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Rajasthan High Court · body

2005 DIGILAW 1572 (RAJ)

Mohammed Nasim Sheikh v. State of Rajasthan

2005-05-26

H.R.PANWAR

body2005
Judgment H.R. Panwar, J.-By this Criminal Revision Petition under Section 397/401 of the Code of Criminal Procedure, 1973 (for short, “the Code”), the petitioner has challenged the order dated 16.06.2003 passed by the Chief Judicial Magistrate, Banswara (for short, “the trial Court” hereinafter) in Criminal Case No. 37/1995, by which the trial Court framed charges against the petitioner for the offences punishable under Sections 420, 467, 468, 471 & 120-B, IPC. 2. The facts of the case, relevant and necessary for decision of the revision petition, are that on 03.03.1994, the Executive Officer of Municipal Board, Banswara lodged an FIR with Police Station, Banswara, inter alia, alleging therein that residential plot No. 33 was initially sold to one Chatar Singh on 25.06.1951 but as the plot was smaller in size than the plot shown in the map, Chatar Singh was allotted another plot and the plot in question came in the vacant ownership of the Municipal Board. It was stated in the FIR that accused Smt. Shantma P.V. D/o. Velu Tha Kanju prepared a forged Patta of the plot No. 33 in her favour and by submitting the same in the office of the Municipal Board, Banswara, obtained sanction for construction and constructed a house on that plot. The allegation against the petitioner is that he, alongwith other employees of the Municipal Board, knowing it well that the said plot was in the ownership of the Municipal Board and the Patta submitted by accused Smt. Shantma P.V., was a forged and fabricated one, helped her in obtaining the forged Patta and granted sanction for construction on that plot to her. 3. I have heard learned Counsel for the petitioner and the Public Prosecutor for the State and perused the impugned order. 4. It has been contended by the learned Counsel for the petitioner that the petitioner joined the duty at the Municipal Board on 27.01.1992 whereas the forged Patta was allegedly filed on 20.01.1992 and the petitioner gave sanction to construct the building by putting foundation as per the report given by the Surveyor on 19.02.1992. His further contention is that the trial Court omitted to consider this aspect of the fact and framed the charges against the petitioner in absence of any prima facie evidence against him. 5. His further contention is that the trial Court omitted to consider this aspect of the fact and framed the charges against the petitioner in absence of any prima facie evidence against him. 5. It is settled law that at the stage of framing the charge, the Court need not deeply examine the probative value of the material on record. If on the basis of material on record, the Court gathers a judicial perception of accused having committed the offence, the Court is obliged to frame the charge. 6. In State of Bihar vs. Ramesh Singh, 1977 (4) SCC 39 , the Honble Supreme Court, while considering the provisions of Sections 227 and 228 as also Section 401 of the Code, held as under:-“Reading the 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. 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.” 7. 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.” 7. In State of Maharashtra vs. Som Nath Thapa & Anr., 1996 (4) SCC 659 , the Honble Supreme Court held that if on the basis of material on record, a Court could prima facie conclude that commission of the offence is a probable consequence, a case for framing of charges 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 to be that the accused has committed the offence. It is apparent that at the stage of framing of a charge, probative value of the material on record need not be gone into; the material brought on record by the prosecution has to be accepted as true at that stage. 8. In State of Delhi vs. Gyan Devi & Ors., JT 2000 (Supp. 2) SC 635, the Honble Supreme Court held that at the stage of framing of charge, the trial Court is not to examine and assess in detail the material placed on record by prosecution nor it is for the Court to consider the sufficiency of the material to establish the offence alleged against the accused persons. The Court further held that at the stage of framing the charge, the Court is to examine the material only with a view to be satisfied that prima facie a case of commission of offence alleged is made out against the accused. It was further held by the Honble Apex Court that the High Courts power to quash the charge should not be exercised except for strong reasons like interest of justice and avoiding abuse of process of the Court. 9. In State of Maharashtra vs. Priya Sharan Maharaj & Ors., 1997 (4) SCC 393 , the Honble Supreme Court held that 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 the ingredients constituting the alleged offence. It was further held by Their Lordships that at the stage of framing of the charge the Court has to consider the material with a view to find out if there is ground for presuming that the accused has committed the offence or that there is not sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction. 10. In State of Orissa vs. Debendra Nath Padhi, JT 2004 (10) SC 303, a Three Judge Bench of the Honble Supreme Court held that at the time of framing the charge or taking cognizance, the accused has no right to produce any material. The Apex Court further observed that the only right the accused has at that stage is of being heard and nothing beyond it. The Apex Court further held as under:- “At the stage of framing the charge roving and fishing inquiry is impermissible. It is well-settled that at the stage of framing of charge, the defence of the accused cannot be put forth. It only means hearing the submissions of the accused on the record of the case as filed by the prosecution and nothing more. The expression `hearing the submissions of the accused cannot mean opportunity to file material to be granted to the accused and thereby changing the settled law. At the stage of framing of charge, hearing the submissions of the accused has to be confined to the material produced by the police.” 11. In the instant case, there is prima facie evidence against the petitioner that he was in connivance with accused Smt. Shantma P.V., and other accused and granted sanction for construction knowing it well that the said plot No. 33 was in the ownership of the Municipal Board but without verifying the genuineness of the Patta submitted by her, granted sanction for construction of house. At this stage, there is sufficient material for presuming that the petitioner committed the offences for which he has been charged with. In view of the settled proposition of law discussed above, if any defence is available with the petitioner, the same cannot be considered at the stage of framing the charge and the same can be considered at the stage of conclusion of trial. In view of the settled proposition of law discussed above, if any defence is available with the petitioner, the same cannot be considered at the stage of framing the charge and the same can be considered at the stage of conclusion of trial. In this view of the matter, I do not find any illegality, error or perversity in the order impugned, which may require interference in revisional jurisdiction. 12. Consequently, the revision petition lacks merit and it is dismissed accordingly. The stay petition also stands dismissed.