Court No. - 38
Reserved on 09.08.2021 Delivered on 25.10.2021
Case :- APPLICATION U/S 482 No. - 6609 of 2021 Applicant :- Varun Dubey And 2 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Divya Ojha,Avdhesh Narayan Tiwari Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
1. Heard Miss. Divya Ojha, learned counsel for applicants and learned A.G.A. for State.
2. Perused the record.
3. This application under Section 482 Cr.P.C. has been filed challenging order dated 18.01.2021, passed by Sessions Judge, Jalaun at Orai, in Sessions Trial No.88 of 2019, (State Vs. Varun Dubey and others) under Sections-498-A, 323, 504, 307 I.P.C. and Sections 3/ 4 Dowry Prohibition Act, 1961, Police Station- Jalaun, District- Jalaun at Orai, arising out of Case Crime No.0176 of 2018, under Sections-498-A, 323/34, 504, 506, 307/34 I.P.C. and Sections 3/4 Dowry Prohibition Act, 1961, Police Station- Jalaun, District- Jalaun at Orai, as well as entire proceedings of above mentioned sessions trial.
4. Record shows that in respect of an incident, which is alleged to have occurred on 28.05.2018, a delayed F.I.R. dated 29.05.2018, was lodged by first informant/opposite party-2, Satyaprakash and was registered as Case Crime No.0176 of 2016, .0176 of 2018, under Sections-498-A, 323, 504, 506, 307 I.P.C. and Sections 3/ 4 Dowry Prohibition Act, 1961, Police Station- Jalaun, District- Jalaun at Orai. In the aforesaid F.I.R., four persons namely Barun Debey (husband) Rahul Debey (Devar), Gaurish Dubey (father-in-law) and Smt. Kamlesh Kumari (mother-in-law) of Priyanka i.e. daughter of first informant opposite party-2, have been nominated as named accused.
5. In brief, according to prosecution story, as unfolded in F.I.R., it is alleged that marriage of Priyanka, daughter of first informant/opposite party-2, was solemnized with Barun Dubey, S/O Gaurish Dubey in the year 2011 in accordance with Hindu Rites and Customs. Ultimately, from the wedlock of Priyanka and Barun Dubey, a son was born. However, daughter of first informant/opposite party-2 was subjected to physical and mental cruelty on account of non-fulfilment of additional demand of dowry. As a consequence of above, an F.I.R. being Case Crime No. 573 of 2017, under Section 498A, etc. I.P.C., was lodged. Subsequently, on account of mediation between parties, matter was resolved. However, four months subsequent to above, daughter of first informant/opposite party-2 was again subjected to physical and mental cruelty for non-fulfilment of additional demand of dowry. Ultimately on 28.05.2019, Priyanka, daughter of first informant/opposite party-2, is alleged to have informed first informant/opposite party-2 that any untoward incident can take place. Accordingly, first informant/opposite party-2 reached the marital home of his daughter, Priyanka alongwith Police where upon seeing first informant/opposite party-2, his daughter was assaulted and further an attempt was also made to kill first informant/opposite party-2. As a result of above, first informant/opposite party-2 received injury on his neck. With the help of Police, Priyanka, daughter of first informant/opposite party-2 accompanied him and came to her parental home. Deliberately, grand son of first informant/opposite party-2 was detained by accused persons. It is also alleged that in the aforesaid incident first informant/opposite party-2 was abused by accused persons and threats were also extended to him.
6. After registration of afore-mentioned F.I.R., Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C. During course of investigation, Investigating Officer recorded statements of first informant/opposite party-2 and other witnesses under Section 161 Cr.P.C., who have supported the prosecution story as unfolded in F.I.R. Subsequently, Investigating Officer recovered "Gamchha"/Towel, which was alleged to have been used by accused persons in the incident, which occurred on 28.05.2018. Accordingly, a recovery memo of same was prepared on 03.06.2018. On the basis of above, as well as other material collected by Investigating Officer during course of investigation, which is substantially adverse to accused, Investigating Officer opined to submit a charge-sheet. Accordingly, a charge-sheet dated 13.04.2019 was submitted, whereby and whereunder three of the named accused namely Barun Dubey, Rahul Dubey and Gaurish Dubey have been charge-sheeted under Sections 498A, 323, 504, 506 I.P.C. and Sections 3/4 D. P. Act, whereas one of the named accused namely Smt. Kamlesh Kumari was exculpated, as during course of investigation, no such material was gathered by Investigating Officer against her, on the basis of which, her complicity could be said to be established in the crime in question. Perusal of charge-sheet further goes to show that as many as 12 prosecution witnesses have been nominated therein.
