Nafr High Court
Case Details
1 Digitally signed by INDRAJEET SAHU Date: 2025.05.22 13:18:54 +0530 2025:CGHC:21412 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRR No. 347 of 2025 1 - Shubham Jaiswal S/o Anil Jaiswal Aged About 23 Years R/o Bagicha Police Station Bagicha District - Jashpur Chhattisgarh. 2 - Ajay Jaiswal S/o Late Shivnath Jaiswal Aged About 44 Years R/o Bagicha Police Station Bagicha District - Jashpur Chhattisgarh. 3 - Vivek Jaiswal S/o Anil Jaiswal Aged About 37 Years R/o Bagicha Police Station Bagicha District - Jashpur Chhattisgarh. 4 - Pratik Jaiswal S/o Ashok Jaiswal Aged About 26 Years R/o Bagicha Police Station Bagicha District - Jashpur Chhattisgarh. versus ... Petitioners 1 - State of Chhattisgarh Through Police Station Bagicha District - Jashpur Chhattisgarh. 2 - Kaushal Kumar Sharma S/o Shri Harinarayan Aged About 31 Years Occupation Shopkeeper R/o Bagicha Police Station Bagicha District - Jashpur Chhattisgarh (Complainant ). ... Respondent(s) For Petitioners For State : :
Legal Reasoning
Shri Anshul Tiwari, Advocate. Ms. Vaishali Mahilong, Panel Lawyer. Hon’ble Shri Justice Ravindra Kumar Agrawal, J
Decision
Order on Board 08.05. 202 5 1. The present Criminal Revision under Section 438 read with Section 442 of the Bhartiya Nagarik Suraksha Sanhita, 2023, (in short “BNSS”) is filed by the petitioners against the order dated 11-12-2024 passed by 2 the learned Sessions Judge, Jashpur, District Jashpur, in Sessions Case No. 48/2024, whereby the charges under Sections 294, 506, 392/34, 341 and 307 read with Section 34 of IPC have been framed against the petitioners. 2. Brief facts of the case, as emerge from the pleadings and documents annexed with the petition, are that on 03-01-2021, the complainant Kaushal Kumar lodged a report against the petitioners that at about 4.30 pm, when he was going to his friends, near Rouni Road, the petitioners/accused persons have raised quarrel and started beating him by hand and fists and kicks. They assaulted his body on the part where he underwent a surgical operation and tried to run a car over him. The people who were present there intervened and saved him. He lodged the report, and when he was being taken to the hospital for his treatment, they again started scuffling, and he was saved by the police. The FIR has been registered for the offence under Section 294, 506, 323, 392, 34 of the IPC. The complainant, Kaushal Kumar, was sent for his medical examination to the Community Health Centre, Bagicha. On being medically examined, the following injuries have been found on his body:- 1. Swelling with tenderness present over left thigh, 2. Abrasion, skin deep on the thumb of the left hand, 3. Abrasion middle finger of the left hand 4. Swelling with tenderness present on left hand 5. The injuries are caused by hard and blunt object, advised X-ray of left hand 6. In the X-ray, no bony injury was found, and opined that the injuries were simple in nature. 3 3. The accused persons/petitioners were arrested, and their memorandum statements were recorded. Statements of the witnesses have been recorded, and after completion of the investigation, the charge sheet has been filed against the petitioners/accused persons on 18-09-2023, for the offences under Sections 294, 506, 323, 392, 34, 341 and 307 of the IPC. 4. Since the offence of Section 307 of the IPC was added at the time of filing of charge sheet which is triable by the Court of Session, the case was committed to the learned Sessions Judge, Jashpur, for its trial. The learned trial court has framed charges on 21-11-2024 against the petitioners/accused persons for the offence under Sections 294, 506, 392/34, 341 and 307/34 of the IPC, which is under challenge in the present criminal revision. 5. Learned counsel for the petitioners/accused persons have mainly challenged the charge under Section 307/34 of the IPC and would submit that there are no ingredients in the entire charge sheet to satisfy the requirements of the offence of attempt to murder the complainant. He would further submit that for the incident of 03-01-2021, the present petitioner/accused persons have also lodged the report against the complainant party for which the offence of Crime No. 04/2021 was registered at police station Bagicha, for the offence under Section 294, 506, 323 of the IPC in which the present complainant is charge sheeted and Criminal Case No. 428/2021 is pending before the learned Judicial Magistrate First Class, Bagicha. A counter report has been lodged by him against the present petitioners/accused persons for the 4 same incident for which the offence under Section 294, 506, 323, 392/34, 341 of the IPC was registered on 03-01-2021 whereas after about more than two years, the offence of Section 307 is added and charge sheet has been filed on 18-09-2023 only to make the offence more grievous. Only superficial abrasions were found on the hand of the complainant and the ingredients of the offence of Section 307 are completely missing. No bony injury is found. No injuries were found on any vital part of the body. It was a simple fight between two groups and both parties have lodged reports against each other. Filing of charge sheet after more than two years when the charge sheet in the counter FIR has already been filed in the year 2021 itself, that too by adding the offence of Section 307 against the present petitioner/accused persons, itself creates doubt on the prosecution’s case. He would also submit that simple altercation between the parties culminated into scuffling and assault by hand and fist and kicks. There was no intentional assault upon the complainant. He would further submit that from the statement of the witnesses, there is no incident of any attempt to run the Car over the complainant, but it is only a scuffle between the complainant and the accused persons. Even the witness Avinash Singh @ babu who accompanied the complainant have not stated about the incident of attempt to run the car over the complainant. Neither any statement of the presence of the car on the spot is there, nor any car has been seized in the case. Therefore, he prayed for quashing the charge under Section 307/34 of the IPC against the petitioners/accused persons. 