Court No. - 48
Case :- APPLICATION U/S 482 No. - 17525 of 2018
Applicant :- Smt. Shaila And 6 Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Sunil Vashisth
Counsel for Opposite Party :- G.A.,Vijay Praksah
Hon'ble Karuna Nand Bajpayee,J.
This application u/s 482 Cr.P.C. has been filed seeking the quashing of the order dated 8.3.2018 passed by the Additional Sessions Judge, Court No. 6, Ghaziabad in S.T. No. 723 of 2017, State vs. Shaila and others as well as S.T. No. 844 of 2017, State vs. Chirag and another, arising out of case Crime No. 535 of 2015, P.S.-Kavi Nagar, District- Ghaziabad, under Sections 157, 148, 149, 307, 325, 326, 342 I.P.C., by which charge has been framed against the applicants.
Supplementary affidavit filed today in Court, is taken on record.
Heard applicants' counsel and learned AGA as well as learned counsel for the opposite party no. 2.
Entire record has been perused.
Submission of learned counsel for the applicants is that on 6.5.2015 the opposite party no. 2 filed an F.I.R. against the applicants with the allegations of causing injuries by the applicants to the son of the opposite party no. 2. Further submission is that the said F.I.R. was filed as a counterblast case in pursuance of the F.I.R. lodged by the applicant no. 1 being Case Crime No. 295 of 2014, under Sections 498A, 323, 504, 506, 354, 377 I.P.C. and 3/4 D.P. Act. In the said case charge sheet has been submitted against the applicants on 15.9.2015. The said charge sheet was challenged by the applicants in 482 Cr.P.C. application being Application U/S 482 No. 15070 of 2016, Smt. Shaila and others vs. State of U.P. and another, which was disposed of by this Court vide order dated 27.4.2017direting the applicants to appear and move bail application before the court below. It was also contended that son of the opposite party no. 2 (husband of the applicant no.1) also filed a divorce petition under Section 13 of Hindu Marriage Act before the Principal Judge, Family Court, Ghaziabad and the said matter was referred to Mediation Centre and some settlement took place in between the parties and in pursuance of the compromise, the applicant no. 1 and her husband filed a divorce petition being Divorce Petition No. 2105 of 2017, under Section 13(B) Hindu Marriage Act. In pursuance of the direction issued earlier in the said 482 Cr.P.C. petition filed by the applicants, the applicants filed discharge application raising several grounds with regard to the investigation and the merits of the case. Vide order dated 1.2.2018 learned Additional Sessions Judge, Court No. 4, Ghaziabad dismissed the aforesaid discharge application. It is thereafter charges have been framed by the order dated 8.3.2018 by the learned Additional Sessions Judge, Court No. 4 Ghaziabad. The applicants have challenged the order dated 8.3.2018 by which the charges have been framed. The applicants have raised several other contentions dwelling upon the merits of the case and also tried to place the emphasis on the statement given by the witnesses under Section 161 of Cr.P.C. Certain other contentions have been raised by the applicants' counsel which 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. It shall be advantageous to refer to the observations made by the Hon'ble Apex Court in the case of State of Bihar vs. Ramesh Singh 1977 (4) SCC 39 which are as follows :-
4. Under S. 226 of the Code while opening the case for the prosecution the prosecutor has got to describe the charge against the accused and State by what evidence he proposes to prove the guilt of the accused. Thereafter, comes at the initial stage, the duty of the Court 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. If "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", so enjoined by s. 227. If, on the other hand, "the Judge is of opinion that there is ground for presuming that the accused has committed an offence which …...................................
(b) in exclusively triable by the court, he shall frame in writing a charge against the accused," as provided in S. 228.
Reading the two provisions together in juxtaposition, as they have got to be, it would be clear 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. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the court should proceed with the trial or not. If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence, if any, cannot show that the accused committed the offence, there will be no sufficient ground for proceeding with the trial. An exhaustive list of the 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 and not under S. 227.
Aforesaid case was again referred to in another Apex Court's decision Superintendent and Remembrancer of Legal Affairs, West Bengal Versus Anil Kumar Bhunja AIR 1980 (SC) 52 and the Apex Court proceeded to observe as follows:
"18. It may be remembered that the case was at the stage of framing charges; the prosecution evidence had not yet commenced. The Magistrate had, therefore, to consider the above question on a general consideration of the materials placed before him by the investigating police officer. At this stage, as was pointed out by this Court in State of Bihar v. Ramesh Singh, AIR 1977 SC 2018, the truth, veracity and effect of the evidence which the prosecutor 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 the stage of Section 227 or 228 of the Code of Criminal Procedure, 1973. 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 against the accused in respect of the commission of that offence.
In yet another case of Palwinder Singh Vs. Balvinder Singh AIR 2009 SC 887 the Apex Court had the occasion to reflect upon the scope of adjudication and its ambit at the time of framing of the charge and also about the scope to consider the material produced by the accused at that stage. Following extract may be profitably quoted to clarify the situation :
"12. Having heard learned counsel for the parties, we are of the opinion that the High Court committed a serious error in passing the impugned judgment insofar as it entered into the realm of appreciation of evidence at the stage of the framing of the charges itself. The jurisdiction of the learned Sessions Judge while exercising power under Section 227 of the Code of Criminal Procedure is limited. Charges can be framed also on the basis of strong suspicion. Marshalling and appreciation of evidence is not in the domain of the Court at that point of time. This aspect of the matter has been considered by this Court in state of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568 wherein it was held as under :
"23. As a result of the aforesaid discussion, in our view, clearly the law is that at the time of framing charge or taking cognizance the accused has no right to produce any material. Satish Mehra's Case holding that the trial Court has powers to consider even materials which the accused may produce at the stage of Section 227 of the Code has not been correctly decided."
The following observations made by the Hon'ble Supreme Court in the case of Sanghi Brothers (Indore) Pvt. Ltd. v. Sanjay Choudhary AIR 2009 SC 9 also reiterated the same position of law :-
"10. After analyzing the terminology used in the three pairs of sections it was held 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 to be applied.
11. The present case is not one where the High Court ought to have interfered 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.
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 or charge sheet 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 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.
As per the First Information Report, it has been stated that on 6-5-2015 the informant (Smt. Kamlesh Chowdhary) along with her husband Omkar Singh was at her house located at C26 Neeti Nagar, Sanjay Nagar. It has further been stated that around 8 pm in the evening their daughter -in-law namely Shaila came along with the other co-accused and forcefully entered the house of the informant by breaking the door. The accused made the informant and her husband captives in their own house and locked the door. It has further been stated that in the meantime the son of the informant namely Prashant Chowdhry was on his way back home when the accused caught hold of him and assaulted him with iron rod, knife and bricks. On being so assaulted, Prashant fainted on the spot. The incident was witnessed by the daughter of the informant namely Shivanshi and Nirmal Mehra. The son of the informant was thereafter taken to the hospital by the police PCR. Thereafter, since the son of the informant was in a critical condition, he was referred to Max Hospital, Padpadganj, Delhi. The allegations made in the First information report are serious in nature and make out a prima facie case against the accused /applicants.
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 F.I.R. and the material collected by the Investigating Officer on the basis of which the charge sheet has been submitted makes out a prima facie case against the accused at this stage and there appear to be sufficient ground for proceeding against the accused 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.
In view of the aforesaid this application having no force stands dismissed.
Order Date :- 30.5.2018 Naresh