B IPC. He also referred the judgment in case of Naresh Nehru v. State of Haryana

Judgment

2. Versus State Of Rajasthan, Through P.p Smt. Sudha Choudhary W/o Shri Ranveer Choudhary, 2- Ga-33. Teachers Colony, Keshavpura, Mahaveer Nagar, Kota City Kota (Raj) ----Respondents For Petitioner(s) : Mr. Madhav Mitra, Senior Advocate with Ms. Jaya Mitra, Mr. Rakesh Choudhary, Mr. Veerendra Singh & Mr. Manav Sharma For Respondent(s)

: Mr. Vijay Singh Yadav, PP HON'BLE MR. JUSTICE ASHOK KUMAR JAIN 15/05/2025 Order

1. Instant revision petition is preferred by petitioner-accused Vikram Singh S/o Hari Singh aggrieved from order to frame charge dated 20.09.2022 in sessions case No. 156/2020 passed by learned Additional Sessions Judge No.2, Kota whereby charge under Sections 302, 147, 148, 149 and 120-B IPC was framed against the petitioner-accused.

2. Learned Senior Advocate appearing on behalf of petitioner- accused submitted that on basis of assault by firearms upon complainant and her husband, a report was lodged against Peer Mohammed, Harun, Ajay Hada, Tinku Khan and others. He further submitted that from the entire evidence collected during [2025:RJ-JP:22892] (2 of 7) [CRLR-1155/2023] investigation by police nowhere it was established that this petitioner-accused was present at the spot with named persons in FIR. He also referred the evidence on record collected by police and submitted that the trial Court has misunderstood the material collected by police and frame the charge with aid and assistance of Section 147, 148 and 149 IPC presuming that this petitioner- accused was also present at the time of incident in furtherance of common object. He also referred the evidence on record and submitted that this petitioner was charged as a member of an unlawful assembly but his presence and participation in furtherance of common were not proved from the material on record, therefore this petitioner is wrongly charged under Sections 147, 148 and 149 IPC. He also submitted that he is not challenging an order to frame charge under Sections 302 read with Section 120-B IPC. He also referred the judgment in case of Naresh @ Nehru Vs. State of Haryana 2023 INSC 889 and submitted that to convict a person under Section 149 IPC, the prosecution has to establish that the accused has shared a common object and was member of unlawful assembly and also that he was aware about the offences likely to be committed to achieve said common object. He also placed reliance upon judgment in case of Daya Kishan Vs. State of Haryana AIR 2010 SC 2417 and submitted that when there is no evidence to show that this petitioner-accused has shared common object as part of unlawful assembly then a charge under Section 147, 148 and 149 IPC cannot be framed against the petitioner-accused. [2025:RJ-JP:22892] (3 of 7) [CRLR-1155/2023]

3. Learned Public Prosecutor has opposed the submission of learned Senior Advocate appearing for petitioner and submitted that at this stage the role and involvement cannot be decided on basis of material available on record which was collected during investigation.

4. Heard learned Senior Advocate appearing for petitioner along with learned Public Prosecutor. Perused the record.

5. On basis of a report lodged by Smt. Sudha Choudhary wife of Shri Ranveer Choudhary on 23.12.2019 about shoot-out incident on 22.12.2019 resulting in death of her husband due to gun-shot injury, FIR No. 599/2019 under Sections 302, 143, 120-B IPC and 3/25 Arms Act was registered at Police Station R.K. Puram, Kota. After investigation, police has filed a charge-sheet against Peer Mohammed and Tinku Khan under Sections 302, 147, 148, 149, 120-B IPC and Section 3/25 Arms Act and under Sections 302, 147, 148, 149, 120-B IPC against Sharafat Ali, Vikram Singh, Mohammed Mansoor and Rafiq Ahmed but kept investigation pending under Section 173(8) of Cr.P.C. against Ajay Singh @ Ajju, Mahesh Harijan, Harun, Shivraj Singh @ kaliya, Manish Sardiwal and others.

6. After considering the submission of the prosecution and accused the Trial Court has directed to frame charge against Tinku Khan under Sections 302, 147, 148, 149, 120-B IPC and 3/25 Arms Act and against Shivraj @ kaliya under Sections 302, 120-B IPC and against Shrafat Ali, Vikram Singh, Lokesh, Mohammed Mansoor and Rashid Ahmed under Sections 302, 147, 148, 149 and 120-B IPC. [2025:RJ-JP:22892] (4 of 7) [CRLR-1155/2023]

7. A perusal of record also indicate that after order dated

20.09.2022 an application under Section 216 Cr.P.C. was filed by Rafiq Ahmed and Vikram Singh to delete the charge under Section 147, 148 and 149 IPC. The ground raised by present petitioner before the Trial Court under Section 216 was that the petitioner- accused was not present on spot rather and was not a member of unlawful assembly and also did not shared the common object with other accused. The trial Court after considering the material on record has dismissed the application under Section 216 Cr.P.C.