6. On the other hand, learned counsel for the state opposes the 5 submissions made by the learned counsel for the petitioners and has submitted that at the time of framing of charge only the prima facie case is to be considered as to whether from the material annexed with the charge sheet there is sufficient evidence for framing of the charge and to proceed with the trial or not. The trial court is not required to meticulously examine the evidence at the stage of framing the charge. In the present case there is allegation against the petitioners, who are the accused persons in the offence that they have brutally assaulted the complainant and injuries have been found on his body and by the behaviour and conduct of the petitioners and the manner in which the complainant is being assaulted, the ingredients of Section 307 IPC is satisfied. He would also submit that the revisional powers of Section 438 of BNSS should not be exercised to stifle a legitimate prosecution and the court is not required to conduct a meticulous appreciation of evidence or a roving inquiry into the same and has the power to sift and weigh the evidence for the limited purposes of finding out whether or not a prima facie case has been made out against the accused. Therefore, the petition has no merit, and the same is liable to be dismissed. 7. I have heard the learned counsel for the parties and perused the material produced along with the petition. 8. While exercising the jurisdiction under Section 438 of the BNSS, 2023, at the stage of framing of charge, what would be the consideration of the trial court, principles have been alid down by the Hon’ble Supreme 6 Court in the case of State of M.P. vs. Deepak 2019 (13) SCC 62, wherein it has been held that at the stage of framing of charge, the court has to consider the material only with a view to find out if there is a ground for presuming that the accused had committed the offence. It is also held that the court is required to evaluate the material and documents on record with a view to finding out if facts emerging therefrom, taken at their face value, disclose the existence of all the ingredients constituting the alleged offence and at the stage of framing charge, the court is not required to appreciate the evidence on record and consider the allegations on merits and to find out on the basis of the evidence recorded is likely to be convicted or not. In the matter of Deepak (Supra), in its judgement, the Hon’ble Supreme Court has held that:- “14 It is of relevance to refer to certain judgements of this Court. In Chitresh Kumar Chopra v. State (NCT of Delhi) 7, the appellant and two other individuals were charged under Section 306 read with Section 34 of the Penal Code. It had been alleged that the appellant and the other accused persons had forcibly compelled the deceased to sign a settlement giving up a part of his share in the profits from the sale of certain land. This led to a dispute and as a result of the mental harassment suffered by the deceased, he committed suicide. The Court affirmed the framing of charges by the trial court. The two-judge Bench of this Court laid down the ingredients of the offence of abetment of suicide. Justice D K Jain held thus: “19. As observed in Ramesh Kumar [(2001) 9 SCC 618 : 2002 SCC (Cri) 1088] , where the accused by his acts or by a continued course of conduct creates such circumstances that the deceased was left with no other option except to commit suicide, an “instigation” may be inferred. In other words, in order to prove that the accused abetted commission of suicide by a person, it has to be established that: (i) the accused kept on irritating or annoying the deceased by words, deeds or willful omission or conduct which may even be a willful silence until the deceased reacted or pushed or forced the deceased by his deeds, 7 (2009) 16 SCC 605 words or willful omission or conduct to make the deceased move forward more quickly in a forward direction; and (ii) that the accused had the intention to provoke, urge or encourage the deceased to commit suicide while acting in the 7 manner noted above. Undoubtedly, presence of mens rea is the necessary concomitant of instigation.” (Emphasis supplied) 15. After due consideration of the facts and circumstances, the Court noted that prima facie, the offence of abetment of suicide was made out: “22. In the present case, apart from the suicide note, extracted above, statements recorded by the police during the course of investigation, tend to show that on account of business transactions with the accused, including the appellant herein, the deceased was put under tremendous pressure to do something which he was perhaps not willing to do. Prima facie, it appears that the conduct of the appellant and his accomplices was such that the deceased was left with no other option except to end his life and therefore, clause Firstly of Section 107 IPC was attracted.” (Emphasis supplied) 16. It was also noted that at the stage of framing of charges, the Court has to consider the material only with a view to find out if there is a ground for “presuming” that the accused had committed the offence: “25. 