Court No. - 64
Case :- APPLICATION U/S 482 No. - 35960 of 2019
Applicant :- Vijay Kumar
Opposite Party :- State Of U.P. And Another
Counsel for Applicant :- Ajay Kumar Sinha, A Kumar Srivastava
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 orders dated 03.6.2019 and 25.6.2019 passed by learned Judicial Magistrate, Mirzapur in Criminal Case No. 2005 of 2015, under Section 308 I.P.C., P.S. Jamalpur, District Mirzapur, whereby the discharge application moved under Section 239 Cr.P.C. has been rejected.
Heard Sri Anil Kumar Srivastava, learned counsel assisted by Sri Ajay Kumar Sinha, learned counsel for the applicants as well as learned A.G.A.
Entire record has been perused.
Submission of counsel for the applicant is that the applicant is merely a villager and as was not a government servant therefore his prosecution for the offence punishable u/s 408 I.P.C. is illegal. Further submission is that no offence u/s 408 I.P.C. is made out against the applicant even from the material collected during investigation and therefore the court below was not justified in rejecting the discharge application of applicant. Several other contentions have also been raised by the applicants' counsel but all of them 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 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.
Perusal of record of the present case shows that the F.I.R. in the present case was lodged by the Block Development Officer of Block Jamalpur, Mirzapur against the applicant for the offence punishable u/s 408 I.P.C. Perusal of the F.I.R. shows that it was lodged after receiving an inquiry report, according to which it was the applicant who had committed the offence. During investigation the statement of the first informant was recorded which shows that a complaint was made to the Administrative officer that the Village Pradhan of Lohiya Gram Pidkhir and his associates i.e. the applicant, were engaged in extracting undue money from the beneficiaries of Lohiya Awas Yojana. It was found during investigation that it was the applicant who had taken money from the beneficiaries of aforesaid scheme. The members of the inquiry committee were also interrogated by the I.O. who had stated that on inquiry they had found that all the beneficiaries had told them that it was the applicant who had taken Rs.20,000/- from them. It seems that after investigation the Investigating Officer had submitted charge sheet against the applicant for the offence punishable u/s 408 I.P.C. The applicant had filed a discharge application u/s 239 Cr.P.C. claiming that no case u/s 408 I.P.C. is made out against them. The said discharge application has been rejected by the court below. The court below found that in fact offence u/s 120B read with Section 409 I.P.C. have been made out against the applicant and therefore court below proceeded to frame the charge against the applicant for the aforesaid offence. Perusal of impugned order shows that it has considered the entire material contained in the case diary. The statements of witnesses, who were beneficiaries of Lohiya Awas Yojana were also considered in which it has been stated by them that the applicant had taken Rs.20,000/- from each beneficiary. As the applicant was not a government servant rather he had illegally taken money from the aforesaid beneficiaries in the capacity of an associate of Gram Pradhan, and therefore, the court below had rightly came to the conclusion that the offence u/s 120-B read with Section 409 I.P.C. is made out and there was ample material to frame the charges against the applicant for the aforesaid offences. The impugned order is a well reasoned order based on the material on record.
It seems that there was some clerical mistake in the order dated 03.06.2019 by which the discharge application of the applicant was rejected regarding relevant sections and name of police station at the top portion of the order which was rectified/ corrected vide order dated 25.6.2019. This order dated 25.6.2019 is indeed an order to correct the clerical mistake which also does not suffer from any infirmity or illegality.
The submissions made by the applicant's 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 this Court does not find any justifiable ground to set aside the impugned order refusing the discharge of 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 orders 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.
The application stands dismissed.
Order Date :- 26.9.2019 Naresh/M.Kumar.