8. Now, this petitioner has challenged an order of framing of charge under Section 147, 148 and 149 IPC and not under Section 302 read with Section 120-B IPC. In case of Daya Kishan Vs. State of Haryana (supra) Hon’ble Supreme Court after considering the detailed evidence recorded after full trial has observed that where there is no evidence to establish that accused did share common object as one of the member of an unlawful assembly to cause death of deceased then Section 149 IPC cannot be attracted. This judgment was followed in case of Joseph Vs. State of Tamil Nadu AIR 2018 SC 93 wherein Hon’ble Supreme Court has held that to invoke Section 149 IPC essential ingredients of Section 141 Cr.P.C. has to be established. The rule of vicarious liability to depend upon establishment of essential ingredient then only every member of an unlawful assembly would be vicariously liable for the acts done by any member of the assembly.

9. In case of Naresh @ Nehru Vs. State of Haryana (supra) Hon’ble Supreme Court while considering the provisions of Section 149 IPC has held that to convict a person under Section 149 IPC [2025:RJ-JP:22892] (5 of 7) [CRLR-1155/2023] the prosecution has to establish with the help of evidence that accused share a common object and was member of unlawful assembly and also he was aware about the common object. Herein, this case the petitioner-accused is aggrieved of partial charge and not the entire charge. A charge under Section 302 read with 120-B IPC is not challenged by this petitioner-accused rather he challenged the charge under Sections 147, 148 and 149 IPC.

10. The principles of law at the stage of charge were considered by Hon’ble Supreme Court in case of State of Bihar Vs. Ramesh Singh : (1977) 4 SCC 39 and Union of India Vs. Prafulla Kumar Samal & Anr. :(1979) 3 SCC 4 and were referred and relied in case of P. Vijayan Vs. State of Kerala & Anr. : (2010) 2 SCC 398. It was held that 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 case whether the Court should proceed with the trial or not. The test to determine a prima facie case would depend upon the facts of each case and it is difficult to lay down a rule of universal application. [2025:RJ-JP:22892] (6 of 7) [CRLR-1155/2023]

11. Again in case of State By Karnataka Lokayukta Police Station, Bengaluru Vs. M. R. Hiremath : (2019) 7 SCC 515, Hon’ble Supreme Court while considering several judgments on the issue in a matter relating to the Prevention of Corruption Act, 1988, has held that the trial court while dealing with an application for discharge at the stage of framing of charge 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 an 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.

12. A similar opinion was also expressed in case of State of Rajasthan Vs. Ashok Kumar Kashyap : (2021) 11 SCC 191 and relied upon in case of Captain Manjit Singh Virdi (Retd.) vs. Hussain Mohammed Shattaf (2023 INSC 555), wherein it was held that at the stage of framing of charge and/or considering discharge application, a mini trial is not permissible. A defence on merits is not to be considered at the stage of framing of charge and / or at the stage of discharge application.

13. Herein, this case the complainant has registered a report wherein she has mentioned that this petitioner-accused, who is a member of Shivraj Gang, was present at crime scene. On basis of investigation, police has also recommended charge-sheet under Sections 147, 148 and 149 of IPC along with Sections 302 and [2025:RJ-JP:22892] (7 of 7) [CRLR-1155/2023] 120-B IPC. The material on record whereby this petitioner-accused has claimed that he was neither member of unlawful assembly nor aware about common object, were in fact subject-matter of evidence and it is not possible for any Court to consider the case of discharge merely on the grounds raised by the petitioner- accused. The Trial Court has already discharged accused Shivraj Singh from charge under Sections 147, 148 and 149 Cr.P.C. as he was not named as person present on the spot, therefore, the judgment in case of Daya Kishan Vs. State of Haryana (supra) and Naresh @ Nehru Vs. State of Haryana (supra) are not applicable at the stage of charge.

14. Having considered the entire material on record, there is no perversity or illegality in the order of charge framed by learned Trial Court on 20.09.2022 and further dismissal of an application under Section 216 of Cr.P.C. on 15.11.2022, thus the instant revision petition sans merits and liable to be dismissed.

15. In view of discussions made hereinabove, the instant revision petition is hereby dismissed along with pending application(s), if any. MONU /87-S (ASHOK KUMAR JAIN),J