7. After submission of above-noted charge-sheet, cognizance was taken upon same by court concerned. Since offence complained off is triable by Court of Sessions, accordingly concerned Magistrate committed the same to Court of Sessions. Resultantly, Sessions Trial No.88 of 2019, (State Vs. Varun Dubey and others) under Sections-498-A, 323/34, 504, 506, 307/34 I.P.C. and Section 4 Dowry Prohibition Act, 1961, Police Station- Jalaun, District- Jalaun at Orai came to be registered.
8. During pendency of above mentioned Sessions Trial, applicants, who are charge-sheeted accused, filed an application dated 07.09.2019, seeking discharge in above mentioned Sessions Trial. Discharge application filed by applicants was opposed by first informant/opposite party-2. Accordingly, an objection dated 21.09.2019, was filed by first informant/opposite party-2 to the same.
9. Ultimately, court below by means of order dated 27.02.2020, rejected the discharge application filed by accused/applicants.
10. Feeling aggrieved by above order dated 27.02.2020, applicants approached this Court by means of Criminal Misc. application (under Section 482 Cr.P.C.) No.12680 of 2020 (Barun Dubey and two others Vs. State of U.P. and others). Aforesaid application came to be allowed by this Court, vide order dated 31.08.2020, whereby order dated 27.02.2020, was quashed and matter was remanded to court concerned for decision afresh with liberty to applicants to file fresh discharge application. For ready reference, order dated 31.08.2020 passed by this Court is reproduced herein under:-
" 1. Heard learned counsel for the applicants and learned A.G.A. for the State and perused the entire record.
2. The present application u/s 482 Cr.P.C. has been filed with the prayer to quash the order dated 27.02.2020 passed by the Session Judge, Jalaun, Place Orai in Session Trial No.88 of 2019 (State Vs. Varun Dubey and others) arising out of Case Crime No.0176 of 2018, under Sections 498-A, 323, 504, 506, 307 IPC and 3/4 D.P. Act, Police Station- Jalaun, District- Jalaun by which discharge application moved by the applicants was rejected. Further prayer has been made to stay the effect and operation of the said order.
3. It has been submitted by the learned counsel for the applicant that an F.I.R. was lodged by the opposite party No.2 against the applicants and one another person on 29.05.2018 as Case crime no.0176 of 2018, under Section 498-A, 323, 504, 506, 302 IPC and 3/4 D.P. Act at Police Station-Jalaun, District-Jalaun regarding the incident, which has been taken place on 28.02.2018. It has further been submitted that regarding matrimonial dispute earlier an F.I.R. was lodged by the informant bearing Case Crime No.593 of 2017, Police Station- Kotwali Koch, under Section 498-A and the present F.I.R. has been lodged in order to only harass the applicants. As per injury report of informant and his daughter namely, Priyanka, no such injury as alleged in the F.I.R. has been sustained by anyone and the duration of injuries was found two days old. From the version of the F.I.R. it is clear that police was also present at the time of incident but during course of the investigation no statement of any police officials has been recorded/taken, which makes an investigation improper. After completing investigation the police has submitted the charge sheet against the applicants. Thereafter applicants filed discharge application before the court below on 07.092019 and the court below without considering the grounds taken by the applicants before the court below, has rejected the discharge application.
4. The learned A.G.A. has not been able to point out any grounds that the order has been passed after considering the grounds taken in the discharge application.
5. I have considered the submissions made by the learned counsel for the parties and have gone through the records specifically the impugned order dated 27th July, 2020 rejecting the discharge application of the applicant. In the opinion of the Court, the court below has not considered all the grounds, which have been taken by the applicants as also the facts stated by them including the ground that the criminal case initiated by opposite party no.2 is nothing but abuse of process of law.
6. In view of above, the order dated 27.07.2020 is hereby quashed. It is further directed that the applicants shall move discharge application within a period of one month from today and the same shall be decided within period of two months thereafter by a reasoned and speaking order.
