Kirit Kumar K. Jani v. State of Gujarat — 1998 DIGILAW 35 (GUJ)

JUDGMENT : H.R. Shelat, J. Rule. Mr. P.G. Desai, learned Public Prosecutor waives the service of Rule. As both have submitted, the application is heard today and is being disposed of. 2. This Revision Application is directed against the order dated 11.11.97, passed by the learned Addl. City Sessions Judge, Court No. 15, Ahmedabad below the application (Ex.5) preferred by the petitioner in Sessions Case No. 207 of 1997, refusing to discharge him of the charge u/Sections 193, 195, 204, 380 & 454 r/w 114, Indan Penal Code levelled against him. In order to appreciate rival contentions relevant facts may in brief be stated. 3. The petitioner is the Advocate and also the agriculturist. Against him for committing the offences of cheating, forgery and using forged documents, a complaint being Criminal Case No.882 of 1996 came to be filed in the Court of the Metropolitan Magistrate, Court No. 11 Ahmedabad. In that case he prayed for being discharged without framing the charge alleging that no prima facie case to proceed against him was made out. The learned Metropolitan Magistrate discharged him of the offence of using forged document, but ordered to proceed with the case qua rest of the offences. The petitioner then preferred Cri. Revi. Application No. 20 of 1997, while the State preferred Cri. Revi. Application No. 35 of 1997 in the Court of Addl. City Sessions Judge at Ahmedabad. Both the Revisions were pending before Mr. Antani, the learned Addl. City Sessions Judge. Record and proceeding of the lower Court called for were also kept with R & P of both the Revision Applications, fixed for hearing on 17th March, 1997. On that day Kanjibhai Mankanbhai Rabari was the Peon on duty in that Court. After cleaning and sweeping the chamber and Court room on the upstairs of the Court building, the peon had to go down so as to receive the learned Judge who was about to come and usher him into his Chamber. When the peon came out of the Court room around 10.15 a.m. he saw the petitioner and a person not known to him together in the lobby. He then went down-stairs but came up within few minutes though the learned Judge had not arrived. In the lobby at that time the petitioner alone was found standing, the stranger who was with the petitioner was not found there. He then went down-stairs but came up within few minutes though the learned Judge had not arrived. In the lobby at that time the petitioner alone was found standing, the stranger who was with the petitioner was not found there. The peon went into the Court room. He did not see the R & P of both the Revision Applications and of the case before lower Court kept on the cupboard. The peon smelt a rat. Going into the lobby he questioned the petitioner. The reply given by the petitioner was that he saw someone coming out of the Court room with some papers and files and went down. The peon then informed Shri J.S. Jadav serving as Assistant in the Court who at that time had reached there. Thinking that the records were stolen Mr. Jadav informed Shri J.N. Parmar serving as Superintendent, and learned Judge Shri Antani. Necessary report was then made to the learned Principal Judge of the City Civil Court, Ahmedabad. Shri N.H. Patel, the Registrar of the Court was then directed to lodge the complaint who in turn lodged the complaint with Karanj Police Station, Ahmedabad. It was registered as Crime Register No. 61/97. At the conclusion of the inquiry the police filed the charge-sheet against the petitioner, in the Court of the Metropolitan Magistrate, Ahmedabad. Initially in the FIR sent to the Court the offences under Section 380 & 454 r.w. 114 were alleged to have been committed by the petitioner and unknown person. The learned Metropolitan Magistrate, 5th Court Ahmedabad added the charges of the offences u/Sections 193, 195 & 204, IP Code. He then heard the parties and committed the case to the Court of City Sessions Judge, Ahmedabad. The case then came to be registered as Sessions Case No. 207 of 1997. It was then assigned to Mr. R.H. Shukla, the learned Addl. Sessions Judge, Ahmedabad for hearing & disposal in accordance with law. The petitioner against whom alone the case was committed as the unknown is still not traced out and apprehended, filed the application (Ex. 5) to discharge him without framing the charge as according to him no prima facie case was made out to proceed against him. Disagreeing with the petitioner, the learned Addl. Sessions Judge rejected the application on 11.11.97 and determined to frame the charge. I t is against that order this Revision Application is filed. 5) to discharge him without framing the charge as according to him no prima facie case was made out to proceed against him. Disagreeing with the petitioner, the learned Addl. Sessions Judge rejected the application on 11.11.97 and determined to frame the charge. I t is against that order this Revision Application is filed. 