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2000 DIGILAW 443 (PAT)

Rana Ramdeo Singh v. State Of Bihar

2000-03-16

INDU PRABHA SINGH

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Judgment I.P.Singh, J. 1. This is an application under sections 397 and 401 of the Code of Criminal Procedure, 1973 (in short the Code). It is directed against the order dated 9.7.1997 passed by the 7th Additional Sessions Judge, Patna in S.T. No. 860/93 rejecting the petition filed by the petitioner for their discharge under section 227 of the Code and holding that the materials collected during the police investigation go to show that a prima facie case under sections 436 and 323/34 of the Indian Penal Code is made out and the petitioners were not entitled to discharge. 2. According to the petitioner the father and uncle of the informant had entered into an agreement for the sale of land with the petitioners bearing Plot No. 1806, Khata No. 371 and executed an agreement (Baibeyana) for sale in favour of petitioner no. 3 on 18.7.1980. In view of this Baibeyana deed the petitioner came in peaceful possession of the land to be vended to them. Since, however, the father and uncle of the informant did not execute the sale deed on repeated requests the petitioners filed Title Suit No. 50/84 for specific performance of contract. On this the informant created trouble over this land resulting in a proceeding under section 144 of the Code. It was subsequently converted into a proceeding under section 145 of the Code [Case No. 235(M)/84], when during the pendency of this proceeding the opposite party no. 2 tried to disturb the peaceful possession of the petitioners over this land and order under section 146 of the Code was passed on 3.9.1991 by which the learned court called for a report from Shri. D. Bhagat, Executive Magistrate who submitted his report. The learned Magistrate in seisin of the case appointed the Block Development Officer, Patna Sadar as receiver of the disputed property. Subsequently by his order dated 7.8.1992 the learned court appointed the Officer In-charge of Patliputra police station as their receiver in place of Block Development Officer, Sadar Patna. The opposite party preferred Cr. Revision No. 648/91 against the order passed under section 146 of the Code which was dismissed by the learned Sessions Judge. 3. Subsequently by his order dated 7.8.1992 the learned court appointed the Officer In-charge of Patliputra police station as their receiver in place of Block Development Officer, Sadar Patna. The opposite party preferred Cr. Revision No. 648/91 against the order passed under section 146 of the Code which was dismissed by the learned Sessions Judge. 3. When the opposite party felt that he will be prosecuted for the disobedience of courts order he filed Patliputra P. S. Case No. 26/93 against the petitioner in which it was alleged that when at 10.30 P.M. on 13.2.1993 the informant had gone to attend the call of nature the present petitioners threw water on him and on his protest they abused and assaulted him, set fire to his house as a result of which his property worth Rs. 20,000/- was burnt. The police after instituting the case under sections 436 and 323/34 of the Indian Penal Code visited the alleged place of occurrence. It will appear from the police report that the police did not find the dwelling house in existence at the alleged place of occurrence. The hutment in question was under the receivership of the Officer-in-charge, Patliputra police station and no occurrence as alleged had taken place. The petitioners are innocent and have been falsely implicated in this case. The learned court below without appreciating the facts wrongly rejected the petition for discharge filed under section 227 of the Code. This order of the learned court below is wrong in law and against the facts of the case. On these grounds amongst others it has been contended that the impugned order be quashed. 4. A supplementary affidavit has also been filed by the petitioner in which it has been contended that the alleged place of occurrence was Plot No. 1806 which is in possession of the petitioner since 18.7.1988 on the strength of the agreement for sale executed by the informal brother on receiving a consideration money of Rs. 4,000/-. Subsequently proceeding under sections 144, 145 and 146 of the Code were started with respect to this iand since there was some dispute between the parties. From the documents annexed with this petition it would appal that there is a residential house standi over this land to which the petitioners said to have set fire. On these grounds also it has been contended that the ii pugned order be quashed. 5. From the documents annexed with this petition it would appal that there is a residential house standi over this land to which the petitioners said to have set fire. On these grounds also it has been contended that the ii pugned order be quashed. 5. I have heard the parties in detail I have also perused the F.I.R. (Annexure-1) lodged against the present petitioners on the basis of a written petition filed by the informant. As per this petition the allegation is that the petitioners had sprinkled water on the person of the informant and on his protest they abused him, assaulted him and set fire to the house as a result of which clothes, ornaments, four bags of wheat and two bags of rice were burnt putting the informant to a loss of Rs. 20,000/-. It is in this back-ground that a petition under section 227 of the Codi was filed. 6. Since the F.I.R. was also under section 436 of the Indian Penal Code which is exclusively triable by the court of session the learned Additional Sessions Judge was seized of the matter and was to hold the session trial. It was before him that the petition under section 227 of the Code was filed. This section runs as follows : "227. Discharge.If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused he shall discharge the accused and record his reasons for so doing." If, however, the order of discharge is not passed under section 227 of the Code the Sessions Judge/court will proceed to frame the charge under section 228 of the Code. A reading of section 227 of the Code will show that before passing the order under this section the following steps have to be taken, namely, (i) upon consideration of the record of the case and the documents submitted therewith and (ii) after hearing the submissions of the accused and the prosecution in this behalf (iii) if the Judge considers that there is not sufficient ground for proceeding against the accused (iv) He shall discharge the accused and record his reasons for so doing. In this section as also section 203 of the Code the expression "no sufficient ground for proceeding" occurs and in both the cases the court concerned is required to briefly record its reasons for not dismissing the complaint under section 203 of the Code and for not discharging the accused