Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Revision No.1366 of 2010 ====================================================== Sudhir Roy @ Sudhir Kumar Roy, son of Sri Asharfi Roy, resident of village-Madhopur, P.O.-Khudaibag, P.S.-Marauhra, District-Saran at present residing at Block No.21, Flat No.F-1, P.O.-Luabasa, P.S.- Gobindpur, District-East Singhbhum. .... .... Petitioner/s 1. State Of Bihar & 2. Shivjag Singh, son of Late Gaya Singh, resident of village-Bhuiyandih, Nandan Nagar, P.O.-Agrico, P.S.-Sidhgora, District-East Singhbhum. Versus .... .... Respondent/s ====================================================== with Criminal Revision No.1378 of 2010 ====================================================== Pappu Sharma, son of Late Madan Mohan Sharma, resident of Mohalla- Bhuiyandih Lakari Tola, P.O.-Agrico, P.S.-Sitaram Dera, District-East Singhbhum. .... .... Petitioner/s Versus 1. State Of Bihar & 2. Shivjag Singh, son of Late Gaya Singh, resident of village-Bhuiyandih, Nandan Nagar, P.O.-Agrico, P.S.-Sidhgora, District-East Singhbhum .... Respondent/s ====================================================== with Criminal Revision No.1437 of 2010 ====================================================== 1. Kalika Rai @ Kalika Singh, son of Late Ram Badan Singh, resident of Shidgorra, District- P.S. village/Mohalla-Agriculture Area, Jamshedpur(Jharkhand) & 2. Ganesh Deogan @ Ganesh Prasad, son of Balram Prasad, resident of village-New Tola Line P.S.Golmuri, District-Jamshedpur(Jharkhand) .... .... Petitioner/s Versus 1. State Aof Bihar & 2. Shivjag Singh, son of Late Gaya Singh, resident of village-Bhuiyandih, District-East P.S.-Sidhgora, P.O.-Agrico, Nandan Singhbhum(Jharkhand). Nagar,
Legal Reasoning
(i) The Judge while considering the question of framing the charges under Section 227 of the Cr.P.C. 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 discloses the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as if 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.” Patna High Court CR. REV. No.1366 of 2010 (8) dt.24-06-2013 6 In Amit Kapoor Vrs. Ramesh Chander & Anr. reported in JT 2012(9) SC 312 again the matter has been thrashed and virtually the aforesaid principle has been reaffirmed after taking into account the earlier decisions at para-11 of the aforesaid judgment which is quoted below:- “11.At the initial stage of framing of a charge, the court is concerned not with proof but with a strong suspicion that the accused has committed an offence, which, if put to trial, could prove him guilty. All that the court has to see is that the material on record and the facts would be compatible with the innocence of the accused or not. The final test of guilt is not to be applied at that stage. We may refer to the well settled law laid down by this Court in the case of State of Bihar v. Ramesh Singh [1977 (4) SCC 39]: 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 under S. 227 or 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) is 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 Patna High Court CR. REV. No.1366 of 2010 (8) dt.24-06-2013 7 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 S. 227 or S. 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 in cross- examination or rebutted by the defence evidence, if any, cannot show that the accused comitted the offence, then 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. if fully accepted before is challenged it 7. Now coming to the propriety of the order impugned, it is apparent that the learned lower court had taken into account two paragraphs; para-14 and para-29 whereunder the witnesses have categorically stated that after hearing sound of firing they saw Patna High Court CR. REV. No.1366 of 2010 (8) dt.24-06-2013 8 Kalika Singh having his finger over trigger and the gun was aimed towards Pramod Kumar, deceased. So for the present, the aforesaid materials did satisfy the ingredients enumerated by the Hon’ble Apex Court as referred herein above and on account thereof, the present three revision petitions are found to be devoid of merit and are accordingly rejected. (Aditya Kumar Trivedi, J) B.Kr./-
Arguments
