framing of charge it is not obligatory for the Judge to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. At that stage, the court is not to see whether, there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion, at the initial stage of framing of charge, is sufficient to frame the charge and in that event it is not open to say that there is no sufficient ground for proceeding against the accused.
Hon'ble Supreme Court in the case of State- Anti Corruption Bureau, Hyderabad and another Vs. P. Suryaprakasam reported in 1999 Supreme Court Cases (Cri) 373 has held as under:
"5. ...........we are constrained to say that the settled law is just the reverse of what the High Court has observed in the above- quoted passage as would be evident from even a cursory reading of Sections 239 and 240 Cr.P.C., which admittedly govern the case of the respondent. According to the above sections, at the time of framing of a charge what the trial court is required to, and can, consider are only the police report referred to under Section 173 Cr.P.C. and the documents sent with it. The only right the accused has at that stage is of being heard and nothing beyond that......."
Hon'ble Supreme Court in the case of State of Delhi Vs. Gyan Devi and others (2008) 8 Supreme Court Cases 239, held as under:
"7. .....The legal position is well settled that at the stage of framing of charge the Trial Court is not to examine and assess in detail the material placed on record by the prosecution nor is it for the Court to consider the sufficiency of the materials to establish the offence alleged against the accused persons. At the stage of charge the Court is to examine the materials only with a view to be satisfied that a prima facie case of commission of offence alleged has been made out against the accused persons. It is also well settled that when the petition is filed by the accused under Section 482 Cr.P.C. seeking for the quashing of charge framed against them the Court should not interfere with the order unless there are strong reasons to hold that in the interest of justice and to avoid abuse of the process of the Court a charge framed against the accused needs to be quashed. Such an order can be passed only in exceptional cases and no rare occasions. It is to be kept in mind that once the Trial Court has framed a charge against an accused the trial must proceed without unnecessary interference by a superior court and the entire evidence from the prosecution side should be placed on record. Any attempt by an accused for quashing of a charge before the entire prosecution evidence has come on record should not be entertained sans exceptional cases."
Hon'ble Supreme Court in the case of Sajjan Kumar Vs. Central Bureau of Investigation (2010) 9 SCC 368 has held as under:
20. ........ It is also clear that in exercising jurisdiction under Section 227 of Cr.P.C., the Magistrate should not make roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
Exercise of jurisdiction under Sections 227 & 228 of Cr.P.C.
21. On consideration of the authorities about the scope of Section 227 and 228 of the Code, the following principles emerge:
(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.
Having regard to the law laid down by Hon'ble Supreme Court in the above mentioned cases if the facts of the present case are scrutinized within the permissible limits mentioned herein above, it is apparent that the trial court has not committed any illegality. The duty of the trial court was to visualize whether there is sufficient material, which prima facie connects the applicants - accused persons with the crime and if this element was there then it was the duty of the trial court to frame the charges against the applicants. Need not to say that the law leans in favour of trial and culmination of trial at an early stage is an exception and the onus is on the accused persons to show that the material/evidence against them is not of such a character whereon the charges could be framed.
In the considered opinion of this Court and having regard to the law laid down by the Hon'ble Supreme Court, I do not find any illegality in the order of the subordinate court and the application filed by the applicants appears to be without any merit and the same is dismissed.
At this juncture learned counsel for applicants submits that since an opportunity was given to the applicants to appear before the trial court through counsel and move an application under Section 227 of Cr.P.C, they have not yet obtained bail and it is apprehended that if they will appear before the court below with an application, disposal of their bail application will take a long time. Apprehension of the applicants appears to be not well founded, a seven judges Bench of this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 and Hon'ble Apex Court in Lal Kamlendra Pratap Singh Vs. State of U.P. reported in 2009 (3) ADJ 322 (SC) and in Hussain and Ors. Vs. Union of India (UOI) and Ors. reported in MANU/SC/0274/2017 have given various directions to criminal Courts for expeditious disposal of Bail applications. The ratio of above mentioned decisions is quite clear that, in the backdrop of Article 21 of the Constitution of India as the personal liberty of a person is at stake, the bail applications should be decided, expeditiously.
In backdrop of aforesaid decisions and keeping in view the entirety of facts and circumstances of the case and having regard to the submissions of learned counsel for the applicants, it is directed that if the applicants appear and surrender before the court below within 15 days from today and apply for bail, their prayer for bail shall be considered and decided expeditiously in accordance with law.
Order Date :- 12.8.2021 Irfan