Court No. - 45
Case :- CRIMINAL REVISION No. - 1188 of 2011
Revisionist :- Ram Bahadur Dhobi And Others
Opposite Party :- State Of U.P. And Others
Counsel for Revisionist :- S.S. Rathore,Kapil Rathore,Vikram Deo Singh Rathore
Counsel for Opposite Party :- Govt. Advocate,Qazi Vakil Ahmad,Radhey Shyam
Hon'ble Siddharth,J.
Rejoinder affidavit filed today by learned counsel for the revisionists is taken on record.
Heard Shri Vikram Deo Singh Rathore, learned counsel for the revisionists, learned A.G.A. for the State and Shri Qazi Vakil Ahmad, learned counsel for the O.P. No.3.
Earlier the discharge application of the revisionists was rejected vide order dated 25.10.2010 passed by the trial court and Criminal Revision No.4912 of 2010 was preferred by the revisionists and it was disposed of by a detailed and reasoned order dated 4.1.2011, which is quoted hereinbelow:
“Heard learned counsel for the revisionists Sri Radhey Shyam for opposite party No.2 and learned AGA appearing on behalf of State.
This application in revision has been filed by the revisionists against the order dated 25.10.2010 passed by Chief Judicial Magistrate Ramabai Nagar, in Criminal Case No.4462 of 2007, State Vs Daya Singh and others by which the revisionists's discharge application has been rejected.
The facts of the case which are not in dispute are that the revisionist No.2 is a journalist by profession and the revisionist No.3 is his real younger brother. The revisionist No.1 and 4 are family friends of respondent No.2 and revisionist No.5 is his driver.
The revisionist No.1 who belongs to Scheduled Caste got a Mahindra jeep financed in the year 1996 from U.P.Scheduled Caste Financial and Development Corporation Limited Kanpur Dehat. The said jeep was Registered as taxi and allotted No.U.P.77 6959 . On 14.8.1998 Sri Ram Bahadur Dhobi revisionist No.1 lodged a First Information Report at Police Station Bhognipur, District Kanpur Dehat against one Suresh son of Shivram Dhanuk opposite party No.3 alleging therein that his aforementioned jeep has been stolen by one Suresh son of opposite party No.3.On the basis of the said FIR Case Crime No.2007/98 under Sections 379 IPC was registered against aforementioned Suresh. In the aforesaid FIR revisionist No.2,3 and 4 were nominated as witnesses of fact. The Investigating Officer during investigation examined several witnesses including Shiv Ram Dhanuk opposite party No.3 who in his statement recorded under Section 161 Cr.P.C. on 16.8.98 stated that his son Suresh used to drive Maruti car of one Sardar Daya Singh and that Suresh had gone with the jeep owned by Sardar Daya Singh on being hired as a driver but did not return and he suspected that some miscreants have looted the jeep and murdered his son. Copy of the statement of opposite party No.3 Shiv Ram Dhanuk has been filed as Annexure 3 to the affidavit accompanying this application in revision. At the behest of the opposite party no.3 the investigation of case Crime No.2007 of 98, was transferred to CBCID and ultimately upon completion of the inquiry final report was submitted on 4.9.1999in Case Crime No.2007 of 1998 by Investigating Officer Sri P.K.Sharma Inspector CBCID. On the same day he also recommended prosecution of the revisionist No.1under Section 182 IPC. On 21.9.1999 Sri P.K.Sharma Inspector CBCID himself lodged another FIR in respect of the same incident which was the subject matter of case crime No,2007 of 1998 against the revisionists and two other persons at Police Station Bhognipur Kanpur Dehat which was registered as Case Crime No.421 of 1999 under Sections 364/120B IPC read with 3(1)(10) and 4 of SC/ST Act (Annexure 5 to the affidavit).
Against the final report dated 14.9.1999 revisionist No.1 filed a protest petition on 24.12.2002 before the Judicial Magistrate I Class, Bhognipur which was rejected by him by his order dated 1.1.03 with a direction to the CBCID to investigate the matter further.
The Investigating Officer, however instead of conducting further investigation in Case Crime No.2007 of 98, proceeded to investigate the Case Crime No.421 of 1999 and submitted chargesheet in case crime No. 421 of 1999 on 29.8.2003 under Sections 364, 120 B IPC and 3(1)(10) SC ST Act against the revisionists and the other two co- accused. The chargesheet submitted in Case Crime No.421 of 1999 was challenged by the revisionists before this Court by moving an Application (under Section 482 Cr.P.C) No.3533-04, which was disposed of by this Court by order dated 22.9.2010, directing the revisionists to move a discharge application before the court below and for a period of 45 days or till the disposal of the discharge application coercive action against the revisionists was directed to be kept in abeyance. By the impugned order the discharge appliction filed by the revisionists before the court below pursuant to the order of this Court dated 22.9.2010 has been rejected.
