Supreme Court
Case Details
Neutral Citation No. - 2024:AHC:158732 Court No. - 74 Case :- APPLICATION U/S 482 No. - 14165 of 2024 Applicant :- Hari Dutt Mishra And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ram Dutt Mishra,Sunil Kumar Singh Counsel for Opposite Party :- G.A. Hon'ble Saurabh Shyam Shamshery,J. 1. Heard Sri Sunil Kumar Singh, learned counsel for applicants and Sri Roshan Kumar Singh, learned AGA for State. 2. This application under Section 482 Cr.P.C. has been filed with a prayer to quash the entire proceedings as well as order dated 16.03.2024 passed by Additional Civil Judge (Senior Division) First, Bhadohi at Gyanpur in Case No. 328 of 2012, arising out of Case Crime No. 89 of 2010, under Sections 504, 506, 427 IPC, Police Station Chauri, District Sant Ravidas Nagar (Bhadohi). 3. It is very surprising that a discharge application filed on 06.10.2012 is finally decided by impugned order dated 16.03.2024, i.e., after about a dozen of years, which is absolutely against the principle of speedy trial as reiterated by Supreme Court as well as this Court in various judgments. 4. Law in regard to consideration of discharge application is being considered by the Supreme Court in the case of Vishnu Kumar Shukla and another vs State of UP 2013 INSC 1026 and relevant part thereof is mentioned hereinafter:- “19. In Rumi Dhar v. State of West Bengal, (2009) 6 SCC 364, this Court held that the Judge concerned with an application under Section 239, CrPC has to ‘… go into the details of the allegations made against each of the accused persons so as to form an opinion as to whether any case at all has been made out or not as a strong suspicion in regard thereto shall subserve the requirements of law.’ 20. In State of Tamil Nadu v. N Suresh Rajan, (2014) 11 SCC 709, it was observed notwithstanding the difference in language of Sections 227 and 239, CrPC, the approach of the Court concerned is to be common under both provisions. The principles holding the field under Sections 227 and 228, CrPC are well-settled, courtesy, inter alia, State of Bihar v. Ramesh Singh, (1977) 4 SCC 39; Union of India v. Prafulla K Samal, (1979) 3 SCC 4; Stree Atyachar Virodhi Parishad v. Dilip N Chordia, (1989) 1 SCC 715; Niranjan Singh Karam Singh Punjabi v. Jitendra B Bijjaya, (1990) 4 SCC 76; Dilawar B Kurane v. State of Maharashtra, (2002) 2 SCC 135; Chitresh K Chopra v. State (Government of NCT of Delhi), (2009) 16 SCC 605; Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460; Dinesh Tiwari v. State of Uttar Pradesh, (2014) 13 SCC 137; Dipakbhai Jagdishchandra Patel v. State of Gujarat, (2019) 16 SCC 547; and State (NCT of Delhi) v. Shiv Charan Bansal, (2020) 2 SCC 290. We need only refer to some, starting with Prafulla K Samal (supra), where, after considering Ramesh Singh (supra), K P Raghavan v. M H Abbas, AIR 1967 SC 740 and Almohan Das v. State of West Bengal, (1969) 2 SCR 520, it was laid down as under: ‘10. Thus, on a consideration of the authorities mentioned above, the following principles emerge: (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 has 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.
