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2002 DIGILAW 920 (RAJ)

Ummed Puri v. State of Rajasthan

2002-05-02

D.N.JOSHI

body2002
Honble JOSHI, J.–The instant petition under Section 482 Cr.P.C. has been filed against the order dated 20.01.1998 passed by the Judicial Magistrate, Ist Class, Desuri in Criminal Original Case No.473/96, whereby charges u/Sec.447 and 379 IPC were framed against the accused-petitioners. (2). Heard Mr.N.S. Acharya, learned counsel for the petitioner and Mr.Mahipal Bishnoi, learned Public Prosecutor for the State. (3). It was argued by the learned counsel for the petitioner that a civil suit is pending and in that Receiver has already been appointed. The possession of the petitioners was allowed to remain with them on furnishing cash security, which has been deposited upto June, 1995 in pursuance of the order passed by the Board of Revenue on 4.1.1984 (B1/25) dated 24.11.1995. It was further argued that on 30.03.1995, the following order was passed by this Court in S.B.C. Writ Petition No.891/95:- ``Meanwhile, Status-quo as it exists today shall be maintained. (4). The said writ petition was filed on 27.03.1995 and was admitted on 30.03.1995. (5). It was argued by the learned counsel for the petitioner that the proceedings for the possession of the dispute land by the concerned Tehsildar were taken up on 18.1.1995 & 14.3.1995 in view of the order of this Court dated 30.3.1995 in the said writ petition. It was further argued that the rent was offered, but it was refused by the concerned authorities and there was no need to take possession of the property twice (1.2.95 & 14.3.95). It was further argued that Tehsildar had no jurisdiction to dispossess the petitioners in view of receipt (B1/25) of rent and take possession in view of the order of this Court dated 30.3.95. The crop was sown by them and the petitioners have jurisdiction take it. therefore, continuation of the proceedings before the trial Magistrate would amount to abuse of the process of the law and are liable to be quashed. (6). Learned counsel for the petitioner further argued that even a revision has been dismissed, the powers u/Sec.482 Cr.P.C. can be exercised by this court in view of the following judgments :- (it is relevant to note here that it has not been clarified by either of the counsels appearing for the parties whether any revision was filed against the impugned order of framing charge? Kana Ram vs. State (1); Devji vs. Smt. Mani (2); Praveen vs. State (3); Bajrangdas vs. State of Rajasthan (4); Jaisaram vs. State (5); Bharat Singh vs. State (6); and Krishan Gopal Parashar vs. Allauddin (7) (7). The learned counsel for the petitioners further argued that the Court is competent to quash the charge in view of the following judgments as no offence has been made out from the material placed by the prosecution before the trial Court:- Rai B.P. vs. State of Kerala (8) (case under the NDPS Act); G. Sagar Suri vs. State of U.P. (9) (case u/Sec.138 of the Negotiable Instrument Act); and Hardayranjan vs. State of Bihar (10) (case under the IPC). (8). Per contra, it was argued by the learned Public Prosecutor supporting the order of the trial Magistrate that the Magistrate was right in jurisdiction to frame charges against the petitioners on the material placed before him. Relying on the judgment of the Honble Apex Court in Omvati vs. State (11), it was argued that the Court is not expected to consider the truth veracity and effect of the judgment, which the prosecution proposed to adduce are not to be meticulously judged. The standard of test, proof and judgment, which is to be applied finally before an accused is found guilty or otherwise is not exactly to be applied at the stage of framing the charge. Even, on the basis of strong suspicion founded on material before him, the Court can form a presumptive opinion regarding the existence of factual ingredients constituting the offences alleged and in that even t be justified in framing the charges against the accused in respect of the commission of the offence alleged to have been committed by him. (9). It was further argued that at the stage of framing charge against the accused as per the judgment of the Honble Apex Court in Kanti Bhadra vs. State of West Bengal (12) that there is no legal requirement that the trial Court should write an order showing the reasons for framing a charge. (10). It was further argued that thee are no reasonable grounds to quash the impugned order in the interest of justice and continuation of criminal proceedings before the concerned Magistrate would not amount to abuse of the process of the Court. (10). It was further argued that thee are no reasonable grounds to quash the impugned order in the interest of justice and continuation of criminal proceedings before the concerned Magistrate would not amount to abuse of the process of the Court. The concerned Tehsildar was appointed as Receiver by the order of the S.D.O., but the accused petitioners, taking law in their hands removed the crops from the fields and thereby committed trespass. Even, for the sake