Heard learned counsel for the applicants and the learned A.G.A. as well as perused the material placed on record.
The applicants by way of filing this application under Section 482 Cr.P.C. have sought to quash the impugned order dated 16.7.2011 passed by the Additional Sessions Judge, Court No.11, Aligarh in S.T. No.365 of 2011 (State Vs. Ehsan and others), under Sections 147,148.149,302,307 IPC, P.S. Kotwali Nagar, District Bulandshahr.
Shorn of unnecessary details the facts leading to the filing of the application under section 482 Cr.P.C. in brief are that the on 2.8.2010 at about 4.15 p.m. one Nadeem Hussain lodged the report against the applicants and six other co-accused persons at police station Kotwali Nagar, District Bulandshahr, under Sections 147,148.149,302,307 IPC & 7 Criminal Law Amendment Act vide case crime no.606 of 2010 pertaining to the incident alleged to have taken place on the same day i.e. 2.8.2010 at 3.30pm.
According to the prosecution case, on the date and time of incident mentioned all the applicants and other co-accused persons opened indiscriminate firing upon the deceased and the injured. Resultantly, Iftekhar Khan, the brother of the informant, had succumbed to his firearm injuries on the spot while the informant and Zahid have received firearm injuries and were shifted to the hospital for the treatment.
The police after investigation as usual submitted the charge sheet dated 3.11.2010 against the applicants and other co-accused persons in the court of Chief Judicial Magistrate, Bulandshahr. The case was committed to the court of session.
It transpires that in furtherance of the order passed by another Bench of this Court dated 28.3.2011 in Transfer Application No.708 of 2010 the sessions trial no.1330 of 2010, State Vs. Ehsan and others was transferred from district Bulandshahr to district Aligarh for trial which is now pending before Additional District & Sessions Judge, Court no.2, Aligarh as S.T. No.365 of 2011.
The applicants claimed discharge from the offence and on their behalf an application (38 Kha) was moved in support of their contentions and the original Passport, Visa, Duplicate ITR and an information of RTI as well as SIM issued from Bangkok were also filed.
On the other hand, the prosecution raised an objection that the application (38 Kha) has been given intentionally at this stage for the purposes of vexation or delay for defeating the ends of justice and further declared the aforesaid documents in support thereof to be forged and concocted, hence their genuineness was not admitted. The trial court after having considered the contentions of the parties and the other aspect of the matter, dismissed the application for discharge vide impugned order dated 16.7.2011 holding that there is no scope for the accused to produce any evidence in respect of his submission made on his behalf at the stage of framing of charge and it is open to the accused to produce the evidence, if any, in their defence at the stage of Section 233 Cr.P.C.
Being aggrieved with the impugned order, the applicants have preferred this application inter alia on the only ground that the applicants are the real brothers and were present in Bangkok on the alleged date and time of the incident. They have claimed plea of alibi.
It is argued by the learned counsel for the applicants that the trial court at the stage of framing of charge can look into those documents which are unimpeachable and can be legally in translated into relevant evidence. The documents produced by the applicants are the public document which convincingly demonstrate that the whole prosecution story is concocted and absurd. From any stretch of imagination, the applicants' presence at the scene of occurrence on the relevant date and time cannot be believed. The present prosecution is, therefore, instituted against the applicants, with malafide intentions for the purposes of harassment. It transpires that the impugned order has been passed mechanically in a routine manner without application of judicial mind and is liable to be set aside. Learned counsel for the applicants in support of his contentions relied upon the Hon'ble Supreme Court's decision in Rukmini Narvekar Versus Vijaya Satardekar 2008 (14) Supreme Court Cases 1.
On the other hand, learned A.G.A. has opposed this application and submitted that from perusal of the material on record and looking in the facts of the case at this stage, it cannot be said that no offence is disclosed against the applicants. The accused applicants shall be called upon to enter on their defence and any evidence in their support, at the appropriate stage. The disputed question of fact cannot be adjudicated upon by this court under Section 482 Cr.P.C.
Taking note of the submissions made by the counsel for the parties and having perused the material placed on record, I am of the view that the trial court has not committed any serious error in passing the impugned order insofar as it did not enter into the realm of appreciation of the evidence at the stage of consideration of discharge application. The jurisdiction of the trial judge while exercising the power under Section 227 of Code of Criminal Procedure is limited. Hon'ble Apex Court has settled the legal position in the catena of decisions that after on the basis of the material on record, the court forms the opinion that the accused might have committed the offence it can frame the charges, though for the conviction the case is required to be proved beyond reasonable doubt that the accused has committed the offence. At the stage of the framing of 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 this stage.
Hon'ble Apex Court in the cases of Palvinder Singh Versus Balvinder Singh 2009 (65) ACC 399 and Yogesh alias Sachin Jagdish Joshi Versus State of Maharashtra [2009(1) JIC 315 (SC)], has held that charges can be framed also on the basis of the grave/strong suspicion. Marshalling and appreciation of evidence is not in the domain of the court at the point of framing of charge.