4. In Satish Mehra v. Delhi Administration, 1996(3) Crimes 85 (SC) = IV (1996) CCR4 (SC), the Apex Court has held that when the Judge is certain that there is no prospect of the case ending in conviction, valuable time of the Court should not be wasted for holding the trial only for the purpose of formally completing procedure to pronounce conclusion on a future date. Citing this decision Mr. Baqui the learned Advocate for the petitioner has submitted that there is no scintilla of evidence in the materials collected by police during the course of investigation to frame the charge under any of the penal provisions mentioned in the charge-sheet. From the above stated facts at the most what can be said is that the petitioner on 17.3.97 at 10.15 a.m. was found standing in the lobby of the Court, and such facts are not at all sufficient to frame the charge, and even if charge is framed, the case will never end in conviction. He therefore contended that the learned Judge erred in rejecting the application and emphatically urged to set aside the order of the learned Addl. City Sessions Judge, allow the application (Ex. 5) and discharge the petition. The learned P.S. has strongly opposed this application. 5. The only question that arises for consideration is whether to frame the charge or discharge the petitioner without framing the charge of die offences levelled against him. Before the case of the prosecution in the police papers is considered, some pronouncements of the Apex Court may be referred to. In the case of State of Bihar v. Ramesh Singh, AIR 1977 SC 2018 , it is laid down as under : Reading Sections 227 and 228 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 wright to be attached to the probable defence of the accused. Nor is any wright 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." Again in the case of Supdt. & Remembrancer of legal Affairs, West Bengal v. Anil Kumar Bhunja & Others, AIR 1980 SC 52 , what is made clear is that - "At the stage of framing charges, the prosecution evidence does not commence. The Magistrate has therefore to consider the question as to framing of charge on a general consideration of the materials placed before him by the Investigating Police Officer. The standard test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise is not exactly to be applied at the stage of Section 227 or 228. The standard test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise is not exactly to be applied at the stage of Section 227 or 228. At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, may justify the framing of charges against the accused in respect of the commission of that offence." In State of A.P. v. S. Eshar Singh & Others, 1993 Cri.L.J. 1028 = 11 (1992) CCR 429 (SC), in short it is held that on perusal of entire charge-sheet and material documents and police papers a prima facie case is disclosed, the discharge of the accused would certainly be not proper. The Court has, therefore, to at the charge framing stage, consider whether a prima facie case is emerging from the police papers to frame the charge, regardless of the final result in the matter, about which nothing can be said with certainty. 6. Above stated facts and opinion of Hand Writing Expert are found in the police papers. Whether those facts prima facie show that the charge of any of the offences is required to be framed and the petitioner is required to be called upon to answer the charge. I will now examine the case keeping the ingredients of the offences in mind. 7. Section 193, IP Code is a penal provision. Whoever intentionally gives false evidence in a judicial proceeding or fabricates false evidence for the purpose of being used in judicial proceeding is made punishable under this section. The offence of giving false evidence is constituted if following ingredients are satisfied or found to exist: 1. A person is legally bound (a) by an oath or any express provision of law to state the truth, or (b) to make a declaration upon any subject. 2. He must make a false statement; 3. He must (a) know or believe it to be false, or (b) not believe it to be true and offence of fabricating false evidence is constituted if following ingredients are satisfied : 1. Causing any circumstance to exist or making any false entry in any book or record or making any document containing a false statement. 2. He must (a) know or believe it to be false, or (b) not believe it to be true and offence of fabricating false evidence is constituted if following ingredients are satisfied : 1. Causing any circumstance to exist or making any false entry in any book or record or making any document containing a false statement. 2. Doing one of the above acts with the intention that it may appear in evidence in a judicial proceeding or in a proceeding taken by law before a public servant or an Arbitrator. 3. Doing such act with the intention that it may cause any person who in such proceeding is to form an opinion upon the evidence to entertain an erroneous opinion touching any point material to the result of such proceeding." 