.... .... Respondent/s ====================================================== Appearance : (In CR. REV. No.1366 of 2010) For the Petitioner/s : Mr. Vishundeo Narayan, Sr. Advocate & Mr. Manishankar Narayan, Advocate. For the Respondent/s : Dr. M.K.Gautam, APP. (In CR. REV. No.1378 of 2010) For the Petitioner/s : Mr. Vishundeo Narayan, Sr. Advocate & Mr. Manishankar Narayan, Advocate. Patna High Court CR. REV. No.1366 of 2010 (8) dt.24-06-2013 2 For the Respondent/s : Mr. Dr. M.K.Gautam, APP (In CR. REV. No.1437 of 2010) For the Petitioner/s : Mr. Arvind Kumar Sinha, Advocate For the Respondent/s : Mr. Dr. M.K.Gautam, APP. ====================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI ORAL ORDER 8 24-06-2013 Heard learned counsel for the petitioners as well as learned Additional P.P. 2. Because of the fact that all these Cr.Revisions originate from common order, hence with the consent of the parties have been heard together and are being disposed of by a common order. 3. Petitioners are aggrieved by an order dated 25.08.2010 passed by Fast Track Court No.V, Bhojpur at Ara in Sessions Trial No.575 of 2008 rejecting the prayer of the petitioners to the extent of application of Section 228 (1)(a) of the Cr.P.C. 4. It has been submitted on behalf of the petitioners that at the earlier occasion Vijay Kumar Singh had given fardbeyan with regard to the occurrence in question which has incorporated under para-6 of the case diary but the prosecution with an ulterior motive suppressed the same and got registered this case on the fardbeyan of Sheoji Singh, the father of the deceased who, admittedly happens to be not an eye witness to the occurrence. Also submitted that during course of investigation, the numerous Patna High Court CR. REV. No.1366 of 2010 (8) dt.24-06-2013 3 members of Barat party were examined by the investigating authority who had suggested that deceased had sustained gun shot injury on account of accidental fire caused by himself while holding a gun and on account thereof no case under Section 302 along with other allied Sections are made out. It has further been submitted that investigating authority, after completing investigation submitted chargesheet under Section 304A of the IPC as a major Section but differing therefrom, the learned Chief Judicial Magistrate took cognizance against which the petitioners have preferred Cr.Misc. before the Hon’ble High Court bearing Cr.Misc.No.5263 of 2007 which was dismissed with an observation to raise the plea at the stage of framing of charge, accordingly, the point has been raised. It has further been submitted that though there happens to be presence of some sort of allegations under para-14 and para-29 of the case diary along with the report of ballistic examination but the fact remains that Vijay Kumar Singh whose statement was earlier recorded had negativated the prosecution story as propounded subsequently. Hence, it has been submitted that it is a fit case wherein there should be application of Section 228(1)(a) of the Cr.P.C. in having holding a prima-facie case under Section 304A of the IPC along with other minor offences on account of being exclusively triable Patna High Court CR. REV. No.1366 of 2010 (8) dt.24-06-2013 4 by the court of Magistrate. 5. At the other hand, the learned Additional P.P. opposed the prayer and submitted that the learned lower Court had taken into account the materials available in the case diary while rejecting the prayer of the petitioners. 6. Giving an opportunity at an earlier stage while rejecting a Cr.Misc.Petition does not authorize the petitioners have the liberty in his favour. The mode of appreciation of the material available on the record differs from stage to stage. The mode of appreciation at the stage of taking of cognizance is something different from the mode of appreciation of the material at the stage of framing of charge and in likewise manner the mode of appreciation at the fag end of trial, happens to be quite distinct and different from the aforesaid states. That means to say the courts are expected to appreciate the material in different ways at different occasion. So far, stage of charge is concerned, grave suspicion is found sufficient to justify framing of charge. In a case of Sajjan Kumar v. Central Bureau of Investigation reported in 2011 AIR SCW 3730, the aforesaid theme has been taken into consideration and under para-17 thereof, it has been explained in detail. For better appreciation, para-17 is quoted below:- “17. Exercise of jurisdiction under Sections 227 & 228 of Cr.P.C. Patna High Court CR. REV. No.1366 of 2010 (8) dt.24-06-2013 5 On consideration of the authorities about the cope of Sections 227 and 228 of the Code, the following principles emerge:-