In the case of Onkar Nath Mishra Versus State of N.C.T. of Delhi, 2008 Volume 1 Supreme Court Cases (Criminal), 507 Hon'ble Apex Court has held in para 11 as noted below:
11. It is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion funded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence."
The Hon'ble Apex Court has further urged that it is beyond any doubt or suspicion that at the stage of framing of charges, the court will not weigh the evidence. The stage for appreciating the evidence for the purpose of arriving at a conclusion as to whether the prosecution was able to bring home the charge against the accused or not would arise only after all the evidence is brought on record at the trial. It would only have to see as to whether a prima facie case has been made out where a case of probable conviction for commission of an offence has been made on the basis of the materials found during the course of investigation should be the concern of the court. It, at this stage, would not delve deep into the matter for the purposes of appreciation of evidence. It would ordinarily not consider as to whether the accused would be able to establish his defence, if any.
A Full Bench of the Hon'ble Supreme Court in the case of State of Orissa Versus Debendra Nath Padhi 2005 Volume 1 Supreme Court Cases (Cri), 415 after considering several decisions held that there can only be limited evaluation of materials and documents on record and shifting of evidence to prima facie finding out whether sufficient ground exists or not for the purpose of proceeding further in the trial, being so held with reference to the materials and documents produced by the prosecution and not the accused. It is settled legal position that the material as produced by the prosecution alone is to be considered and not one produced by the accused and ultimately expressed opinion that at the time of charge and cognizance the accused has no right to produce any material. It has further been held that the accused has no right to produce any document at the time of framing of charge, having regard to the clear mandate of Sections 227 and 228 contained in Chapter VII and Section 339 and 340 in Chapter XIX. The Full Bench has further observed that the width of powers of the High Court under Section 482 Cr.P.C. and Article 226 of the Constitution of India is unlimited whereunder in the interest of justice the High Court can make such orders as may be necessary to prevent abuse of process of court or otherwise to secure the ends of justice within the parameters laid down in Bhajan Lal's case 1992 (Supplementary) (1) SCC page 335.
Moreover, in this light the Hon'ble Apex Court in its recent decision in the case of Rukmini Narvekar Versus Vijaya Satardekar (2009) 1 Supreme Court Cases (Cri) 721 after considering its earlier decisions has been pleased to observe in paras 21 and 22 of the judgement as follows:
"21. We should also keep in mind that it is well settled that a judgement of the Court has not to be treated as Euclid's formula (vide Rajbir Singh Dalal (Dr) v. Chaudhari Devi Lal University). As observed by this Court in Bharat Petroleum Corpn. Ltd. V. N.R. Viramani, observations of courts are neither to be read as Euclid's formula nor as provisions of the statute.
22. Thus in our opinion, while it is true that ordinarily defence material cannot be looked into by the court while framing of the charge in view of D.N. Padhi case, there may be some very rare and exceptional cases where some defence material when shown to the trial court would convincingly demonstrate that the prosecution version is totally absurd or preposterous, and in such very rare cases the defence material can be looked into by the court at the time of framing of the charges or taking cognizance. In our opinion, therefore, it cannot be said as an absolute proposition that under no circumstance can the court look into the material produced by the defence at the time of framing of the charges, though this should be done in very rare cases i.e. where the defence produced some material which convincingly demonstrate that the whole prosecution case is totally absurd or totally concocted."
Therefore, it is now settled legal position that material produced by the prosecution alone is to be considered and not one produced by the accused and ultimately it is also settled that at the time of the framing of charges or taking cognizance, the accused has no right to produce any material. However, it is open to this Court to consider the material that may be produced on behalf of the accused to arrive at a decision whether the charge as framed could be maintained in exercise of power conferred under Sections 482 of Code of Criminal Procedure provided the evidence/documents produced are unimpeachable and can be legally translated into relevant evidence.
Reverting back to the present case, the applicants are involved in broad-day-light murder case in which allegedly one person has died on the spot and two persons have also sustained firearm injuries. Their presence on the spot is prima facie is not doubtful. The applicants are named in the First Information Report, serious allegations have been made against the applicants and on the basis of the material collected by the Investigating Officer on submission of charge sheet, cognizance of the offence has been taken by the concerned court. In view of this matter, documents/evidence produced by the applicants have been disputed by the prosecution. The material/evidence produced by them does not convincingly demonstrate that the prosecution is totally absurd or totally concocted. Therefore, the plea which accused applicants took for their discharge could be taken by them at the time of the trial, and it would not be appropriate to truncate or snip the proceeding at this stage. When the all important probablies /factors echos in favour of the prosecution. The disputed defence of the accused applicants cannot be considered at this stage.
Shorn of all superfluities and to sum up, it may be observed that the impugned order dated 16.7.2011 passed by the Additional Sessions Judge is well in conformity in law and does not suffer with material irregularity or illegality, therefore, does not warrant any interference in this application under Section 482 Cr.P.C. Therefore, application has no force and is liable to be dismissed.
The application is accordingly dismissed.
Order Date :- 18.10.2011 Mt/