7. Till decision of the discharge application, no coercive action shall be taken against the applicant."
11. Subsequent of above order dated 21.08.2020, applicants filed a fresh discharge application dated 26.11.2020, before court below, which was registered as (paper No. 34 Kha). Copy of this discharge application is on record as Annexure-12 to the affidavit. Perusal of same goes to show that applicants claimed discharge on following grounds; Applicants have been falsely implicated in concerned case crime number on account of connivance of Investigating Officer with first informant. No injuries were sustained by injured in the alleged occurrence. However, first informant in connivance with police and medical officer has got false Medico Legal Reports prepared. Injured have not sustained injuries in the crime in question as the alleged occurrence took place on 28.05.2018 at 2.00PM, whereas in the Medico Legal Reports, Doctor has opined that injuries sustained by injured are approximately two days old. As such, injured would have sustained injuries on 27.05.2018. There is no consistency in between the ocular version and the medical evidence on record. Injured have not received any such injury on the basis of which, it can be inferred that there was attempt by accused to cause murder of injured. One of the injured has not received any injury on his neck, as such allegation made by first informant that attempt was made to kill one of the injured by way of smothering through cloth is without any basis. At the time of occurrence, police was already present at the place of occurrence but no police personnel was examined by Investigating Officer in terms of Section 161 Cr.P.C. Present criminal proceedings have been initiated as a counter blast to the criminal proceedings i.e. Criminal Case No. 89 of 2018 (Varun Dubey Vs. Stayprakash and others), pending in the court of Judge (D.A.A.), Jalaun at Orai, in which 01.10.2020 was the date fixed. From the material on record, no offence under Section 307 I.P.C. is made out against applicants. Daughter of first informant/opposite party-2 had earlier entered into a compromise in Case Crime No. 593 of 2017, under Sections 498A I.P.C., Police Station-Konch, on the ground that F.I.R. was lodged on mis-understanding.
12. Subsequent discharge application filed by applicants was opposed by first informant/opposite party-2, who filed his objections (paper no. 37 Kha) to the same. However, copy of objections filed by first informant/opposite party-2, to the discharge application, has not been brought on record. Consequently, this Court is handicapped in gathering the entire grounds urged by first informant/opposite party-2 in opposition to the discharge application filed by applicants.
13. Ultimately, court below by means of order dated 19.01.2021, rejected the subsequent discharge application dated 26.11.2020, filed by applicants on the grounds that at the time of considering discharge application, Court is not required to conduct a detailed analysis of the evidence on record. Court has to only examine as to whether a prima-facie case is made out or not. Court referred to the judgement of Supreme Court in State of Karnatka Vs. Munni Swami A.I.R. 1977, Supreme Court 1489, wherein it has been held that if evidence on record goes unrebutted, then accused can be convicted, then Court will be within jurisdiction to frame charge. At the time of considering discharge application, Court has to consider the material on record and not assume as to what evidence can come in future. While considering the discharge application under Sections 227/228/239 Cr.P.C., Courts are not required to hold a mini trial by discussing the entire evidence in minute detail or record a finding whether on the basis of material on record, accused can be convicted or not. Court below referred to State of Orissa Vs. Devendra Nath Padhi, 2005 (51) ACC 251, State Anti Corruption Bureau Hyderabad Vs. Surya Prakashan 1999 ACC (Criminal) 373 and Sachin Saxena @ Lucky Vs. State of U.P. 2008 ( 62) A.C.C. 454, wherein it has been held that at the time of considering discharge application, Court is required to look into the papers accompanying the police report only and not the documents produced by defence. As such, at the time of framing charge, accused has limited right of being heard. Reference was also made to the judgement in State of Delhi Vs. Gyan Devi and others 2001 (42) ACC 39 , wherein it has been held that Courts are not required to hold detailed examination and evaluation nor the sufficiency of evidence against accused, which is available on record. With reference to the judgement in Liyakat Vs. State of U.P. 2008 (62) ACC 453 , court below denuded that charges can be framed on the ground of strong suspicion. Reference was also made to the judgement of Bombay High Court in Pramod Narayan Bandekar Vs. State of Maharastra and the Judgement of Apex Court in Rati Lal Bhanji Mithani Vs. State of Maharastra and others , wherein it has been held that once charges have been framed, discharge cannot be claimed. On the aforesaid legal premise, court below delineated the grounds on which discharge application can be considered. Thereafter, court below examined the statements of witnesses and concluded that at this stage, the grounds raised by accused in support of discharge claimed by them are not cogent enough to allow the discharge application. Issues raised by accused in opposition to prosecution case, which also are the basis for discharge claimed by them, cannot be considered at this stage and can be dealt with more appropriately in trial. Furthermore, vide order dated 27.02.2020, charges were framed, which have been denied by charge-sheeted accused and they have demanded trial.