of argument if it is taken that such suit has been abated or there was an order to furnish cash security or allowing to petitioners the possession of the crop, that cannot be a ground for quashing the charge. The so-called interim orders of furnishing cash security during the pendency of revision and appointment of Receiver came to an end on the final decision of the suit; but even then the proceedings cannot be quashed, because at the relevant time, the accused-petitioners committed offences u/Sec.447 and 379 IPC. (11). Section 240 of the Code of Criminal Procedure provides that if upon such consideration, examination, if any, and hearing the Magistrate is of the opinion that thee is a ground for presumption that the accused has committed an offence, triable under this Chapter which such Magistrate is competent to try, and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused. At this stage, the Magistrate has only to consider the materials placed before him by the I.O. in considering the sufficiency of ground for proceeding against the accused. The truth, veracity and effect of evidence, which the prosecution proposes to adduce are not to be meticulously judged at this stage. At the stage of framing the charge, 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 factual 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 (vide Niranjan Singh vs. Jitendra Bhimraj (13). 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 (vide Niranjan Singh vs. Jitendra Bhimraj (13). It is equally true that the Court while considering the question of framing the charges under Section 240 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. 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, if two viewed are equally possible and the court is satisfied that the evidence produced before him while giving rise to some suspicion, but not creative suspicion against the accused, he will be fully within the right to discharge the accused. (Vide Union of India vs. Prafful Kumar (14). At the stage of framing charge, the trial court is not required to look into the material on records, but has to prima facie consider whether there is sufficient material against the accu- sed. If on the basis of materials on record, a Court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the Court were to think that the accused might have committed the offence, it can frame the charge, though for conviction, the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of charge, probative value of the materials on record cannot be gone into; the materials brought ton record by the prosecution has to be accepted as true at the stage. The conclusion about inadequacy of evidence against the accused at this stage is pre-mature assessment of evidence. The material on record capable of infer- ring strong suspicion about commission of offence is sufficient for framing of charge. (12). As per averments of the revision petition, the petitioners are in cultivatory possession of disputed land. The conclusion about inadequacy of evidence against the accused at this stage is pre-mature assessment of evidence. The material on record capable of infer- ring strong suspicion about commission of offence is sufficient for framing of charge. (12). As per averments of the revision petition, the petitioners are in cultivatory possession of disputed land. One Shambhu Puri claimed possession of the disputed land and proceedings u/Sec.145 Cr.P.C. were started before the concerned SDO. The statement of Shambhupuri was recorded on 18.6.77 (the copy of which is not available on the record or produced by either of the party). The S.D.O. rejected the claim of Shambhupuri vide its judgment on 29.06.1977. (13). It appears further that in the year 1980, the said Shambhupuri filed a suit u/Sec.183 of the Rajasthan Tenancy Act (in short the Act hereinafter) claiming possession of the disputed land against the petitioner and Hukum Singh (who later on died and Smt. Ramu w/o Ratanpuri was substituted). An application u/Sec.212 of the Act was submitted alongwith the above suit and in that application, an order was passed on 2.05.1983 (A4/14) and Tehsildar, Bali was appointed as Receiver and an appeal preferred against the said order was rejected by the Revenue Appellate authority on 30.12.1983. Revision against the order of RAA was also dismissed on 30.04.1991 by the board of Revenue. Review filed against the order of Board of Revenue was allowed on 21.07.93 and the revision was again heard and it was dismissed vide order dated 18.1.1995. Again a review application was filed and it was partly allowed by the board of Revenue vide its order 21.03.1995, which is at A4/21 on the record of the trial Court. By that order, the petitioners were allowed to remain in possession of the houses on humanitarian grounds and it was ordered that they will not be dis-possessed till the disposal of the suit. (14). As per averments made in the petition, the petitioners were allowed to remain in possession during the pendency of the revision under the order of the Board of Revenue on depositing the cash security and such last