Court No. - 48
Case :- APPLICATION U/S 482 No. - 6557 of 2018
Applicant :- Govind Lal And Another Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Santosh Dwivedi Counsel for Opposite Party :- G.A.
Hon'ble Karuna Nand Bajpayee,J.
This application u/s 482 Cr.P.C. has been filed against the order dated 11.01.2018 passed by the Additional Chief Judicial Magistrate, Court no.3, Varanasi in Complaint Case No. 1694 of 2002 and Criminal Case No.4623 of 2016 (Savitri vs. Lal Babu and others), under Sections-406, 420, 467, 468, 471 I.P.C., P.S.-Cantt., District-Varanasi, whereby charges have been framed against the applicants.
Mr. Syed Imran Ibrahim and Mr. Praveen Kumar Singh, Advocates filed their power jointly today on behalf of opposite party no.2, which is taken on record.
Heard learned counsel for the applicants, learned counsel for opposite party no.2 as well as learned A.G.A.
Entire record has been perused.
All the contentions raised by the applicants' counsel relate to disputed questions of fact. The court has also been called upon to adjudge the testimonial worth of prosecution evidence and evaluate the same on the basis of various intricacies of factual details which have been touched upon by the learned counsel. The veracity and credibility of material furnished on behalf of the prosecution has been questioned and false implication has been pleaded.
Before proceeding to adjudge the validity of the impugned order it may be useful to cast a fleeting glance to some of the representative cases decided by the Hon'ble Supreme Court which have expatiated upon the legal approach to be adopted at the time of framing of the charge or at the time of deciding whether the accused ought to be discharged. In the case of State of Bihar vs. Ramesh Singh 1977 (4) SCC 39, the Hon'ble Supreme 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.
It was further observed that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial 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. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at this stage of deciding the matter under s. 227 and 228 of the Code. 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 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.
Although Ramesh Singh's case (supra) was primarily concerned with the scope of Section 227 or 228 of Cr.P.C., however, in a subsequent judgement of Hon'ble Supreme Court in the case of R.S. Nayak vs. A.R. Antulay and another, (1986) 2 SCC 716, the Ramesh Singh's case (supra) was not only considered but was also followed authoritatively while considering the scope of Section 245 of Cr.P.C., which is meant for complaint case proceedings under Chapter XIX (Part-B- cases instituted otherwise than on police report) of Cr.P.C.
In the case of R.S. Nayak (supra) the factual controversy arose on the basis of complaint filed before the Magistrate under Chapter XV of Cr.P.C. alleging therein commission of offences punishable under Sections 161, 165, 384 and 420 read with section 120 B I.P.C. as also Section 5 (2) read with Section 5 (1)(d) of the Prevention of Corruption Act, 1947, which was registered as Special Case and was transferred to the High Court of Bombay for trial under an order made by a Constitutional Bench of Hon'ble Supreme Court. When the said trial of Special case proceeded and quite a large number of prosecution witnesses were examined, the trial judge was invited to consider framing of several charges proposed by the prosecution. The trial judge framed few charges only and refused to frame remaining charges proposed by the prosecution and made an order of discharge in respect of those charges. This order of discharge under Section 245 Cr.P.C. was assailed before Hon'ble Supreme Court. It is this factual controversy, in which Hon'ble Supreme Court proceeded to consider the scope of Sections 244, 245 and 246 of Cr.P.C. and it shall be advantageous to refer to the observations made by the Hon'ble Apex Court, which are being quoted hereinbelow:
"44. As pointed out by the Constitution Bench in the judgment to which reference has been made, the relevant sections of the Code of Criminal Procedure ('Code' for short) for the trial of a case of this type are sections 244, 245 and 246. Section 245(1) provides :
"If upon taking of the evidence referred to in S. 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him."
While section 246 (1), on the other hand, requires :
"If when such evidence has been taken or at any previous stage of the case the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter which such Magistrate is competent to try and which in his opinion should be adequately punished by him, he shall frame in writing a charge against the accused."
The Code contemplates discharge of the accused by the Court of Sessions under s. 227 in a case triable by it; cases instituted upon a police report are covered by s. 239 and cases instituted otherwise than on police report are dealt with in s. 245. The three sections contain some what different provisions in regard to discharge of the accused. Under s. 227, the trial Judge is required to discharge the accused if he 'considers that there is not sufficient ground for proceeding against the accused.' Obligation to discharge the accused under s. 239 arises when "the Magistrate considers the charge against the accused to be groundless." The power to discharge is exercisable under s. 245(1) when "the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction..." It is a fact that ss. 227 and 239 provide for discharge being ordered before the recording of evidence and the consideration as to whether charge has to be framed or not is required to be made on the basis of the record of the case, including documents and oral hearing of the accused and the prosecution or the police report, the documents sent along with it and examination of the accused and after affording an opportunity to the two parties to be heard. The stage for discharge under s. 245, on the other hand, is reached only after the evidence referred to in s. 244 has been taken. Not-withstanding this difference in the position there is no scope for doubt that the stage at which the Magistrate is required to consider the question of framing of charge under s. 245(1) is a preliminary one and the test of "prima facie" case has to be applied. In spite of the difference in the language of the three sections, the legal position is that if the trial Court is satisfied that a prima facie case is made out, charge has to be framed.