Learned counsel for the revisionists submitted that even if the entire evidence collected during investigation is taken on its face value and accepted to be true then only two views are possible and one of them is that of suspicion only as distinguished from grave suspicion as to the guilt of the revisionists and the court below ought to have discharged the revisionists and the view taken to the contrary by the court below is totally against the law. In support of his submission he has placed reliance upon 2010 Vol 2 SCC 398, P. Vijayan Vs State of Kerala and others .
Learned counsel for the revisionists next submitted that from the statements of Shiv Ram opposite party No.2 his elder son Ram Naresh and Smt. Malti wife of the victim, Smt. Ramshri wife of opposite party No.3 and Pan Kumari wife of Ram Naresh and Hanumat recorded during investigation the only evidence which has come against the revisionist No.2 and 3 Sarabjit Singh and Satyajit Singh is that on 17.7.1998 they had taken Suresh from his house on the pretext that he had to drive some passengers to Agra by Jeep No. U.P. 77 6959 and thereafter he did not return although after he had left his house the victim Suresh was again seen by Suresh Kumar who in his statement recorded under Section 161 had categorically stated that while he was having tea near Mohammadpur Petrol Pump on 17.7.1998 at about 9 PM he saw the jeep which was being driven by victim Suresh coming from the side of Bhognipur in which five- six persons whom he did not know were sitting. Suresh Kumar in his statement further stated that upon inquiry made by him from victim Suresh Kumar, he told him that he was taking the passengers of Sardarjito Agra and thus the evidence of the victimg being last seen in the company of 2.the revisionist no.2 and 3 also becomes of little relevance for the purpose of their conviction as the victim after being seen with the revisionists he was again seen by Suresh Kumar in the company of five other persons whom he was driving to Agra Learned counsel for the revisionist further submitted that as far as revisionists No.1,4 and 5 are concerned there is absolutely no material on record for proceeding against them and thus the impugned order rejecting the discharge application for the revisionists is totally unsustainable and liable to be set aside.
Learned counsel for the revisionist lastly submitted that the impugned criminal prosecution of the revisionists at the behest of the opposite party no.3 is motivated by malafide and is a counter blast to the report of theft lodged by the revisionist No.1against the son of opposite party No.3 in which the revisionists No.2 ,3 and 4 were named as witnesses.
Sri Radheyshyam learned counsel for the respondent No.3 submitted that the impugned order does not suffer from any illegality or infirmity warranting any interference by this Court.
He further submitted that at the stage of considering the discharge application it is not necessary for the court to formulate an opinion about the prospects of the conviction and only prima facie case is to be seen and if on the material on record strong suspicion about commission of offence and accused's involvement is indicated the court is fully justified in refusing to discharge and proceeding to frame charge. In support of his contention he has placed reliance upon 2009,1 SCC (Crl )87, Sanghi Brothers (Indore )(Private) Limited Vs Sanjay Choudhary.
I have heard learned counsel for the revisionists and perused the impugned order as well as the other materials brought on record. Since the facts of the case are not in dispute I straightaway proceed to examine the parameters within which the court has to consider an application for discharge under Section 227 Cr.P.C.
At the stage of Section 227 Cr.P.C. 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. The sufficiency of ground 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 . If the judge comes to a conclusion that there is sufficient ground to proceed, he will not discharge the accused and will frame charge under Section 228 Cr.P.C.
The Apex Court in paragraph 10 of its judgement in the case of P.Vijayan (Supra) which has been relied upon by the learned counsel for the revisionists has held as hereunder:
"10. Before considering the merits of the claim of both the parties, it is useful to refer to Section 227 of the Code of Criminal Procedure 1973, which reads as under:
"227. Discharge- If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.
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 . Further, the words " not sufficient ground for proceeding against the accused" clearly show that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution . In assesing this fact, 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 trial starts."
The Apex Court in the case of Sanghi Brothers Indore, Private Limited (Supra) while examining the scope of Section 227,229 and 245 Cr.P.C. has held as hereunder:
"13. After analysing the terminology used in three pairs of sections it was held (in Antulay's case) that despite the differences there is no scope for doubt that at the stage at which the court is required to consider the question of framing of charge, the test of a prima facie case is to be applied.