8. There is nothing in the above stated facts satisfying either of the ingredients constituting the offence u/Section 193, IP. Code. It cannot be said that the prosecution has come forward with the case that the petitioner bound by law to state the truth or make declaration made the false statement knowing or believing it to be false. As per the case advanced the R & P of above three judicial proceedings were found missing, the case of false evidence is not at all alleged. The prosecution has not garbled even. There is therefore no reason to assume it even prima facie. It is startling to note that the learned Addl. City Sessions Judge has misread the facts, and by misconception, hallucinated about the offence u/Section 193. 9. Likewise is the case qua the offence u/Section 195, IP Code which provides punishment with regards to the aggravated form of the offence of perjury. It is not the case of the prosecution that the petitioner and unknown person gave or fabricated false evidence with an intention to cause or with a knowledge that he will cause any person to be convicted of an offence punishable with imprisonment of life or imprisonment for a term of seven years or more. There is no iota in the case alleged by the prosecution which may impel the Court to believe even prima facie about the possibility of the offence u/Section 195, IPC, having been committed. The learned Judge has misdirected himself by misreading the facts, or under misconception or miscomputation he assumed about perjury although the prosecution in no way alleges about the same. The learned Judge has misdirected himself by misreading the facts, or under misconception or miscomputation he assumed about perjury although the prosecution in no way alleges about the same. 10. Whoever secrets or destroys any document to prevent its production as evidence is made punishable under Section 204, IP Code. For establishing such offence the prosecution has to show that : 1. the accused secreted or destroyed the document or that he obliterated or rendered illegible the whole or any part of such document; 2. the accused did the same with the intention of preventing the same from being produced or used as such evidence, or he did the same after he had been lawfully summoned or required to produce the same for that purpose; 3. the accused was lawfully compellable to produce the same as evidence in a Court of justice or in the proceeding lawfully held by a public servant. For the reasons and facts stated here-in-below it appears that the petitioner came into possession of the R & P of all the three proceedings, and when the same were received back by the Court mysteriously, some of the pages & documents were found missing. On the basis of such facts prima facie there is a reason to believe that the petitioner secreted or destroyed some of the papers or documents taking out from the R & P of the Trial Court with the intention of preventing the same from being produced or used as evidence in the above stated three proceedings pending before the Court. Reading Section 204, IP Code, it cannot be said that the offence will be constituted only when the accused who is lawfully compellable to produce the document as evidence in the proceeding, fails to produce or secrets or destroys the document. There is no gain-saying that the person regardless of being lawfully compellable to produce the document or evidence in any proceeding before Court or in the proceeding lawfully held by a public servant, secrets or destroys or obliterates or render it illegible will also be committing the offence punishable u/Section 204, IP Code. Hence the contention advanced by Mr. There is no gain-saying that the person regardless of being lawfully compellable to produce the document or evidence in any proceeding before Court or in the proceeding lawfully held by a public servant, secrets or destroys or obliterates or render it illegible will also be committing the offence punishable u/Section 204, IP Code. Hence the contention advanced by Mr. Baqui the learned Advocate for the petitioner that in this case when the case that the petitioner was summoned to produce, or likelihood of his being summoned to produce by the Court is not advanced or when there is no case that the petitioner is duty bound to produce the alleged document is not advanced, there is no good cause even prima facie to frame the charge and call upon the petitioner to answer the same, cannot be accepted. The petitioner therefore cannot at this stage be discharged of the offence u/Section 204, IP. Code. 11. So far as the allegations about the offences of theft and trespass are concerned, there is no justifiable reason to agree with the submissions advanced on behalf of the petitioner. Of course, there is no eye witness to support the fact that he saw the petitioner entering into the Court room and taking away the R & P of the three proceedings, but the circumstances that emerged