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, disclose the existence of all the ingredients constituting the alleged offence or offences. For this limited purpose, the court may sift the evidence as it cannot be expected even at the initial stage to accept as gospel truth all that the prosecution states. At this stage, the court has to consider the material only with a view to find out if there is ground for “presuming” that the accused has committed an offence and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction.” 17. A two-judge Bench of this Court, in Rajbir Singh v State of U P 8 noted that in 8 (2006) 4 SCC 51 accordance with Section 227, the High Court must ascertain whether there is “sufficient ground for proceeding against the accused” or there is ground for “presuming” that the offence has been committed. Justice G P Mathur held thus: “9. In Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia, the Court while examining the scope of Section 227 held as under: “… Section 227 itself contains enough guidelines as to the scope of inquiry 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 inquiry 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.” 10. The High Court did not at all apply the relevant test, namely, whether there is sufficient ground for proceeding against the 8 accused or whether there is ground for presuming that the accused has committed an offence. If the answer is in the affirmative an order of discharge cannot be passed and the accused has to face the trial. The High Court after merely observing that “as the firing was aimed at the other persons and accidentally the deceased Pooja Balmiki was passing through that way and she was hit” and further observing that “the applicant neither intended to kill the deceased nor was she aimed at because of the reason that she was a Scheduled Caste” set aside the order by which the charges had been framed against Respondent 2. There can be no manner of doubt that the provisions of Section 301 IPC have been completely ignored and the relevant criteria for judging the validity of the order passed by the learned Special Judge directing framing of charges have not been applied. The impugned order is, therefore, clearly erroneous in law and is liable to be set aside.” (Emphasis supplied)” 9. In the matter of Manjit Singh Virdi vs. Hussain Mohammad Shattaf 2023 (7) SCC 633, the Hon’ble Supreme Court has held in para 12 of its judgement that:- “12. The law on the point has been summarised in a recent judgment of this Court in State of Rajasthan v. Ashok Kumar Kashyap. Relevant paras are extracted below: - “11.1. In P. Vijayan v. State of Kerala, (2010) 2 SCC 398, this Court had an occasion to consider Section 227 CrPC What is required to be considered at the time of framing of the charge and/or considering the discharge application has been considered elaborately in the said decision. It is observed and held that at the stage of Section 227, 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. It is observed that in other words, the sufficiency of grounds 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. It is further observed that if the Judge comes to a conclusion that there is sufficient ground to proceed, he will frame a charge under Section 228 CrPC, if not, he will discharge the accused. It is further observed that while exercising its judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution, 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 the trial starts. 11.2. In the recent decision of this Court in State of Karnataka v. M.R. Hiremath, (2019) 7 SCC 515, one of us (D.Y. Chandrachud, J.) speaking for the Bench has observed and held in para 25 as under: 9 “25. The High Court [M.R. Hiremath v. State, 2017 SCC OnLine Kar 4970] ought to have been cognizant of the fact that the trial court was dealing with an application for discharge under the provisions of Section 239 CrPC. The parameters which govern the exercise of this jurisdiction have found expression in several decisions of this Court. It is a settled principle of law that at the stage of considering an application for discharge the court must proceed on the assumption that the material which has been brought on the record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary to constitute the offence. In State of T.N. v. N. Suresh Rajan, (2014) 11 SCC 709, Criminal Appeal No. 1399 of 2023 adverting to the earlier decisions on the subject, this Court held: ‘29. … 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.” 10. Further, in the matter of State by SP through the SPE, CBI vs. Uttamchand Bohra, 2022 (16) SCC 663, the Hon’ble Supreme Court has held in para 21 of its judgement that:- “21. In Central Bureau of Investigation v. K. Narayana Rao5 this Court, after reviewing the previous decisions that dealt with the question of the applicable standard relating to discharge of accused in a criminal case, summarized the principles in the following terms: 12. The first decision in Ramesh Singh [(1977) 4 SCC 39] relates to interpretation of Sections 227 and 228 of the Code for the considerations as to discharge the accused or to proceed with trial. “4. Under Section 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 Section 227 or Section 228 of the Code. If ‘the Judge considers that there is no sufficient ground for proceeding against the accused, 10 he shall discharge the accused and record his reasons for so doing’, as enjoined by Section 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 Section 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 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. 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 evidence, if any, cannot show that the accused committed 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 Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section 227.