security deposit was made by the petitioner for the period up to June, 1995 vide challan dated 24.11.1994 (B1/25). (14). As per averments made in the petition, the petitioners were allowed to remain in possession during the pendency of the revision under the order of the Board of Revenue on depositing the cash security and such last security deposit was made by the petitioner for the period up to June, 1995 vide challan dated 24.11.1994 (B1/25). The petitioners preferred S.B.C. Writ Petition No.891/95 Gopal Puri vs. State of Rajasthan on 27.03.1995, which was admitted by this court on 30.03.1995 and an interim order was passed to maintain status quo as it existed on the date of passing of the stay order as stated in the earlier part of the judgment. The copy of the said order is on the file of the learned trial Court vide A4/28. This Court issued notices trial court vide A4/28. This Court issued notices returnable within a period of three weeks from the date of passing of the stay order. It was further ordered that it will be responsibility of the petitioner to get the respondents served within the stipulated period, failing which the stay order granted shall stands vacated without reference to the Court. According to the petitioners, the notice was not accepted by the concerned Tehsildar and contrary to this, he had issued a notice for auctioning the standing crop. This has compelled the petitioners to approach this Court by filing a writ petition and this court by order dated 7.1.1996 restrained the State from auctioning the crops. The Tehsildar filed a complaint against the petitioners, on the basis of which FIR no.91 dated 14.04.1996 was lodged at the Police Station, Sadri (A4/2) (Annex.5). After usual investigation, the challan was filed before the learned Magistrate (Annex.6 & 7), in which the charges have been framed by the impugned order. (15). We have gone through the relevant record available of the trial Court. The learned trial Court was not expected to write a detailed reasoned order in view of the judgment of the Honble Apex Court in Kanti Bhadra Shah (supra). At this stage, he veracity and the truth of the prosecution case and the probative value of the evidence proposed to be produced by the prosecution is not to be evaluated meticulously. The so called interim order came to an end by the disposal of the original suit and the same principle applies to the order of appointment of Receiver. At this stage, he veracity and the truth of the prosecution case and the probative value of the evidence proposed to be produced by the prosecution is not to be evaluated meticulously. The so called interim order came to an end by the disposal of the original suit and the same principle applies to the order of appointment of Receiver. A bare looking of the certified copies produced for perusal of this Court, it appears that the suit was abated under Order 22 Rule 3(2) of CPC. The same was not made available either by the prosecution or the defence to the learned trial Court. It is made clear as per latest judgment of the Honble Apex Court, the prosecution is not barred to produce document u/Sec.173(5) & (8) of the Code of Criminal Procedure even after submission of the charge-sheet Central Bureau of Investigation vs. R.S. Pai (15). (16). I have gone through the statements of Ram Lal - Tehsildar, Devi Lal - Revenue Inspector, Narpat Singh - Patwari, Gopal Bohra, Manrup (eye-witness), Shambhupuri, Babulal, Lumbaram, Chunnilal, Ramlal S/o Pemaji nd Janki Lal and also perused the documents submitted with the charge-sheet. (17). Be that as it may, from the statements recorded of the witnesses and the persons, in whose favour of auction was made, it appears that at the relevant time, the petitioners cannot be deemed to be in physical possession of the disputed land. (18). I do not find any infirmity in the impugned order of framing charges against the petitioners and the statements available with the trial Court. Therefore, it cannot be said that continuation of the proceedings would amount to abuse of the process of the Court. It cannot also be said that quashing of impugned order is in the interest of justice. There cannot be two opinions about the principles enunciated in the judgments cited by the learned counsel for the petitioners and the learned Public Prosecutor. (19). In view of the above the application is liable to be rejected and is hereby rejected. The observations made by this Court in this order would not effect the final decision of the case by the trial Court. The trial Court would be free to decide the case according to law on evidence and material placed before it during the trial. (20). The record of the case be sent forthwith to the trial Court. The misc. The observations made by this Court in this order would not effect the final decision of the case by the trial Court. The trial Court would be free to decide the case according to law on evidence and material placed before it during the trial. (20). The record of the case be sent forthwith to the trial Court. The misc. petition is hereby rejected and disposed accordingly.