Legal Reasoning
(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.’ 21. In Niranjan Singh Karam Singh Punjabi (supra), this Court was alive to reality, stating that ‘… it cannot be expected even at the 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.’ If a view gives rise to suspicion, as opposed to grave suspicion, the Court concerned is empowered to discharge the accused, as pointed out in Sajjan Kumar v. Central Bureau of Investigation, (2010) 9 SCC 368. The Court, in Dinesh Tiwari (supra) had reasoned that if the Court concerned opines that there is ground to presume the accused has committed an offence, it is competent to frame a charge even if such offence is not mentioned in the Charge Sheet. As to what is ‘strong suspicion’, reference to Dipakbhai Jagdishchandra Patel (supra) is warranted, where it was explained that it is ‘… the suspicion which is premised on some material which commends itself to the court as sufficient to entertain the prima facie view that the accused has committed the offence.’ 22. In a recent judgment viz. State of Gujarat v. Dilipsinh Kishorsinh Rao, 2023 INSC 894, 2023 SCC OnLine SC 1294. this Court held: ‘7. It is trite law that application of judicial mind being necessary to determine whether a case has been made out by the prosecution for proceeding with trial and it would not be necessary to dwell into the pros and cons of the matter by examining the defence of the accused when an application for discharge is filed. At that stage, the trial judge has to merely examine the evidence placed by the prosecution in order to determine whether or not the grounds are sufficient to proceed against the accused on basis of charge sheet material. The nature of the evidence recorded or collected by the investigating agency or the documents produced in which prima facie it reveals that there are suspicious circumstances against the accused, so as to frame a charge would suffice and such material would be taken into account for the purposes of framing the charge. If there is no sufficient ground for proceeding against the accused necessarily, the accused would be discharged, but if the court is of the opinion, after such consideration of the material there are grounds for presuming that accused has committed the offence which is triable, then necessarily charge has to be framed. 8. At the time of framing of the charge and taking cognizance the accused has no right to produce any material and call upon the court to examine the same. No provision in the Code grants any right to the accused to file any material or document at the stage of framing of charge. The trial court has to apply its judicial mind to the facts of the case as may be necessary to determine whether a case has been made out by the prosecution for trial on the basis of charge-sheet material only. 9. If the accused is able to demonstrate from the charge-sheet material at the stage of framing the charge which might drastically affect the very sustainability of the case, it is unfair to suggest that such material should not be considered or ignored by the court at that stage. The main intention of granting a chance to the accused of making submissions as envisaged under Section 227 of the Cr. P.C. is to assist the court to determine whether it is required to proceed to conduct the trial. Nothing in the Code limits the ambit of such hearing, to oral hearing and oral arguments only and therefore, the trial court can consider the material produced by the accused before the I.O. 10. It is settled principle of law that at the stage of considering an application for discharge the court must proceed on an assumption that the material which has been brought on record by the prosecution is true and evaluate said material in order to determine whether the facts emerging from the material taken on its face value, disclose the existence of the ingredients necessary of the offence alleged. … xxx 11. The defence of the accused is not to be looked into at the stage when the accused seeks to be discharged. The expression “the record of the case” used in Section 227 Cr. P.C. is to be understood as the documents and articles, if any, produced by the prosecution. The Code does not give any right to the accused to produce any document at the stage of framing of the charge. The submission of the accused is to be confined to the material produced by the investigating agency. 12. The primary consideration at the stage of framing of charge is the test of existence of a prima-facie case, and at this stage, the probative value of materials on record need not be gone into. This Court by referring to its earlier decisions in the State of Maharashtra v. Som Nath Thapa, (1996) 4 SCC 659 and the State of MP v. Mohan Lal Soni, (2000) 6 SCC 338 has held the nature of evaluation to be made by the court at the stage of framing of the charge is to test the existence of prima-facie case. It is also held at the stage of framing of charge, the court has to form a presumptive opinion to the existence of factual ingredients constituting the offence alleged and it is not expected to go deep into probative value of the material on record and to check whether the material on record would certainly lead to conviction at the conclusion of trial.” 5. At this stage, Court also takes note of a recent judgement passed by Supreme Court Ram Prakash Chadha Vs. The State of U.P. 2024 INSC 522 and relevant paras thereof are also reproduced hereinafter:- “19. In the light of the decisions referred supra, it is thus obvious that it will be within the jurisdiction of the Court concerned to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused concerned has been made out. We are of the considered view that a caution has to be sounded for the reason that the chances of going beyond the permissible jurisdiction under Section 227, Cr. P.C., and entering into the scope of power under Section 232, Cr. P.C., cannot be ruled out as such instances are aplenty. In this context, it is relevant to refer to a decision of this Court in Om Parkash Sharma v. CBI (2000) 5 SCC 679. Taking note of the language of Section 227, Cr. P.C., is in negative terminology and that the language in Section 232, Cr. P.C., is in the positive terminology and considering this distinction between the two, this Court held that it would not be open to the Court while considering an application under Section 227, Cr. P.C., to weigh the pros and cons of the evidence alleged improbability and then proceed to discharge the accused holding that the statements existing in the case therein are unreliable. It is held that doing so would be practically acting under Section 232, Cr. P.C., even though the said stage has not reached. In short, though it is permissible to sift and weigh the materials for the limited purpose of finding out whether or not a prima facie case is made out against the accused, on appreciation of the admissibility and the evidentiary value such materials brought on record by the prosecution is impermissible as it would amount to denial of opportunity to the prosecution to prove them appropriately at the appropriate stage besides amounting to exercise of the power coupled with obligation under Section 232, Cr. P.C., available only after taking the evidence for the prosecution and examining the accused. 