under section 227 of the Code. It may be mentioned here that this is at the initial stage of the sessions trial and no evidence as yet has been adduced. In section 226 of the Code the prosecutor is required to open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused. As it is evident from section 227 itself the materials to be taken into consideration at this stage by the court of session is the record of the case and the documents submitted therewith and to hearing the submission of both the parties. The true scope of sections 227 and 228 of the Code had come up tor consideration before the Hon ble Supreme Court in the case of State of Bihar V/s. Ramesh Singh ( AIR 1977 SC 2018 ) in which the Hon ble Supreme Court while considering the provisions of sections 227 and 228 of the Code has observed that reading these 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. At that stage of sections 227 and 228 the Court is not to see whether there is sufficient ground for conviction of the accused. At the initial stage, if there is a strong suspicion against the accused 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. At the initial stage, if there is a strong suspicion against the accused 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 law on this point as laid down by the Hon ble Supreme Court in this case makes the position clear and at this stage even if there is a strong suspicion against the accused which leads the court to think that there is ground for presuming that the accused has committed an offence then it will not be open to the court to say that there is no sufficient ground for proceeding against the accused. At this stage it is not for the court to meticulously examine what evidence the prosecution proposes to adduce or what defence may be taken during the trial. The court has only to find out whether any prima facie case is made out against the accused or not so that the necessary charge against him can be framed. A similar view has also been taken by the Hon ble Supreme Court in the case of Radhey Shyam V/s. Kunj Bihari & Ors. [1990 (1) PLJR (SC) 18]. In the said case in exercise of the power under section 482 of the Code the High Court had quashed the charge framed by the Sessions Judge in the case on the ground that the evidence and materials placed on the record were not meticulously considered before the framing of the charge. The High Court had held that it was in the interest of Justice and in exercise of the duty of the court under section 482 of the Code to go into the merits of the evidence and appreciate correctly the documents and the statement filed by the police. The Hon ble Supreme Court has negatived this approach of the High Court - by holding that the High Court order was not valid because at the stage of framing of the charge meticulously consideration of the evidence and the materials on record by the court was not necessary. 7. A similar view has been taken in the case of Supdt. 7. A similar view has been taken in the case of Supdt. & Remembrancer of Legal Affairs, West Bengal V/s. Anil Kumar Bhunja and others ( AIR 1980 SC 52 ) in which it has been observed that at the stage of framing of the charge it has to be remembered that the prosecution evidence had not as yet commenced and the court has, therefore, to consider the question of framing of the charge on a general consideration of the materials placed before it by the Investigating Police Officer. It, was further held that 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. A word of caution has also been sounded in this judgment that 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 sections 227 and 228. 8. In view of these authoritative pronouncements by the Hon ble Supreme Court on sections 227 and 228 of the Code I will not proceed to examine the facts of the case. As stated above the F.I.R. was lodged under sections 436 aac 323 of the Indian Penal Code. The police had investigated the case. From the impunged order it would appear that as per] the case diary the police found that a case of arson is made out and a hutment of 20x40 size was reduced fo ashes. From the impugned order it appears that as per paragraph 6 of the case diary the police had found the burning of the aforesaid. The number of witnesses were examined by the police and they have supported the case of the prosecution,] The police found the burnt articles and had prepared the seizure list. Thus as per the case diary the learned Additional Sessions Judge has rightly found out that a prima facie case under sections 436 and 324/34 of the Indian Penal Code has been made out. 9. In the present revision application various litigations between the parties including the proceedings under sections 144, 145 and 146 of the Code have been mentioned. Thus as per the case diary the learned Additional Sessions Judge has rightly found out that a prima facie case under sections 436 and 324/34 of the Indian Penal Code has been made out. 9. In the present revision application various litigations between the parties including the proceedings under sections 144, 145 and 146 of the Code have been mentioned. A reference has also been made to the report of Shri D. Bhagat, the Executive Magistrate submitted in 145 Proceeding to show that there was no residential house over the disputed land. He, however, found four poles on it covered by polythene. As has been noticed in the above mentioned Supreme Court cases at this stage I am not concerned with the probable defence that the accused may take. Therefore, I do not find any merit in the aforesaid submissions made on behalf of the petitioners. 10. It has, very seriously, been contended before me that no offence under section 436 of the Indian Penal Code is made out inasmuch as there was no dwelling house existing in the disputed land. In this connection a reference to this section may be made according to which if somebody commits mischief by fire knowing it to be likely that it will cause destruction of any building which is ordinarily used as (i) a place of worship or (ii) as a human dwelling or (iii) as place for the custody of the property he commits an offence under this section. In the present case as will appear from the case diary the police had found a hutment of 20x40 size on the disputed land which was burnt alongwith wheat, rice, wooden boxes etc. which were also found burnt by the police. From the aforesaid it would become clear that this hut was being used at least for the custody of the property. As such I do not find any merit in this submission of the learned counsel for the petitioner. 11. I have carefully perused the impugned order. I find that the learned Sessions Judge has thoroughly discussed the facts and circumstances of this case and has rightly rejected the petition filed under section 227 of the Code. I do not find any reason to intere with the impugned order. 12. In the result this revision application is dismissed.