from the materials collected by the police during the course of investigation are at present sufficient to connect the petitioner with these two offences. After the Peon came back to the Court room as the learned Judge's arrival was delayed he found that Record & Proceedings were missing. In that connection on being questioned, the petitioner replied that some one had gone into the Court room and had then gone down with the papers. The petitioner then scuttled down and went away. He did not wait till his Revision Applications were called out for hearing or adjourned. Ordinarily, a litigant would not leave the Court till his matter is adjourned. Before leaving he would consult his Advocate if engaged. In this case, there is nothing on record suggesting that the petitioner left the Court for some good cause. His Advocate had also not come at that time. The petitioner's abruptly leaving the Court is a circumstance on record prima facie going to connect him with the offences of theft and trespass. In this case, there is nothing on record suggesting that the petitioner left the Court for some good cause. His Advocate had also not come at that time. The petitioner's abruptly leaving the Court is a circumstance on record prima facie going to connect him with the offences of theft and trespass. There is another circumstance on record which cannot be lost the sight of. Few days after the incident mysteriously a packet containing R & P of all the 3 matters was received from the Post Office. On the said packet address of one Advocate was written by hand. Those Handwritings were sent to the Hand Writing Expert for his opinion along with the specimen Hand Writings of the petitioner. The Hand Writing Expert has opined that the disputed Handwritings of the address on the packet were written by the person whose specimen handwritings were sent for examination. Thus, the opinion of the Hand Writing Expert shows that the petitioner in his hand wrote the address on the packet and sent the packet back to the Court shrewdly taking out some papers and documents so as to prevent the same being produced and considered by the Court. This is the strongest circumstance on record going to show that he was in the possession and control of the R & P of all the three matters and at this stage there is a reason to believe prima facie that the petitioner trespassed into the Court room and with the active help of the unknown person dishonestly took away the R & P of all the three matters. Obviously he did so with the dishonest intention to either destroy the same or secret the same from being produced before the Court and have the finding in his favour, or against the prosecution. 12. From the above discussed facts, it is prima facie clear that there is a reason to proceed against the petitioner for the offences punishable under Sections 204, 380 and 454 or 204, 380 and 454 read with Section 114 of the Indian Penal Code, though there is no evidence to frame the charge for the offences punishable under Sections 193 and 195, IP Code. The learned Additional Sessions Judge has, therefore, fallen into error in not discharging the petitioner for the offences under Sections 193 & 195, Indian Penal Code are concerned. The learned Additional Sessions Judge has, therefore, fallen into error in not discharging the petitioner for the offences under Sections 193 & 195, Indian Penal Code are concerned. Consequently, this Revision Application is required to be partly allowed. 13. It may be stated that the offences punishable under Sections 204, 380 and 454 are exclusively triable by the Judicial Magistrate (F.C.) or Metropolitan Magistrate, Ahmedabad. Neither of the offences is triable by the Court of Sessions. The committal is, therefore, bad and is required to be set right. In view of Section 228(1)(a),Criminal Procedure Code, if the case is wrongly committed to the Court of Sessions, the duty of the Court of Sessions is to frame the charge and transfer the case back to the Chief Judicial Magistrate or the Chief Metropolitan Magistrate as the case may be for hearing and disposal in accordance with law. In this case, therefore, the learned Additional Sessions Judge will have to undergo such formalities and send the R & P back to the Chief Metropolitan Magistrate for hearing and disposal in accordance with law. 14. For the aforesaid reasons, this Criminal Revision Application is partly allowed, and the order of the learned Additional Sessions Judge, refusing to discharge the petitioner of the offences under Sections 193 & 195 are concerned, is hereby set aside, and the petitioner is hereby discharged of the offences punishable u/Sections 193 & 195, IP Code. The order refusing to discharge the petitioner of the offences punishable u/Sections 204, 380 & 454, IP Code is hereby maintained, and the petitioner shall have to face the trial for the same. No costs in the circumstances. Rule to the aforesaid extent is made absolute. AUGUST 8 Criminal revision application partly allowed.