20. Even after referring to the aforesaid decisions, we think it absolutely appropriate to refer to a decision of the Madhya Pradesh High Court in Kaushalya Devi v. State of MP 2003 SCC OnLine MP 672. It was held in the said case that if there is no legal evidence, then framing of charge would be groundless and compelling the accused to face the trial is contrary to the procedure offending Article 21 of the Constitution of India. While agreeing with the view, we make it clear that the expression ‘legal evidence’ has to be construed only as evidence disclosing prima facie case, ‘the record of the case and the documents submitted therewith’. 21. The stage of Section 227, Cr. P.C., is equally crucial and determinative to both the prosecution and the accused, we will dilate the issue further. In this context, certain other aspects also require consideration. It cannot be said that Section 227, Cr. P.C., is couched in negative terminology without a purpose. Charge sheet is a misnomer for the final report filed under Section 173 (2), Cr. P.C., which is not a negative report and one that carries an accusation against the accused concerned of having committed the offence (s) mentioned therein. 22. In cases, where it appears that the said offence(s) is one triable exclusively by the Court of Session, the Magistrate shall have to commit the case to the Court of Session concerned following the prescribed procedures under Cr. P.C. In such cases, though it carries an accusation as aforementioned still legislature thought it appropriate to provide an inviolable right as a precious safeguard for the accused, a pre-battle protection under Section 227, Cr. P.C. Though, this provision is couched in negative it obligated the court concerned to unfailingly consider the record of the case and document submitted therewith and also to hear the submissions of the accused and the prosecution in that behalf to arrive at a conclusion as to whether or not sufficient ground for proceeding against the accused is available thereunder. Certainly, if the answer of such consideration is in the negative, the court is bound to discharge the accused and to record reasons therefor. The corollary is that the question of framing the charge would arise only in a case where the court upon such exercise satisfies itself about the prima facie case revealing from “the record of the case and the documents submitted therewith” against the accused concerned. In short, it can be said in that view of the matter that the intention embedded is to ensure that an accused will be made to stand the ordeal of trial only if ‘the record of the case and the documents submitted therewith’ discloses ground for proceeding against him. When that be so, in a case where an application is filed for discharge under Section 227, Cr. P.C., it is an irrecusable duty and obligation of the Court to apply its mind and answer to it regarding the existence of or otherwise, of ground for proceeding against the accused, by confining such consideration based only on the record of the case and the documents submitted therewith and after hearing the submissions of the accused and the prosecution in that behalf. To wit, such conclusion on existence or otherwise of ground to proceed against the accused concerned should not be and could not be based on mere suppositions or suspicions or conjectures, especially not founded upon material available before the Court. We are not oblivious of the fact that normally, the Court is to record his reasons only for discharging an accused at the stage of Section 227, Cr. P.C. However, when an application for discharge is filed under Section 227, Cr. P.C., the Court concerned is bound to disclose the reason(s), though, not in detail, for finding sufficient ground for rejecting the application or in other words, for finding prima facie case, as it will enable the superior Court to examine the challenge against the order of rejection.” 6. Learned counsel for applicants by referring the documents annexed alongwith this application submits that essentially complainant was not an aggrieved party. He has no interest with alleged occurrence of uprooting the Khadanja in village concerned and proceedings were initiated with malicious intention. He further referred a certificate purportedly issued by Gram Pradhan concerned that no occurrence of uprooting the Khadanja was ever taken place though admittedly no statement of Gram Pradhan was recorded during investigation or such report was never placed by accused/ applicants during investigation. 7. Above referred documents cannot be considered as a document of impeccable quality at the stage of discharge application since it is well settled that at this stage defence cannot be considered except in exceptional circumstances and such exceptional circumstance does not exist in the present case. 8. So far as locus is concerned, Section 154 Cr.P.C. requires an information only relating to commission of a cognizable offence, in respect of relation of informant, otherwise also every person is an aggrieved person if a public property is damaged. 9. Trial Court concerned though decided discharge application after a dozen of years but has rightly followed the judgment passed by Supreme Court in State By Karnataka Lokayukta, Police Station, Bengaluru vs. M.R. Hirenath, 2019 (7) SCC 515 that statement recorded during investigation prima facie indicate that there was more than prima facie case to frame charges. 10. Learned counsel for applicants has also not placed copy of statements of all the witnesses recorded during investigation, which is also an adverse factor and goes against applicants since without consideration of said statements, Court cannot come to conclusion that discharge application was wrongly decided. 11. In view of above, I do not find any reason to invoke inherent power under Section 482 Cr.P.C. The application is accordingly dismissed. Order Date :- 27.9.2024 AK