14. The present case is not one where the High Court ought to have intefered with the order of framing the charge. As rightly submitted by learned counsel for the appellant, even if there is a strong suspicion about the commission of offence and the involvement of the accused, it is sufficient for the court to frame a charge. At that stage there is no necessity of formulating the opinion about the prospect of conviction . That being so, the impugned order of the High Court cannot be sustained and is set aside. The appeal is allowed."
Thus after a careful consideration of the legal proposition enunciated by the Apex Court in the cases of P.Vijayan (Supra) and Sanghi Brothers (Indore) (Private) Limited (Supra) what transpires is that while considering an application for discharge the judge is required to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution and in assessing this fact it is not necessary for the court to enter into the pros and cons of the matter or enter into probative value of the evidence and probabilities. If on facts there is strong suspicion about the commission of offence and accused's involvement the court shall be perfectly justified in refusing to discharge accused persons and directing framing of charge against them. If on the basis of the material on record two views are possible and one of them gives rise to suspicion only as distinguished from grave suspicion as to the guilt of the accused the trial judge shall be empowered to discharge the accused.
Now in the present case this Court has to examine whether the nature of the accusation and the material collected during the ingvestigation give rise to suspicion only as regard the complicity of the revisionists as participants in the offence or grave suspicion as to their guilt. The only evidence on record indicating at the involvement of the revisionist No.2 and 3 in the commission of offence is the evidence of the victim being last seen in their company . However, from the statement of Suresh Kumar it transpires that after the victim had left his house with the revisionist No.2 and 3 he was again seen near Mohammadpur Petrol Pump driving jeep No.U.P.77 6959 in which five persons whom Suresh Kumar did not recognise were sitting and the victim Suresh had told the witness Suresh Kumar that he was driving the passengers of Sardarji to their destination . There is not even a whisper of any allegation in his statement that the five persons who were travelling in the jeep which was being driven by the victim Suresh were the revisionists. Thus the last seen evidence against the revisionist No.2 and 3 also loses its significance for prosecuting the revisionists as after the victim was seen in the company of revisionists No.2 and 3 he was again seen with five six persons whom prosecution has not been able to identify till date.
Learned counsel for the respondents has further failed to show any incriminating material/ evidence on record against the revisionist Nos.1,4 and 5 .
For the aforesaid reasons I am of the view that the court below while refusing to discharge the revisionists has totally failed to consider the aforesaid aspect of the matter. In my opinion the impugned order can not be sustained and is liable to be set aside and the matter requires re- consideration by the trial court.
This application in revision is accordingly allowed and the order dated 25.10.2010 passed by Chief Judicial Magistrate Rambai Nagar, in Criminal Case No.4462 of 2007, State Vs Daya Singh and others , is set aside . The court below is directed to decide the discharge application of the revisionists in accordance with law within a period of four weeks from the date of production of certified copy of this order.
For a period of four weeks from today or till the discharge application is decided, whichever is earlier no coercive action shall be taken against the revisionists.”
In pursuance of this order the revisional court was directed to pass a fresh order on the discharge application of the revisionists in accordance with law.
The trial court has passed the order dated 17.2.2011, which has been challenged in this revision.
Learned counsel for the revisionists has submitted that the order passed by the court below is a non speaking order passed without application of mind.
A perusal of the order passed by the court below shows that it has only recorded the finding that after consideration of the material on record, after hearing learned counsel for the parties and perusing the judgment of the Apex Court and this Court brought on record, it has come to the conclusion that the charges levelled against the revisionists are made out. There is no discussion of the rival contention and no finding has been recorded by the court below as to which contention of which party is acceptable to the court and on the basis of such contention the court comes to the conclusion that the alleged offences are made out against the accuseds and they are not entitled to be discharged.
Learned counsel for the opposite party No.3 could not point out any such finding in the order of the court below, which may prove that the court below has recorded a reasoned and well considered finding as per the order of this Court dated 4.1.2011. In view of above, impugned order dated 17.2.2011 passed by the Special Judge (SC/ST Act), Ramabai Nagar in Case Crime No.421 of 1999 is quashed.
The court below is directed to decide the discharge application of the revisionists afresh in the light of the earlier order passed by this Court on 4.1.2011 and the order passed today within a period of one month from the date of production of a certified copy of this order before it by either of the party.
Till then, no coercive measure shall be taken against the revisionists in Case Crime No.421 of 1999, under Sections 364, 120-B, IPC and Sections 3(1) X and 4 of the SC/ST Act.
Revision is allowed.
Order Date :- 13.9.2018
T. Sinha