14. Feeling aggrieved by order dated 18.01.2021, passed by Court below, applicants have now again approached this Court by means of present application under Section 482 Cr.P.C.
15. Miss. Divya Ojha, learned counsel for applicants contends that order impugned in present application i.e. order dated 18.01.2021, passed by Sessions Judge, Jalaun at Orai, is manifestly illegal and without jurisdiction. Court below has failed to take into consideration the various grounds raised on behalf of applicants in support of discharge application filed by them. In continuation of her challenge to the order impugned, it is also urged that medical evidence does not support the prosecution case. Moreover, the medical reports dated 29.05.2018 in respect of the two injured are ante-timed and ante-dated, and therefore cannot be relied upon. Injured have not received any injury in the manner, in which they are alleged to have been caused. It is also submitted that at the time of occurrence, Police was present on the spot. However, no police personnel has been examined by Investigating Officer under Section 161 Cr.P.C. On the cumulative strength of above, it is urged that impugned order dated 18.01.2021, passed by court below is liable to be quashed by this Court.
16. Per contra, learned A.G.A. has opposed this application. Learned A.G.A. contends that order impugned in present application is perfectly just and legal. Court below upon due consideration of material on record has rightly rejected the discharge application filed by applicants. From perusal of grounds raised by applicants in support of their discharge application, it can be safely gathered that same relate to the disputed defence of applicants. It is not the case of applicants that there is a legal impediment in proceeding against accused/applicants or court concerned has no jurisdiction to try the accused. On the material available on record, it cannot be said that present case is a case of no evidence nor it can be said that evidence collected by Investigating Officer during course of investigation does not support the prosecution case. On the basis of material available on record, a prima-facie case is made out against applicants. Court below has rightly refused to conduct an in-depth analysis of material on record as Court is not required to hold a mini trial, while deciding discharge application. No roving and fishing enquiry is required to be conducted regarding possibility of conviction of an accused, while deciding discharge application. Court has limited jurisdiction, while deciding discharge application, i.e. whether on the basis of material on record a prima-facie case is made out or not. Even if there is grave suspicion, which is different from mere suspicion, charges can be framed and lastly, if the evidence on record goes unrebutted, accused are liable to be convicted. From the material on record i.e. Police Report and Papers accompanying the same. Prima-facie case is made out against applicant. Learned A.G.A., thus, submits that no case for interference by this Court is made out. Consequently, no indulgence be granted by this Court to applicants.
17. Having heard learned counsel for revisionists, learned A.G.A. for State and upon perusal of material brought on record, Court finds that discharge has been claimed by revisionists in terms of Section 227 Cr.P.C. Accordingly Section 227 Cr.P.C. is reproduced herein under for ready reference:-
"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 no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing."
18. Section 227 Cr.P.C. contemplates that court shall discharge an accused provided there is no sufficient ground for proceeding against the accused. The term “sufficient ground” has been explained and therefore, no longer subject matter of debate. Apex Court in Yogesh Joshi Vs. State of Maharastra, AIR 2008 Supreme Court 2971, considered the meaning and import of aforesaid term and ultimately delineated it's views in paragraphs- 13, 14 and 15, which are reproduced herein-under:-
"13. Before adverting to the rival submissions, we may briefly notice the scope and ambit of powers of the Trial Judge under Section 227 of the Code.
14. Chapter XVIII of the Code lays down the procedure for trial before the Court of Sessions, pursuant to an order of commitment under Section 209 of the Code. Section 227 contemplates the circumstances whereunder there could be a discharge of an accused at a stage anterior in point of time to framing of charge under Section 228. It provides that upon consideration of the record of the case, the documents submitted with the police report and after hearing the accused and the prosecution, the Court is expected, nay bound to decide whether there is "sufficient ground" to proceed against the accused and as a consequence thereof either discharge the accused or proceed to frame charge against him.