45. In Mahant Abhey Dass v. S. Gurdial Singh & Ors., A.I.R. 1971 S.C. 834, this Court in case instituted on complaint applied the prima facie test. In State of Bihar v. Ramesh Singh, [1978] 1 S.C.R. 257, this Court again pointed out that the standard of test and judgment which is to be finally applied before recording a finding regarding guilt or otherwise of the accused, is not to be applied at the stage of deciding the matter under s. 227. It was further observed :
"If the evidence which the prosecution 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. An exhaustive list of circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But, if on the other hand, it is so at the initial stage of making an order under s. 227 or s. 228, then in such a situation ordinarily and generally, the order which will have to be made will be one under s. 228 (charge to be framed) and not under s. 227 (of discharge)".
Untwalia, J. who spoke for the Court in that case, quoted with approval the view expressed by Shelat, J. in Nirmaljit Singh Hoon v. State of West Bengal & Anr., [1973] 2 S.C.R. 66, and what had been said in yet another earlier decision of the Court in Chandra Deo Singh v. Prakash Chandra Bose, [1964] 3 S.C.R. 629. In the case of Union of India v. Prafulla Kumar Samal & Anr., [1979] 2 S.C.R. 229, (a decision to which the trial Court referred), this Court was dealing with a case involving allegations relating to offences punishable under s. 5(2) read with s.5(1)(d) of the Act and s. 120-B, IPC as here. Fazal Ali, J. indicated that the 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. In Superintendent and Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunia & Ors.,[1979] 4 S.C.C. 274, a three Judge Bench of this Court said:
"At this stage, as was pointed out by this Court in State of Bihar v. Ramesh Singh, (supra), the truth, veracity and the effect of the evidence which the prosecution proposes to adduce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise is not exactly to be applied. At this stage, even a very strong suspicion founded upon materials before the Magistrate which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged may justify the framing of charge.. "
The language of sub-s. (1) of s. 245 also places the matter beyond dispute by using the same test as suggested by Untwalia, J., in the case of Ramesh Singh, (supra)."
Useful reference in this context may also be made to the cases of Superintendent and Remembrancer of Legal Affairs, West Bengal Versus Anil Kumar Bhunja AIR 1980 (SC) 52 and Sanghi Brothers (Indore) Pvt. Ltd. v. Sanjay Choudhary AIR 2009 SC 9, wherein the law as enunciated in the cases quoted herein before finds its reaffirmation.
In fact while exercising the inherent jurisdiction under Section 482 Cr.P.C. or while wielding the powers under Article 226 of the Constitution of India the quashing of the complaint can be done only if it does not disclose any offence or if there is any legal bar which prohibits the proceedings on its basis. The Apex Court decisions in R.P. Kapur Vs. State of Punjab AIR 1960 SC 866 and State of Haryana Vs. Bhajan Lal 1992 SCC(Cr.) 426 make the position of law in this regard clear recognizing only certain categories by way of illustration which may justify the quashing of a complaint or charge sheet.
Illumined by the case law referred to herein above, this Court has adverted to the entire record of the case.
The submissions made by the applicants' learned counsel call for adjudication on pure questions of fact which may be adequately adjudicated upon only by the trial court and while doing so even the submissions made on points of law can also be more appropriately gone into by the trial court in this case. This Court does not deem it proper, and therefore cannot be persuaded to have a pre-trial before the actual trial begins. A threadbare discussion of various facts and circumstances, as they emerge from the allegations made against the accused, is being purposely avoided by the Court for the reason, lest the same might cause any prejudice to either side during trial. But it shall suffice to observe that the perusal of the complaint, the summoning order and also all other the material available on record makes out a prima facie case against the accused at this stage and this Court does not find any justifiable ground to set aside the impugned order of framing of charge against the accused. This court has not been able to persuade itself to hold that no case against the accused has been made out or to hold that the charge is groundless.
The prayer for quashing or setting aside the impugned order is refused as I do not see any illegality, impropriety and incorrectness in the impugned order or the proceedings under challenge. There is absolutely no abuse of court's process perceptible in the same. The present matter also does not fall in any of the categories recognized by the Supreme Court which might justify interference by this Court in order to upset or quash them.
However, in the peculiar facts and circumstances of the case, it may be observed that in case the accused appear before the court below and apply for bail within two months from today, the same shall be considered and decided expeditiously in accordance with law.
No coercive measures shall be taken or given effect to in the aforesaid period or till the date of appearance of the accused in the court below, whichever is earlier.
It is clarified that this order has been passed only with regard to the accused on behalf of whom this application u/s 482 Cr.P.C. has been moved in this Court.
With the aforesaid observations this application is finally disposed off.
Order Date :- 27.2.2018
M. Kumar