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1997 DIGILAW 156 (MP)

Hiramati W/O Jivan Lal v. Ram Prasad Soni And Ors.

1997-03-20

DIPAK MISRA

body1997
ORDER Dipak Mishra, J. 1. Reversal of the order of framing charge by the learned Second Additional Sessions Judge, Raigarh in exercise of revisional jurisdiction has compelled the complainant to approach this Court. 2. As the fact situation has been unfurled, the applicant as complainant instituted complaint No. 10/87 against the non-applicants Nos. 1 to 4 for offences Under Sections 380, 392, 379, 454 and 504(8) of Indian Penal Code on the allegation that on 9-11-1985 the accused persons broke open the lock of the door of the dwelling house of the complainant and committed theft by taking various articles such as utensils, Paddy oil, one 'tola' gold and Rs. 500/-. The matter was reported at the Police Station, but as no action was taken by the Police authorities the present revisionist was constrained to approach the Court Under Section 200 of Criminal Procedure Code, and the proceedings continued on the basis of the materials brought on record. Learned Judicial Magistrate First Class, Raigarh framed charge against the accused persons, non-applicants Nos. 1 to 4 herein, for offences Under Sections 454 and 480, Indian Penal Code by order dated 6-8-1991. The legality of the said order was called in question in revision wherein the accused persons became successful in their assailment which is the cause of grievance of the present petitioner. 3. Mr. Prashant Mishra, learned counsel for the petitioner has submitted that the revisional court has travelled beyond the scope in the revision inasmuch as he has weighed the probability of the evidence and there has been meticulous and threadbare analysis and scanning of the evidence which is not permissible while dealing with a matter of this nature, and such transgression vitiates the order. In spite of valid notice there has been no appearance on behalf of the non-applicants Nos. 1 to 4. 4. It is settled in law that framing of charge is not an empty formality and the court is not expected to act or function like a post office. It is a judicial act requiring proper application of judicial mind. It is incumbent upon the court to consider the materials before it and weigh them in the requisite parameters of law as provided under the Code of Criminal Procedure. It is a judicial act requiring proper application of judicial mind. It is incumbent upon the court to consider the materials before it and weigh them in the requisite parameters of law as provided under the Code of Criminal Procedure. The Apex Court in the case of State of Bihar v. Ramesh Singh, AIR 1977 SC 2018 held as follows :- "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 the accused is not exactly to be applied at the stage of deciding the matter Under Section 227 or section 228 of the Code." In the case of Union of India v. Prafulla Kumar, AIR 1979 SC 366 the Apex Court has indicated the test and duty of the Court while considering the question of framing charge Under Sections 227 and 228 of Criminal Procedure Code. The principles culled therein are :- "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 purposes 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. 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. 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." 5. In Supdt. and Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja, AIR 1980 SC 52 the Apex Court held that if from the materials on record, inference of strong suspicion can be drawn that would be sufficient in framing charge against the accused in respect of commission of the offence. In the case of Niranjan Singh Karan Singh Punjabi, Advocate v. Jitendra Bhimraj Bijja, AIR 1990 SC 1962 , the Apex Court has ruled thus:- "............ it seems well settled that at the section 227-228 stage 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. The Court may for this limited purpose sift the evidence as 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." This Court in the case of State of M.P. v. Rikhiram, 1991 JLJ 477 while discussing the jurisdiction of the Sessions Judge while dealing with the question of charge has held as follows :- "He has to exercise his judicial mind to the facts of the case, in order to determine that a case for trial has been made out by the prosecution. In assessing this fact it is not necessary for the Sessions Court to enter into the pros and cons of the matter or into weighing and balancing of evidence and probabilities but he may evaluate the material to find out if the facts emerging therefrom taken at the face value establish the ingredients constituting the offence". The purpose of sections 227 and 228 of the Code is to ensure that the Court should be satisfied that the accusations made against the accused is not frivolous and that there is some material for proceeding against him. The discrepancies which are highlighted by the accused at the time of framing charge unless fatal and glaring enough so as to affect the credibility of the prosecution case, cannot be acted upon without affording reasonable opportunity to the prosecution to substantiate the allegations. It would be, in fact, a hazardous proposition of law to weigh meticulously or scan with a magnifying glass the discrepancies and the contradictions at the time of consideration of charge. The court is not to act as a disinterested and unconcerned observer in the contest between the prosecution and the defence but simultaneously, his participation has to be intelligent with clear understanding of the parameters so as to weigh the real crux of the matter at that stage. 6. The impugned order is to be judged on the touchstone of the aforesaid principles. It is manifest from the said order that the revisional court has discussed at great length with regard to evidence of Hiramati, the complainant, to arrive at the conclusion that in her evidence there are contradictions and discrepancies. On the basis of the detailed scrutiny he has observed that the alleged occurrence had not occurred on the date she had gone to the police station to report about the matter. It is also apparent from the reasonings given in the order that the learned Additional Sessions Judge has delved deep in scrutinising the versions of the witnesses cited on behalf of the complainant to arrive at the conclusion relating to actual occurring of the occurrence. He has discarded the testimony of P.W. 2, Premdas, as he had admitted in his cross-examination that there is a proceeding Under Section 107, Criminal Procedure Code pending between him and the accused persons. He has also doubted the testimony of Hiramati by scanning the evidence in greater details. 7. He has discarded the testimony of P.W. 2, Premdas, as he had admitted in his cross-examination that there is a proceeding Under Section 107, Criminal Procedure Code pending between him and the accused persons. He has also doubted the testimony of Hiramati by scanning the evidence in greater details. 7. On a perusal of the aforesaid reasonings it is vividly clear that the revisional court has, in fact, undertaken the task of scrutiny of the evidence to arrive at the conclusion that there are discrepancies which make the allegations improbable. On a close scrutiny, in the case at hand, it is apparent that the court has addressed itself to the truth, veracity and effect of the evidence in an extremely detailed manner and his sifting and weighing of the evidence is not for the limited purpose as has been laid down in the case of Prafulla Kumar Samal (supra) and his analysis of the total effect of the evidence does not relate to basic infirmities but really is in the realm of roving enquiry. In view of the aforesaid premises, I am of the considered view, the impugned order is indefensible and has to be interdicted, and accordingly. I set aside the same 8. In the result, the Criminal Revision is allowed.