15. It is trite that the words "not sufficient ground for proceeding against the accused" appearing in the Section postulate exercise of judicial mind on the part of the Judge to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. However, in assessing this fact, the Judge has the power to sift and weigh the material 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 a prima facie case depends upon the facts of each case and in this regard it is neither feasible nor desirable to lay down a rule of universal application. By and large, however, if two views are equally possible and the Judge is satisfied that the evidence produced before him gives rise to suspicion only as distinguished from grave suspicion, he will be fully within his right to discharge the accused. At this stage, he is not to see as to whether the trial will end in conviction or not. The broad test to be applied is whether the materials on record, if unrebutted, makes a conviction reasonably possible. [See: State of Bihar Vs. Ramesh Singh and Prafulla Kumar Samal (supra)]"
19. Subsequently, the ambit and scope of Section 227 Cr.P.C. as well as parameters regarding exercise of jurisdiction under Section 227 Cr.P.C. came to be considered by a three Judges Bench of Supreme Court in Tarun Jit Tejpal Vs. State of Goa and Another, 2019 SCC Online SC 1053 , wherein Court concluded as follows in paragraphs 27, 28, 29, 30, 31, 32:
" 27. Now, so far as the prayer of the appellant to discharge him and the submissions made by Shri Vikas Singh, learned Senior Advocate on merits are concerned, the law on the scope at the stage of Section 227/228 CrPC is required to be considered.
28. In the case of N. Suresh Rajan (Supra) this Court had an occasion to consider in detail the scope of the proceedings at the stage of framing of the charge under Section 227/228 CrPC. After considering earlier decisions of this Court on the point thereafter in paragraph 29 to 31 this Court has observed and held as under:
"29. We have bestowed our consideration to the rival submissions and the submissions made by Mr Ranjit Kumar commend us. True it is that at the time of consideration of the applications for discharge, the court cannot act as a mouthpiece of the prosecution or act as a post office and may sift evidence in order to find out whether or not the allegations made are groundless so as to pass an order of discharge. It is trite that at the stage of consideration of an application for discharge, the court has to proceed with an assumption that the materials brought on record by the prosecution are true and evaluate the said materials and documents with a view to find out whether the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage.
30. Reference in this connection can be made to a recent decision of this Court in Sheoraj Singh Ahlawat v. State of U.P. [(2013) 11 SCC 476 : (2012) 4 SCC (Cri) 21 : AIR 2013 SC 52] , in which, after analysing various decisions on the point, this Court endorsed the following view taken in Onkar Nath Mishra v. State (NCT of Delhi) [(2008) 2 SCC 561 : (2008) 1 SCC (Cri) 507] : (Sheoraj Singh Ahlawat case [(2013) 11 SCC 476 : (2012) 4 SCC (Cri) 21 : AIR 2013 SC 52] , SCC p. 482, para 15) "15. '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 founded 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.' (Onkar Nath case [(2008) 2 SCC 561 : (2008) 1 SCC (Cri) 507] , SCC p. 565, para 11)" (emphasis in original)
31. Now reverting to the decisions of this Court in Sajjan Kumar [Sajjan Kumar v. CBI, (2010) 9 SCC 368 : (2010) 3 SCC (Cri) 1371] and Dilawar Balu Kurane [Dilawar Balu Kurane v. State of Maharashtra, (2002) 2 SCC 135 : 2002 SCC (Cri) 310] , relied on by the respondents, we are of the opinion that they do not advance their case. The aforesaid decisions consider the provision of Section 227 of the Code and make it clear that at the stage of discharge the court cannot make a roving enquiry into the pros and cons of the matter and weigh the evidence as if it was conducting a trial. It is worth mentioning that the Code contemplates discharge of the accused by the Court of Session under Section 227 in a case triable by it; cases instituted upon a police report are covered by Section 239 and cases instituted otherwise than on a police report are dealt with in Section 245. From a reading of the aforesaid sections it is evident that they contain somewhat different provisions with regard to discharge of an accused:
31.1. Under Section 227 of the Code, the trial court is required to discharge the accused if it "considers that there is not sufficient ground for proceeding against the accused". However, discharge under Section 239 can be ordered when "the Magistrate considers the charge against the accused to be groundless". The power to discharge is exercisable under Section 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".
31.2. Section 227 and 239 provide for discharge before the recording of evidence on the basis of the police report, the documents sent along with it and examination of the accused after giving an opportunity to the parties to be heard. However, the stage of discharge under Section 245, on the other hand, is reached only after the evidence referred in Section 244 has been taken.
31.3. Thus, there is difference in the language employed in these provisions. But, in our opinion, notwithstanding these differences, and whichever provision may be applicable, the court is required at this stage to see that there is a prima facie case for proceeding against the accused. Reference in this connection can be made to a judgment of this Court in R.S. Nayak v. A.R. Antulay [(1986) 2 SCC 716 : 1986 SCC (Cri) 256] . The same reads as follows: (SCC pp. 755 56, para 43) "43. ... Notwithstanding 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 Section 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."
29. In the subsequent decision in the case of S. Selvi (Supra) this Court has summarised the principles while framing of the charge at the stage of Section 227/228 of the CrPC. This Court has observed and held in paragraph 6 and 7 as under:
"6. It is well settled by this Court in a catena of judgments including Union of India v. Prafulla Kumar Samal [Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4 : 1979 SCC (Cri) 609] , Dilawar Balu Kurane v. State of Maharashtra [Dilawar Balu Kurane v. State of Maharashtra, (2002) 2 SCC 135 : 2002 SCC (Cri) 310] , Sajjan Kumar v. CBI[Sajjan Kumar v. CBI, (2010) 9 SCC 368 : (2010) 3 SCC (Cri) 1371] , State v. A. Arun Kumar [State v. A. Arun Kumar, (2015) 2 SCC 417 : (2015) 2 SCC (Cri) 96 : (2015) 1 SCC (L&S) 505] , Sonu Gupta v. Deepak Gupta [Sonu Gupta v. Deepak Gupta, (2015) 3 SCC 424 : (2015) 2 SCC (Cri) 265] , State of Orissa v. Debendra Nath Padhi [State of Orissa v. Debendra Nath Padhi, (2003) 2 SCC 711 : 2003 SCC (Cri) 688] , Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya [Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya, (1990) 4 SCC 76 : 1991 SCC (Cri) 47] and Supt. & Remembrancer of Legal Affairs v. Anil Kumar Bhunja [Supt. & Remembrancer of Legal Affairs v. Anil Kumar Bhunja, (1979) 4 SCC 274 : 1979 SCC (Cri) 1038] that the Judge while considering the question of framing charge under Section 227 of the Code in sessions cases (which is akin to Section 239 CrPC pertaining to warrant cases) 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; where the material placed before the court discloses grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing the charge; by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his rights to discharge the accused. The Judge 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 statements and the documents produced before the court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the materials as if he was conducting a trial.
7. In Sajjan Kumar v. CBI [Sajjan Kumar v. CBI, (2010) 9 SCC 368 : (2010) 3 SCC (Cri) 1371] , this Court on consideration of the various decisions about the scope of Sections 227 and 228 of the Code, laid down the following principles: (SCC pp. 376, 77, para 21) "(i) The Judge while considering the question of framing the charges under Section 227 CrPC 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 disclose 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."
30. In the case of Mauvin Godinho (Supra) this Court had an occasion to consider how to determine prima facie case while framing the charge under Section 227/228 of the CrPC. In the same decision this Court observed and held that while considering the prima facie case at the stage of framing of the charge under Section 227 of the CrPC 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.
31. At this stage the decision of this Court in the case of Stree Atyachar Virodhi Parishad (Supra) is also required to be referred to. In that aforesaid decision this Court had an occasion to consider the scope of enquiry at the stage of deciding the matter under Section 227/228 of the CrPC. In paragraphs 11 to 14 observations of this Court in the aforesaid decision are as under :
"11. Section 227 of the Code of Criminal Procedure having bearing on the contentions urged for the parties, provides:
"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 no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing."
12. Section 228 requires the Judge to frame charge if he considers that there is ground for presuming that the accused has committed the offence. The interaction of these two sections has already been the subject matter of consideration by this Court. In State of Biharv. Ramesh Singh [(1977) 4 SCC 39 : 1977 SCC (Cri) 533 : (1978) 1 SCR 257] , Untwalia, J., while explaining the scope of the said sections observed: [SCR p. 259 : SCC pp. 41 42 : SCC (Cri) pp. 535 36, para 4] 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 the stage of deciding the matter under Section 227 or Section 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.
13. In Union of India v. Prafulla Kumar Samal [(1979) 3 SCC 4 : 1979 SCC (Cri) 609 : (1979) 2 SCR 229] , Fazal Ali, J., summarised some of the principles: [SCR pp. 234 35 : SCC p. 9 : SCC (Cri) pp. 613 14, para 10] "
(1) That the Judge while considering the question of framing the charges under Section 227 of the Code 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 had been made out.
(2) 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.
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced 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 appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."
14. These two decisions do not lay down different principles. Prafulla Kumar case [(1979) 3 SCC 4 : 1979 SCC (Cri) 609 : (1979) 2 SCR 229] has only reiterated what has been stated in Ramesh Singh case [(1977) 4 SCC 39 : 1977 SCC (Cri) 533 : (1978) 1 SCR 257] . In fact, Section 227 itself contains enough guidelines as to the scope of enquiry for the purpose of discharging an accused. It provides that "the Judge shall discharge when he considers that there is no sufficient ground for proceeding against the accused". The "ground" in the context is not a ground for conviction, but a ground for putting the accused on trial. It is in the trial, the guilt or the innocence of the accused will be determined and not at the time of framing of charge. The court, therefore, need not undertake an elaborate enquiry in sifting and weighing the material. Nor is it necessary to delve deep into various aspects. All that the court has to consider is whether the evidentiary material on record if generally accepted, would reasonably connect the accused with the crime. No more need be enquired into."
32. Applying the law laid down by this Court in the aforesaid decisions and considering the scope of enquiry at the stage of framing of the charge under Section 227/228 if the CrPC, we are of the opinion that the submissions made by the learned Counsel appearing on behalf of the appellant on merits, at this stage, are not required to be considered. Whatever submissions are made by the learned Counsel appearing on behalf of the appellant are on merits are required to be dealt with and considered at an appropriate stage during the course of the trial. Some of the submissions may be considered to be the defence of the accused. Some of the submissions made by the learned Counsel appearing on behalf of the appellant on the conduct of the victim/prosecutrix are required to be dealt with and considered at an appropriate stage during the trial. The same are not required to be considered at this stage of framing of the charge. On considering the material on record, we are of the opinion that there is more than a prima facie case against the accused for which he is required to be tried. There is sufficient ample material against the accused and therefore the learned Trial Court has rightly framed the charge against the accused and the same is rightly confirmed by the High Court. No interference of this Court is called for."
20. When the case in hand is examined in the light of above, this Court finds that the grounds urged by applicants for seeking discharge in afore- mentioned Sessions Trial relate to the disputed defence of applicants, which can more appropriately be dealt with during course of trial. Admittedly, occurrence in question is admitted to applicants, as is evident from ground no.6 of the disscharge application filed by applicants. Therefore, at this stage, it cannot be said that no occurrence has occurred. Moreover, Investigating Officer upon completion of investigation of concerned case crime number has submitted a Police Report i.e. charge- sheet. The police report is also accompanied with certain papers, which point out something more than mere complicity of accused applicants in the crime in question. As such, it cannot be said that prosecution of applicants is false or there is no material to support the prosecution of applicants. There is sufficient incriminating material against accused. Present case is not a case of mere suspicion nor that if the evidence on record goes unrebutted would not lead to the conviction of accused. On the basis of police report and the documents appended thereto, sufficient grounds exist to presume that applicants have committed the offence in question. Applicants will have an adequate opportunity to rebut this presumption at the time of trial. Main thrust of argument of learned counsel for applicants is that no offence under Section 307 I.P.C. is made out against applicants. It is well settled that for an offence under Section 307 I.P.C., it is not the injury caused by accused but the intention of the accused, which is the deciding factor. Whether on the material on record, charge could be framed against applicants under Section 307 I.P.C. or not can no longer be agitated as court below, vide order 27.02.2020, has already framed charges, which order has not been impugned in present application. Consequently, findings recorded by court below for rejecting the discharge application filed by applicants cannot be said to be illegal, perverse or erroneous. Court below has, thus, not committed a jurisdictional error in passing impugned order nor has it exercised it's jurisdiction with material irregularity, in rejecting the discharge application filed by applicants. This Court could have dismissed this application on the date of admission itself by placing reliance upon Ratilal Bhanji Mithani Vs. State of Maharastra and others 1979 ( 2) SCC 179 as charges have already been framed against applicants, vide framing of charge order dated 27.02.2020. Once charges have been framed, Court is under an obligation to answer the charge. It can either acquit or convict the accused but it cannot discharge an accused.. However, on account of perseverance shown by learned counsel for applicants namely, Miss Divya Ojha, judgement was reserved.
21. In view of above, present application fails and is liable to be dismissed.
22. It is accordingly dismissed.
Order Date :- 25.10.2021 YK